- dtms GmbH (hereinafter referred to as "dtms") provides telecommunications and other services in accordance with the statutory provisions and contractual provisions, in particular those of the Framework Agreement and/or respective Order Forms in conjunction with the Terms and Conditions set out below and - insofar as they apply for the service in question - the product-specific Service Descriptions and Special Terms of Service. Should the Framework Agreement, the respective Order Forms, the Service Description and in particular the Terms of Service contain provisions that go beyond or differ from those in these Terms and Conditions, the provisions contained in the Order Forms and Terms of Service shall take precedence. Should any provisions in the Service Description differ from those in the Special Terms of Service, those provisions contained in the Special Terms of Service shall take precedence. Should any provisions in the Order Forms differ from those in the Service Description, those provisions contained in the Order Forms shall take precedence. dtms performs its services in accordance with the TKG (German Telecommunications Act).
- The services provided by dtms under the agreement are governed exclusively by the Terms and Conditions set out below as well as the Order Forms and Service Descriptions and Special Terms of Service. dtms does not accept any conditions set by the Customer that are in contradiction with or differ from those set out in these Terms and Conditions or in the Order Forms or Service Descriptions or Special Terms of Service unless dtms has expressly agreed to their application in writing. The Customer shall be separately informed in writing or by email of any changes to these Terms and Conditions, the Service Descriptions or the Special Terms of Service. dtms may also refer the customer in writing or by email to the changes published on the Internet. The customer may object to the changes within one month of receiving the change notification. Should the customer exercise his right of objection, the original conditions shall continue to apply. In this case, however, dtms shall have the right to terminate the overall contractual relationship and also to terminate individual Order Forms. If the Customer does not object or fails to do so within the deadline, this shall be taken as his declaration of consent to the amended Terms and Conditions. In the change notification, dtms is obliged to specifically point out to the Customer the implications of failing to respond.
II. Subject of the Agreement
- The Customer can use the Order Forms to request the provision of one or more services of a particular kind. A service is defined by an Order Form. Should the Customer order several services of a particular kind, a separate contract is entered into between the Parties for each individual service, even though they are contained on the same Order Form.
- All of the services offered by dtms and associated documents are non binding and subject to alteration. A contract is concluded when the Customer submits an order in writing using the corresponding Order Form and dtms subsequently confirms the order in writing or on activation of the service by dtms. Service provision dates and deadlines shall only be binding if dtms has expressly agreed to them in writing and the Customer has, in a timely manner, fulfilled all of the requirements necessary for dtms to perform the service that are within his sphere of influence.
dtms shall be entitled to make concluding the contract dependent on the Customer issuing a direct debit mandate, payment being received in advance or a bank guarantee being provided.
- If the customer issues an order to set up a phone number by electronic means, dtms shall likewise be entitled to confirm receipt of the order by electronic means. This confirmation of receipt of the order shall not, however, constitute binding acceptance of the prospective order on the part of dtms. The above notwithstanding, the confirmation of receipt may also be combined with the declaration of acceptance.
- dtms shall only be obliged to retrieve incoming emails and other electronic messages (collectively referred to as "emails" in the following) once per work day. Emails received during normal business hours (09:00 - 17:00) are considered to have been received at 17:00 unless the Customer can demonstrate that the emails were retrieved at an earlier time. Emails received outside normal business hours are considered to have been received at 10:00 on the following day unless the Customer can demonstrate that they were retrieved at an earlier time.
III. Services rendered by dtms
- dtms shall only be obligated to render its services within the bounds of its technical and operational capabilities at the time of provision. This does not necessarily require the use of the latest technology. Should it not be possible to provide the contractually agreed services in an acceptable manner at the stipulated time with the technical and operational capabilities at dtms's disposal, dtms shall be freed of its obligation to provide the service, but shall lose its claim to remuneration for the service in question. The services agreed to are provided as defined in the respective Service Descriptions and/or Special Terms of Service as amended.
