General Terms and Conditions of Bolid Mobile GmbH
§ 1 Applicability and Amendment
1.1 The following General Terms and Conditions (hereinafter referred to as "GTC") apply to all current and future services of Bolid Mobile GmbH (hereinafter referred to as "BM"). This shall apply even if, when doing follow-up business with the customer, BM does not refer again to these GTC.
1.2 BM renders services exclusively under these GTC, the service description, the software license agreement, and the prices that are quoted or that can be accessed at the Web site www.bolidmobile.de (hereinafter referred to as "Web site").
1.3 Terms and conditions of the customer shall by no means become part of the agreement, even if BM does not expressly reject such. Rather, these GTC shall apply exclusively in all cases.
1.4 Notifications concerning the contractual relationship, especially amendments to these GTC or information about amendments may be sent by e-mail to the e-mail address specified by the customer or by SMS to the phone number specified by the customer.
1.5 Any amendments to the GTC, the service description, or the software license agreement will be submitted to the customer in the form of an offer. If the customer does not respond to the notification of the amendments or if he does not object within 6 weeks of the receipt of the amendment offer, an agreement will come into force at the amended conditions, provided that BM has expressly informed the customer of this consequence in the amendment offer.
1.6 When accessing the offer of BM with a mobile terminal device (e.g. mobile phone), the limitations of the display of this terminal device (e.g. due to the screen size) must be taken into consideration; if necessary, the data can be checked by using a standard-size computer screen (currently at least 17" screen diagonal).
§ 2 Term and Termination
2.1 The agreement comes into force upon confirmation of the customer registration (framework agreement).
2.2 An individual agreement comes into force when the customer makes use of chargeable services. This is subject to the valid prices stated in the price list under http://www.bolidmobile.com/en/rates.
2.3 BM shall be entitled to refuse the conclusion of an agreement or the provision of services if the customer gives incorrect information or if there are indications that he is unable or unwilling to comply with his obligations under the agreement.
§ 3 Prices
3.1 The prices depend on the price information valid at the conclusion of the agreement.
3.2 The prices cover only the services rendered by BM. Costs incurred from calling the BM server are not included. BM has no influence on these costs, which result from the customer's agreement with his telecommunications provider.
3.3 The prices include the legal VAT.
3.4 The prices can be accessed under http://www.bolidmobile.com/en/rates. Currently, the call rates per time unit (minute) are also announced before a connection is established.
3.5 The customer does not incur any costs by registering at the BM Web site.
3.6 Billing is done in 60 second increments with minimum call duration of 60 seconds.
§ 4 Payment
4.1 Upon conclusion of the agreement, BM sets up a credit account for each registered phone number.
4.2 BM renders its services on the basis of the credit the customer transfers to this account.
4.3 The customer account can be filled by bank transfer, credit card, or PayPal service. To prevent misuse, credit card payments require the name of the cardholder to match the name registered at BM. Mistakes in connection with payments via bank transfer (incorrect phone number) shall be borne by the customer and may result in authorized use of the credit by third parties.
4.4 Payment claims of BM against the customer shall not be affected by objections of the contracting partners whom the customer engages for the payment.
4.5 If the customer uses the automatic refill option, he shall ensure an adequate account balance.
4.6 The amount to be paid is debited after using the exchange service of BM in 1-minute increments.
4.7 If the customer uses credit from special campaigns of BM (e.g. free start-up credit) in violation of the campaign terms and conditions (e.g. unauthorized multiple use), BM shall be entitled to debit the customer's credit after learning of this. BM reserves the right to assert further claims.
4.8 The customer may only assert objections against the debit transaction within 8 weeks of the debit transaction.
4.9 BM is under no obligation to produce evidence of services rendered or of individual calls if the data required for this are no longer available
a) due to a statutory obligation,
b) because the customer had objected to the storage of the traffic data, or
c) because the customer has requested the deletion of the traffic data.
4.10 The contract can be cancelled if the quality of BM is below the average standard. If customer still has a balance upon termination of the framework agreement, it will be paid to a bank account specified by the customer upon written demand of the customer. The return of the unused funds will be minus any process, handling and bank charges.
§ 5 Limitation of Services
5.1 When the customer's credit is used up, the active call is automatically interrupted. Therefore, the customer must ensure a sufficient account balance before making a call. Currently, an announcement is made to inform the customer of the impending interruption. BM reserves the right to suspend this service at all times without prior notice.
5.2 Technical requirements, e.g. of the Federal Network Agency (BNA) can result in changes in the services of BM.
5.3 The Flat Rate call plans are only for private usage. Should these call plans be used excessively or for ony other purposes, BM reservs the right to suspend this service at all times without prior notice.
