Revision date: October 21st, 2015
General Terms and Conditions
Acision Secure Communications Gmbh, a Xura, Inc. Company (hereinafter: "Xura"), acting as a technical service provider, provides services for its customers (hereinafter: "customers") on the basis of a service agreement. These "General Contractual Terms and Conditions of Acision Secure Communications GmbH, a Xura Company”, will apply if the contractual parties make these an integral contractual component by way of appending them to the service agreement. In this case the "Standard Terms and Conditions" of Acision Secure Communications will not apply. The Customer's alternative terms and conditions will not apply. Such terms and conditions will remain inapplicable even if Acision, a Xura company, does not explicitly repudiate them.
1 Establishment of specific business arrangements and contractual purpose
1.1 Business arrangements between the Customer and Xura concerning specific services will be established through the conclusion of a corresponding service agreement and supplementary individual orders to existing service agreements made between the Customer and Xura. Xura is not obliged to accept such requests from the Customer. Sentence 2 correspondingly applies for requests from the Customer for additions or amendments to services.
1.2 When concluding agreements with Xura, the Customer acts exclusively in exercising its commercial or freelance employment activities. It is not permitted to use Xura services for other purposes.
2 Nature and type of service provision
2.1 The Xura Messaging Platform provides its customers with interface and application-based integration solutions enabling messages and short messages (SMS) to be sent and received worldwide as well as complementary services and solutions for supporting business processes.
2.2 Xura is entitled to commission third parties with the fulfillment of its contractual obligations or to otherwise appoint third parties for this purpose.
2.3 Due to the technical circumstances, it is not possible to guarantee uninterrupted availability of the services to be delivered by Xura. Within the sphere of its responsibility, Xura will however ensure that the availability times agreed with the Customer are actually maintained. Details concerning maintenance, system availability and elimination of faults are regulated in the service agreement.
2.4 If the content of a service is typically performed in such a way that Xura commissions third parties with the actual subsequent performance, Xura performs this service by passing on a corresponding order in its own name to the third party (sub-contract). This applies particularly to the transmission of messages. These services will be performed by telecommunications service providers (particularly mobile network providers, internet providers, land line providers) or other service providers (particularly within the definition of Section 3(6) Telecommunications Act (TKG)). In these cases the liability of Xura is limited to the careful selection and instruction to sub-contractors and to the assignment of Xura's applicable claims against third parties.
3 Duties of the Customer
3.1 If the Customer wishes to avail of a Xura service, it must present Xura with a written description of its service, particularly the contents to be transmitted within the terms of the service, the planned sequence and the selected countries. Xura may demand additional information from the Customer. Xura is entitled to provide to other parties (sub-contractors) the information specified in sentences 1 and 2 (e.g. telecommunications service providers and other service providers) to the extent this is required for the delivery of the service in question.
3.2 The Customer is only able to avail of a service and publish its service, once Xura has notified the Customer of the activation. It cannot be guaranteed that a service will be activated as applied for. The activation of a service on the basis of the presented written description does not affect the Customer's liability for its legal responsibility for the service. The Customer must, in particular, comply with the codes of conduct and communications guidelines applicable in the relevant countries.
3.3 Following the commissioning of services, the Customer is duty bound to notify Xura in writing of any amendments to the description presented at the outset.
3.4 Upon request, the Customer will at any time promptly disclose the necessary information concerning the type and method of the use of the services commissioned. The Customer is aware that any delay to the disclosure of information may result in Xura sustaining significant losses.
3.5 Unless a separate agreement has been made, the Customer may only avail of Xura services for its own purposes, with the exception of affiliated companies within the definition of Section 15 German Stock Corporation Act. It is therefore prohibited, in particular, from using Xura services under commission or for the account of any third party, unless another agreement has been expressly made.
3.6 The Customer may use the call numbers and short code numbers provided to it solely for those activated services for which they are contractually provided. The entire communication of the Customer with end customers within the terms of a service must be implemented by way of an interface provided to it by Xura for this purpose and upon disclosure of the designated sender identifier.
3.7 The Customer must ensure that the sales tax chargeable on the services it delivers to its end customers is collected and remitted in accordance with the applicable law in the relevant country.
