Terms and Conditions – IDM
§ 1. Preamble
- This document contains the standard terms and conditions for any IT and telecommunication services provided by interactive digital media GmbH, respectively its operating company as per your contract, which will serve as your contractual partner, hereinafter referred to as IDM (interactive digital media GmbH). The customer and IDM will be jointly referred to as “contractual Parties” or “Party” in case of single references applying to any of them.
- IDM reserves the right to modify its terms and conditions at any point and time with a notice period. Such notice period shall be at least 10 business days unless there are regulatory or carrier side changes, which require IDM to change terms and conditions with a shorter notice period. In case of any changes to these terms and conditions, the customer has the right to extraordinarily terminate usage of services provided by IDM, provided that he can proof that such changes will adversely affect its business and/or its customers. If the customer continues to make use of the services provided and does not object make use of his right to extraordinary termination, he agrees to the changes.
- IDM reserves the right to change, alter and/or modify its services and associated tariffs at any given time. However, customer should expect a lead time of at least 30 calendar days for any changes on services. It is the customers right to terminate usage of any such services that have been changed or decommissioned prior to the expiration on IDMs end. If the customer continues to make use of the services provided and does not object make use of his right to extraordinary termination, he agrees to the changes.
- IDM provides its services exclusively based on these terms and conditions. Any Employee, Agent or Representative of IDM is not allowed to make any contradictory agreements, unless they are done in writing and signed off by the management of IDM. This applies as well if there is no explicit denial from IDM for any such verbal agreements.
- IDM renders its services on a nonexclusive basis.
§ 2 Definitions
The following terms shall be used as definitions with respect to this contract and all of is amendments and addendums, unless specified otherwise:
- “app push” shall mean, a push into a Web browser or app on a phone, which is either IDMs own app or a customer’s app, which integrates the IDM SDK to enable chat or notification functions.
- “account information” shall mean any access information to IDM s gateways which are provided by IDM to the customer.
- “contract(s)” shall mean all contracts and other related agreements (e.g. Service Level Agreements) between the contractual parties.
- “customer” shall mean the private or legal entity entering into a legal agreement with IDM, according to §3 of these terms and conditions.
- “client” shall mean a customer´s customer, client and/or any other business partner, which has an agreement with the customer to use the customers messaging services.
- “cloud storage” shall mean IDM’s storage area network, which is cloud accessible and stores customer provided data and files
- “content” shall mean any information that is contained within a message, file or document.
- “contractual agreement” shall mean and extend to every separate and independent stipulation between the parties including all contracts (as per §2.1 a) and without limitation, any recitals and schedules thereto as long as they are in written form.
- “gateways” shall mean any of IDM s systems, which are provided to the customer and/or it’s clients for the usage of any telecommunication services.
- “Know Your Customer or KYC” shall mean that the customer may be required to provide proof of identity of its clients to IDM in case of reselling services, sourced via IDM in order to be in compliance with current GDPR regulations.
- “virtual mobile numbers” shall mean a number looking like a usual mobile number, but being hosted by either IDM one of its partners or a mobile network provider to which Text and/or voice messages can be send and which can be received via IDM cloud platform.
- “virtual numbers” shall mean a number looking like a usual (landline) phone number, but being hosted by either IDM one of its partners or a fixline communication network provider to which calls can be made to and voice messages can be sent and which can be received or forwarded via IDM cloud platform.
- “short code or short number” shall mean a short number (usually between 3-6 digits) to which SMS can be send and/or calls can be made.
- “Text to speech” shall mean a service that converts language from different nationalities into human voice.
§ 3. Customer’s Obligations
- The customer agrees not to start or initiate any services until an appropriate contract has been signed by the parties and such services will be conducted by the customer within the limits of these terms and conditions. Services which are not covered within these terms and conditions, potentially require an additional agreement.
- The customer is solely responsible for all use (whether or not authorized) with any of his IDM account(s) of the IDM, the customer is also solely responsible for all acts and omissions of anyone who has access to or otherwise uses any Customer accounts data (“End Users”). Customer agrees to take all reasonable actions to prevent unauthorized access to or abuse of his accounts and corresponding services and will notify IDM promptly in case he becomes aware of any such abuse. IDM is not liable for any loss or damage arising from unauthorized use of the customer’s account(s).
- The customer agrees that he will strictly comply with the rules set out by any current applicable completion law, third-party rights, as well as these terms and conditions, as amended from time to time. The customer will not use any services provided by IDM in any way or form violating any current applicable law or competition law. The customer agrees that it will not knowingly send unsolicited advertising material or any other unsolicited content via IDMs platform.