- dtms reserves the right to change, expand or improve services. dtms reserves the right to make other changes to services in the event it is obliged to accommodate a change to the current technology or regulatory framework conditions, in particular, amendments to the Telecommunications Act and directives or ordinances issued by the Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen (BNetzA) (German Network Agency for Electricity, Gas, Telecommunications, Post and Railways). The right to change services shall only apply to the extent it is reasonable for the Customer to accept the changed service when considering the Customer's interests. If dtms provides services without remuneration, said services may be terminated at any time without giving any reason. The same shall apply in the event that changes become necessary due to a change in the contractual relationships with local exchange carriers, in particular, Deutsche Telekom AG and the mobile network operators, that are directly or indirectly the result of changes to the statutory provisions or judicial decisions.
- Where basic telecommunications services have been contracted, they generally comprise
- setting up a service number, setting up and changing routing configurations, setting up and changing tariff announcements,
- establishing the call and routing calls from the German landline network operated by Deutsche Telekom AG (T-Com) and mobile networks to the desired destinations in accordance with the intelligent routing plan. Routing from the mobile networks is not guaranteed for all phone number ranges.
- dtms shall be entitled to use third parties to provide the contractually agreed services.
- The telecommunications services provided to customers in the dtms network demonstrate an overall end-to-end availability of at least 97.5% taken over 365 days.
IV. Resolution of Faults
- If disruptions in the contractually agreed services provided by dtms occur, in particular, malfunctions in the telecommunications network and/or dtms's services, the Customer must notify dtms of such disruptions without delay. Should dtms become aware of faults or malfunctions, either independently or as a result of being notified by the Customer, dtms shall, during normal working hours, be obliged to begin troubleshooting within 45 minutes of becoming aware of the issue (response time). dtms shall have from the start of troubleshooting until 12:00 on the following work day to rectify the fault (fault elimination period).
- If dtms eliminates the fault within the above-mentioned fault elimination period and if the end-to-end availability of the reference period in which the fault in question occurred is maintained as set out in Clause III, Paragraph 5, the Customer shall have no liability claims resulting from or in connection with the fault in question unless said fault was caused by dtms intentionally or as a result of gross negligence. In all other cases, Clause XVIII shall apply.
- If the Customer does not fulfil his obligation to report faults and as a consequence dtms fails to rectify the fault or only does so following expiration of the fault elimination period, dtms shall not be liable for any financial losses incurred by the Customer as a result of said fault. This shall not apply, however, if a legal representative or subcontractor of dtms causes the fault deliberately or due to gross negligence or dtms did not notice the fault through wilful intent or gross negligence or the Customer proves that he is not responsible for breaching his obligation to report faults. In all other respects Clause XVIII shall apply.
- Should dtms fail to rectify the fault within the fault elimination period, the Customer may reduce remuneration on a pro-rata basis. After issuing a deadline and refusal to accept performance in writing, the Customer may alternatively terminate the service in question, or - provided that dtms is responsible for the fault or exceeding the fault elimination period - claim damages for non performance in accordance with Clause XVIII. Any further warranty claims by the Customer due to a fault or malfunction are excluded.
V. Duties and Obligations of the Customer
- The Customer shall notify dtms without delay of any disruptions affecting any of the services he uses as well as circumstances that may impair the functionality of dtms's network or services (fault reporting). If the Customer is responsible for causing the fault or if the fault reported by the Customer does not exist, dtms shall be entitled to recover from the Customer the costs incurred as a result of troubleshooting and fault elimination work.
- The Customer shall only use the contracted services provided by dtms for the purpose of business and shall refrain from misusing them or using them to commit unlawful acts. The Customer shall indemnify dtms against all claims from third parties resulting from a breach of these obligations.
- The Customer shall be obliged to ensure that the owner of the connection to which incoming calls are to be routed agrees to calls being forwarded there.
- The Customer shall be obliged to ensure that the calls are not forwarded to a connection that likewise forwards incoming calls.