3.8 All obligations are likewise applicable for affiliated companies as defined by Section 15 German Stock Corporation Act (AktG. The Customer must ensure that all obligations under this service agreement including all its annexes are also observed by the affiliated companies or third parties. Paragraph 3.5 remains unaffected.
4 Compliance with statutory regulations
4.1 The Customer alone bears the legal responsibility, particularly the press law and competition law responsibility for its services (e.g. publication of images, message contents), irrespective of the route by which the content is provided. The Customer is responsible for duly establishing contractual relationships with the end customers and the proper performance of all the obligations resulting therein.
4.2 The Customer is not entitled to avail of Xura services for content, services or activities,
- which are not within the Customer's normal business operations as disclosed to Xura or
- which are prohibited under the applicable law of the relevant country or which are otherwise unlawful or unethical or
- which contain or refer to pornographic or content which is harmful to minors, to the extent this is not permitted within the relevant country or where access to these contents is not secured by suitable age verification system (AVS).
It is prohibited in particular to avail of services for content, services or activities,
- the dissemination of which would be prosecutable under the applicable law of the relevant country (e.g. in Germany, sedition pursuant to Section 130 German Criminal Code (StGB), incitement to commit criminal offenses pursuant to Section 130a and presentation of violence pursuant to Section 131 StGB, distribution of pornographic materials pursuant to Sections 184 to 184d StGB); or
- to the extent these acts violate the applicable laws on the protection of minors within the relevant country (e.g. in Germany, the Youth Protection Act and the Interstate Treaty on the Protection of Minors in the Media);
- aimed at gambling, irrespective of whether or not gambling is prohibited according to the applicable law of the relevant country; or
- which predominantly contain sexual references; or
- which are of a racist or discriminatory nature, even if this does not violate the applicable law in the relevant country; or
- which are capable of urging any person to consume harmful substances (in particular for Germany: substances within the definition of the German Drug Act and the German Narcotics Act); or
- which are not permitted under competition law in the relevant country (e.g. in Germany, business activities within the definition of the Annex to the Act against Unfair Competition), or
- which violate the applicable code of conduct in the relevant country (e.g. in Germany, the Code of Conduct of the "Association for Voluntary Self-Regulation of Added-value Telephonic Services." (FST) in its current applicable version, as may be amended from time to time; or
- the dissemination of which would in all probability damage the reputation of Xura.
4.3 In the event that it becomes aware of any content connected with its service that is in violation of Paragraph 4.2, the Customer must ensure that such content is removed promptly.
4.4 In relation to the offer of services which may not be made available to end customers within a particular age group, the Customer must offer the services together with an effective access control so that use is only available to end customers who are of the permitted age.
4.5 The Customer is obliged to refrain from sending end customers unsolicited or unwanted message (e.g. unwanted advertising mails, computer viruses or chain mails). Damage or losses, particularly contractual penalties, fees or charges incurred by Xura or the Customer by way of a violation of the duty defined in sentence 1 will be borne solely by the Customer, unless the unwanted delivery of messages is exclusively attributable to the culpability of Xura. In the event that a claim is raised against Xura due to damage within the definition of sentence 2, the Customer must compensate all damage sustained including the reasonable costs of a legal defense (5.1).
4.6 The Customer guarantees that it possesses all rights of use (particularly copyright, trademark rights, ancillary copyright, personality and other rights) to the content communicated by it (e. g. texts, photos, graphics, audio storage media and video tapes etc.) required to activate the relevant service. The rights of use must include a corresponding dispatch or conversion into the required format (e.g. SMS).
4.7 In the delivery of its services, the Customer must satisfy all the duties to provide information according to the applicable law of the relevant country (e.g. in Germany, the duties to provide information pursuant to Section 5 Telemedia Act (TMG), Section 312c German Civil Code (BGB) in conjunction with the German Civil Code Regulation on the Obligation to Provide Information (BGBInfoV), Price Information Regulation. The Customer, moreover, is required to inform the end customers that it, and not Xura, is responsible for the relevant service.
