Betamax conditions of use for private end customers
- 1. Contractual bases
- 1.1. The following General Conditions of Business apply to all customers wanting to make use of the services of Betamax GmbH & Co. KG ("Betamax") with registered address in Cologne, Germany, and living within the territory of the Federal Republic of Germany and/or having or having been allocated a German telephone number.
- 1.2. Betamax provides the Service defined below exclusively in accordance with the terms of the German Telecommunications Act (TKG) and with the following General Conditions of Business for the use of Voice-over-IP-Telephony and the accompanying special software ("VoipSoftware"), which is regarded as a component of and a condition for the use of the service. The customer protection provisions of the TKG shall apply even where this has not been expressly stated.
- 1.3. The Service and the respective license therefore shall only apply to a customer's individual, private and non-commercial use (§ 13 BGB). A commercial use (§ 14 BGB), in particular relating to offers of telemarketing, re-sale operations or agency activities shall not be permitted.
- 1.4. Using the public telephone network or the internet, Betamax offers a telephony platform for connections to pre-determined addresses in the internet or in the public telephone network. Betamax will continue to route telephony communications into the internet and into the public telephone networks for as long as these networks exist and are available. However, the availability of the internet and the public telephone networks does not fall into the area of responsibility or influence of Betamax. As a rule, transmission is effected in the form of packages on the basis of recognised protocols and procedures for Voice over IP ("VOIP"). It lies within the nature of the Service that Betamax is unable to guarantee that the Service is free from interruptions and not subject to breakdowns or package delays. Nevertheless, Betamax undertakes at all times to do its utmost to ensure that such breakdowns and interruptions are kept to a minimum.
- 1.5. The customer acknowledges that, when using the Service, in view of its nature as described, the Service cannot be used as a substitute for a conventional telephone service and that, for example, calls cannot be connected to the police or to emergency services. The customer also acknowledges that, because of the experimental character of the Service, technical modifications may be required at any time. These could also be due to national or international requirements, as the regulatory framework for the Service is still at an early stage. Modifications of this nature are not included in the unilateral risk sphere of Betamax.
- 1.6. The use of Voice over IP services and the VoipSoftware is subject exclusively to the following contractual conditions. Contravening terms of business proposed by the customer shall not be valid and shall not be applicable even where they have not expressly been rejected.
- 2. Provision and description of the service
- 2.1. Betamax provides its customers with VoipZoom exclusively for the private and non-commercial use of consumers (cf. § 13 BGB). No commercial applications (cf. § 14 BGB), in particular for telemarketing or for resale purposes or for agency activities, are permitted. This means that VoipZoom, including the VoipSoftware, is expressly not available to customers for commercial or professional purposes or for advertising and in particular for telemarketing purposes.
- 2.2. Via the public telephone network or the internet Betamax offers a platform for the provision of telephony to targeted connections in the internet or in the public telephone network. With his user name and his password, the customer can sign on and build up his own internet connections on the basis of the Betamax platform and communicate with other subscribers on the internet or the public telephone network ("Dial-Out") or receive communications from other subscribers ("Dial-In"). Communications to other subscribers within the internet is only possible if the other party also has internet access via the Betamax platform and if his IP address is accessible ("active participant"). Furthermore, communications using the "Dial Out" are technically possible provided that the called subscriber is attainable in the public telephone network through an existing connection.
- 2.3. In accordance with the present conditions, the Service includes both charged calls and also non-charged calls. Where the calls are chargeable, the Service is only available if the customer has a certain credit level that is enough or more than enough for the charge to be paid.
- 2.4. A communication using telephony can only take place if it is technically and economically possible.
- 2.5. It is pointed out that, because of the nature of the Service (see 1.4 above), breakdowns and interruptions can occur. It is also pointed out that risks can arise when using an SIP client in an unsecured network. The systems that carry the Service as described in the operational sphere of Betamax are calculated to have a 97.5% availability over a calendar year.
- 2.6. In order to protect the interests of the customer against improper use and to ensure consumer protection, Betamax reserves the right to block personal calls to individual numbers, groups of numbers or certain countries either permanently or temporarily. However, this does not include in particular numbers such as special services and value added services (such as Inmarsat, information services, added-value numbers (0900 numbers) etc.). The customer is solely responsible for taking the necessary precautions against improper use within his own area of responsibility and has no legal right to require Betamax to take any such precautions against any improper use for which it is not responsible.