- The Customer shall be obliged to ensure that at least 50% of the calls that have been forwarded to the destination specified by the Customer are being answered at said destination. If this threshold is not met, dtms may restrict the number of simultaneously possible call attempts or forward the calls to a standard recorded announcement.
- The Customer shall inform dtms without delay and in writing of any change to his address, email address, company, registered office, invoicing address, legal representative (if applicable) and legal form. If the Customer is unreachable due to a culpable breach of these obligations, he shall bear the consequences.
- Should the Customer apply to the German Network Agency (Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen ((BNetzA)) for a service number himself, he must provide dtms with a copy of the confirmation of allocation as soon as it has been issued.
- The Customer is hereby notified in accordance with Section 45o of the TKG (Telecommunications Act) that under certain circumstances, the transmission of information, property or other services is forbidden by law.
VI. Special obligations of the Customer as a provider of value-added services
- The Customer shall be obliged to refrain from offering any indecent, criminal or other unlawful content or making such content available by other means. In particular, the Customer shall be obliged to observe the conditions/terms of the allocation rules for value-added services issued by the BNetzA.
- The Customer shall be obliged to observe the Telecommunications and Media Code as amended issued by the DVTM (Deutscher Verband für Telekommunikation und Medien [German association for telecommunications and media])
- The Customer assumes sole responsibility for the content of the forwarding service in accordance with Section 7.1 and Section 10 of the German Telemedia Act (TMG). As a connectivity provider within the meaning of Section 8 of the TMG, dtms assumes no responsibility for the content of the Customer's forwarding services.
- The Customer must take suitable steps or design the service in such a way as to make it clear to callers that the content provided is solely proprietary or externally sourced content supplied by the Customer.
- Should the Customer fail to fulfil his obligations under Section 5 of the TMG (and Section 6 of the TMG, if the Customer falls within its scope), dtms shall be entitled to pass the pertinent information on to third parties provided they can show a legitimate interest therein.
- The Customer affirms that he will ensure that his contractual obligations will also be observed if he offers content from other providers on his platform (see Section 10 of the TMG) or permits other sub-providers to use it. In this event, the Customer shall bind the other providers to observe the above-mentioned obligations.
- The Customer acknowledges that he is aware of his responsibility for the content of the value-added service provided by him in accordance with Sections 7 and 10 of the TMG. The Customer agrees to comply with all legal provisions, including under civil law, that apply to the supply of value-added services. Furthermore, the Customer acknowledges that objections and claims relating to the content of the value-added service being unlawful and/or otherwise based on the content of the service can only be brought against the Customer. The Customer thus has no pleas, claims or other defences against claims by dtms in such cases or on the grounds that the contents of the value-added services are unlawful.
- In all cases where the Customer violates his statutory and/or contractual obligations as the provider of value-added services, and in particular, infringes one of the provisions in Clause VI above, he shall indemnify dtms inter se on request against all third-party claims regardless of legal basis and irrespective of the time such claims arise. Furthermore, the Customer shall pay to dtms compensation amounting to the costs incurred for mounting a legal defence against any claims asserted by third-parties associated with the Customer's violation of his obligations as the provider of value-added services.
VII. Special rights of dtms with respect to Customers as provides of value-added services
- dtms shall be entitled to inform callers via a service number (currently 0180 515 0900 (€0.14/min. from the German landline network, max. €0.42 min. from the mobile network)), either by means of a recorded message or an agent, of the address and telephone number of the Customer as a provider of value-added services, the responsible contact person within Germany, and the information/service portal www.rufnummern.info.
- Subject to dtms's technical and operational capabilities, the service portal www.rufnummern.info will make the above-mentioned information available on the Internet.
VIII. Prosecution and Defence Costs
- If the Customer breaches one of his contractually stipulated duties, and because of this a claim of negligence or for damages or other claim is brought against dtms by third parties, including government bodies, the Customer shall indemnify dtms inter se against all liability and any damages.
- Besides court costs and legal costs, the reimbursement obligation also covers the costs for legal counsel and defence including the costs for filing a protective letter.
