NetDebit GmbH - General Terms and Conditions of Contract and Business with Customers
1. Subject matter of the contract/scope
1.1. Description of performance
NetDebit GmbH (hereafter referred to as: NetDebit) acting as access provider enables its customers to access premium content on the Internet by maintaining an electronic gatekeeping system. This content which is subject to a charge is provided by third parties who are not party to this contract. NetDebit is entitled to a separate claim for remuneration from the customer for granting the access. The access is provided by NetDebit via secure and individual access data which is communicated to the customer electronically.
The customer is aware that NetDebit's performance is dependent upon technical circumstances such as possible overloading of telecommunications networks, the reachability of third-party servers, etc. NetDebit's performance therefore consists in granting access to Internet offers for 95 % of the overall period of any calendar month.
These General Terms and Conditions of Contract and Business form the basis for the contractual relationship between NetDebit and its customers, who are able to receive access to offers from third-parties on the Internet subject to a charge via the NetDebit gatekeeping system. The supplementary contractual conditions additionally apply related to the contractual term, price etc., with these being communicated to the customer electronically before an offer is actually booked along with the NetDebit customer data protection statement. NetDebit does not recognise any contradictory or supplementary terms and conditions of customers unless NetDebit expressly agrees in writing that these shall apply. This also applies where NetDebit provides its services to a customer whilst being aware of contradictory or divergent terms and conditions.
2. Basic principles of contractual performance
2.1. Creation of the contract
The customer enters his or her own name or company name with a statement on the agency relationships, with postal address(es), bank details where applicable, e-mail address, statement on age, method of payment, alias and password into the input screen provided by Net Debit online and transmits these to NetDebit electronically.
The customer undertakes to provide true and complete information. Once the customer information has been received NetDebit confirms receipt of this to the customer and reviews it. NetDebit transmits the login data to the customer. The contract between NetDebit and the customer is concluded once the login data has been received by the customer. A contract may only be concluded, however, with customers who are over 18 years of age or where a corresponding consent from a legal representative has been submitted.
2.2. Information obligation of the customer
Before making use of the service the customer must become acquainted with the current relevant General Terms and Conditions and the current NetDebit prices which are provided on the relevant website accessed by the customer.
2.3. Statements within the framework of the contractual relationship
All information on this contract is sent by NetDebit to the customer's e-mail address stated individually in the registration form.
3. The consumer's right to cancel
Consumers within the meaning of section 13 of the German Civil Code (BGB), i.e. persons who enter into a legal transaction for a purpose that is outside their trade, business or profession, have a right to cancel.
3.1. Cancellation instruction
Right to cancel
Customers may cancel their contractual declaration within 14 days in text form (e.g. letter, fax, e-mail) without providing a reason. This period begins following receipt of this instruction in text form, but not before the contract is concluded and not before the information obligations are fulfilled by NetDebit under article 246 para. 2 in conjunction with section 1 sub-sections 1 and 2 of the Implementation Act for the German Civil Code (EGBGB), along with the obligations of NetDebit under section 312g sub-section 1 sentence 1 BGB in conjunction with article 246 para. 3 EGBGB. Timely sending of the cancellation is sufficient for adherence to the cancellation period. The cancellation must be sent to: NetDebit GmbH, Abendener Straße 11, 52385 Nideggen, Germany, Fax: +49 (0)2427 90350-98; E-Mail: email@example.com.
Consequences of cancellation
In the event of an effective cancellation then the payments received by either party must be reimbursed and where applicable any benefits derived (e.g. interest) returned. If the customer is unable to reimburse the payment received along with the benefits derived (e.g. usage benefits) or can only reimburse or return these in part or in a deteriorated condition then he or she must compensate NetDebit to this extent. This may result in the customer having to fulfil the contractual payment obligations in any case for the period up until cancellation. Any obligations to reimburse payments must be fulfilled within 30 days. For the customer the period begins with the sending of the declaration of cancellation and for NetDebit with the receipt of this.
The customer's right to cancel terminates prematurely if the contract has been fulfilled completely by both sides upon the express request of the customer before the customer has exercised the right to cancel.
End of the cancellation instruction
3.2. Amount of compensation
The compensation to be paid by the customer to NetDebit in the event that the right to cancel is exercised is made up of the following components: Costs of the manual review of the customer's registration, the setting up of the direct debit and other instructions as well as compensation for usage arising from any potential utilisation of the services of NetDebit under the contract by the customer.