- The customer will send messages only to subscribers who have consented to receiving the types or messages, the content and frequency send through any gateway provided by IDM and to subscribers, who have been informed of their rights to and the process for cancelling receipt of future messages (OPT-OUT). Should unsolicited traffic, for whichever reason have been sent via a customer account or any of the customer´s clients’ accounts through gateways provided by IDM, the following actions shall be taken:
- the party detecting that unsolicited traffic has been sent shall immediately contact the other party informing that unsolicited traffic has been sent,
- the parties shall immediately initiate efforts to work in good faith and exchange information in order to determine the source of the unsolicited traffic as soon as possible after the incident, (e.g. via timestamps, content, destination number(s) and originator(s))
- the customer should immediately make sure that the account from which the unsolicited traffic is sent, is deactivated OR make sure that such client is not sent any more towards the IDM Platform and shall ensure that such client (in case of customer’s customer) is no longer connected to the IDM Platform.
- Upon IDM 's request, customer will provide IDM with a proof of subscribers’ consent and/or the customer’s response time to discontinue the transmission of any messages to IDM satisfaction within a reasonable time of receiving such request. The customer agrees to keep such records (contracts and/or OPT-IN records) for at least 180 days after submission of any content towards IDMs gateway or platform or decommissioning services which use the IDM platform.
- The customer will not attempt to use the IDM Services to access or allow access to emergency services: the services are not intended to support or carry emergency calls or SMS messages to any emergency services. Neither IDM nor its representatives will be liable under any legal or equitable theory for any claim, damage, or loss (and customer will hold IDM harmless against any and all such claims) arising from or relating to the inability to use the IDM services to contact emergency services.
- The customer acknowledges that IDM has no control or influence in any way over the content submitted via its cloud platform and is providing only the platform as a transactional system, which controls the delivery via various communication channels. IDM recommends that, before any services are consumed or provisioned by the customer, the customer shall take legal advice with respect to provision of the services intended at its own expense.
- Customer agrees not to attempt, permit or assist to decompile, reverse engineer, disassemble or derive the source code of any software provided in connection with the IDM Services. This does not apply for any sources provided by IDM for service integration.
- Customers are bound to these terms and conditions; in case they are making use of any of the services provided by IDM (e.g. by signing up for a test account) or by entering into a contract with IDM.
§ 4. Services of IDM
- To use the IDM Services, the customer has to create an account with any of the platforms provided by IDM.
- The service of IDM is limited to:
- Acceptance of information or messages provided
- Storage, forwarding and potentially processing of data.
- Transmission of the content to a specific gateway provider for transport to the ultimate destination (phone, app, web, mail, etc.).
IDMs service is considered completed, once IDM has passed the content to a downstream processor, carrier or service provider. There is no warranty about reaching a specific destination device, network or carrier. Success in delivery is depending on service profiles used. In case of the provisioning of specific services that are relying on 3rd parties to be provisioned, IDM will work in a collaborative way with the respective 3rd party or service providers and provision services as soon as possible. Such services are provided on a best effort basis and IDM is not liable for any due delay caused by such 3rd party or service provider during the provisioning of any services.
- IDM systems are designed for the transmission of personal or informative content, to any end user device. It is the customers responsibility to make sure that the end users have given consent to receive any such content (so called OPT-IN communication). Any Messages or Content containing offensive or any other form of unsolicited or illegal content, will potentially lead to a blockage of the account and as per IDM’s sole discretion and/or result in the termination of the contractual agreement if such content is sent repeatedly. IDM commits to notifying its customers, as soon as reasonably possible in the event of such blockage.
- IDM warrants that it will deliver its products and services according to the individual customer agreements and the service descriptions included or attached to such agreements.
§ 5. Limitation of liability
- Customer agrees to release IDM from any liabilities, which are based upon actions of the customer and/or its clients or upon information provided by customer and/or its clients. This applies specifically, however not only, in case of abuse of account information, protection of privacy or competition regulations, violations of copyright and/or illegal or invalid information provided by the customer.
- IDM is responsible for performing the services as defined in the contracts and by these terms and conditions. In an event of breach, IDM is shall be liable for any proven direct damage unless caused by simple negligence, circumstances out of IDM ’s reach and/or circumstances relating to force majeure. In any event IDM shall be only maximum liable to the aggregate turnover of the customer in the corresponding month of such event.
- Indirect damages. In no event will either party or its affiliates have any liability arising out of or related to this agreement for any revenues, goodwill, or indirect, special, incidental, consequential, cover, lost data, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law
§ 6. Confidentiality
The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that:
- is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure);
- at the time of disclosure is otherwise known to the receiving party other than by previous disclosure under an obligation of confidentiality;
- is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or
- is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Section. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason.
- Either party shall be entitled to seek injunctive or other equitable relief to remedy or prevent any breach or threatened breach of any confidentiality provisions by the other party or any of its employees, directors, officers, agents, consultants, contractors or affiliates. Such remedy shall not be the exclusive remedy for any breach of the confidentiality provisions herein, but shall be in addition to all other rights and remedies available at law or in equity.
