General terms and conditions
Subject of the General Terms and Conditions and General
“Lox24” is a service offered by LOX24 GmbH. The use of Lox24’s services by the Customer shall be subject to the following General Terms and Conditions (“GTC”) as amended from time to time, as well as to the service descriptions and price lists valid at the time of conclusion of the contract or after effective subsequent amendment. More information: www.lox24.eu. Deviating GTC of the User shall not apply, even if Lox24 does not expressly object to them. There are no verbal ancillary agreements.
Lox24 is a telecommunications provider for mobile short messages with its own gateway for national and international sending of mobile short messages, such as SMS. The Customer intends to send messages via this gateway for its own use or to provide services for sending mobile messages to its own customers in its own name and for its own account. For this purpose, Lox24 is commissioned by the Customer to carry out the technical operation of the gateway. The services offered by Lox24 are aimed at traders.
§ 1 Conclusion of contract
1) The telecommunication service agreement between Lox24 and the Customer is concluded on the basis of the Customer’s registration on the Internet via the website www.lox24.eu in the registration page provided for this purpose, by telephone or by e-mail. The presentation of the service on the website does not constitute a binding offer to conclude a contract. The Customer’s registration constitutes an application by the Customer, which can only be submitted and transmitted if the Customer accepts these contractual terms and conditions by clicking on the “Accept General Terms and Conditions” button. The receipt of this application will be confirmed immediately by Lox24 via the e-mail address provided. Such an e-mail does not constitute an acceptance of the customer’s order. Lox24 accepts the order by activating the SMS tariffs (API IDs, Service IDs), which creates the service contract between the customer and Lox24. Before this activation, the actual service of sending or receiving messages cannot be used by the customer.
2) Due to legal regulations, Lox24 is obliged to keep a customer file in which the company name, name, address, e-mail, telephone number as well as the beginning and end of the contract are stored. Lox24 reserves the right to request adequate proof of identity from the customer at any time, such as an excerpt from the commercial register or an identity card, in order to verify accuracy.
3) Lox24 reserves the right to refuse acceptance of the application if the applicant is in arrears with obligations arising from existing or previous customer relationships with Lox24, provides incorrect information or if there is reasonable suspicion that the customer intends to misuse the services.
§ 2 Scope of services
1) Within the scope of the available technical and operational possibilities, Lox24 enables the Customer to use the gateway to send mobile short messages.
2) The gateway is accessible via the Internet and specifically via the “Hypertext Transfer Protocol” (HTTP). For the connection to the gateway, the customer receives from Lox24 a necessary interface description and the necessary access data.
3) Lox24 allows the Co-contractor with one account to send a maximum of 10 SMS per second simultaneously. Lox24 shall endeavor to ensure immediate dispatch of the mobile messages to be processed and shall provide the Customer with sufficient bandwidth for this purpose.
4) Lox24 ensures operation of its technical infrastructure 365 days a year and 24 hours a day with 99.9% annual average availability. This does not include maintenance work which has been announced in advance by e-mail and technical faults which are not within the discretion of Lox24 and which may affect the quality of mobile services in the reception and transmission area of the mobile network used at certain times and in certain places, namely:
a) due to official orders or court decisions,
b) for technical reasons, in particular due to radio technical, atmospheric or geographical circumstances,
c) due to measures which are also carried out in the interest of the customer, such as maintenance and repair work,
(d) in cases of emergency or disaster; or
e) in cases of force majeure.
Lox24 will make all reasonable efforts to eliminate such impairments as quickly as possible or to work towards their elimination as quickly as possible.
5) Lox24 will carry out maintenance work and other technical changes, e.g. to the interface, as far as possible without affecting the Customer, but if a restriction is unavoidable, Lox24 will inform the Customer of this as early as possible by e-mail.
6) Lox24 is available to the customer by e-mail for support requests to clarify technical problems of the Lox24 system. However, Lox24 cannot clarify technical problems that cannot be traced back to Lox24’s system but are the responsibility of either the customer or a third party.
7) Free additional services are not part of the services owed and can be discontinued by Lox24 at any time. There is no guarantee of availability.
8) Lox24 transfers the delivered mobile messages to the corresponding network operators. Lox24 is free to choose the way of delivery as well as the way of delivery to the network operators or receiving devices.
9) Lox24 reserves the right to expand, change and improve services, in particular if these serve technical progress, appear necessary to prevent misuse, or Lox24 is obliged to do so due to legal regulations.
§ 3 Obligations of the customer
1) Lox24 only provides the Customer with a technical connection for sending mobile messages. The Customer is solely responsible for the operation, marketing and content responsibility of the operated services that use Lox24’s gateway.