4.8 Xura is entitled, but not obliged, to examine the contents for which the Customer is responsible. Xura is entitled to refuse the activation of services that violate Paragraph 4. The activation of services by Xura does not affect the duties of the Customer according to this Paragraph 4. Xura will not provide the Customer with any legal services within the definition of Section 2 Legal Services Act. In the event that in specific cases Xura provides the Customer with guidance concerning the arrangement of its services, this then solely relates to the relay of Xura's knowledge of the market. The Customer is independently responsible for verifying, or arranging the verification, the legal admissibility of its services.
4.9 In the event that the service of the Customer is delivered in combination with an internet site, the Customer is responsible for ensuring that its own internet site is effectively protected against external interference or misuse. In the event that hacking or other such attacks or cases of misuse result in Xura sustaining any damage, the Customer will be fully liable to compensate this.
4.10 In order to prevent misuse through internal or external individuals, the Customer's network and the programmed application must be secured against third-party attacks or internal attacks in accordance with the standards customary within the industry. The Customer's application and the input interface (storage, activation of call numbers) fulfill the customary industry and quality standards and will be maintained at this level. In the event that messages or SMS are sent from an insecure internet area, the Customer must deploy suitable security measures to protect against misuse (such as Captcha for example). The Customer must implement suitable measures for the early identification and preclusion of errors in relation to contacting interfaces (e.g. unwanted multiple message or SMS dispatch, wrong call numbers, etc.). The Customer must treat as confidential the log-in data provided to it by Xura and it must securely store it safely from access by other individuals.
4.11 If the Customer significantly or persistently violates the obligations set out in this Paragraph 4, and if the Customer fails to remedy this contractually prohibited conduct within a reasonable period of time despite having received a warning, Xura will then be entitled to block the services under this agreement. In such a case, the Customer remains obliged to pay the fees for the transmitted messages irrespective of any claims to damage or reimbursement of costs.
5 Reimbursement of costs / invoices / limitation on set-off
5.1 All expenses that Xura incurs in connection with the provision of the services for the Customer must be reimbursed by the Customer, insofar as Xura was entitled to consider these expenses as necessary given the circumstances (Section 675(1), Section 670 German Civil Code (BGB)). Instead of reimbursement, in accordance with Section 257 German Civil Code (BGB) may demand to be indemnified in respect of any liability entered into in this context. Reimbursable costs for the purpose of Sentence 1 particularly include contractual penalties and other charges passed onto Xura by a network operator or other service providers on the basis of the contracts to be concluded under Paragraph 1.1, insofar as these contractual penalties or other charges are incurred by way of services of the Customer, as well as other reasonable costs of the legal defence incurred in this context. Reimbursable costs particularly include the costs of the legal defence against end customer claims in the event of violations on the part of the Customer against any obligation contained in Paragraph 4. The Customer is aware that in individual instances the contractual penalties and charges could exceed many times over the income that the Customer generates from its services|.
5.2 The Customer is required to promptly examine all invoices issued to it by Xura and to promptly inform Xura of any objections it has, but in any case no later than within a period of six (6) weeks following receipt of the relevant invoice. Following the expiry of this time period, the invoice is deemed accepted. Xura will explicitly refer to this consequence in the invoice. The Customer may demand that the invoice be corrected even after this time period has expired. In that case it must however prove that the invoice was inaccurate or incomplete.
5.3 All invoices are due for immediate payment by the Customer following receipt. The Customer will be automatically (without requirement of any additional notice) in default of payment fourteen (14) days after having received an invoice. Xura is entitled to set-off its receivables due from the Customer against any counterclaims that the Customer may have against it.
5.4 The Customer is entitled to exercise a set-off against Xura only if its counterclaim is not disputed or has been confirmed by a final court judgement.
6 Liability of Xura
6.1 Within the course of delivering the services, Xura is liable to the Customer only for deliberate acts or gross negligence on the part of Xura or for death or personal injury or for the slightly negligent breach of a significant contractual obligation that jeopardises the contractual purpose. A significant contractual obligation is an obligation the fulfilment of which is crucial for the successful implementation of the services to be delivered by Xura.
6.2 The liability of Xura vis-à-vis the Customer for the slightly negligent breach of a significant contractual obligation is limited to typical damage for this type of agreement foreseeable at the time of contractual conclusion.
