Least Cost SMS
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Table of Contents
- Subject matter of contract
- Scope of services
- Availability, service, and support management
- Rights and obligations of the client
- Settlement & Duty of Payment
- Changes of technical parameters
- Contract amendments
- Liability
- Contract period and termination
- Confidentiality & Data protection
- Further regulations
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Terms and Conditions (English)
Type: PDF, Filesize: 224kb, Date: 2/5/2007
General terms and conditions (GTC) least-cost-sms.com, a product of the company: e.Cross GmbH & Co. KG, Johann-Krane-Weg 37, 48149 Münster, Germany
- hereinafter referred to as „E.CROSS“ -
Preamble
least cost sms.com (hereinafter referred to as "LC-SMS") is a product of the E.CROSS Company. LC-SMS is an Internet-based platform over which the contracting party can send SMS’s to mobile end devices. E.CROSS offers professional transmission of SMS, mainly bulk mailing (individual mailing also possible) over the Internet to nearly all GSM operator networks worldwide. The parties agree that the services offered by the client are not services of E.CROSS and a contractual relationship concern-ing the services offered by the client is only concluded between the client and the final customer. It is agreed that only E.CROSS provides and makes technically possible the service. This comprises the technical accessibility of the services from the respective network operator networks over special call numbers or mobile long numbers up to the place of the network interconnection with the network operator or service provider assigned by E.CROSS for linkup, who implements the technical transmission of the contents of the services starting from this transfer point to the mobile radio subscribers ("telecommunication service"). It is agreed that E.CROSS is not obliged to examine and control the services operated by the client. E.CROSS neither supervised the client nor is the client subordinate to E.CROSS. E.CROSS does not support the client further than described in these performance specifications.
With this in mind, the parties agree the following:
1. Subject matter of contract
1.1 E.CROSS furnishes all services opposite its contracting parties (Client(s)) exclusively based on the General Terms and Conditions (GTC), as well as if necessary on further Special Terms and Conditions (STC) for individual services furnished by E.CROSS.
1.2 Type and scope of the provider services as well as the fees to be paid by the client, result from the completed service agreement, the completed service request form, the performance specifications valid at conclusion of contract, the user manuals for the selected product(s), the technical specifications, as well as the communicated prices handed over at conclusion of contract or in the case of a possible price increase or reduction (price list, contract form or contract confirmation).
1.2 The client is only committed to his binding order for 14 days at the most after the date of signing. E.CROSS as contractor can accept the order at any time before expiry of the term. The contract is considered fully concluded, if E.CROSS confirms acceptance of the order and/or request within the term in writing or if E.CROSS enables use of the ordered services during this period. At the same time, E.CROSS is obligated to inform the client immediately, if the request is not accepted.
1.3 Subject matter is the provision of an SMS gateway for professional mailing of SMS messages.
2. Scope of services
2.1 E.CROSS transfers contents to the system interfaces/gateways of the network operators, in order for the network operator to forward the contents to the intended recipient (mobile telephone subscriber). The transmission and forwarding of contents to the telecommunication networks of further parties (mobile networks, fixed networks) and the delivery of the contents to the recipients are not subject matter of the contractual services of E.CROSS. E.CROSS is not obligated to dispatch the contents anew, if disturbances occur within the telecommunication networks of third parties, which delay or permanently prevent delivery of the contents to the intended recipient. E.CROSS has no influence on disturbances, which could affect the transmission of SMS’s of E.CROSS to the service provider or mobile network provider or on distur-bances, which could affect the transmission of SMS’s from the service provider to the respective network operator or how the network operators transmit SMS’s among each other or also the network operators transmit to the customers. These areas are not subject matter of the contract.
2.2 The client is entitled to offer services of E.CROSS to third parties for final customers without previous written consent of E.CROSS (Reselling).