§ 6 Warranty
6.1 For technical reasons, BM cannot guarantee a call quality that corresponds to that of a direct call.
6.2 The availability of the exchange services of the BM exchange amounts to an annual average of 97%.
6.5 Refund claims of the customer are limited as specified in sections 7.3, 7.5, 7.6 and 7.7.
6.6 The responsibility of BM pursuant to sections 7.1, 7.2, and 7.4 remains unaffected by the aforesaid provisions.
6.7 In case a complaint is not based on a mistake of BM and the customer should have known this, had he exercised due care, BM may charge a fee for the troubleshooting expenses incurred by BM. This expense fee will be calculated according to the required working time.
§ 7 Limitation of Liability
7.1 The liability of BM for culpable injury to life, body, and health is unlimited.
7.2 The liability of BM due to grossly negligent or intentional violation of obligations on the part of its employees, legal representatives, and agents is unlimited.
7.3 In the event of slight negligence, BM shall only be liable within the scope of material contractual obligations (compliance with which is of special significance for the achievement of the purpose of the agreement). In the event of slightly negligent violation of a material contractual obligations, the liability of BM shall be limited to EUR 500.
7.4 The liability under the German Product Liability Act (ProdHaftG) remains unlimited.
7.5 Should the customer lose data within the scope of the services of BM, BM will only assume liability for damages for which it is responsible to the extent that the customer has backed up his data at adequate intervals and in a suitable form so that these can be restored with an acceptable effort.
7.6 The liability of BM in the event of negligent damage according to Section 44 of the German Telecommunications Act (TKG) is limited to EUR 12,500 if the customer is a legal or natural person that does not operate public telecommunication networks or renders telecommunication services to the public ("end user").
7.7 The liability to the entirety of the customers according to Section 44a of the German Telecommunications Act (TKG) is limited to EUR 10,000,000 per damage-causing incident. If the amounts to be paid to several customers due to the same incident exceed the maximum limit, the compensation for damages shall be reduced in the proportion of the total of all damage compensation claims to the maximum limit. The limitation of liability shall not apply if the damaged was caused intentionally.
§ 8 Obligations of the Customer
8.1 Anybody who knows the e-mail address and password can use the services of BM. Therefore, the customer shall exercise additional care in protecting the confidentiality of these data in order to prevent misuse.
8.2 If the customer knows or should have known, had he exercised due care, that his data are being misused, he shall report this to BM without delay.
8.3 The customer shall inform BM without delay in the event of a change of the e-mail address or of the bank account/credit card details for direct debits.
8.3 For direct debits, the customer shall ensure an adequate bank account balance.
8.4 The customer is not entitled to make calls that result in payments to the customer within the scope of the call.
8.5 Without the express written consent of BM, the customer is not entitled to commercially offer the exchange services of BM.
8.6 In the event of culpable violation of sections 8.4 and 8.5 by the customer, the customer shall pay BM a penalty of EUR 500. BM reserves the right to assert further damages.
§ 9 Data Protection, Data Processing
9.1 The agreement partner is hereby informed pursuant to Section 33 (1) of the Federal Data Protection Act (BDSG) that BM collects, processes, and uses personal data of its customers that are necessary for the setup and change of the customer agreements within the framework defined by legal provisions.
9.2 If BM engages third parties for the provision of the services offered, BM shall be entitled to disclose the subscriber data if this is necessary in order to render the service.
9.3 BM guarantees that all individuals whom BM entrusts with the provision of services know and observe the data protection regulations in their applicable form.
9.4 BM is authorized and under the obligation to store data for the setup, arrangement, change, or termination of the contractual relationship (master data). According to Section 95 (2) of the German Telecommunications Act (TKG), BM may use the master data to send the customer text or image messages (e.g. SMS/MMS) for consulting, advertising of own offers, and market research purposes.
The customer may at all times object, in written or electronic form, to the transmission of these data. BM will only send such messages to the customer by e-mail if the customer has consented to this use.
9.5 Pursuant to Section 113a of the German Telecommunications Act (TKG), BM is under the obligation to store data collected, processed, or used in connection with the provision of its services (traffic data) for 6 months.
9.6 After logging in to BM at http://www.bolidmobile.com/en/mystats, the customer can review the calls made via BM at all times (except during unavoidable maintenance or repair work). The call record specifies the time, the phone number dialed, and the cost of the call. The customer cannot demand more detailed information about the call. The customer is under the obligation to keep his access data secret (section 8.1 of these GTC) in order to prevent the traffic data from being disclosed to third parties.
9.7 The customer's call data may be stored and transmitted if this is necessary for billing purposes.
§ 10 Applicable Law, Severability
10.1 The entire legal relationship between BM and the customer shall be governed by German law. The provisions of the Introductory Act to the German Civil Code (EGBGB) concerning the applicable law shall only apply to the extent that this results in the application of German law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
10.2 Should any provision of these GTC or any provision in supplementary agreements be or become invalid, this shall not affect the validity of the other provisions.
Revision: August 1, 2009
Attachment 1: End User Licence Agreement (EULA)
Attachment 2: Service Description