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GENERAL TERMS AND CONDITIONS

GENERAL TERMS AND CONDITIONS (GTC) OF MATELSO GMBH

(version 11/2018)

1. SUBJECT MATTER

1.1. These GTC apply to the services provided by matelso (hereinafter referred to as "matelso Services"), in particular the provision of call tracking solutions.

1.2. If the customer distributes matelso services to its own customers (hereinafter referred to as "end customers"), the customer is fully responsible for compliance with the relevant legal and official regulations. matelso does not advise in this respect. The customer is not entitled to make or accept any declarations for matelso towards end customers. A direct contract between matelso and an end customer is not concluded.

2. CHANGE OF THE PRICING MODEL 

2.1. The customer may change to another pricing model by giving notice in text form (Sec. 126b German Civil Code, BGB). The costs for the change of the pricing model are regulated in the price list. For modules already booked up to a change, the basic fees of the newly booked pricing model apply after the change of the pricing model.

2.2. The effective date of the change of the pricing model shall be considered as the end of the existing contract and the conclusion of a new contract with its corresponding contract terms, beginning with the effective date of the change. When switching to a lower pricing model, the contract term of the originally booked model is retained.

3. OBLIGATIONS OF THE CUSTOMER

3.1. The customer has to ensure by own tests that booked modules, phone numbers and routings work before they are used for campaigns or in any other way.

3.2. Expenses for integration (in particular API/Web Service) and for the use of matelso services are to be borne by the customer.

3.3. The customer shall ensure the completeness and correctness of all data necessary for setting up a telephone number including routing (in particular addresses and destination number). The portability of the entire number pool is not derived from the provision of a number pool. Since a portability cannot be supported in every country, it has to be agreed in advance with matelso whether a portability is possible and if so which phone number can actually be ported.

3.4. The customer shall comply with the legal and official framework conditions for the use (own or third-party use) and marketing of matelso services, obtain the official approvals necessary for its business activities and shall carry out the necessary official registrations and notifications (if necessary also the notification as a voice service provider to the respective national supervisory authority).

3.5. The obligations of the customer also include:

- Provision of the technical prerequisites required for the installation and operation of matelso services and verification of the installation and routing settings.

- Confidentiality and protection of confidential information (in particular passwords and keywords as well as other access data).

- Immediate notification of suspected misuse of matelso services or unauthorised access by third party to confidential information.

- Information about an expected above-average volume of traffic (more than 100 parallel calls) on a telecommunications service (e.g. due to the use of a telephone number in a commercial) at least four weeks in advance.

- Transmission of correct addresses for provision of location-based telephone numbers. Upon request, the customer shall provide matelso with proof of addresses within 48 hours.

3.6. It is strictly forbidden for the customer to disseminate or have disseminated contents with the matelso services which violate public morals and/or legal or official regulations.

3.7. matelso may request the customer to change the configuration (e.g. the routing setting) if the provision of matelso services is otherwise at risk. If the customer does not make these changes or cannot be reached in time, matelso can make the necessary configuration changes itself; matelso will inform the customer of this without undue delay.

4. PRICING

The prices for the matelso services are given in the price list attached to each contract and do not include the statutory value-added tax. matelso is entitled to review and increase the agreed prices once a calendar year; however, for the first time after the end of the first contract year. Such a price increase requires a notice period of three months. In the event of a price increase of more than 5%, the customer shall be entitled to terminate the contract at the time the price increase takes effect.


5. INVOICING, DUE DATES

5.1. matelso invoices monthly. Set-up fees, monthly basic charges and connection charges are invoiced at the beginning of the following month of the billing month. Connection charges are calculated from the time the connection is established. Connection charges shall also be payable if a third party without authorization uses a telephone number provided to the customer or a telecommunication service. Invoices are due without deduction from receipt of the invoice and are to be paid within 14 days.

5.2. Objections to invoices must be notified and justified in writing within six weeks of receipt; thereafter the invoices shall be deemed approved. matelso shall draw the customer's attention to this obligation to notify on each invoice.