2.3 During SMS/MMS mailing, E.CROSS forwards the SMS’s to the respective service provider (vicarious agent of E.CROSS) or mobile radio network operator for delivery to the respective mobile radio subscriber (final customer). The network operator then transmits the SMS’s to the mobile end device used by the subscriber. E.CROSS has fulfilled its contractual obligations concerning transmission of the SMS’s with correct dispatch of the SMS’s addressed to the final customer to the service provider or network operator.
2.4 The in each case valid regulations under public law must be observed as far as they concern GSM networks. Apart from the strict protection of the secrecy of tele-communications, this comprises in particular the regulations of the Telecommunications Data Protection Ordinance (TDSV) and German Data Protection Act (BDSG), as well as the conditions of the mobile radio network operators.
2.5 The contractually warranted services are limited to processing exclusively private or informative contents. Processing messages with relevant legal contents, in particular declarations of intent as well as messages, which are the basis of economically important decisions, do not belong to these services.
2.6 The delivery of the SMS information by the client is exclusively effected via the transmission interfaces to the E.CROSS systems, which are defined in the performance specifications and user manuals applicable at conclusion of contract.
3. Availability, service, and support management
3.1 The availability of the E.CROSS systems is 98% respectively on an annual average (without planned downtimes). E.CROSS does not warrant that an SMS correctly addressed by E.CROSS actually reaches the recipient, since E.CROSS has no influence on the transmission of the message on the Internet and via the network of the mobile radio operator. Due to the technical and economic dimensioning of used networks and depending on the radio propagation conditions (e.g. radio shadow), the client must expect that radio communication cannot be made at any time and to all locations and/or is impaired. Transmitting the SMS information within the GSM networks of the mobile radio network operators is not subject matter of the E.CROSS services. Due to the technical settings of the GSM networks, E.CROSS points out, that the SMS messages passed on to these mobile radio networks are available there for a maximum of 48 hours for delivery to the recipient and are then deleted by the mobile radio network operators without being delivered.
3.2 Necessary and predictable service work is normally announced with an advance of three (3) days by e-mail. The service work is normally not accomplished during peak hours but during the period from 10pm to 6am during the night. Predictable service times are not considered during calculation of the availability. The service periods exclusively concern work on the systems of E.CROSS. E.CROSS will likewise inform the client about the service periods, if network operators or gateway partners (Providers) should carry out service work and if E.CROSS is informed of this work in advance.
3.3 The client will be informed immediately if necessary unexpected service work becomes necessary to maintain system functionalities, with indication of the beginning and prospective end time. The client designates a contact point, which is available at all times, for this purpose and to clarifying all technical and organizational questions of procedure in connection with the execution of this contract. E.CROSS will likewise inform the client about the service periods, if network operators or gateway partners (Providers) should carry out unexpected service work and if E.CROSS is informed of this work in advance.
3.4 In the case of system faults, E.CROSS will start troubleshooting after gaining knowledge of the fault immediately during office hours, latest however within two hours, outside office hours within four hours. Office hours are Monday to Friday – except on federal holidays or holidays in the State of North Rhine-Westphalia – 9:00 am to 6:00 pm.
3.5 Downtimes are not considered in the calculation of the contractually stipulated availability, if unexpected service work or troubleshooting becomes necessary for reasons which are not to be represented by the client and the system malfunctions. E.CROSS is entitled to require the client to reimburse the costs caused by the downtime, if the client is responsible for the downtime.
3.6 The client is not entitled to assert any liability claims against E.CROSS resulting from limitation or temporary shutdown of the services offered. The above said also applies to malfunctions for which E.CROSS is not responsible, e.g. during temporary failure of telecommunication equipment or individual GSM networks. E.CROSS will inform the client about planning concerning the above-mentioned changes, modifications and improvements as soon as possible. Impairments during use of the GSM networks, long-term restrictions or shutdown of the services offered on the part of E.CROSS or individual network operators will be communicated to the contracting party in such good time, that appropriate measures can be introduced to avoid commercial disadvantages.