3.3. Reimbursement of the payments received by NetDebit
NetDebit will reimburse the payments received by it from the customer in the event that the right to cancel is exercised only upon the condition that the customer has not cancelled a direct debit authorisation issued by the customer or will not cancel one, or with payment by credit card has not arranged for a charge back or will not arrange for one.
4. Contract processing and customer obligations
4.1. Briefing of the customer
The customer is informed by NetDebit both on the website www.netdebit-payment.de as well as in text form of the following: price lists; contract term and notice period; individual technical steps which lead to the conclusion of a contract; storage and accessibility of the contract document; possibility of recognising and rectifying input errors before the contractual declaration was provided; languages available for concluding the contract.
4.2. Obligation of legitimate use
The customer is under an obligation to make legitimate use of the services provided by NetDebit. The customer affirms to NetDebit that the access granted will not be abused for the purposes of accessing or disseminating illegal content or for breaching miscellaneous third-party rights (in particular intellectual property rights and competition law). In particular the dissemination of content which is harmful to minors, contains child pornography or is of an extremist and racist nature, the distribution of spam, virus attacks, chain letters and the abuse of NetDebit services for interference with the security precautions of third-party networks, hosts or accounts (cracking, hacking, and denial of service attacks) are forbidden.
4.3. Release from third-party claims
The customer will release NetDebit from any claims of third parties which are asserted as a consequence of the customer's culpability through the illegal use of the access to partner websites granted by NetDebit. The customer will inform NetDebit immediately of any third party utilisation which is based upon illegal use.
4.4. Access control
If the customer intentionally or knowingly enables third parties to use his or her access then the customer declares his or her full responsibility for all online activities of these persons, for controlling the access and the use by these persons and for the consequences of any type of abuse culpably caused by the customer. The customer is liable in the event of fault for any abuse that occurs to this extent and must bear the costs of any costs incurred through the unauthorised usage.
4.5. Prohibition on assignment to third parties for a fee
The customer is not entitled to assign the services of NetDebit to third parties for their use for a fee, unless NetDebit has expressly approved the assignment in writing beforehand. Third parties are also deemed to be affiliated companies within the meaning of sections 15 et seq of the German Public Companies Act (AktG).
5.1. Remuneration claim
Remuneration is due for payment dependent upon the length of time that access is granted by NetDebit to an Internet offer. The payment methods available are, at the customer's discretion, credit card, electronic direct debit, immediate bank transfer and NetDebit Telepay (for broadband users).
5.2. Amount of remuneration
The amount of remuneration can be taken from the price list published in the electronic booking form.
5.3. Change to the remuneration
NetDebit may change the remuneration arising from the contract with the customer following a corresponding notification in text form with a minimum notice period of six weeks until it takes effect (reference date) by up to 8 % compared with the existing remuneration amount.
In the event that the customer does not agree to the change then the customer has a one-month right of objection which can be exercised with effect at the reference date. The period for objection begins with the customer's receipt of the notification under sentence 1.
If the customer does not object within the period stated previously (receipt of the statement by NetDebit is decisive) or if he/she continues to use NetDebit's services in spite of the notification of the changes then the changes will be effective against the customer. This legal position will be pointed out to the customer in the notification in particular.
6.1. Right to suspend services
If the customer is in default of payment for an amount of more than € 75.00 or if there is a justified concern that a customer wishes to obtain services by fraud, NetDebit is entitled to suspend the granting of access promised under the contract until the customer has paid the liabilities due.
6.2. Default interest/damage caused by the default
In the event of default of payment on the part of the customer NetDebit is entitled to demand default interest at the statutory default interest rate. In the event that greater damage has been suffered by NetDebit through the default and this can be demonstrated then NetDebit is entitled to claim this. Furthermore, NetDebit is entitled to charge for the processing, dunning and collection fees incurred through the default in payment. The customer reserves the right to demonstrate that a lesser damage was suffered.
6.3. Collection agency
NetDebit reserves the right to assign all claims against a customer to a collection agency and to have these claims asserted by this agency
7. Contract term/termination
7.1. Contract term
The contract is concluded for an indefinite period.
The contract can be properly terminated both by NetDebit as well as by the customer with the notice periods agreed for the given situation (see point 4.1).
