General Terms and Conditions
dimater communications GmbH
1. Object of Contract
1.1 These General Terms and Conditions (“GTCs”) apply to all services (hereafter collectively referred to as “services”) provided by dimater communications GmbH, Stresemannstraße 12, 40210 Düsseldorf, Germany (hereafter referred to as “dimater communications”) to business customers as their contractual partners (hereafter referred to as “partners”). These GTCs also apply to services agreed with the partner in the future, even if no express reference is made to these GTC in this context.
Conflicting or deviating terms and conditions of the partner shall not apply. This shall also apply even if dimater communications does not expressly object to them. Even if dimater communications refers to a letter that contains or refers to the partner’s terms and conditions, this does not imply any agreement with the validity of those terms and conditions.
1.2 dimater communications operates the software-based conversational commerce platform “dimater communications” (hereafter referred to as “platform”), which enables the partners to conduct personal or automated (in particular also chat bot-supported) bidirectional commercial communication with end customers via SMS, RCS, MMS, chat, messaging services (such as WhatsApp, Facebook Messenger, Apple Business Chat, Telegram) or other interfaces (hereafter together referred to as communication services”). An overview of the communications services which can be used via the platform is contained in the service description in its current version. Via the platform, partners can transmit and receive digital content such as texts, images, video, audio messages or files.
In order to provide its services, dimater communications itself or through third parties operates IT systems and telecommunications equipment (hereafter collectively referred to as “MN systems”) and has direct or indirect access to communications services, in particular to messaging gateways of mobile network operators.
1.3 The partner uses the services of dimater communications itself. The provision of services by the partner – in its own name or in the name of a third party – to third parties (hereafter “sub-partners”) is only permitted with the prior written consent of dimater communications. If such consent is granted, the partner must ensure that sub-partners fully comply with the provisions of this contract. The partner is, in any case, responsible with regard to dimater communications.
2. Conclusion of Contract
2.1 All offers by dimater communications are non-binding and subject to change without notice unless they are expressly marked as binding or contain a specific period of acceptance. dimater communications may accept contract offers from a partner within fourteen days of receipt.
2.2 dimater communications will provide the partner interested in concluding a contract with the contractual documents relevant for the partner. The provision of contractual documents does not constitute an offer of contract on the part of dimater communications or the acceptance by dimater communications of a contractual offer by the partner.
2.3 The offer to conclude a contract is made by the partner by sending the signed contract documents to dimater communications. dimater communications accepts the partner’s offer either by sending a corresponding order confirmation or by commencement of the provision of the contractual services.
3. Scope of Service
3.1 dimater communications provides all present and future services in accordance with applicable laws and regulations and agreements between the parties.
3.2 dimater communications may, at its sole discretion, provide the services in whole or in part through third parties as auxiliary persons.
3.3 dimater communications provides the platform to the partner as a cloud-based Software-as-a-Service (SaaS) via the MN systems. For this purpose, the platform is made available for use at the interface of the MN systems to other networks (hereafter “transfer point”). In order to use the platform, the partner is required to maintain access to the Internet at its own cost and responsibility and to access the platform via this connection. A transfer of software on a data carrier or as a download is not carried out.
3.4 The creation and selection of the content transmitted via the platform is the sole responsibility of the partner.
3.5 dimater communications’ service in the field of content transmission consists of the transfer of the respective content in electronic form to the interfaces of the communications infrastructure provided by the communications service providers under their own responsibility. dimater communications has no influence on the arrangement of the forwarding of content by the communication services. As such, dimater communications cannot guarantee the delivery of content by the communications service to the recipient. dimater communications is not responsible if the recipient does not receive a message sent by a partner, does not receive it in time or receives it incompletely, provided that this message has been properly transferred to the communications service in accordance with Sentence 1.
3.6 dimater communications is entitled to change the technical parameters on which the services are based, subject to 14 days’ notice, unless this results in significant disadvantages for the partner. A change may be made if:
a. It is necessary due to legal or official requirements or requirements of the operators of the communications services, in particular the mobile network operators
b. It increases the performance and/or reliability of the MN systems, or
c. It brings the MN systems up to the current state of the art
d. It is required due to changes in communications services.
If the change requires adjustments to the technical infrastructure used by the partner or the services provided by the partner, dimater communications will inform the partner in good time. The partner must implement any such adjustments at its own responsibility and cost.