3.7 Fault reports must be communicated to the E.CROSS hotline. This is available day and night (24/7/365) under the telephone number +49 (0)1803 327,677 99 (9ct/min). Furthermore, fault reports are also accepted by e-mail at support@e cross.de. This hotline is also available for other issues during the above-mentioned office hours.
3.8 E.CROSS is not liable for any procurement risk. E.CROSS is entitled to withdraw from the contract, if the network operators do not grant transportability for the required SMS services. This does not apply to the responsibility of E.CROSS for negligence or intent. E.CROSS will inform the client on lacking availability of the required services due to the absence of transportability of the services by the network operators and, if E.CROSS wants to withdraw, will exercise this right of withdrawal immedi-ately. In the case of withdrawal for the above-mentioned reasons, E.CROSS will refund the client possibly already settled invoice amounts concerning services, which have not been furnished.
3.9 Prospective customers and clients can access the information stored by E.CROSS on its web servers and day and night. This does not apply to times, in which the web server cannot be accessed via Internet due to technical and other problems, which are not the responsibility of E.CROSS (force majeure, fault of third parties, etc.). E.CROSS is not liable for the operational capability of the telephone and internet lines to its servers, in the case of power failures and failures of servers, for which he is not responsible.
4. Rights and obligations of the client
4.1 Apart from his obligation to pay the contractually agreed upon remuneration on the due date (due at issuing of invoice, immediately and without deductions), the client is obligated when using the contractual services of E.CROSS to consider and observe the respectively applicable laws and regulations of the individual countries, in which the client markets its services. This also comprises orders and decisions of the German Federal Network Agency, as well as the code of behaviour for premium rate services and the voluntary self-monitoring of premium rate services and the code of behaviour for premium SMS/Mobile services and web-based services of the mobile radio offerers in their respective valid version. The client undertakes to furnish only the services indicated in the service request. If the client would like to use the systems provided by E.CROSS for other services, then this must be approved by E.CROSS in advance and possibly upgraded by an additional service request. The client furthermore undertakes to observe the guidelines of this contract during all transactions carried out over the provided E.CROSS interfaces.
4.2 The client is in particular obligated to guarantee that SMS messages are only sent to recipients, who have agreed to receive messages (Prohibition of spamming). The client ensures that he exclusively uses the service with consideration to the valid legal in particular data protection regulations and to the extent necessary has procured the necessary consent of its own customers to transmit data to or via E.CROSS. The client is alone responsible for the message contents passed on to E.CROSS for forwarding. The opt in verification must be furnished in the case of customer complaints in writing. No contents may be offered or mediated for use, which are liable to prosecution or are inadmissible within the meaning of § 184 par. 1 StGB (Dissemination of pornographic writings), within the meaning of § 4 Youth Media Protection Treaty (JMStV), within the meaning of § 8 par. 1, no. 2-4 MDStV or according to other applicable laws, regulations or treaties. Contents within the meaning of § 4 par. 2 JMStV may only be offered, if the partner warrants that these contents are only made accessible to adults. He furthermore guarantees that "development-impairing offers" are offered within the meaning of § 5 JMStV exclusively in accordance with the regulations of the JMStV. The client will thereby also consider the legal regulations, in particular the price regulation, the German Act Against Unfair Practices and the German Telecommunication Act TKG as well as § 6 JMStV. The client will desist from any abusive use of the services and not dispatch information or messages known to him via the service of E.CROSS, which concern the following topics. He warrants not to dispatch any illegal, in particular patent, trademark, personal right or other industrial property rights of third parties infringing, grossly objectionable, youth-endangering, extremist, violence glorifying or trivialising, war glorifying, terrorist or extremist political association recruitment contents, or to instigate a criminal offence or to make defamatory statements or depict criminal contents. He furthermore warrants not to disseminate or have disseminated information or other contents of which he is aware, which refer to such contents, which are suitable to make contemptuous of or to otherwise debase the reputation of E.CROSS or other contracting parties of E.CROSS, which are recognisable as such. He may not in his communication