- 2.7. Betamax stipulates the following conditions for using the current VoipSoftware (cf. the updating requirement in No. 10.7. ) and also the minimum conditions for the hardware: PC with the operating system Windows 2000 (with SP2), a 300 MHz processor, 128 MB RAM, an extra 10 MB capacity on your hard disk, a sound card and a headset and also a broadband internet connection: cable, DSL, with a minimum speed of 64 kbit/s for upstream and downstream processes. The use of Betamax services with a modified or converted VoipSoftware is not permitted without the prior express consent of Betamax.
- 3. Conclusion of the Contract and duration: Framework Agreement and individual usage together with a Trial Version
- 3.1. The present Framework Agreement, whereby the customer is granted a general right of usage of the services, comes into being once the customer applies on the Betamax web portal in the prescribed manner for the Service and Betamax accepts the application and the contract by communicating the access data or by some other suitable means. If the customer has not applied for a credit or if the validity of the credit has expired, the Framework Agreement shall be of indeterminate duration and can be terminated at any time by either of the parties.
- 3.2. Usage of the individual Betamax services requires that the customer has concluded the Framework Agreement ("has registered") and enters into a separate contract for the usage of each individual service. This individual contract deriving from the Framework Agreement shall come into being when the customer requests (makes an offer for) the Service and Betamax performs (accepts) this service. Each individual contract shall end once the respective Service has been provided. The contractual relationship can thus be compared to the ending of a contract in the "closed call-by-call" system (call-by-call with prior notification) in conventional telephony. However, the particular feature lies in the calculation and the payment of the chargeable services, as these are paid ("pre-paid") by purchasing credit in advance.
- 3.3. To use a chargeable services the customer will need to purchase credit, entitling him, in the manner of a Framework Agreement, to make use of the chargeable services on an individual basis ("Call-by-Call") in accordance with the list of charges applicable to the respective service. The charges for the individual chargeable services shall be notified to the customer before usage commences, or in some other suitable manner. The charges incurred in this manner shall then be deducted from the amount of credit purchased (see Nos. 7 and 8 for details of calculations and validity).
- 3.4. Once the customer purchases credit for using chargeable services, the present Framework Agreement shall have a minimum duration of 6 months from the date on which Betamax receives payment for the credit.
- 3.5. See No. 12 for the termination of the Framework Agreement.
- 3.6. If the customer uses a restricted version of the VoipSoftware (a "trial version"), he shall only have restricted access to Betamax services. In particular, he shall only be able to communicate free of charge with other active Betamax users and only call certain individual destinations as shown in the list of charges for up to one minute free of charge. If the customer uses the trial version, he shall not be given access to any VoipIn numbers.
- 3.7. In accordance with current legislation (§ 111 TKG), Betamax is required to record the customer's name and address (and also the date of birth of physical persons) and also his password (with fixed connections and address), even if this information is not required for charging purposes. The customer undertakes to give such information truthfully and to update it as necessary. Betamax undertakes to use this information only for legally prescribed purposes unless the customer has given his agreement for it to be used elsewhere.
- 3.8. The customer is not permitted to disclose his access details to third parties.
- 4. Non-chargeable calls without the requirement for credit
- 4.1. Calls between participants, both of whom have a registered internet access through a Betamax platform and who can be reached through this internet access are not chargeable. In such cases, the responsibility for the establishment, maintenance and payment of the internet access lies with the customer.
- 4.2. No credit balance is required for these non-chargeable calls. However, the customer must be registered with Betamax as a customer.
- 5. Chargeable Dial-Out
- 5.1. Betamax undertakes to carry out the chargeable connection of calls to the public telephone network for customers. This is only technically possible where a direct or an indirect connection exists with the telephone network to which the required call is to be made.
- 5.2. In this way, Call-by-Call calls in particular can be routed to national German landline and mobile telephone networks as well as standard international calls. No guarantee can be given for a routing to a particular network, as the responsibility of Betamax is limited to attempting to make connections for outward calls to the target network.
- 5.3. The final contract on the routing of each individual call on a "Call by Call" basis shall only come into being when the connection has been successfully made by Betamax. The individual contract for the call shall end as soon as the call, for whatever reason, is ended.
- 5.4. Each individual call shall be chargeable in accordance with the list of charges that is valid as at the time of the call made by the customer. The actual cost of the connection will be displayed on the customer's software before the call is connected.
