Registration

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MOBIZON GmbH
Waldstraße 32
60528 Frankfurt am Main, Germany
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Telephone: +496987005000
E-mail: info@mobizon.gmbh

1. Scope of Application

1.1 These General Terms and Conditions (GTC) shall govern the contractual relationship between Mobizon GmbH (hereinafter referred to as “Operator”) and its contractual partners (hereinafter referred to as “Customers”) affiliated with the use of the Mobizon platform (hereinafter referred to as “Platform”).

1.2 Unless the Operator has expressly consented to their applicability, Operator shall not accept any GTC that deviate from these General Terms and Conditions.

1.3 The Operator shall have the right to modify these GTC for materially justified reasons (e.g. changes in case law, the status of legislation, the market situation) and subject to compliance with a reasonable advance notice period. Existing customers shall be notified of such changes at least two weeks ahead of the effective date of such changes via e-mail and / or via text message. If the existing customer should not object to the changes by the end of the contestation period set in the change notice, Customer shall be deemed to have approved the change. The notification of the intended modification of these GTC shall include information about the deadline for responding and the consequences of objecting.

1.4 Within the scope of application of these GTC, the terms used shall have the following defined meanings:

2. Contracts With Consumers Will Not Be Made

2.1 Only individuals acting as entrepreneurs are eligible for the registration of an account on the platform and to use our platform functions. An entrepreneur, based on the definition set forth in § 14 BGB (German Civil Code) is a natural or legal entity or legally competent partnership that, when entering into a legal transaction, acts in her or his commercial or freelance professional capacity. The Operator expressly refrains from entering into contracts with consumers. All prices – unless marked otherwise – are net prices and subject to the addition of applicable VAT.

2.2 Within one week after registering, the Customer shall undertake to submit evidence of his/her status as an entrepreneur (excerpt from the trade register, registration of a business, etc.). The Operator provides an upload form for this purpose. Moreover, the Operator shall have the right to verify the entrepreneur’s status of its contracting partners at any time. For this purpose, Operator may demand, in particular, suitable evidence from the Customer. If the Customer should fail to meet such a request or if the Operator should come up with indications that the Customer is not an entrepreneur, the Operator shall have the right to rescind from a contract that has already been executed.

3. Services

3.1 On the platform, the Operator offers its Customers a cloud-based service for the organization and implementation of mobile marketing campaigns with the assistance of electronic messages. For this purpose, the Operator provides its registered Customers with a series of tools that make an effective management of the lists of customers and the sending of electronic messages possible. Among other things, the Customer can compile electronic messages and different lists of recipients, as well as control the time the messages are sent along with the speed of the message transfer. The types and scopes of these services may be reviewed on the Operator’s website as well as in the Customer’s user account. Moreover, the Operator offers its Customers the option to design their own registration forms. It also offers a “Short-Link” service. Within the scope of this service, Customers can generate a short URL, for instance to integrate it into electronic messages. The Operator reserves the right to make changes to the platform’s functions at any time, if they are acceptable for Customers taking into account their respective interests.

3.2 The lists of recipients and / or the phone numbers for the sending of electronic messages are generated directly by the Customer based on Customer’s own customer portfolio or special registration forms. The Operator shall not provide the Customer with any contacts. The Operator merely provides the technical option to send electronic messages and is neither involved in the generation of the messages, nor their sending nor the contractual, contract-like and other relationships between the Customer and Customer’s recipients. It shall be Customer’s responsibility to independently ensure that the required consent has been obtained from the recipients and that all statutory provisions that govern the sending of electronic messages are complied with. The Operator shall not check these processes and / or the content of Customers for any legal infractions.

3.3 The annual median availability level of the platform totals 98 %. This excludes times spent on necessary regular maintenance work as well as time periods during which availability is limited as a result of events the portal operator is not responsible for (e.g. force majeure, third party acts or changes in the law). The Operator shall strive to perform maintenance work during times when the visitor volume is low.