2) The customer assures not to forward any messages to the gateway or any other application of Lox24 which violate laws and/or rights of third parties, and not to violate any laws and/or rights of third parties by using the gateway or other applications. Furthermore, the sending of messages with the following content or messages referring to such content is prohibited: criminally relevant data, SMS with illegal, punishable, harassing, defamatory, discriminatory, threatening, vulgar, obscene, reenacting (§238 StGB), illicit or otherwise questionable content. Furthermore, no messages may be sent that may damage the reputation of Lox24.
3) The use of Lox24 for sending prohibited or unsolicited messages, such as unsolicited advertising by SMS (spam), is not permitted, therefore the Customer guarantees not to send messages to subscribers who have not agreed to receive such messages. Lox24 reserves the right to file charges in the event of a violation. In addition, it is prohibited to name value-added numbers in messages or to use value-added numbers as senders. This does not include the “0800” service.
4) The customer shall ensure that the national and international copyrights and trademark, patent, name and labeling rights, as well as other industrial property rights and personal rights of third parties are observed.
5) If a claim is made against Lox24 or the customer by a third party as a result of a breach of the above conditions, the customer undertakes to indemnify Lox24 against all third party claims.
6) The Customer shall keep the access data provided to it with the utmost care and shall exclude any misuse thereof. The customer acknowledges that the use of Lox24 after authentication by his access data is attributable to him. The customer is liable for all damages incurred in connection with the transfer of the access data. The customer must notify Lox24 immediately of the loss, theft or unauthorized use of the access data.
7) For the use of the gateway and, if applicable, other applications/applications from Lox24, registration is mandatory. The user is responsible for the accuracy of his personal information and to keep it up to date during the entire contract period. Changes to personal data can be made at any time in the personal customer area, which is accessible at www.lox24.eu via login with individual access data. A request for change on the part of the Co-contractor requires the written consent of Lox24.
§ 4 Prices and payment terms
1) Lox24 enables the sending of mobile short messages if there is a positive balance on the prepaid account (advance payment obligation). Unless otherwise agreed with the customer, services subject to a charge are only possible for the customer until the credit balance has been used up in full and are then discontinued.
2) The costs of the services provided by Lox24 can be viewed at any time after providing the access data in the customer’s personal area on the Lox24 website. The indication of the credit balance is non-binding and does not constitute an independent claim of the customer to benefits in the corresponding amount. The prices quoted in the public area of the Lox24 website correspond to new customer prices and are for information purposes only. The fees valid at the time of the conclusion of the contract or the fees and changes in fees declared valid at a later date shall apply to the use of the services.
3) Unless otherwise agreed, the Customer shall receive the current prices/rates (new customer prices) at the time of his registration, which are stated in the public area of the Lox24 website. Unless otherwise agreed, the prices depend on the amount of the last credit top-up and are staggered according to different minimum top-up amounts in different tariff levels according to the price list. The prices are adjusted after the credit has been topped up and also apply to any remaining credit from previous credit top-ups. The customer is informed about changed prices by reaching a new tariff level via e-mail.
4) All prices are exclusive of the statutory value-added tax applicable at the time.
5) All prices may be changed with 24 hours’ notice in writing by e-mail to the address provided by the customer. Price adjustments due to the amount of credit loading according to the valid and unchanged price list are valid from the date of sending the e-mail.
6) After the conclusion of the contract, Lox24 shall set up a credit account for the Customer, to which all outflows (e.g. for sending mobile messages) and all inflows (e.g. account top-ups) shall be booked. The customer can view this account at any time after providing the access data in the personal customer area on the Lox24 website.
7) The Customer may top up the Customer Account managed by Lox24 at any time by bank transfer in order to use mobile services. The account is net, the applicable VAT is deducted and paid directly when the account is charged, and the remaining amount is credited to the account. Other options for charging the account (e.g. PayPal) can be cancelled by Lox24 at any time, or denied to the customer, or charged according to the current price list.
8) An invoice for the recharge of the Lox24 credit account by bank transfer, direct debit, Paypal or credit card will be issued stating the customer number, the recharge date and the respective recharge amount and made available to the customer in his personal customer area. The customer has the possibility to receive the invoice in paper form for a fee according to the price list.
9) If the customer chooses the SEPA direct debit option for the recharge, he grants Lox24 a direct debit authorization for the account details provided and instructs his credit institution to honor these recurring direct debits. The customer may object to such a direct debit up to eight weeks after the debit date. The amount and debit date will be communicated to the customer by e-mail at least two working days in advance of the debit. If the customer and the account holder are not identical, the customer is obliged to forward this information to the account holder. In the event of an unfounded objection applies:
a) In addition to the invoice amount, the user undertakes to pay the processing costs for the return debit note, as well as the damage caused by default (reminder costs, interest on arrears) in the amount of a flat rate of 15.00 euros plus VAT. Value added tax to be borne.
b) The User irrevocably authorizes the account-holding credit institution to provide Lox24 with the full name and address of the Account Holder for the purpose of asserting the claim.
c) The user agrees that his account data will be entered into a blocking database and that the blocking will also be transmitted to other companies connected to the database. After the claim has been settled, the entry will be deleted again immediately.
d) If a negative balance arises on the customer’s credit account due to return debit entries for which the customer is responsible or due to the reversal of direct debit recharges at the customer’s request, the customer shall settle this immediately.