A right to termination for just cause exists independently of this rule. Just cause which entitles NetDebit to an extraordinary termination exists in the following cases in particular:
- Third parties are made aware of the access data
- The customer does not make a payment in full of a significant amount owed for two consecutive months despite being requested to do so
- The customer breaches essential contractual obligations
The termination may be made in writing or in text form (section 126b BGB).
NetDebit is entitled to assign its rights and obligations from this contractual relationship to a third party in whole or in part with a notification period of four weeks. In this case the customer is entitled to terminate the contract without adhering to a notice period at the point in time that the assignment takes effect.
Any assignment of customer claims from the contractual relationship requires prior written consent from NetDebit. Section 354a of the German Commercial Code (HGB) remains unaffected by this.
NetDebit is entitled to offset customer claims with all claims against the customer; NetDebit is also entitled to collect claims from a customer account communicated to NetDebit insofar as the customer has expressed their agreement with this.
The customer may only offset its own claims with claims against NetDebit where these have been determined with the force of law, are undisputed or have been expressly recognised by NetDebit.
9.1. No liability for third-party content
NetDebit grants its customers login data for accessing content offered by third parties. Responsibility for the content of the third-party websites and for any potential youth-protection measures, etc. rests with these third parties themselves. NetDebit accepts no warranty or liability for the content of these websites.
9.2. Liability limits for own services
The access granted may be impaired for technical and operational reasons, e.g. force majeure, overloading of the telecommunications networks, maintenance and repair work, etc. NetDebit is only liable for these impairments where it is responsible for them. The customer will be informed of maintenance and repair work within a reasonable period of time.
In principle NetDebit is liable for claims under or outside of the contract for customer damages solely in the event of wilful intent or gross negligence. Where essential contractual obligations are breached, i.e. obligations which enable the proper performance of the contract and which the customer therefore trusts and may trust will be fulfilled, in the event of default of the debtor and for cases of impossibility of providing the service for which NetDebit is responsible then NetDebit will also be liable for any culpable breach of obligation of its employees and agents.
9.3. Limitation of liability to typically foreseeable damage
Except for cases of wilful intent/gross negligence on the part of NetDebit and the intentional/gross negligence of its legal representatives, employees or agents, the liability of NetDebit is limited to foreseeable damage that is typical for the contract.
9.4. Liability of legal representatives, employees or agents
Where the liability of NetDebit is excluded or limited then this also applies to the liability of the legal representatives, employees or agents of NetDebit.
9.5. Inapplicability of the limitation of liability in certain cases
The limitations of liability stated above do not apply to damage from injury to life, limb or health, nor to cases of mandatory statutory regulations such as the Product Liability Act.
10. Data protection
Personal data is collected, saved and processed in accordance with the NetDebit customer data protection statement which can be accessed at http://www.netdebit-payment.de/go/central/privacy_customer.
11. Change to the contractual terms and conditions
NetDebit is entitled to make changes to the contractual terms and conditions for the future where there is a compelling reason. This occurs by way of a notification in text form with the new contractual terms and conditions attached and with typographic highlighting of the changes for the customer. NetDebit also announces changes to its contractual terms and conditions on the website www.netdebit-payment.de.
If the customer does not object to the change to the contractual terms and conditions within one month or if the customer continues the contractual relationship by using the services of NetDebit then the amended contractual terms and conditions will be effective against the customer. This legal position will be pointed out to the customer in the notification in particular.
12. Final provisions
12.1. Applicable law
The contractual relations between NetDebit and the customer are subject to the law of the Federal Republic of Germany. This does not apply where the customer is a consumer and mandatory statutory provisions of his or her country of residence provide other regulations.
12.2. Place of jurisdiction
In the event of any disputes arising out of or in connection with the use of NetDebit's services, these General Terms and Conditions, the supplementary contractual terms and conditions and the data protection statement then the local court of Düren or the district court of Aachen shall have exclusive jurisdiction, insofar as the customer is a trader.
The agreement on the place of jurisdiction shall also apply where the customer has no fixed residence in Germany, has relocated his or her place of residence or usual abode abroad after these contractual terms and conditions have come into effect, or if the place of residence or usual abode is not known at the point in time that the proceedings commence.
12.3. Severability clause
In the event that one or more provisions of these General Terms and Conditions of contract and business, the supplementary contractual terms and conditions or the data protection statement are or become invalid then this will not affect the validity of the remaining contractual terms and conditions.
This is the english translation of the General Terms and Conditions. In the case of obscurities the german text takes effect.