- 6. Non-chargeable Dial Out subject to confirmation
- 6.1. Betamax can determine that certain target calls in the current list of charges for Dial Out calls within the meaning of No. 5 above should be non-chargeable.
- 6.2. The customer shall be expressly made aware of the fact that, when establishing which Dial Out calls are non-chargeable on the basis of the current list of charges, Betamax shall be entitled to claim that this is subject to confirmation so that changes can be made at any time. When the customer purchases a credit he shall be clearly informed of the fact that even in this case destinations shown as being non-chargeable in future lists of charges could be changed or even deleted altogether. Whether a call is chargeable or non-chargeable shall be displayed whenever the customer starts to make a call or notified in some other appropriate manner.
- 7. Charges and calculating charges
- 7.1. Every chargeable call or service shall require the customer to have an appropriate credit balance that is at least sufficient for the call in question.
- 7.2. Where a charge is made for chargeable Dial Out services in accordance with No. 5 above or for any other chargeable service agreed between the parties, this charge shall be based on the respective list of charges applicable at the time of concluding the contract for the chargeable service in question. The charge is notified to the customer before the individual contract is accepted and before the Service is carried out or notified in another appropriate manner. If the customer allows the Service to be performed by Betamax in accordance with the terms of the contract, he shall declare that he is in agreement with the charge and that Betamax is entitled to deduct the charge from his credit balance.
- 7.3. Unless otherwise indicated, the prices for chargeable services and calls are always based as a charge per minute and are calculated on a minute by minute basis. The customer shall be responsible for all charges incurred when his access details and password are used. This shall be understood to include unauthorised use by third parties insofar as this use has been made possible in some manner by the customer.
- 7.4. If a charge is incurred and cannot be covered by the credit balance, Betamax shall be entitled to debit this separately. It may be debited in the form of an on-line statement, by e-mail or in any other appropriate form. The charge is payable on receipt.
- 7.5. All charges shall be deducted from the existing credit balance and the usage data shall be stored for a period of up to 6 months with effect from the time of the service. After this period, Betamax is required under § 97 (3) TKG to delete the data unless the customer has lodged an objection within the permitted period. Any such objection is to be raised within a period of 8 weeks from the date on which it is perceived from the statement details. After this period, the statement shall be deemed to be agreed. In the individual statements of account or in his on-line account, the customer shall be notified of the period permitted for such objections, of the consequences of failing to submit an objection within the period specified and of the address to which the objection should be sent. The same shall apply, if, in exceptional cases, Betamax submits a separate invoice.
- 7.6. With the communication platform, Betamax undertakes to provide the customer with access to an online calculation, enabling the customer to see and verify his account at any time. The customer is contractually obliged to view his on-line account at least once a month, thus asserting his verification rights. This form of calculation corresponds to the procedure that is recognised and practised in comparable conventional telephone systems and by using it, the customer confirms that he believes it to be both reasonable and usual.
- 7.7. Any objections to the statement of account must be made by the customer in text form or in writing within the stipulated period (cf. No. 7.5.) and sent to the address shown in the on-line statement of account. Betamax requests that the customer include all relevant details with his complaints so that these can be easily verified. In the event of a complaint, Betamax undertakes to break down the call in question into the respective call data as proof of payment while protecting the data privacy of any other users and to conduct a technical test, unless it can be shown that the complaint was not attributable to a technical defect. Within the period allowed for the objection, the customer can request a sight of the proof of payment and the results of the technical test. Failure to provide such details within a period of eight weeks from the date of an objection shall have the effect of extinguishing all claims in respect of delay made to that date. The statement of account shall not be payable until these items have been submitted.
If, as a result of technical problems, no traffic data have been stored, or if no objections have been raised and stored data have been deleted once the time allowed for objections to be submitted has elapsed or on the basis of legal requirements, Betamax shall not be liable to provide evidence of connection services made or details of individual calls.
Betamax shall be obliged to demonstrate that the telecommunications service or the access to the telecommunications network to the customer's network access have been effected technically correctly. If the technical test reveals defects that could adversely affect the calculation of the disputed charge payable by the customer, or if the technical test is completed more than two months after the customer's objection is received, it shall be irrefutably concluded that the call event that was charged was incorrectly calculated.