- The Customer will support dtms in its defence, which dtms shall conduct as it sees fit.
- The Customer shall use the contracted service number exclusively for his own purposes. The Customer is prohibited from allowing third parties to use the dtms services agreed to in the Order Forms without the written permission of dtms.
- The Customer shall exempt and indemnify dtms against all claims and liabilities asserted against dtms connected directly or indirectly with the resale of services by the Customer to third parties.
X. Payment Terms
- The fees payable to dtms by the Customer for the contracted services and billing methods for the service numbers differ according to the type of service number involved. The specifics can be found in the price lists and the Order Forms, the Service Descriptions and Special Terms of Service, the latest versions of which also specify the fees to be charged for the dtms services. All of the fees listed in the contract documents are subject to value added tax.
- If the contract documents refer to the general price list, this will be replaced and supplemented with product-specific price lists as available.
- dtms shall invoice the Customer the billing amounts for the services rendered once per month. If more than one contract has been concluded between dtms and the Customer, the invoicing cycle agreed to in the first contact entered into shall be binding for all services. The invoiced amounts are due in full on receipt of the invoice.
- Call charges are determined based solely on the data recorded by dtms. Data that dtms has provided to the Customer for information purposes or data that the Customer has collected himself in no way constitute a basis for calculating call charges.
- The Customer shall issue dtms with a direct debit mandate for withdrawing fees that are due from the Customer's bank account. dtms grants the Customer a grace period of ten work days to check that the invoice in question is correct, starting from the respective invoice date. dtms will only execute the direct debit once the respective grace period has expired.
- If the direct debit mandate is not issued or the direct debit is revoked, dtms shall charge a supplemental processing fee for the additional administrative effort.
- Objections to the invoices submitted by dtms must be raised in writing within 4 weeks of receipt. Provided the objection is actually despatched by the date defined in the agreement of what constitutes ‘in good time’, this is sufficient to ensure the deadline is met. Failure to lodge objections in good time is deemed to be approval of the invoice. dtms agrees to indicate on the invoices the consequences of not submitting objections within the deadline.
XI. Receivables risk for provider compensation payment and other payment claims
- dtms shall pass on to the Customer the provider remuneration and other payments (hereinafter referred to as "compensation") owed to the Customer for rendering his service to the callers, provided that dtms has irrevocably received or is able to collect this compensation from the dtms interconnection partner.
- The Parties agree that the collection and default risk between the parties shall not be borne inter se by dtms. This primarily concerns situations where the remuneration cannot be retrieved from the dtms interconnection partners or the callers. This applies irrespective of whether the non-recoverability of the receivables is due to their invalidity, a lack of willingness to pay, inability to pay or for other reasons, especially fraudulent activities.
- The parties are thus in agreement that dtms shall not be obliged to pay the remuneration to the Customer if this payment is not covered by a corresponding payment being received by dtms.
- Payment shall therefore be made on the condition that dtms is able to effectively and irrevocably collect the corresponding payment from the interconnection partners.
- Should the Customer temporarily or permanently receive no remuneration from dtms on these grounds, he shall nonetheless remain bound to pay all the agreed transport charges and prorated service fees of all interconnection partners (the difference between the fee dtms receives from the respective interconnection partner and the sum paid out to the Customer). dtms shall in any event remain entitled to lodge objections against the Customer made by other network operations, the dtms interconnection partner or the caller.
- Should dtms make payment to the Customer even though a corresponding payment has not yet been received, this is made on a pre-payment basis without establishing grounds for a current or future legal obligation in this regard. If the payment cannot be recovered from the dtms interconnection partner, the Customer shall be obliged to repay the sum in its entirety. The sum to be repaid is indicated in Paragraph 5. A valid and definitive credit for the payment collected by dtms is dependent primarily on whether the dtms interconnection partners exercise their generalised chargeback right up to 24 months after payment is made.