6.3 Xura is not liable for lost profits, indirect damage or other forms of consequential damage.
6.4 In the event that Xura, as a provider of telecommunications services, has an obligation to compensate a financial loss and this is not based on a deliberate act, the liability will be determined according to Section 44a Telecommunications Act (TKG) in deviation to 6.1 and 6.2.
7 Non-disclosure, data protection
7.1 Each of the parties is required to treat as strictly confidential all information or documentation each receives from the other party (hereinafter: "information provider") prior to and following the establishment of the business arrangement, or otherwise received from that party and which relate to the business relationship or its terms and conditions, along with all other information and documentation (hereinafter: "confidential information"). This applies irrespective of whether or not this information is labelled "confidential" or which may otherwise be reasonably regarded as being confidential.
7.2 Neither party will apply or disclose confidential information vis-à-vis their respective employees or contractual partners or pass it on to other parties (especially affiliated companies of the parties), unless this is necessary for the fulfilment of their respective contractual duties to the other party. The preceding sentence does not apply for the disclosure of confidential information to consultants bound by a legal professional duty of confidentiality. Prior to any disclosure of confidential information, the parties will inform every recipient of its confidential nature and they will enjoin every recipient to non-disclosure obligations as rigorous as those provided for in this Paragraph 7.
7.3 The non-disclosure obligation does not apply in relation to confidential information already known to the receiving party independently from the conclusion or execution of a contract with the other party, is already in the public domain without any breach by the receiving party of any obligation contained in this Paragraph 7 or which must be disclosed under the law or by way of an order issued by a court or public authority. In such a case the party required to disclose the said information will provide reasonable assistance to the other party.
7.4 All confidential information remains the property of the information provider and may only be copied or reproduced with its prior written consent. Upon demand by the information provider the other party must return or destroy the confidential information along with all media containing it. In the latter case the destruction of the information must be confirmed in writing.
7.5 Both parties undertake to comply with all applicable laws (as may be amended from time to time) pertaining to the protection of personal data during the collection, processing and use thereof.
7.6 The aforementioned obligations remain applicable after the end of the business arrangement, until such time that the receiving party proves that the confidential information has entered the public domain in a manner not constituting a breach by the receiving party of the duties contained in this Paragraph 7.
8 Contractual term, rights of cancellation
8.1 The business arrangement between the Customer and Xura will run indefinitely unless it is ended in accordance with the cancellation rights provided for in the service agreement.
8.2 Xura has the right to wholly or partially suspend the delivery of services to the Customer, if the Customer significantly breaches its duties under the business arrangement with Xura (a breach by the Customer of the duties contained in Paragraph 4 will always be deemed significant) or if a telecommunications service provider, other service provider or relevant public authority demands this of Xura. In the event that services are suspended, Xura will inform the Customer promptly. The Customer must inform Xura once it has rectified its breach of duty. Xura will inform the Customer if it deems the breach to be rectified, and if so it will recommence delivery of service.
8.3 Xura may, with a notice period of seven (7) days, cancel the services hereby affected if it ceases providing these services or if a telecommunications service provider or other service provider seeks to end a contract with Xura or has already ended it, and this contract is necessary for the delivery of the services.
8.4 The right of both parties to extraordinary termination of this agreement (cancellation for cause) remains unaffected. Xura is particularly entitled to exercise an extraordinary termination of the whole or part of the business arrangement with the Customer if
- the Customer is undergoing dissolution or is insolvent within the definition of Section 17 Insolvency Statute (InsO) or if it disposes of all or part of its assets, its operations or its business outside of the course of its normal business dealings, or
- the Customer is in default of settling a payment demand for a period in excess of four weeks (pursuant to Paragraph 5.3), or
- a significant deterioration in the financial situation of the Customer has occurred or is impending and this casts doubt on the repayment of monetary sums or the fulfilment of other obligations vis-à-vis Xura, even if the collateral securities provided for this purpose are utilised, or
- the Customer fails, within a reasonable time period stipulated by Xura, to furnish or restock collateral securities in accordance with these Terms and Conditions.