3.7 To the extent and for as long as a case of force majeure exists, dimater communications is exempt from fulfilling its contractual service obligations. For the purposes of this contract, events of force majeure include, in particular, official orders, industrial action (including in companies that dimater communications uses to fulfil its contractual obligations), the failure of means of transport, energy or telecommunications infrastructure, the unforeseeable absence of deliveries or services by suppliers (to the extent that these have been carefully selected by dimater communications and, if and to the extent possible in the event of failure of deliveries or services, immediate measures will be taken to ensure the fastest possible replacement), as well as other events beyond dimater communications’ control, such as armed conflicts, natural disasters and terrorist attacks, which make it impossible or unreasonable for dimater communications or any auxiliary persons commissioned by dimater communications to fulfill its contractual obligations.
3.8 dimater communications is entitled to modify the provisions of the contract concluded with the partner:
a. Insofar as the partner is not worse off as a result of the change, or
b. Insofar as essential provisions of the contract (e.g. type and scope of the agreed services and the term including termination provisions) are not affected by this and insofar as this is necessary to adapt to developments, in particular technical, legal or regulatory changes, which could not be foreseen when the contract was concluded and whose non-consideration would markedly alter the overall structure of the contract, or
c. Insofar as this is necessary to eliminate difficulties in the execution of the contract due to loopholes in the regulations which have arisen after the conclusion of the contract. This may be the case if jurisdiction or legislation changes and, as a result of this, for example, individual contractual regulations are or become invalid. In this case dimater communications will replace the invalid provision with a legally valid provision that is comparable in scope.
An adjustment of the fees in accordance with Section 6.2 remains unaffected.
dimater communications will notify the partner of any such changes in writing. Changes are deemed to be approved by the partner if he or she does not object in writing (not by email) within a period of six (6) weeks after receipt of the corresponding notification of the contractual change. dimater communications will make specific reference to this consequence in the notification.
In the event that the partner objects (on time), dimater communications may, at its own discretion, either continue the contract under the previous conditions with regard to the provisions covered by the objection or terminate the contract within two (2) weeks of receipt of the objection with a notice period of two (2) weeks.
3.9 In the event that dimater communications is not able to provide the services due to changes in the communication services, both dimater communications and the partners have an extraordinary right to terminate the contract if the parties cannot reasonably be expected to adhere to the contract for a longer period. dimater communications is released from its service obligation to the partner in relation to the communication service concerned.
3.10 dimater communications offers support services to partners, the scope of which is defined in the service description. Other support services commissioned by the partner, especially consulting and technical services, will be invoiced to the partner by dimater communications on a time and material basis based on the current price list.
4.1 The provision of services by dimater communications may be temporarily interrupted or impaired by unforeseeable or exceptional circumstances as well as by necessary technical measures to avoid disruption. Uninterrupted availability of the dimater communications systems and services is not an obligation.
4.2 dimater communications offers the use of the platform at the transfer point with an availability of 97.0% based on a calendar year.
This availability information refers to the quality required of the platform provided by dimater communications for use at the transfer point of the data network used by dimater communications. Impairments in data transmission from this transfer point to the partners or the communications services and/or impairments in the IT or telecommunications infrastructure of the partners and communications services are not taken into account.
4.3 The platform is available if it could be accessed according to the percentage agreed in accordance with Section 4.2.
4.4 When determining actual availability, downtimes that are not attributable to dimater communications are considered available times. These safe downtimes include:
- Scheduled maintenance work;
- Unforeseen maintenance work that becomes necessary, if this work is not caused by a breach of a contractual obligation by dimater communications (e.g. force majeure)
- Downtime due to virus or hacker attacks, provided that dimater communications has taken appropriate and customary protective measures in this regard;
- Downtime due to interruptions caused by partners;
- Downtimes due to faults on the part of the communications services.
Scheduled maintenance work is announced by Message Network to the partner in good time and is carried out in due consideration of the interests of the partner.
4.5 The partner shall notify dimater communications immediately of any impairments to the availability of the platform or other faults of which he or she becomes aware.
5. Obligations of Partner / Rights of dimater communications
5.1 The partner undertakes to use the services provided by dimater communications, in particular the platform provided for use, exclusively for the contractually agreed purpose. The partner ensures that neither the service provided by him or her using the services, nor its advertisement or the contents distributed with it, violate applicable law (and that, in particular, they do not infringe the rights of third parties).