- dtms shall be entitled to partially or completely freeze payment of remuneration if there is a pending investigation by the police or public prosecutor into the customer or third party connected with the existing contractual relationship between the Customer and dtms. The Customer is obliged to inform dtms at the earliest opportunity when the proceedings have been discontinued.
- Should payments from interconnection partners be made conditionally, dtms shall be entitled to make payment to the Customer dependent on the lodging of a security amounting to the conditional payment.
- dtms shall be entitled to net all of the due receivables and credits for a customer, even if they relate to different contracts with the Customer without necessitating dtms having to provide a separate netting statement.
- The Customer may only offset a demand by dtms or assert a right to withhold payment if the counterclaim that forms the basis for the offset or withholding of payment is uncontested, legally established or accepted by dtms.
- If there is a reasonable suspicion that the customer has generated call volumes in a manner that contravenes legal provisions or is in breach of this Contract, dtms shall be entitled to withhold the revenues generated in this manner from the customer (right of retention).
XIII. Value added tax
If, when billing the caller, the billing partners or dtms are denied the right of deduction for VAT on the grounds that their services were provided to the subscriber and not dtms or the billing partner, the Customer shall be obliged to reimburse dtms the invoiced VAT plus interest at a rate of 6% p.a. (Section 238 of the AO (German Tax Code)).
XIV. Price changes
- dtms may change the fees specified in the price list by giving 14 days notice. The Customer will be informed of changes to the price list by dtms when retrieving statistics by way of a notification window. In addition, the Customer will be sent an email with the new price list to the email addresses stored on file. Changes do not require acknowledgement by the Customer. Using the services after the time the change comes into effect is deemed acceptance in the sense of conduct implying an intent. In the event that a change is made to the fee structure that is to his detriment, the Customer shall be entitled to cancel the contract affected by the price change effective from the date the change comes into effect by giving notice within 10 days of the email being sent to the Customer.
- If fees are directly or directly dependent on orders published by or permits issued by the German Network Agency (Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen (BNetzA)), the agreed fees are conditional on the underlying tariffs between dtms and third parties not being changed by the BNetzA or a court or being approved at a different level, with conditions attached, or not approved at all, or a previously granted approval being rescinded. Should such an eventuality occur, the Parties agree that dtms shall be entitled to retroactively adjust the fees on a percentage basis as determined by comparing the tariffs originally in effect between dtms and third parties and the new tariff. Clause XIII Paragraph 1 shall continue to apply under the condition that the Customer remains obliged to settle retroactively changed fees notwithstanding his cancellation right.
- If the local exchange carrier's call charges change, a price change in line with Paragraph 2 Sentence 1 shall not be deemed an adjustment to the detriment of the Customer.
- The Customer is considered to be in arrears with the payment of charges if he does not settle an invoice or equivalent demand for payment from dtms within 30 days of invoice receipt and due date. He falls into arrears before expiration of the 30 day deadline mentioned in Sentence 1 if he does not settle an overdue notice issued by dtms beforehand but after the due date.
- If the customer falls into arrears with the payment of charges, dtms shall, following expiration of a grace period set by dtms, be entitled to rescind the contract or demand compensation for non-payment. In the event that dtms has no interest in fulfilling the contract due to the arrears, dtms shall be entitled to rescind the contract without setting a grace period and demand compensation for non-payment.
- dtms shall be entitled to charge interest on the overdue fees at an annual default interest rate of 8% above the base rate from the date of default and a default interest rate of 5% above the base rate for all other receivables. Both Parties shall be free to demonstrate that the damages are higher or lower respectively. dtms expressly reserves the right to assert further claims resulting from default of payment.
- Should dtms be unable to fulfil its contractual obligation due to industrial action, force majeure or other circumstances outside dtms's control, dtms shall be freed of its obligation to render said contracted service for the duration of the disruption. dtms shall inform the Customer as soon as the disruption is over.
- Should dtms or one of its sub-contractors fails to perform the contracted service on time, it shall be liable in accordance with the provision under Clause XVII. The Customer shall only be entitled to rescind the contract if dtms fails to render the service in question within a reasonable grace period set by the Customer, which must be at least 2 weeks, with a threat to refuse performance. Notwithstanding the provision in Clause XVI the same shall apply in the event that the Customer demands compensation for non-performance.