10) Lox24 is entitled to offset claims of the customer against liabilities of the customer, this applies in particular to return debit notes.
11) Lox24 clarifies that the customer can only use a credit granted to him by Lox24 without consideration (in particular a starting credit) for the use of the gateway. Any credit so granted may not be paid out.
12) A payout of credit balances during the term of the contract is not permitted, irrespective of any claims of the customer pursuant to § 6 para. 6 excluded.
13) Within the term of the contract, the customer may use the gateway to send mobile short messages. If the customer does not use the gateway for a period of at least 12 consecutive months, Lox24 may deduct a monthly inactivity fee of 10% of the last account charge from the remaining balance, which is used to ensure the continued availability of the gateway and the provision of technical capacity to send messages for the customer. Active use by the customer exists if at least one mobile message has been sent or an account top-up has been performed. Once the gateway is actively used again, no further inactivity fees will be incurred for at least 12 months. The credit account cannot become negative by charging an inactivity fee, but Lox24 is free in this case to exercise its right of termination in accordance with § 6 para. 4 to make use of.
§ 5 Liability
1) Lox24 is liable for financial losses caused by Lox24 due to a negligent breach of its obligation as a provider of telecommunications services to the public in accordance with the provisions of § 70 of the Telecommunications Act (TKG).
2) In all other respects Lox24 shall be liable in the event of intent or gross negligence. Lox24 shall only be liable for damage caused by simple negligence on the part of Lox24 or any vicarious agents if an essential contractual obligation has been violated, the fulfillment of which makes the proper execution of the contract possible in the first place, the violation of which jeopardizes the achievement of the purpose of the contract or on the observance of which the customer regularly relies. In the latter case, however, Lox24 shall not be liable for damage that is not foreseeable and not typical for the contract.
3) In the event of damage to life, body and health, Lox24’s liability to the Customer is unlimited.
4) The liability of the supplier according to the product liability law remains unaffected.
5) Lox24 is not liable for damages arising from third party claims, lost profits, lost savings and all indirect and direct consequential damages. Furthermore, Lox24 is not liable for insignificant breaches of duty and also not for the loss of data on the part of the mobile phone providers.
6) If the customer culpably violates the obligations set forth in § 3 para. 2, para. 3 and para. 4, Lox24 is entitled to a lump-sum claim for damages in the amount of EURO 1,250.00. The customer may counter the lump sum with evidence that the damage did not occur at all or was significantly lower than the lump sum. Lox24 reserves the right, in addition to the contractual penalty against the party in breach of § 3 para. 2, para. 3 and para. 4 to assert further claims for damages against the infringing customer. Any contractual penalty paid shall be offset against Lox24’s claims for damages.
§ 6 Term of contract / Termination
1) The service contract has no minimum term and runs for an indefinite period.
2) The customer may terminate his membership with Lox24 or his personal account at any time without notice. Notice of termination must be given in writing (e.g. by e-mail).
3) In the event of termination, the User may be excluded from renewed membership for a specific period of time specified by Lox24.
4) Lox24 may terminate the User’s membership or personal account by giving four weeks’ notice. In particular, Lox24 reserves the right to terminate the contract if the customer is completely inactive or has no credit balance for a period of at least twelve consecutive months. Complete inactivity is when the customer does not send or receive a message at least once.
5) The right of the parties to terminate for cause (e.g. breach of these General Terms and Conditions) shall remain unaffected. If termination is for good cause, Lox24 may terminate the contract at any time without notice, stating the reason. Good cause exists for Lox24 in particular if the customer
a) uses the services with fraudulent intent,
b) seriously and permanently suspends performance of the contract, in particular its payments, in an unjustified manner,
c) against § 3 par. 2, para. 3 or par. 4 violates,
d) makes false statements during registration or by changing his data later against his better knowledge.
6) Unused credit expires without replacement in the event of cancellation. This does not affect payment of the remaining balance in the event of termination by Lox24 in accordance with § 6 para. 4, a termination for cause pursuant to § 6 para. 5 or a statutory right of withdrawal.
7) Basic fees already paid for a longer period of time (e.g. an annual basic fee) cannot be refunded, not even on a pro rata basis. The same applies to payment fees.