or when executing his services name or display the registered trademark or the respective logo of the network operator or of a network operator belonging to the affiliated group, unless a network operator grants the partner permission in individual cases in writing; this must be submitted to E.CROSS. He may not bypass any safety precautions of the systems of E.CROSS or third parties and/or use service offers otherwise abusively, to attempt this or to support third parties at such attempts. The client is additionally obligated not to transmit computer viruses, chain letters, or other malicious software or molesting messages or messages not requested by the final customer or to request their transmission. He may not use equipment or execute requests, which can or could damage the equipment of E.CROSS and/or third parties, in particular by changes in the physical or logical structure of the E.CROSS servers or of the servers of third parties or to the transmission system of participating networks. The client guarantees furthermore, that during use of a freely selectable sender identification for the dispatch of SMS/MMS messages, all dispatched message can be flawlessly retraced to the sender of the message. The client must carefully retain and keep secret passwords or other access numbers, which entitle him to use the service, in order to prevent abuse. As soon as he has cause to assume, that the password has been abused, to have it immediately changed by E.CROSS or to use automated processes provided by E.CROSS to change the password. The client has the same obligations as for himself, if third parties use the contractual service by applying the secret access data. The same applies to the duty of payment.
4.3 As far as the client offers the services on his own behalf opposite final customers, he is solely responsible that his contractual terms are considered appropriately, that these do not contain any inadmissible clauses opposite the final customer and that the final customer has been sufficiently informed according to §§ 312 b ff BGB.
4.4 E.CROSS can block access or discontinue the service, if the client breaches the above obligations substantially and if he does not immediately correct this conduct contrary to contract despite of warning. The client shall indemnify E.CROSS from all claims of third parties in the context of a breach of the above obligations by the client and will compensate E.CROSS to that extent.
4.5 The client will reimburse E.CROSS contractual penalties or other fines, which E.CROSS must pay to third parties, if this fine is due to the conduct of the client
4.6 The client is obligated to notify immediately in writing any change of his name, place of business, invoice address, legal form, and bank connection.
4.7 Apart from the obligations resulting from the General Terms and Conditions of E.CROSS, the mobile radio network operators of the individual countries, in which the client offers his services by means of the technical services of E.CROSS, also have special obligations. Observing these is essential for the contractual relationship with E.CROSS. The client is also fully responsible opposite E.CROSS for the conduct of his own customers and/or staff members.
4.8 The software platform „least-cost-sms.com“ developed by E.CROSS is provided by E.CROSS for the dispatch and handling and/or processing of SMS messages. The client is responsible for contents of the dispatched SMS’s, as well as for other abusive use and is responsible for incurred damages. Access to the web-based e.Cromo platform, as well as to further linked products, modules or software systems remain the property of E.CROSS and cannot be used by the client after expiration of the contract.
5. Settlement & Duty of Payment
5.1 The prices valid at the time of conclusion of contract for dispatching the SMS’s can be viewed online. The prices only apply to an individual order. E.CROSS is entitled to change the SMS prices at any time. The contracting party acknowledges that notification by email is sufficient. The client expressly acknowledges this. All prices and payouts are understood as net, plus the legal in each case valid value added tax.
5.2 Payment takes place in advance, if not otherwise agreed upon (Prepaid procedure). The amount is activated on the account of the client after receipt of the payment. E.CROSS does not assume any price guarantee for the individual SMS’s.
5.3 Objections against an invoice must be submitted to E.CROSS at the latest 30 days after the invoice date in writing. The invoice is considered accepted by the client after expiration of this period.
5.4 Possible reimbursement claims of the client, e.g. discontinuation of routes, achievement the selected top price, discontinuation of required features, etc., will be credited to the account of the client and offset during the next loading procedure (with the then valid price). The reimbursement takes place on the bank account known to E.CROSS, if the client requires this expressly and all invoices have been settled; a handling fee of 20.00 EUR plus valid VAT will be charged. This will be offset with the open amount.