5.2 The partner must continuously check its services and the content made available or used by it in this context for their validity and their compatibility with the applicable law and the provisions of this contract. In the event of a breach, the partner shall immediately discontinue the affected service and only resume it once the breach has been remedied. The partner is obliged to immediately notify dimater communications of any breach detected.
5.3 The partner may not use the services of dimater communications for services that have not been approved in writing by dimater communications. The approval procedure, service requirements to be fulfilled for approval as well as the information required for the decision are set out in the relevant Message Network Special Terms and Conditions. dimater communications reserves the right to refuse to provide services in relation to services of the partner until these information obligations have been fully met.
In the event of a change to an approved service, a new approval procedure in accordance with this Section (5.3) is required.
5.4 The partner is obliged to document compliance with the obligations in accordance with Sections 5.1 – 5.3 in a proper manner (e.g. proof of the required consent of the end customer or the conclusion of a contract with the end customer) and to provide dimater communications with this proof immediately upon request.
5.5 In compliance with data protection regulations, dimater communications is entitled to pass on information and evidence provided by the partner in accordance with this Section (5) to third parties, in particular mobile phone providers, public authorities and end customers of the partner, insofar as this is necessary for the provision of the respective service of dimater communications, and insofar as this serves to prevent claims asserted against dimater communications, to assert its own claims or to avert damage to dimater communications which is related to the services of the partner, or insofar as this is necessary for the fulfilment of the legal obligations of dimater communications.
5.6 The partner must procure, maintain and keep operational the technical infrastructure (hardware and software) necessary to use the services of dimater communications at its own expense and risk. This applies in particular to the technical infrastructure required for the use and appropriate processing of any services to be provided via remote data transmission (telephone, fax, email, Internet connection).
5.7 The partner is obliged to keep user names, passwords and other access data (“access data”) provided by dimater communications secret and to protect them from being accessed by third parties. The partner shall only provide access data to its own employees who absolutely need this data for their work for the partner. The partner is liable to dimater communications for all damages caused by a violation of this confidentiality obligation. Should the partner have any reason to believe that an unauthorized person may have obtained knowledge of access data, the partner must inform dimater communications immediately.
5.8 With regard to its own IT and telecommunications infrastructure, the partner shall ensure, by means of appropriate, state-of-the-art measures, that the services provided by dimater communications under this contract are not misused. The partner undertakes to take effective measures to prevent unauthorized access to MN systems and the systems of the operators of the communication services (e.g. hacking or other attacks) as well as to prevent the spread of computer viruses, Trojans and other malware. Should the partner’s systems be attacked or misused in the systems of dimater communications, a communication service or a third party (in particular the hardware of an end customer) and this results in damage to dimater communications, the partner must indemnify dimater communications to the full extent, unless such damage could not have been avoided even by appropriate protective measures.
5.9 The partner undertakes not to offer or provide any services that are likely to impair the security and stability of the MN systems and the systems operated by the communications services (including mobile networks). Should the systems used by the partner cause faults in the aforementioned systems, dimater communications is entitled to discontinue the services and block the partner’s access to the platform until the fault has been eliminated.
5.10 To the extent that the content submitted by the partner under this contract is protected by copyright, the partner shall grant dimater communications all rights of use thereto which are necessary for dimater communications to perform its contractual obligations.
5.11 It is the responsibility of the partner to regularly and independently create backup copies of the contents and data transmitted or received by him or her. dimater communications is not liable for damages due to the loss of content and data that could have been avoided by regular back-up copies of the partner.
6. Fees and Billing
6.1 The fees to be paid by the partner for the services provided by dimater communications are set out in the applicable price list. Unless expressly stated otherwise, all prices are net prices plus value added tax at the statutory rate.
Messages which cannot be delivered without dimater communications being responsible are also to be remunerated. The includes, for example, instances where the partner has addressed the message to a non-existent or inactive recipient, or a recipient which is unidentifiable for dimater communications (e.g. mobile phone number).
6.2 Invoice amounts are due for payment within fourteen days after receipt of the invoice. Timeliness of payment is determined by the timeliness of payment to the account designated by dimater communications.
6.3 dimater communications is entitled to unilaterally change fees going forward into the future in the following cases:
a. Change in the statutory value added tax;
b. Changes in the costs of communications services, in particular changes in the prices of mobile phone providers or the costs of services of other providers used by the partner to which dimater communications grants the partner access pursuant to the contract;
c. Change in the cost of special network access and interconnection;
d. Changes in fees or costs due to official or court decisions, e.g. the Federal Network Agency.