8.5 Any cancellation must be issued in writing, whereby communication by email is excluded.
8.6 Following the end of its business arrangement with Xura, the Customer has no entitlement to retain the call numbers, short code numbers or data provided to it. In the event that following the end of the business arrangement with Xura, a migration of the supplied call and/or short code numbers to another service provider does occur, a separate agreement must be concluded to provide for this arrangement and any requisite migration of data stocks and the time and effort will be compensated in accordance with the relevant agreed hourly rate. In the event of a migration of the call and/or short code numbers, the Customer must, in particular, ensure that the corresponding numbers are registered in its name from that time onwards and that no further mention of Xura is made in billing information and other listings.
9 Limitation period
9.1 All claims of the Customer under this joint business arrangement are subject to a limitation period of twelve (12) months. The limitation period commences as soon as the Customer gains knowledge of the circumstances underlying the claim and the identity of the liable party, or from that time it should have done so had it not been grossly negligent. Sentence 1 does not apply for claims for damages relating to death or personal injury or for deliberate or grossly negligent breaches. For the purpose of clarification, sentence 1 does not affect the assertion of non-time-barred claims to damages, even if the underlying service was delivered outside of the limitation period. The critical aspect therefore is the time that the claim for damages is established and not the time that the service is delivered.
10 Contractual amendments
10.1 Xura is entitled to amend contractual agreements made with the Customer (including these Terms and Conditions for Messaging Services, performance specifications and other contractual documentation). Xura will inform the Customer of such changes in writing or by email. Such amendments are deemed to have been accepted by the Customer if it raises no objection in this regard within a time period of six weeks from the receipt of the notification concerning the contractual amendments.
Contrary to Paragraph 10.1, Xura has the right to adjust, with immediate effect, the prices for sending and receiving SMS in general or for specific countries or networks and to inform the Customer of these changes by email. This applies particularly if there are adjustments to the prices of upstream suppliers, such as telecommunications service providers or other service providers. Having received the change notification, the Customer has the right, within five (5) working days, to terminate the services in the destination countries affected. In this case the agreed minimum turnover will be extinguished or reduced by the respectively affected country or network if the Customer ceases sending and receiving in this network within five (5) working days due to the adjustment in price. Xura will explicitly refer to this consequence in the notification.
10.2 In the event that the Customer objects to the implementation of a change as defined in Paragraph 10.1 or 10.2, both parties are then entitled to cancel the business arrangement between Xura and the Customer with a notice period of six weeks, the said cancellation affecting the entire business arrangement or only the services affected by the changes. This does not however exempt the Customer from its independent responsibility to inform itself about changes to the laws and codes of conduct applicable in the relevant countries and to implement updates to the required extent within its service.
11 Notifications, contact persons
11.1 The Customer will nominate experience, expert employees responsible for taking or initiating all requisite decisions, and who are available to Xura as points of contact for consultation.
11.2 The Customer must send all notifications or declarations addressed to Xura to the points of contact agreed in the Annex to the service agreement in order that these notices etc. become effective.
12 Other agreements
12.1 The business arrangement between the Customer and Xura is governed by German law to the exclusion of the principles on conflicts of law and the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising from or connected with this business arrangement will be heard before the competent court in Munich.
12.2 In the event that the Customer has agreed provisions with Xura contrary to these Terms and Conditions, the former will take precedence.
12.3 If any agreed provisions are invalid or ineffective, or become invalid in the future, this will not affect the validity of the remaining provisions. The same applies in the event that it transpires that the agreed provisions contain gaps. Any ineffective or invalid provision will be deemed substituted by a suitable provision which most closely and legally fulfils what the parties would have agreed had they known of the invalidity or ineffectiveness or the original provision; the same applies in relation to any gaps identified in the provisions. If the ineffectiveness of a provision concerns a performance quantity or a measure of time (time period or date), this will be resolved by substituting the ineffective provision at this point with the legally admissible measure or quantity that most closely fulfils the intentions of the parties.
12.4 All headings used in this service agreement and its annexes are only for the purpose of providing coherence and do not have any legal significance or effect.
Questions or Concerns
If you have any questions or concerns regarding privacy at Xura or Acision Secure Communications, a Xura company, please send us a detailed message to firstname.lastname@example.org.