General terms and conditions
GENERAL TERMS AND CONDITIONS OF MATELSO GMBH
(LAST REVISED 11/2010)
I. General regulations
1. Scope/protective clause
1.1. Our terms and conditions apply only to people who, upon completion of the contract, are acting in the exercise of their commercial or self-employed professional activity (entrepreneurs) and to legal persons under public law and public law special funds. Only these terms and conditions apply to all our services – including in future. Deviating or additional conditions of the Customer shall not apply, even if we do not contradict them.
1.2. The General Terms and Conditions apply to all our contracts on the provision of services (e.g. voice, data and other telecommunications services, hereinafter referred to as “telecommunications services”, telephone number tests) and associated information, consultations, deliveries and installations.
2. Contract conclusion
2.1. Our offers are non-binding. The Customer is bound to his purchase order for a duration of two weeks from the time of receipt by us.
2.2. Purchase orders, supplements and changes to a purchase order shall be deemed accepted if we have confirmed them in writing; execution of the service, in particular the activation of the telecommunications service, or receipt of an invoice by the Customer, shall be considered confirmation. Contractual amendments must be made in writing.
3. General obligations of the Customer
The Customer shall provide all required and, in particular contractually agreed, preparatory, provision and other cooperation measures on time and in full.
4.1. Our prices are understood plus the statutory value-added tax.
4.2. Objections regarding our bills must be submitted to us in writing within four weeks and justified; after this time, the bills shall be deemed to have been approved.
4.3. Our accounts receivable shall be due without deduction upon receipt of invoice.
4.4. The Customer shall only be entitled to compensation or to exercise rights of retention if the counter-claim is undisputed or legally established. In addition, the Customer shall only be entitled to exercise a right of retention to the extent that its counter-claim is based on the same contractual relationship.
5.1. The contract shall be completed subject to timely and correct self-delivery by our sub-suppliers. This shall not apply if we are responsible for failure to deliver or for incorrect delivery, in particular if no congruent cover transaction has been completed. We shall inform the customer immediately regarding non-availability of the delivery or service and shall reimburse any return services immediately.
5.2. Deviations from the agreed service due to changed legal regulations, or deviations which represent technical improvements that do not impair usability for the contractually agreed purpose, shall be permissible.
5.3. We may use our own technology for the services as well as the transmission channels and technical equipment of third parties. We may use the technical equipment of third parties. We may change the technical equipment and use other third parties, provided this does not impair the service.
6. Defect in the service
6.1. The Customer shall meet the obligations under commercial law to immediately inspect our services and submit complaints about defects immediately (§ 377 of the Commercial Code).
6.2. In the event of any defects, we shall, at our discretion, correct the defect or provide the service again (subsequent performance). In the event of failure, unacceptability or refusal of the subsequent performance, the Customer may reduce the price or – for not inconsiderable defects – withdraw from the contract or demand compensation in accordance with Section 7. The Customer shall not be entitled to transfer defect claims.
7.1. We shall not accept liability for infringement of non-essential contractual obligations due to slight negligence. In the event of infringement of essential contractual obligations due to slight negligence (in particular the obligation of on-time and faultless delivery), our liability shall be limited to the foreseeable damages typical for the contract concerned. However, we shall accept unlimited liability for damages to the Customer, culpably caused by us, in terms of bodily harm, life and health as well as for intent, gross negligence and the absence of guaranteed properties.
7.2. Damages in excess of EUR 5,000 shall no longer be considered foreseeable and typical for the contract.
7.3. The above-mentioned regulations shall also apply for the benefit of our institutions, legal representatives, employees and other vicarious agents.
8. Expiry of defect and compensation claims
8.1. The expiry deadline for claims by the Customer due to a defect in the product or service shall be one year. This shall not apply to claims for compensation, which are targeted at compensation for bodily injury or damage to health or are based on intent or gross negligence by us or our vicarious agents or are due to the absence of a guaranteed property. Section 479(1) of the Civil Code (BGB) shall also remain unaffected.
8.2. The expiry deadline for claims by the Customer for compensation which are not based on a defect in the product or service, shall be one year. The legal expiry of claims due to intent or gross negligence as well as in the event of bodily injury or harm to health and due to the Product Liability Act shall remain unaffected.
9. Credit check
Before and during the term of contract, we shall be entitled to obtain information from credit agencies regarding the Customer and to send data to credit agencies due to non-contractual processing (e.g. termination due to default in payment).