XVI. Suspension of the contracted services/barring
- Notwithstanding the provision in Clause XIV Paragraph 1, dtms shall be entitled to suspend provision of the contracted services in the event that the Customer falls into arrears with payment provided that the outstanding amount owed by the Customer to dtms amounts to at least €75 and any security has been used up. The contracted services may be suspended no earlier than 2 weeks following a written warning about the suspension of services while making reference to the Customer's option to seek legal protection before the courts.
- Moreover, dtms may suspend provision of the contracted services without warning and without observing a grace period, if
- the Customer has given cause for termination of the contract without notice or
- there is an impending threat to dtms's facilities or public safety or
- the Customer is using dtms's services to break the law or is strongly suspected of doing so
- dtms has a reasonable suspicion that the Customer cannot or is unwilling to settle due or nearly due payments
- the charges being accumulated by the Customer have increased to a very high level and circumstances support the assumption that if the service is suspended at a later date, the Customer will either not pay the charges for the services rendered in the meantime, not pay them in full or not pay them in a timely manner and the securities lodged are used up and it would not be unreasonable to suspend the services.
- Even when the contracted service is suspended, the Customer is still obliged to pay any minimum flat fees or standing charges that apply.
XVII. Duration and termination of the contract
- The contract is open ended. It can be terminated by either contract party giving two weeks’ notice to the end of the month. The contract can be terminated for the first time at the end of one month.
- The contractual relationship can be terminated by both parties for good cause and without observing a notice period. Examples of good cause include
- the opening of insolvency proceedings for the assets of the other party or, if applicable, a personally liable partner or the filing of a petition to open insolvency proceedings and the rejection of such a petition due to a lack of assets;
- the infringement of material provisions or conditions of this contract by the other party;
- if the Customer is in arrears, provided that the outstanding amount owed by the Customer to dtms exceeds € 75 and any security has been used up. In this case, termination is only permissible once a grace period set by dtms of at least 2 weeks has expired.
- Moreover, dtms shall be entitled to terminate the contract for good cause in the event that
- dtms declines to continue offering a service described on an Order Form and notifies the Customer of the fact giving two weeks’ notice,
- a prohibition or warning has been received for a service described on an Order Form or agreed business model from the BNetzA, a competitor (in particular, T-Com) or other third party
- a change to a statutory provision means that it is not possible to lawfully operate the service,
- the local exchange carrier refuses to bill using the service records transmitted by dtms or a judicial decision prohibits or impedes continuation of the contract.
- Notice to terminate must be submitted in writing. The customer is obliged to state his customer number and password on giving notice.
- dtms shall only accept liability - irrespective of the legal grounds - subject to the following provisions.
- dtms shall be liable in cases of wilful intent and where a warranted feature is absent for all damages arising therefrom in accordance with the statutory provisions. dtms shall be liable for damages due to injury to life, limb or health, including in this context intentional or negligent breaches of duty by its legal representatives or sub-contractors, likewise in accordance with the statutory provisions. Furthermore, dtms shall be liable without limitation under the provisions of the Produkthaftungsgesetz (Product Liability Law).
- dtms shall be liable for financial losses suffered by the Customer up to the maximum amount specified in Section 44a of the TKG (currently €12,500) for each incidence of damage. dtms's total liability with respect to all customers is limited to €10 million for each incidence of damage. Should the amounts to be paid to multiple customers due to the same incidence of damage exceed this maximum limit, the damage claim of each customer will be proportionally reduced according to the ratio of the sum of all damage claims to the maximum limit. The limitation of liability according to this paragraph is not applicable if the damage was caused intentionally, however. A precondition for liability with respect to the Customer for damages caused to his customers (third-party customers) is that liability for damages with respect to the third-party customer in question has been established in the highest court.