In the above-mentioned cases, the fee shall be adjusted by way of a unilateral declaration to the partner while maintaining the original contractual equivalence conditions, provided that these changes do not at the same time lead to any other compensation of these changed costs with regard to the service to be provided by dimater communications to the partner. A price adjustment pursuant to this Section (6.3) must not lead to an increase in dimater communications’ profits.
In the event of a reduction in the aforementioned costs dimater communications will reduce the fees to be paid by the partner accordingly, insofar as these have been increased in accordance with this Section (6.3).
6.4 Insofar as dimater communications increases fees to be paid by the partner in cases other than those provided for in Section 6.3 or to a greater extent than provided for therein, the partner is entitled to terminate this contract with regard to services affected by price changes with effect from the time the price changes come into force. dimater communications shall inform the partner of this right to terminate the contract upon notification of the price increase. If the partner does not terminate the contract within two weeks after notification of the increase, the price increase shall be deemed to have been accepted.
6.5 An offset by the partner against claims by dimater communications is only permissible with undisputed or legally binding counterclaims. Rights of retention and/or rights to refuse performance of the partner are excluded. dimater communications is entitled to offset all its own claims as well as claims of dimater communications-affiliated companies against claims of the partner (group offsetting clause).
6.6 dimater communications is entitled to make the further provision of services to the partner dependent on an advance payment or bank guarantee from a major bank based in Germany if the partner is in arrears with the payment of due fees, despite receiving a reminder and a grace period being set. The advance payment or bank guarantee is made in the amount of the sum of the amounts of the last 4 monthly invoices (or all previous invoices if the contractual relationship is shorter than 4 months). The term of a bank guarantee to be obtained and provided by the partner may not be less than six months from the date of delivery to dimater communications.
7. Contract Term and Termination
7.1 Unless otherwise agreed between the parties, the term of the contract is 12 months (minimum term) and shall be extended by a further 12 months in each case, unless one party terminates the contract by giving 3 months’ notice to the end of the minimum term or an extension period.
7.2 The right of both parties to terminate the contract without notice for good cause in accordance with the applicable statutory provisions remains unaffected. In particular, good cause exists for dimater communications if:
a. The partner does not fulfil its contractual obligations, despite a reminder and the setting of a reasonable grace period;
c. The partner is in arrears with a payment obligation and fails to meet its obligation under Section 6.6 to provide or increase security within a reasonable period of time determined by dimater communications;
d. The use of the contractual services by the partner, including the transmitted contents, violates applicable law;
e. There is a breach by the partner of an obligation under Sections 5.8 or 5.9 and the partner has not remedied the fault within 3 working days of becoming aware of the fault;
h. The partner or its sub-partners use the services of dimater communications for purposes other than those contractually agreed, despite appropriate warnings from dimater communications;
j. The continuation of the contractual relationship with the partner becomes impossible or unreasonable for dimater communications as a result of the occurrence of circumstances which do not fall within dimater communications’ sphere (this includes the termination of an agreement concluded between dimater communications and one or more operators of a communications service, in particular mobile communications provider(s), for reasons for which dimater communications is not responsible, whereby a termination due to the breach of contract by a third party using the services of dimater communications is not deemed to be attributable to dimater communications);
7.3 Termination must be made in writing (not by email).
8. Cessation of Services
8.1 dimater communications is entitled to suspend services immediately and without prior notice, in whole or in part, if:
a. This is necessary to comply with a judicial or official order, or a legal obligation;
b. Good cause within the meaning of Section 7.2 exists, or there is a justified suspicion that such cause exists;
8.2 dimater communications shall resume the provision of services after the circumstances mentioned in Section 8.1 have ceased to exist. The costs associated with the cessation of services shall be borne by the partner, insofar as the partner is responsible for the reason for the cessation. This also applies if justified suspicion of good cause is not subsequently confirmed, but the partner is responsible for the circumstances that gave rise to justified suspicion.
8.3 Any cessation of services justified by the circumstances at the time they were performed shall not give rise to any claims for damages or other claims by the partner against dimater communications. This also applies, in particular, in those cases in which dimater communications is obliged to discontinue its services to the partner due to an official order or contracts concluded with mobile phone providers.
9.1 dimater communications shall only be liable to the partner for damages – irrespective of the legal basis – in the event of intent, gross negligence and slightly negligent breach of material contractual obligations by dimater communications, its legal representatives or its auxiliary persons.