10. Force Majeure
Events due to force majeure as well as any other circumstances that are unforeseeable by us, in particular power cuts, interruption of telecommunication connections, strike, lockout, shall release us from our contractual obligation for the duration of the incident as well as for a reasonable start-up time – even during an already existing delay. If the service is rendered impossible or economically unreasonable due to the specified circumstances, we shall be released from our contractual obligations. This shall also apply to the extent that we do not receive the required approvals from third parties on time for performance of services.
11. Term, termination
11.1. The term of contract shall be agreed in the contract between the Customer and ourselves. If no regulation is made, the contract shall have an unlimited term and can be terminated by either Party with a period of notice of three months.
11.2. The right to extraordinary termination for just cause remains unaffected. A just cause for termination by us shall be, in particular, if the Customer is unable to pay, stops his payments or files a petition to open insolvency proceedings.
11.3. Any notice of termination must be made in writing.
12. Place of jurisdiction, applicable law
12.1. If the Customer is a merchant, legal person under public law or a public law special fund, our registered headquarters shall be agreed as the place of jurisdiction; however, we shall also be entitled to file a suit at the Customer’s registered office.
12.2. German law shall apply and the validity of the UN Convention on the International Sale of Goods (CISG) shall be excluded.
12.3. Should one of the provisions of these General Terms and Conditions be or become ineffective, this shall not affect the effectiveness of the remaining provisions.
II. Special regulations for telecommunications services
If we provide telecommunications services, the following additional regulations shall apply:
13. Duties of the Customer with regard to telecommunications services
13.1. The Customer shall fulfill his legal and regulatory duties for own and third-party use as well as for marketing of the telecommunications services. The Customer shall obtain the required approvals and make the required notifications,
in particular registration with the Federal Network Agency as a voice service provider. The Customer shall also follow the recommendations of important key institutions (e.g. FST e.V., VATM e.V.), if available.
13.2. Furthermore, the Customer shall
13.2.1. provide the technical prerequisites required for the installation and operation of the telecommunications services and check whether the installation and routing settings made by us meet his requirements,
13.2.2. keep confidential information (in particular passwords) secret and protect them against access by third parties.
13.2.3. immediately inform us of any suspicion of misuse of the telecommunications services or unauthorized access by third parties to confidential information,
13.2.4. not use the telecommunications services to distribute or allow to be distributed any contents that are immoral and/or violate legal or official regulations,
13.2.5. inform us of any expected above-average traffic volumes on a telecommunications service (e.g. due to the use of a telephone number in an advertising program) at least two weeks in advance.
14.1. A set-up fee shall be invoiced by us upon completion of the contract. Monthly fees shall – pro rata, if relevant – be charged from the day of provision of the respective telecommunications service, but at the latest one month following completion of the contract. Connection fees shall be charged from the time at which the connection is established. Connection fees shall also be payable if, without authorization, a third party uses a telephone number or telecommunications service provided to the Customer.
14.2. We shall delete the data required for determining remuneration and billing three months after sending the invoice. After this time, we will no longer be able to provide itemized bills.
14.3. We shall be entitled to check and increase the agreed charges once per contractual year; for the first time, however, after expiry of the first contractual year. Such price increases shall require a notification period of three months. In the event of a price increase by more than 5%, the Customer shall be entitled to termination from the time at which the price increase takes effect.
14.4. If the Customer does not pay due amounts within a legally reasonable period even after a reminder has been issued, we may block the line for inbound calls; if the Customer does not pay within a further reasonable period following a second reminder, we may also block the line for outbound calls.
15.1. We may temporarily interrupt the use of telecommunications services to the extent that this is required due to public safety, to implement work required for operation or to avoid faults. We shall take the Customer’s operations into account and – where possible – provide seven days’ notice of such work. In the event of an interruption of more than six hours in a calendar month, the Customer may reduce the payment for the respective month accordingly.
15.2. We may also demand that the Customer changes the configuration (e.g. the routing setting), if the provision of the services would otherwise be at risk. To the extent that the Customer does not implement these changes or cannot be reached on time, we may make the required configuration changes ourselves; we shall inform the Customer of this immediately.
16. Maintenance and troubleshooting
We shall immediately eliminate faults in telecommunications services within the context of our technical and operational capabilities. The Customer shall report faults immediately with as much detail as possible regarding the fault and its cause. If the Customer is to blame for a fault or if no fault was present and the Customer could have detected this, we may invoice the Customer for troubleshooting and fault clearance.