- IDM ensures to follow EU directive 95/46/EC regarding the storage and security of personal data, as well as GDPR and DSGVO (German data protection regulations) and will implement and execute all its updates.
- Each party will promptly inform the other party if such party becomes aware of any violation of the terms of this clause.
§ 7. Payment terms
IDM provides it services on a pre- and postpaid basis. Whichever contract and/or payment form is selected, is at the sole discretion of IDM.
- For Pre-Paid accounts,
- Purchased Gateway credits can get jointly used for any of the services provided. unless specifically defined otherwise. Payments have to be made in such way that there are no fees to the receiving party.
- Remaining credit will be refunded upon customer request, unless specifically defined otherwise.
- For post-paid accounts the following terms apply:
- IDM is invoicing its customers on a post-paid basis for any of the services rendered under this agreement, based on default and/or individual pricing arrangements made in the service agreements.
- Undisputed charges on invoices are due immediately after the customer’s receipt of the invoice (either by download, e-mail or postal mail). Payments have to be made in such way that the payment is credited to the account not later than fourteen (14) days after the receipt of the invoice, unless deviating payment terms have been agreed upon.
- In case that the customer disputes any charges on an invoice, customer shall pay any undisputed amount within the regular payment terms and notify IDM in writing of such disputes no later than thirty (30) days after the customer’s receipt of such invoice. The parties shall then try to resolve such disputes via mutual dialogue. In case of failure of any such dialogue, either party may decide to refer the matter to court in accordance with § 13. If customer fails to notify IDM of such disputes within thirty (30) days after the customer’s receipt of the invoice, such disputed charges, will be considered undisputed and become due, regardless if justified.
- Undisputed charges which are due, but not paid shall accrue interest at the rate of 5% (five percentage points) on top of the current EURIBOR interest rate, as of the end of the day on which payment was due and until paid in full.
IDM is entitled to a deposit as per its own discretion (usually double the amount of the average invoice), in case that the customer repeatedly fails to fulfil his payment obligations. Alternatively, IDM may, at its own discretion choose to close the account. If the customer maintains a security deposit with IDM no late payment fee applies.
- Payment terms deviating from §7.2 a and §7.2.c are defined in the separate service agreements between IDM and the customer.
- Any offset is only acceptable in between the parties:
- In case of a bilateral service agreement and a corresponding reference therein.
- upon mutual agreement for receivables which are legally validated or acknowledged.
§ 8. Contract duration and termination
- Contracts are required prior to usage of IDM platform and/or services. Contracts can be entered into by either online sign on on any of the IDM platforms or by signing and executing individual agreements. In case of any special or individual or minimum duration, such durations are agreed upon in the separate service agreements between IDM and the customer.
- Either party may terminate these terms and conditions and close the customer’s IDM account(s) for any reason upon thirty (30) days written notice to the other party unless otherwise agreed in the separate service agreement. Notwithstanding the preceding sentence: In case of a separate Order Form(s) being in effect, these terms and conditions, will not terminate until such Order Form(s) have expired or been terminated. A termination of the agreement and/or separate services can be done 6 months prior to the end of the contract and/or the services.
- If customers fail to fulfil his payment obligations or violates any terms of the Agreement with IDM, IDM reserves the right to immediately block all services offered. IDM also reserves the right to terminate its Agreement with the customer if such payment obligation or violation is not cured within 30 (thirty) days of IDM ´s notice to the customer.
§ 9. Severability
- If one or more paragraphs of this terms and conditions is ineligible or becomes ineligible the other parts of this terms and conditions remain intact. Instead of the ineligible part an eligible part will be placed which comes closest to the original content and intention with respect to regulatory and economic intentions.
§ 10. Force Majeure
- Neither party shall be liable in damages for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, governmental restrictions, strikes or labour disturbances, wars, sabotage, insurrections, natural disasters and/or any other cause beyond the reasonable control of the party whose performance is affected.
- Either party may immediately terminate this Agreement by providing notice to the other party if any Force Majeure event continues for more than ninety (90) days.
§ 11. Legal Succession
- The transfer of the contract(s) or any rights or obligations arising hereunder to a third party is subject the party’s approval and has to be communicated from the party where the changed has occurred to the party which has to be notified as soon as she becomes aware of such changes.
§ 12. Place of performance – legal venue
For EU Customers:
- Place of performance for all legal disputes regarding this contractual agreement shall be in the courts of Lubeck, Germany and the governing law shall be the law of Germany.
For Non-EU customers:
- Place of performance for all legal disputes regarding this contractual agreement shall be in the courts of Luebeck, Germany and the governing law shall be the law of Germany.
Terms and conditions of interactive digital media GmbH as of December 1st. 2022.
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