4. Registration and Execution of the Contract

4.1 To be able to use Operator’s services, Customers must first create a customer account on the platform. To do this, the registration screen has to be completed by entering all of the required data truthfully and correctly. The submission of the registration constitutes an offer to enter into a user agreement with the Operator. The offer to enter into the user agreement is either accepted by way of an explicit confirmation from the Operator (e.g. via e-mail) or as a result of the activation of the user account.

4.2 Besides companies that advertise, enterprises that implement advertising activities for their own clients are also eligible to create a customer account for use of the platform (resellers, agencies); in such cases the agency is the only contacting party. However, a contract with the agency’s principal will not be made.

4.3 Initially, the registration of a customer account is complimentary. To be able to use the functions of the platform for which fees are charged (in particular the sending of electronic messages), the Customer must deposit a respective amount of money into his / her customer account. The deposited amount is credited to the customer account and can be used to send electronic messages and use any other services of the Operator for which fees are due.

4.4 The contract language is German.

5. Generation and Maintenance of Lists of Recipients / Legal Requirements

5.1 The Customer shall generate and maintain the lists of recipients based on Customer’s own client portfolio and / or on the basis of independent third party registrations (e.g. through a sign-up form). The Operator merely provides the technical tool for the sending of electronic messages and is not involved in the content creation of the electronic messages, the sending of the electronic messages and the generation of the lists of recipients. In particular, the operator shall not provide the Customer with contacts for lists of recipients. It shall be the Customer’s responsibility to keep the lists of recipients up-to-date at all times and to delete any recipients upon request.

5.2 The Customer assures the Operator that Customer shall comply with all mandatory legal provisions when collecting the data. In particular, Customer assures Operator that all recipients listed in Customer’s lists of recipients have issued an effective statement of consent for the sending of electronic messages. Customer shall undertake to provide to Operator upon request, no later than within two business days after having been asked, with suitable documentation of the statements of consent received.

6. Payment and Default

6.1 To be able to use all of the functions of the platform (in particular for the sending of electronic messages), the Customer shall deposit a respective amount into Customer’s user account. The deposited amount shall be credited to Customer’s user account and can be used to send electronic messages and use any other services of the Operator for which fees are due. The deposit shall be made directly into the customer account using one of the modes of payment made available on the account page. The payment options will be displayed on the customer account page.

6.2 If the Customer should be in default of payment, the Operator shall have the right to block the customer account or the option to send electronic messages until the default of payment has been rectified. Furthermore, the Operator shall have the right (but shall be under no obligation) to offset any amounts due against the credit balance in the customer account. However, the Operator shall not implement any such offsetting until after the second reminder notice does not produce the desired results. Any offsetting shall be without prejudice to Operator’s right to rescind from the contract because of the default of payment.

6.3 Principally, any amounts deposited into the customer account shall not be eligible for refunds. Unless this is specifically required as a matter of law, any balance amounts remaining in the account after termination or the end of the user agreement for any other reasons shall not be disbursed.

6.4 In conjunction with the deposit, an advance payment invoice for the amount deposited shall be issued. As part of the monthly billing statement, the respective amount that has been consumed shall be deducted. The latest invoices shall be made available to the Customer in the customer account and / or via e-mail.

7. Prices for the Sending of Electronic Messages, Price Adjustments

7.1 There is a charge for the sending of electronic messages via the customer account. The Customer shall pay the defined price for each electronic message sent. The obligation to pay the fee shall not be contingent upon the receipt of the electronic message by the recipient unless the receipt failed for reasons the Operator is responsible for; in particular the obligation to pay the fee shall not be voided because the numbers in the list of recipients have not been assigned.

7.2 The costs for the sending of electronic messages can be derived from the current Price Overview published by the Operator in the version in effect at the time the electronic messages are sent. This shall also be the case if the Customer commissions the sending of electronic messages for a future date. The Customer is hereby advised that the prices for sending electronic messages are subject to ad-hoc fluctuations at regular intervals. Hence, it shall be the Customer’s autonomous responsibility to obtain information on the prices in effect at the time of placing an order.