5.5 E.CROSS will determine the number of SMS’s, which were transmitted by and/or to the client. The number of SMS’s, which were received by the E.CROSS systems over the client access is relevant for SMS dispatch, irrespective whether they could be transmitted to the recipient or not, unless E.CROSS is responsible for the non-transmission.
6. Changes of technical parameters
6.1 E.CROSS can change or modify the transfer interface or the infrastructure used to execute the service to maintain or improve the service to the extent as this is reasonable with consideration to the entitled interests of the client. The client shall be notified of predictable changes and modifications one week in advance.
6.2 The client is responsible for perfect operation as well as for the correct functioning of installed software, if he provides the hardware himself. The appropriate components are marked with "Installation by E.CROSS" or one of his partner companies, if appropriate deviating written agreements have been concluded with the client. The client ensures that he is entitled to have additional equipment and/or model and type changes build into the intended hardware, even if he is not the owner. E.CROSS shall not install the supplied programmes unless expressly agreed in writing. Compatibility with programmes already installed at the client is not a requirement, as far as this has not been expressly agreed in writing. E.CROSS is not obligated to adapt the supplied software to existing programmes of the client, even if E.CROSS has carried out the installation. This also applies, if the programmes already used by the client were procured from E.CROSS. Further accompanying services of E.CROSS, also user introduction and the like, are only then subject matter of the contract, if this has been expressly agreed upon in writing.
7. Contract amendments
7.1 E.CROSS is entitled to amend the remuneration to be paid by the client, if the market conditions for SMS transmission change at the time of conclusion of contract and/or last amendment. (By discontinuation of routes, required features, exceedance of the max. price per SMS, etc.)
7.2 E.CROSS is furthermore entitled to modify his contractual services and the remunerations to be paid by the client, if the changes do not imply an impairment of client rights. The client will be notified of appropriate changes in writing.
7.3 E.CROSS is furthermore entitled to modify the contract, if this is necessary due to changed technical basic conditions, in order to maintain the service, or due to changed legal requirements, in particular on part of courts or responsible supervisory authorities. Unilateral changes of the remunerations are also possible, if the economic basic conditions or the services change or if another conclusive reason is given. The changes must be reasonable for the client.
7.4 As far E.CROSS exercises its right to change according to 7.3, the client can exercise an extraordinarily termination of the contractual relationship at the time the change takes effect. The client will be notified of the changes and his termination right. The change becomes effective with this reference to the client. The right to give notice expires one month after the appropriate reference.
7.5 This does not apply to the right to modify the contract according to legal regulations. E.CROSS reserves the right to change the GTC and/or the STC at any time without specifying reasons.
7.6 The client can object in writing to changes of the GTC/STC and/or contract amendments of E.CROSS according to the above sections within a period of 4 weeks after appropriate notification of the change. The right of objection expires 4 weeks after receipt of the notification by the client. E.CROSS will inform the client of his right to objection together with reference to the change. If the client objects within the prescribed period: Then the contractual relationship is continued without change, other-wise the changes of the contractual relationship become effective after expiration of 4 weeks after receipt of the notification by the client – or at a later point in time specified in the notification. If the client objects within the prescribed period, then E.CROSS is entitled to serve extraordinary notice within a period of four weeks, begin-ning with receipt of the objection by E.CROSS.
8. Liability
8.1 E.CROSS is responsible for financial losses, which are not the result of damage to body, health or property and which final customers assert against the client; E.CROSS is liable opposite the client to the extent that the client is liable opposite his final customers for these damages without extension of contractual liability due to legal regulations.
8.2 E.CROSS is not liable for lost profits, absence of savings, damages from claims of third parties and other direct and indirect consequential damages.
8.3 E.CROSS is not liable for financial losses of the service operator in the case of a system crash, as long as E.CROSS observes the period of 24 hours to commence repair work and does not delay execution negligently or with intent.