- Furthermore, dtms shall be liable if its legal representatives and/or sub-contractors culpably violate a material contractual obligation. dtms shall also be liable if its legal representatives and/or management staff breach another contractual obligation intentionally or due to gross negligence. Liability in the event of negligent breach of a material obligation is limited to the damages typically expected at the time the contract was entered into. Liability for negligent and grossly negligent breaches of other contractual obligations by the legal representatives and/or management staff is likewise limited to the damages typically expected at the time the contract was entered into.
- dtms shall not be liable to the Customer for damages resulting from contracted services being ceded to a third party in contravention of Clause VIII.
- Employees, including management staff and dtms's legal representatives shall not be personally liable if dtms itself would not be compelled to accept liability under the above provisions.
- dtms shall not be liable to the customer in the event that the contracted services cannot be rendered due to force majeure, and in particular, if the telecommunications network and/or individual services are disrupted due to force majeure. Situations considered force majeure include, but are not limited to such circumstances that occur independent of the will of dtms and unavoidably prevent dtms from fulfilling one or more of its contractual obligations (e.g. war, civil unrest, natural disasters or transport disasters). Another situation considered force majeure is where dtms is not provided the necessary telecommunications channels by third parties, provided that dtms is not responsible for this circumstance. Forms of industrial action (such as strikes or lockouts) at dtms and/or a third-party company that provides dtms with telecommunication channels are on an equal footing with cases of force majeure.
XIX. Storage of connection data
- Insofar as dtms collects connection data for the service numbers, this data is as a matter of principle deleted after a period of 6 months following submission of the invoice if the Customer has not requested its deletion immediately following invoice submission.
- If the customer has raised objections regarding the call charge amounts invoiced, dtms shall be entitled to store the connection data until the objection is definitively resolved.
- If the connection data has been deleted following expiration of the period specified in Paragraph 1 or deleted immediately on request, dtms is freed of the obligation to present this data to prove the correctness of the charge calculation.
XX. Data protection and secrecy of telecommunications
- Within the framework of the contractual relationship existing between the Client and dtms, the connection data is stored and processed to calculate the connection fees and the necessary inventory data to execute the contractual relationship existing with the Client. Storage and processing is carried out in compliance with current data protection law and the secrecy of telecommunications.
- The collection of the Client’s inventory data is undertaken to identify the Client, for the execution of the contract / order processing, for advice and correspondence, for invoicing purposes and to process any possible liability claims, as well as for enforcing any claims against the Client.
- The data processing of personal data is necessary pursuant to Article 6(1)(b) GDPR for the purposes specified under Item XX (2) for the appropriate processing of the contract / order, in particular for the mutual fulfilment of obligations arising under the contractual relationship.
- The personal data collected by dtms for contract execution / order processing is stored until the expiry of the statutory retention obligation (generally 6 years after the end of the calendar year in which the respective contractual relationship was terminated) and subsequently deleted, unless dtms is required to store the data for a longer period pursuant to Article 6(1)(c) GDPR on the basis of tax or commercial law retention and documentation obligations (arising under the German Commercial Code (HGB), the German Penal Code (StGB) or the German Fiscal Code (AO)), or the Client has consented to continued storage pursuant to Article 6(1)(a) GDPR.
- To the extent necessary for processing orders / contractual relationships with the Client pursuant to Article 6(1)(b) GDPR, the personal data will be disclosed to third parties. The disclosed data may be used by the third party only for the purposes specified under Item XX (2). No data is disclosed to third parties for any purpose other than those specified in Item XX (2).