5.3. The data required for invoicing shall be deleted three months after the invoice has been sent. No itemized bills with invoice reference can be provided thereafter.

5.4. In case of default of payment matelso can withhold its services according to the telecommunication laws (e.g. Sec. 45k Telecommunications Act, TKG) and block the matelso services completely or partially.

5.5. The customer is only entitled to offset or exercise rights of retention if the counterclaim is undisputed or has been legally established. This does not apply to a counterclaim due to a defect in performance. In addition, the customer shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.

5.6. For the issuance of invoices without sales tax identification:

- If the registered office of the customer is within the EU, but not in Germany, the VAT will be checked by matelso. A net invoice will only be issued in case of a positive examination (AAAA status after examination at the German Federal Central Tax Office, BZSt).

- If the registered office is outside the EU, the customer must submit a confirmation of its entrepreneurial status (e.g. extract from the commercial register).

 

6. INTERRUPTIONS, DISRUPTIONS, OTHER ERRORS

6.1. matelso may temporarily interrupt matelso services as far as this is necessary for reasons of public safety, for the execution of work necessary for the operation or for the avoidance of disruptions. matelso will take the operation of the customer into consideration. In the event of an interruption of more than four hours in a calendar month, the customer may reduce the remuneration for the respective month accordingly.

6.2. A disruption exists if calls cannot be transferred or if the script plays out call numbers/texts that cannot be called and this has a direct negative effect on the customer's business operations. The disruption will be eliminated without undue delay by matelso within the scope of technical and operational possibilities. The customer will without undue delay report any disruptions by telephone, giving as concrete a description as possible of the disruption and, if applicable, its cause.

24/7 hotline for disruptions reports: +49 711 98809968

6.3. Other errors (so-called bugs) can be reported to matelso during normal business hours. Bugs will be fixed by matelso within a reasonable period of time.

6.4. If the customer is responsible for an error, for example in a faulty configuration, or if no error was present and the customer could have recognized this, matelso can charge the time incurred for error detection and troubleshooting according to the valid price list.

 

7. LIABILITY, INDEMNITY

7.1. The liability of matelso for slightly negligent violation of non-essential contractual obligations is excluded. In the event of a slightly negligent breach of an essential contractual obligation, i.e. an obligation the fulfilment of which is essential for the proper execution of the contract or on the observance of which the customer may regularly rely, matelso's liability shall be limited to the foreseeable damage typical for the contract.

7.2. Unless the parties agree otherwise in the contract document, damages exceeding 5,000.00 Euro are not typical for the contract and foreseeable.

7.3. Furthermore, the provisions on liability pursuant to the German Telecommunications Act (e.g. TKG Sec. 44a) shall apply.

7.4. In relation to all customers, liability is limited to EUR 10 million per uniform act or per uniform event causing damage. If the amounts to be paid to several customers due to the same event exceed the maximum limit, the compensation shall be reduced in proportion to the sum of all compensation claims in relation to the maximum limit. The limitation of liability does not apply if the damage was caused intentionally.

7.5. matelso is, however, liable without limitation for damages to body, life and health caused by matelso to the customer as well as for intent, gross negligence and the absence of guaranteed qualities.

7.6. The above provisions shall also apply for the benefit of the organs, legal representatives, employees and other vicarious agents of matelso.

7.7. The customer shall indemnify matelso against any claims by end customers, employees or third parties in connection with matelso services provided to the customer, unless the claim is based on the fact that matelso has not provided the matelso services as agreed.

 

8. LIMITATION OF CLAIMS FOR DEFECTS AND DAMAGES

8.1. The limitation period for claims of the customer due to a defect in matelso's performance is one year. This shall not apply to claims for damages which are based on compensation for bodily injury or damage to health or on intent or gross negligence on the part of matelso or its vicarious agents or on the absence of a guaranteed quality. Sec. 479 para. 1 BGB (German Civil Code) also remains unaffected.