8.4 E.CROSS is liable if the services are delayed, in the case of impossibility, in cases of intent or gross negligence by E.CROSS or his precarious agents according to the legal regulations. The liability of E.CROSS for compensation due to delay of the service is limited to 10% of the service and for compensation of the service to 5% of the value. Further claims of the client are excluded, also after expiration of a period set for E.CROSS to furnish service. The above limitations do not apply for liability due to damage to life, body or health.
8.5 The client indemnifies E.CROSS from all claims of third parties in the context of a breach of the above obligations by the client.
8.6 The client undertakes to indemnify E.CROSS from all claims, losses, and expenditures (including legal advisory fees and expenses), which E.CROSS must furnish altogether or individually in the scope of legal proceedings or due to threatening or asserted claims, which are asserted against E.CROSS due to SMS’s or their contents transmitted by the client.
8.7 E.CROSS is in all other respects liable opposite the client: for damage to body or health; for warranted characteristics; unlimited for damages intentionally caused or due to gross negligence by his legal representatives or executives in the scope of the legal regulations, as well as according to the Product Liability Act. Furthermore, E.CROSS is liable in the following cases: other, grossly negligent, caused damages; initial inability or; the impossibility as represented or; default of performance as well as; the culpable breach of a substantial contractual obligation (cardinal obligation) in a manner, which endangers the purpose of the contract. In these cases, the liability of the contractor is limited to such typical damages, which were reasonably predictable for the contractor at the time of conclusion of contract. In all other respects, the liability of E.CROSS for damages – irrespective of the legal grounds, including prohibited activities, tortuous act at conclusion of contract as well as default in perform-ance of contract is excluded.
8.8 Declarations of E.CROSS in the context of the service request (e.g. performance specifications concerning further documents, such as e.g. product descriptions, cost representations, remuneration table, etc.) do not comprise any warranty in case of doubt. Only express, written declarations of E.CROSS concerning acceptance of war-ranty are relevant in the case of doubt.
8.9 The user must ensure in a suitable manner that third parties cannot acquire the data made available by E.CROSS for authentication at the SMS gateway, when using the SMS gateway of E.CROSS to dispatch SMS’s. The client is liable for the costs incurred by unauthorised SMS dispatched by third parties, if these data should be unintentionally or intentionally available to third parties, e.g. by a hacker attack on the systems of the client and if in the following his SMS are despatched by third par-ties together with the access data of the client over the SMS gateway of E.CROSS.
9. Contract period and termination
9.1 This contract is concluded for an indefinite time, if not otherwise agreed in writing. Each contracting party in writing can terminate it by 3 months notice to the end of the month.
9.2 The right to extraordinary notice of termination for good reason is not affected hereby. Good reason is in particular, if the respective other party discontinues its business activities, becomes insolvent, if insolvency proceedings are instituted against his assets or bankruptcy is filed.
9.3 E.CROSS is entitled to extraordinary notice of termination, if the client is in default with more than one monthly payment.
9.4 Additionally to the above sections 9.2 and 9.3, E.CROSS is entitled to terminate the contract without notice, if the client breaches laws or other public regulations in the scope of co-operation.
9.5 E.CROSS is entitled at his own discretion to block temporarily access of the client to his account as well as to discontinue temporarily the provision of performances and services, if the client has breached these obligations, in particular if the client is in default of payment. The obligation of the client to pay use-independent remunerations remains unaffected. Blocking must be discontinued immediately, at the latest within 3 days, after E.CROSS has been notified that the reason for the blockage is not applicable anymore.
9.6 E.CROSS can discontinue furnished free performances and services at any time. This does not result in a reduction, reimbursement, or damage liability.