7.3 If the Customer should send an electronic message that exceeds the scheduled maximum number of characters, multiple electronic messages shall be sent simultaneously. The number of the messages sent shall be contingent upon the number of messages required to accommodate the existing characters. Every message sent shall be billed separately to the Customer (Example: If the customer sends a message that has to be divided into two text messages and the messages are sent to 1,000 recipients, the Customer will be billed for 2,000 text messages). It shall be the sole responsibility of the Customer to match the length of the electronic messages compiled to the maximum permitted number of characters prior to sending the message.

7.4 The costs incurred for the sending of the electronic messages shall be offset against Customer’s credit balance in his/her customer account. No other mode of payment is available for the sending of electronic messages. Of the credit balance in the account is insufficient for an order, the order will not be executed.

8. Booking of Feature Packages, Price Adjustments

8.1 The Customer has the option to book various feature packages that include additional services on the platform. Unless other stipulations are made on the platform, such services can be booked for a month or a year (term). The prices of these packages can be found in the current Price Overview published by the Operator.

8.2 The termination notice shall be given at the latest seven (7) days prior to the end of the package term. If a package is not terminated in a timely manner, it shall automatically be extended by the respective period.

8.3 While a package term is in effect, the Customer shall have the right to switch to a more expensive package (upgrade). If the Customer should desire an upgrade, Customer shall have the option to autonomously make these changes in the system. The Operator shall subsequently notify the Customer as of which date the switch can be made. In this case, the previous package shall terminate prematurely.

8.4 In the event that the Customer should terminate one package and switch to a less costly package, Customer shall back up all data that cannot be backed up in the less expensive package arrangement, prior to the expiration of the more expensive package’s term and shall remove these data from the platform. This will, for instance, occur in the event that the Customer makes a switch from a package that allows Customer to set up 10,000 contacts or 100 lists to a package that allows Customer to set up a maximum of 1,000 contacts or 10 lists. If the Customer should fail to reduce the number of data to the number required for the new package by the time the new package term begins, Operator shall have the right to reduce the number of data autonomously to the number permitted for the new package.

8.5 When switching to a more expensive package, all data shall be transferred to the new package.

8.6 The user agreement shall not be affected by the termination of a package.

9. Customer’s Duties and Obligations

9.1 Customer shall undertake to keep up to date any data provided during the registration process at all time and shall refrain from violating these GTC and applicable laws. In particular, Customer shall undertake to meet payment demands of the Operator in a timely manner. Furthermore, Customer shall ensure that Customer’s account is used exclusively by Customer. Customer shall treat Customer’s access data and the data archived on the site as confidential and shall ensure that third parties do not gain access to Customer’s data. If the Customer should culpably breach this duty, Customer shall be directly responsible for any resulting damages.

9.2 Moreover, Customer shall undertake to use the platform exclusively for its intended purpose (mobile marketing as defined in Sect. 1.4) and to observe all contractual and statutory provisions when using the platform. Any usage that goes beyond the purpose of the usage relationship shall be prohibited. In particular, Customer shall not be permitted to:

9.3 In the event of any violation of the provisions set forth in this Article, the Operator shall have the right to temporarily block the customer account and / or the sending of electronic messages or to terminate the user agreement extraordinarily. The type of sanction imposed shall depend on the type, severity and duration or the number of violations and shall be chosen at Operator’s discretion. A blockage of the customer account or the suspension of the sending of electronic messages shall be without prejudice to the term of the user agreement.

10. Blockage of Individual Recipients / Lists of Recipients

10.1 The Operator shall have the right to

10.2 It shall be Customer’s responsibility to refute the facts or suspicions based on which recipients or lists have been blocked and to affect the unblocking of the recipient / recipient list. The Customer shall continue to have access to blocked recipients and / or recipient lists; however, Customer shall no longer be in a position to use them. This shall not apply if the Operator is mandated by law to delte the recipient / list of recipients.

10.3 Such blockages shall not affect the term of the user agreement.

11. Term and Termination

11.1 The user agreement shall be made for the period specified in the package and may be terminated by either Party by the end of the period.