8.2. The limitation period for claims of the customer for damages which are not based on a defect in performance is one year. The statutory limitation of claims due to intent or gross negligence as well as injury to body or health and due to the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.

 

9. FORCE MAJEURE

Events of force majeure as well as other circumstances unforeseeable for matelso, in particular interruption of power supply, interruption of telecommunication connections, strike, lockout, release matelso from its obligation to perform for the duration of the interruption as well as a reasonable start-up period - also during an already existing delay. If the performance becomes impossible or economically unreasonable due to the aforementioned circumstances, matelso shall be released from its contractual obligations. This shall also apply if matelso does not receive the necessary approvals from third parties in time for the performance of services.

 

10. TERM, TERMINATION

10.1. The contract in the pricing model Starter has a minimum term of three months. It is extended automatically for successive one-month terms if it is not terminated with one month's notice to the end of the month.

10.2. The contract in the pricing models Advanced and Heavy User has a minimum contract term of 24 months. It is extended automatically for successive 12-month terms if it is not terminated with a notice period of three months to the end of the contract period.

10.3. A module has a contract duration of one month and is extended automatically for successive one-month terms if it is not terminated with a notice period of two weeks to the end of the month.

10.4. The right to extraordinary termination for good cause remains unaffected; this also applies to extraordinary termination of individual modules. An important reason for a termination by matelso exists in particular if the customer becomes insolvent, ceases payments or an application for the opening of insolvency proceedings is filed.

10.5. Any notice of termination must be in text form in order to be effective. With the end of the contract all modules automatically end. Both the customer and matelso are entitled to the aforementioned termination rights. The termination of the contract shall be deemed as termination of all telephone numbers.

10.6. Individual modules such as telephone numbers can be booked and terminated by the customer during the term of the contract. A termination leads to immediate technical deactivation. The month of activation is calculated proportionately if the booking is not made exactly on the first

day of a month. In the month of deactivation, the complete month started is always charged no matter how many days a module has been used in this month. The minimum billing period of a module is 3 full months.

10.7. If matelso is no longer able to provide the agreed services due to legal changes, technical changes in the public telephone network or official orders for which matelso is not responsible, matelso may terminate the contract or the corresponding services extraordinarily and without notice; claims for damages by the customer are excluded.

 

11. PROVIDING OF TELEPHONE NUMBERS FOR THIRD PARTIES

The customer may provide telephone numbers for third parties (end customers) as reseller pursuant to Clause 1.2 or as agent. As a reseller, the customer enters into the contract with the third party (end customer) directly. As an agent with respective authorization by the third party, the customer concludes the corresponding contracts with matelso on behalf of the third parties. The customer may also use the matelso Control Panel/API in accordance with the matelso terms and conditions valid at the time. In this respect, the customer's authorization extends to conclusion, system configuration, adjustments (e.g. extensions of the scope of services), termination and all further phases of the contractual cooperation. The customer shall ensure that effective contracts are concluded between matelso and the third parties (end customers) and that those are fully informed about the services and contractual conditions of matelso at all times. The customer is responsible for ensuring that matelso receives all information and data on the third parties required for the execution of the contracts and the provision of the services. Telephone numbers booked within the scope of the activities as agent must be reported to matelso by the customer in writing (service@matelso.com) on a quarterly basis.

 

12. PHONEBOOK ENTRIES

Phonebook entries are not supported for numbers switched at matelso.


13. FINAL PROVISIONS

13.1. German law shall apply with exclusion of the UN Convention on Contracts for the International Sale of Goods. If the customer has no domestic general place of jurisdiction, has transferred its domicile or usual place of residence abroad after conclusion of the contract, if neither the domicile nor the usual place of residence of the customer is known at the time of filing the suit, or if the customer is a merchant, legal entity under public law or special fund under public law, the domicile of matelso is agreed as the place of jurisdiction; matelso, however, is also entitled to file suit at the domicile of the customer.

13.2. Should any provision of these terms and conditions be invalid or unenforceable in whole or in part, the validity and enforceability of all other provisions shall not be affected thereby.