10. Confidentiality & Data protection
10.1 The client is registered in the internal systems of E.CROSS after conclusion of contract. For this purpose, the customer data acquired in the service request are stored. E.CROSS will process and store personal data according to the requirements of the data protection regulations and with regard to other, legally relevant regulations. E.CROSS will hereby consider all applicable data protection regulations and arrange the necessary, technical equipment accordingly. The personnel of E.CROSS is likewise obligated to observe these data protection regulations.
10.2 The contracting parties undertake during the term of contract as well as for two years after termination to consider as confidential all information made accessible in the scope of this contractual relationship and specified as confidential or recognisable as business or trade secrets and – if not necessary to achieve the purpose of the contract – neither to record the information nor to forward it to third parties or to utilise it in any other way than specified in the purpose of contract. Companies affiliated with the respective contractual partner within the meaning of §§ 15 ff. German Companies Act are not considered to be third parties, as far as they have undertaken to observe confidentiality in writing. This obligation to maintain confidentiality also applies to the contents of this contract and to further agreements and understandings during its term. This does not apply to verified information already known to one contractual party before commencing contract negotiations or which was imparted by entitled third parties as non-confidential, which the parties have developed independently of each other, which without fault or activity of the parties has or will become known to the public or which must be disclosed due to official or judicial order. In the latter case, the other Contracting Party must be informed immediately on the disclosure. Further legal confidentiality obligations will remain unaffected.
10.3 The parties are entitled to communicate confidential information of the respective other party to their bodies, executives, employees, assignees or advisors (in the following referred to as "representatives), as far as these require the appropriate information to achieve the purpose of this contract. As far as the representatives are not bodies or executives, confidential information may only be passed on, either if the representatives have undertaken in writing to treat the confidential information accord-ing to section 11 or if the representatives are already obligated to observe confidentiality due to legal or professional regulations.
10.4 Both parties are liable for any breach of this agreement by their representatives, affiliated companies and their representatives. Both parties undertake at their own expense to take all necessary measures to deter their representatives, affiliated companies and their representatives from forwarding or using confidential information in breach of the above section 11.2.
10.5 Without prior written agreement of the other party, which however may not be unreasonably withheld, neither of the parties is authorised to publish a press release or a public statement concerning the existence, the subject matter or the conditions of this contract, or of the other party or his present or planned business or services.
11. Further regulations
11.1 E.CROSS is entitled to transfer completely or partly the fulfilment of his obligations to third party vicarious agents.
11.2 Any amendment of the provisions of the contract and/or of its annexes requires the written form. This also applies to the amendment of this written form clause. Verbal agreements do not exist.
11.3 This contract constitutes the entire agreement between the parties with regard to the subject matter of the contract and replaces all other contracts, declarations and/or warranties of the parties regarding the subject matter of the contract.
11.4 If one of the parties fails to assert one of its rights according to this contract, this is not to be considered as the waiver of such a right.
11.5 An invalid or not enforceable section, condition or clause of this contract does not effect the remaining provisions of this contract.
11.6 The annexes to this contract are an integral part of this contract. The annexes are decisive, if contradictions between the annexes and the contract are determined.
11.7 This contract is governed by the laws of the Federal Republic of Germany with exclusion of the UN law on the sale of goods. Münster is agreed as place of jurisdiction for disputes from or in connection with this contract.
11.8 Verbal agreements not been concluded. Amendments of and supplementations to this contract always require the written form. This also applies to the amendment of the written form requirement.
11.9 Place of jurisdiction for proprietary disputes on grounds of this contract is Münster/Westfalia, if the client is a merchant, public entity or a special fund under public law or has no permanent domicile in Germany, has relocated his domicile or place of residence abroad after these conditions have become effective or if his domicile or place of residence is not known at the time of filing action. Münster/Westfalia is agreed as place of performance for all contract services. E.CROSS is furthermore entitled to file an action against the client at his place of general jurisdiction. The exclusive places of jurisdiction will remain unaffected. This applies likewise, if the customer does not have a place of general jurisdiction in the Federal Republic of Germany or has relocated his place of residence abroad after conclusion of contract.
Stand: 01.04.2007