11.2 The above shall be without prejudice to the right to terminate extraordinarily for important grounds. Important grounds shall in particular have manifested themselves if

11.3 In the event of termination by the Customer or in the event of extraordinary termination by the Operator, any residual credit balances that remain in the customer account shall be forfeited. Such amounts shall not be refunded. The customer account and any data remaining in the account shall be deleted two weeks after the termination of the user agreement. It shall be Customer’s responsibility to back up Customer’s data (in particular the lists of recipients) by other means prior to the expiration of the agreement.

12. Contract Data Processing

The Customer shall be solely responsible for the data uploaded to the platform. Customer shall enter into a separate contract on the contract processing of data pursuant to Art. 28 GDPR.

13. Data Backup by the Customer

13.1 Customer shall undertake to backup Customer’s data at regular intervals. Customer is hereby advised that inadequate data backup may result in Customer having to assume shared culpability as defined in § 254 German Civil Code (BGB).

13.2 If the Customer should wish to back up data after Customer’s account has been blocked by the Operator, Customer shall take the initiative to contact the Operator. The Operator shall verify the concern and shall release the data to the Customer, provided Operator is mandated to do so by law and the data can be released from a technical perspective. It shall be Customer’s responsibility to get in touch with the Operator with regard to the release of the data. Customer is hereby advised that if the account is deleted, the data will be lost, and it will be impossible to recover the data at that point.

14. Liability

14.1 The Operator shall assume unlimited liability vis-à-vis the Customer for all contractual, contract-like and statutory (including tort) claims for damage and expense compensation based on any legal grounds if Operator is culpable of acts of intent or gross neglect, in the event of intentional or negligent damages to life, physical injury or health damages, based on any warranty assurance, unless other provisions have been agreed upon or if mandatory statutory provisions apply.

14.2 If the Operator should violate a cardinal contractual duty due to negligence, the liability amount shall be limited to the contract typical, foreseeable damages unless unlimited liability is in effect as set forth in the previous section. Cardinal contractual duties are obligations the contract imposes on the Operator based on its content so that the purpose of the contract can be attained. Their fulfillment is the very basis for the proper performance of the contract and the contracting partner is in a position to regularly have confidence that such duties will be met.

14.3 Any other assumption of liability by the Operator shall be excluded

14.4 The above liability provisions shall also apply with regard to Operator’s assumption of liability for Operator’s agents and statutory representatives.

14.5 The Customer shall indemnify the Operator against any third party claims raised against the Operator due to illegal acts of the advertising Customer – including the costs for mounting a legal defense in the amount permitted by law. This shall in particular apply if the Customer should send electronic messages to recipients who did not provide the respective declaration of consent to receive such messages. In any event, Customer shall undertake to notify the Operator of potentially imminent third party claims.

15. Data Privacy

The Operator shall treat personal data as confidential and in compliance with the statutory data protection legislation. Any sharing of such data in the absence of the express consent of the data subject shall not occur or shall occur only in conjunction with the necessary contract processing work. For more details, please consult the Operator’s Privacy Policy

16. Final Provisions

16.1 All contractual relations between the Operator and the Customer shall be governed by the laws of the Federal Republic of Germany subject to the exclusion of the applicability of the UN Convention on the International Sale of Goods (CISG).

16.2 If the Customer should be a merchant, legal entity under civil law or a public-law based special entity, the court at Operator’s domicile in Frankfurt am Main, Germany shall be the competent court, unless an exclusive place of jurisdiction has been established for the litigation. This shall also be the case if the Customer does not have a domicile / place of residence within the European Union.

16.3 The Operator shall have the right to adjust its package pricing at regular intervals to the extent that Operator’s own costs for the rendering of the services increase. Existing Customers shall be notified of such price adjustments at least one month prior to the effective date of the price change via e-mail. This shall not apply to the varying prices for the SMS service and other electronic messages. Unless the existing Customer objects by the deadline set in the change notification, Customer’s agreement with the change shall be presumed. The notification about the intended price adjustment shall alert Customer to the deadline and the consequences of objecting to the change or the failure to object. If the Customer should not agree with the price change, Customer shall have the option to extraordinarily terminate the subscription at the time the price change becomes effective. This clause shall be without prejudice to Sect. 7.2.