For slightly negligent violation of material contractual obligations, liability shall be limited to compensation for foreseeable, contract-typical damages per breach up to a maximum amount of EUR 10,000.00. Indirect damages shall not be compensated.
The aforementioned limitations of liability shall apply to the same extent to the benefit of the bodies, legal representatives, employees and other auxiliary persons of dimater communications.
9.2 The limitations of liability in accordance with Section 9.1 shall not apply to damages culpably caused by dimater communications, its legal representatives or auxiliary persons as a result of death or injury, nor to liability under the Product Liability Act.
10.1 The contractual parties shall use data and information made available to them as part of this contract and the provision of the contractual service solely for the purpose of providing the service, and shall protect such data and information from access and disclosure by third parties.
10.2 The parties undertake to treat as confidential all confidential information which they receive or have received from the other party in the course of the contract negotiations and the conclusion or implementation of this contract, and to protect it from access and disclosure by third parties. Confidential shall mean any information that is marked as such, or where a party must assume, on the basis of the content of the information transmitted, that it has inadvertently been omitted from being marked as confidential. The content of this contract is considered confidential.
10.3 The disclosure of information in accordance with Section 5.5 is expressly excluded from the obligation of confidentiality under this Section (10). This does not include disclosure to dimater communications’ professional consultants (e.g. lawyers, auditors) who are bound to secrecy.
10.4 Information that is not considered as confidential includes information:
a. That is already demonstrably manifestly or publicly available, or which becomes manifestly or publicly available at a later date without this being due to an illegal act or an act contrary to the contract on the part of the recipient;
b. That is demonstrably known to the recipient prior to receipt from the disclosing party;
c. That has been disclosed in good faith to the recipient by a third party who was lawfully in possession of the information and who was authorized to disclose it;
d. That has been demonstrably developed independently by one party without access to confidential information of the other party;
e. Which must be disclosed on the basis of statutory provisions or official or judicial orders; or
f. For which the disclosing party has agreed in writing to disclosure.
10.5 The obligations under this Section (10) shall apply during the term of the contract and for a period of five (5) years from the end of the contract.
The partner guarantees that the measures and services which fall within the scope of this contract within its area of responsibility and/or duties (including measures and services of sub-partners) do not violate the provisions of this contract or applicable law, or do not, in particular, infringe the rights of third parties.
Should claims be made against dimater communications in this respect, the partner indemnifies dimater communications against all claims made by third parties arising from this. In addition, the partner is to compensate dimater communications for all damages, expenses and disadvantages incurred because of this. This applies, in particular, to the reimbursement of costs for defense against the asserted claim (e.g. court and lawyer’s fees).
12. Data Privacy
12.1 Both parties shall observe the applicable data protection regulations as part of the execution of this contract, and in particular during the provision of their contractual services.
12.2 If dimater communications is to process personal data on behalf of the partner as part of its services, the parties shall enter into an agreement for order processing, the provisions of which shall override any other contractual agreements between the parties with regard to the processing of personal data.
dimater communications is entitled to make appropriate reference to the contractual cooperation between the parties (in particular on the Internet, in press releases, in company presentations and in brochures) and to use the name and any existing company logo of the partner as part of this. The partner is entitled to withdraw this consent at any time with future effect. All communication by the partner to the public or third parties, in which reference is made to the cooperation of the parties, requires prior written approval by dimater communications.
14. Other Provisions
14.1 Verbal commitments made by dimater communications prior to the conclusion of this contract are not legally binding. Verbal agreements between the parties shall be replaced by written contract, unless it is expressly stated in each case that they shall continue to be binding.
14.2 Supplements and amendments to the agreements made must be made in writing to take effect. Electronic transmission (in particular by email) shall satisfy the written form requirement, unless expressly agreed otherwise in individual cases.
14.3 Each party shall bear its own costs in relation to the negotiation, preparation, conclusion and implementation of the contractual relationship.
14.4 The invalidity of a provision of this contract shall not affect the validity of the remaining provisions. The parties undertake to agree without delay to replace invalid provisions with provisions that come as close as possible to the economic purpose of the invalid provisions and the purpose of the parties.
14.5 German law shall apply to the exclusion of the provisions of the UN Sales Convention (CISG).
14.6 Insofar as the partner is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany, the place of jurisdiction for all disputes arising from or in relation to this contract is Düsseldorf.
Version: January 2020