- The Client has the right vis-à-vis dtms:
- to revoke at any time any consent given to dtms pursuant to Article 7(3) GDPR. The consequence of this is that dtms may not continue to process data to which this consent relates;
- to request information about its data processed by dtms pursuant to Article 15 GDPR;
- to request prompt correction of its incorrect personal data or completion of personal data stored by dtms pursuant to Article 16 GDPR;
- to request the deletion of its personal data stored by dtms pursuant to Article 17 GDPR, provided that processing is not necessary to exercise the right to freedom of expression and information, to fulfil a legal obligation, for public interest reasons or for the enforcement, exercise or defence of legal claims;
- to request the restriction of the processing of its personal data pursuant to Article 18 GDPR, provided that the correctness of the data is disputed by the Client, the processing is unlawful, where the Client rejects however the deletion of the data and dtms no longer requires the data, where the Client however requires the data for enforcing, exercising or defending legal claims, or the Client has filed an objection to the processing pursuant to Article 21 GDPR;
- to receive its personal data that it provided to dtms in a structured, common and machine-readable format, or to request a transfer to another responsible person, pursuant to Article 20 GDPR;
- to complain to a supervisory authority pursuant to Article 77 GDPR; and
- to file an objection to the processing of its personal data pursuant to Article 21 GDPR, provided that reasons exist that result from its particular situation and insofar as its personal data is processed on the basis of legitimate interests pursuant to Article 6(1)(e) or (f) GDPR.
- The Client will ensure that notification obligations under data protection law vis-à-vis the end customer are complied with (e.g. publication of general terms and conditions of business, recorded messages, etc.). Upon request, dtms will provide it with the information required by the Telecommunications Law (TKG) or GDPR, provided that this is available to dtms.
XXI. Customer password
- The customer needs a password for the purpose of authentication with dtms that he can change himself. The Customer must quote his password in conjunction with his customer number in all correspondence. dtms shall not be obliged to regard any correspondence sent without a password. If the Customer forgets his password, he must inform dtms without delay. His password will then be resent to the Customer at the address stored on file (by email where applicable).
- The Customer must keep the password assigned to him secret. He shall inform dtms immediately should it become known to a third party and compensate dtms for any damages arising therefrom.
XXII. Credit checking
The Customer consents to dtms obtaining information to determine the creditworthiness of the Customer from the Schutzgemeinschaft für Allgemeine Kreditsicherung (SCHUFA), or credit agencies responsible for the Customer's place of residence. dtms shall pass on to the Customer - insofar as it intends to obtain the pertinent information - the addresses of the SCHUFA or credit agencies in question on request.
dtms shall be entitled to transmit to the SCHUFA or the credit agencies information about the application, acceptance and termination of the contract. Furthermore, dtms shall be entitled to transmit Customer data concerning any non-compliance with the terms of the contract (e.g. termination due to payment default, application for a default summons for an uncontested debt claim and enforcement measures).
Should such data be gathered by the SCHUFA or credit agencies from other contractual relationships the Customer has entered into while this contract is in effect, dtms can likewise obtain information on these too. The relevant data may only be transmitted and stored if this is necessary to safeguard the interests of dtms, one of SCHUFA's or of one of the credit agencies' contract partners or the general public, and doing so does not affect any Customer interests worthy of protection. The Customer may obtain information from the SCHUFA or the credit agencies on the data that is stored on him.
XXIII. Final clauses
- This contract is subject solely to the laws of the Federal Republic of Germany. The Vienna UN Convention on Contracts for the International Sale of Goods (CISG) from the 11th of April is not applicable.
- The sole jurisdiction for all disputes arising from or in connection with the contractual relationship between the Customer and dtms shall be Mainz, Germany. The Customer can also elect his general place of jurisdiction, however.
- Verbal supplemental agreements have not been entered into. Amendments and additions to the contract and these Terms and Conditions must be made in writing to be valid. Anything else shall only apply if these Terms and Conditions expressly stipulate an exception to the requirement for written form. Changes to the requirement for written form must also be made in writing. Oral waiving of the written form requirement is only sufficient if this oral waiving is confirmed later in writing..
- Should one of the provisions in these Terms and Conditions be invalid in part or in whole, the validity of the remaining provisions in the Terms and Conditions shall remain unaffected.
- The place of performance for the Customer's payment obligations is the registered office of dtms.
- Legally binding declarations of intent by dtms can only be submitted by its legal representatives and those employees who are authorised by a written power-of-attorney.