§ 7 Secrecy / Data protection
1) Lox24 and the Customer undertake to treat as confidential all information and data received from the other party in connection with the performance of this contract and not to make such information available to third parties unless and until such information is or has become generally available or has been communicated to the recipient by a third party authorized to do so without an obligation to treat it as confidential, or has demonstrably already been known to the other party prior to the date of receipt.
2) The obligation extends beyond the termination of the contract.
3) If one of the contracting parties recognizes that information requiring secrecy has come into the possession of a third party or that a document requiring secrecy has been lost, it shall inform the other contracting party thereof without delay.
4) Lox24 collects, processes or uses personal data that are necessary to establish or change a contractual relationship with the customer, including its content (inventory data), as well as personal data for the provision and delivery of telecommunications or telemedia services (traffic or usage data) only if and to the extent that the customer has consented or a legal provision permits it (Section 176 (1)). 2 sentence 2 Telecommunications Act, Section 21 Telecommunications Telemedia Data Protection Act (TTDSG) and Section 9ff TTDSG.
5) If traffic data is stored, it will be stored for up to 60 days after billing, unless objections are raised against the billing. In such a case, they may be stored until the objections have been finally clarified. Insofar as no traffic data has been stored for technical reasons, no complaints have been raised or stored data has been deleted due to legal obligations, Lox24 has neither an obligation to provide evidence for the connection services provided nor the obligation to provide information pursuant to § 67 para. 4 TKG.
6) When issuing an itemized bill, the customer shall inform all current and future users of the mobile connection that the connection data will be disclosed to him. Lox24 stores the traffic data required to prove the charges invoiced to the Customer in full in log files (sender, recipient shortened if necessary, time) and keeps them available to the Customer for a period of 60 days, after which Lox24 may delete the files. Objections or inquiries regarding the billing or invoicing of messages must therefore be made within 60 days of the message being sent. After the expiration of the 60-day period, the billing or determination of the log files is considered approved by the customer and the correctness of the billing and calculation can no longer be challenged.
7) Lox24 will delete the inventory data at the latest at the end of the calendar year following the termination of the customer relationship, unless legal regulations or the pursuit of claims require longer storage.
8) Lox24 is entitled to send the customer notices concerning the contractual relationship by sending them to the postal address designated by the customer, to the e-mail address designated by the customer or by telephone call.
9) The customer may revoke his consent to the use of data within the scope of this section at any time.
§ 8 Amendment of the General Terms and Conditions, Service Descriptions and Prices
1) Changes to these GTC or to the description of services may be agreed by means of an offer by Lox24 and acceptance by the Customer. Lox24’s offer is made by notifying the customer of the changes in content by e-mail to the e-mail address designated by the customer. If the customer does not respond to Lox24’s offer or does not object within 6 weeks of receipt of the change notification, this constitutes acceptance of the offer and the changes become effective, provided that Lox24 has expressly informed the customer of this consequence in the change notification. If the customer objects to the offer in due time, the contract shall continue to run under the previous terms and conditions.
2) The service descriptions may be changed if this is necessary for good cause, the customer is not objectively placed in a worse position as a result compared to the service description included at the time of conclusion of the contract (e.g. retention or improvement of functionalities) and there is no clear deviation from the latter. A valid reason exists if there are technical innovations with regard to the services owed or if third parties from whom Lox24 obtains preliminary services necessary for the provision of the agreed services change their range of services.
3) Intended changes to the service description that are not due to legal or official orders will be communicated to the customer in writing by e-mail at least six weeks before they take effect. The customer shall have a special right of termination at the time the changes take effect. If the customer does not terminate the contract in writing within six weeks after receipt of the notification of change, the changes shall become part of the contract as of the date notified. The customer shall be specifically informed of the consequence of the notification of change.
§ 9 Severability clause
1) Should any provision of this Agreement, the Terms and Conditions or any future newly included provision be or become invalid in whole or in part, the remaining provisions shall remain unaffected. The contracting parties agree to replace the invalid provision with a valid provision that best meets the economic objective of the contracting parties. The same applies in the event of a gap in the contract.
§ 10 Place of Performance / Jurisdiction
1) The place of performance for all services in connection with the business relationship is the registered office of Lox24 in Berlin.
2) If the user is a merchant, a special fund under public law, a legal entity or someone without a registered office in Germany, Berlin-Mitte is agreed as the exclusive place of jurisdiction.
3) All legal transactions concluded by Lox24 are subject to the laws of the Federal Republic of Germany with the exception of the UN Convention on the Sale of Goods.
4) If the customer wishes to initiate an out-of-court dispute resolution procedure pursuant to § 68 TKG, he may submit an application to the Federal Network Agency for this purpose: www.bundesnetzagentur.de
5) The currently valid price list can be viewed on the Internet at www.lox24.eu.
Berlin, June 16, 2015, Lox24.eu