Insofar as the customer can demonstrate that he cannot be held responsible for the use of services, Betamax shall have no claim against the customer for payment. Such a claim shall also fail if the facts bear out the assumption that third parties are responsible for incurring the charge shown in the statement of account as a result of their unauthorised modifications to public telecommunication networks. - 7.8. If, by way of exception, the customer receives an invoice from Betamax, this is payable no later than the payment date shown. If this payment date is exceeded, the customer shall be deemed to be in arrears and, without prejudice to its right to seek additional compensation, Betamax shall be entitled to charge the customer late interest at a rate of 5% above the current base rate charged by the European Central Bank.
- 7.9. The customer's right to offset and retain payments against Betamax shall only exist if any such claims are not disputed and have been upheld in a court of law.
- 8. Acquisition and validity of credit
- 8.1. The customer can purchase a credit on the Betamax web platform entitling him to use Betamax chargeable services at the prices shown on the list of charges applicable as at the time of concluding the contract. This credit becomes valid once the equivalent value has been paid or transferred by the customer. Payment is to be made in one of the manners shown on the web portal. Once a credit has been purchased, it will be valid for 120 days from the date of its registration ("Duration of validity"), for details see No. 8.6.
- 8.2. The requirement for the customer to acquire a credit balance shall last until the customer's payment has been received by Betamax without any possibility of it being reclaimed by the customer.
- 8.3. If the customer makes his payment by a direct debit through his bank (bank transfer), the following shall apply: With his agreement to the direct debit transfer, the customer confirms that his bank account has sufficient funds to cover the transfer. The customer's payment liability shall continue until the required sum has been irrevocably credited to Betamax's account. This shall apply in particular in cases where a debit note issued by Betamax is not encashed or is revoked. If a justified Betamax debit note is not encashed for reasons attributable to the customer, Betamax shall be entitled to seek compensation and to debit the customer with all costs incurred (including bank charges) in the form of a lump sum handling charge equivalent to ?15. Both parties reserve the right to increase or to reduce this amount of compensation.
- 8.4. When the customer wishes to activate a direct debit payment and set up his credit balance, he must firstly create a multi-digit password in order to access the loading function and load the credit. With this password, he can then, by using his user name, load credit in the service menu of the internet page of the respective Voip service to make use of the chargeable service ("credit"), in which he issues an individual direct debit authorisation to the amount of the credit balance. This function is provided securely under the https protocol. The direct debit authorisation shall be deemed to have been given by the customer when he registers using his correct access data.
- 8.5. A direct debit authorisation can only be issued to a current account at a German bank (overseas banks cannot be accepted). The final activation of the loading possibility only takes place when Betamax has received a fully completed direct debit authorisation with all relevant details for the credit transfer. The customer is required to notify Betamax on the web portal of any change of address or bank details.
- 8.6. The credit may no longer be used once the period of validity (see No. 8.1) has expired. However, at this point the customer can utilise all remaining credit ("residual credit") by acquiring further credit in the following period. The new credit that he purchases is increased by the residual credit and is available for the period of validity of the new credit balance. By way of alternative to this option, the customer can claim a refund of the unused, expired credit. To do this, he is required to send a request in text form to Betamax requesting a refund and quoting his name, his user number, the amount of refund required and details of his bank account (for overseas accounts the IBAN number must be given). A claim to reactivate or to receive a refund of any residual credit shall lapse in accordance with current legislation after the end of the third calendar year from the expiry of the validity of the residual credit balance.
- 8.7. If the customer wishes to use his residual credit after the expiry of the period of validity, he must not terminate the Framework Agreement, or, if he does so, he must enter into a new Framework Agreement, giving his former customer number, as otherwise he will not be able to acquire fresh credit.
- 9. The right to use VoipSoftware
- 9.1. For the duration of the present contract, the customer shall be granted a simple, non-exclusive and non-transferable right to use VoipSoftware within the framework of the Service or of any other applications expressly offered by Betamax within the framework of the present conditions. To this end, the customer may download, install and use the VoipSoftware of the respective Voip service. This right shall be restricted to the personal use of the customer as a consumer (No. 1.3. ) and for his own purposes. In particular, the customer shall not be permitted to adapt the VoipSoftware or allow it to be adapted in any way, or to decompile or disassemble or redevelop the VoipSoftware or in any way to interfere with the programming or source code.
- 9.2. Similarly, the customer is forbidden to offer in any commercial form, to sell, to rent out, to lend, to share or to allow any third persons to use the VoipSoftware. It is also forbidden for the customer to act as intermediary or service provider for VoipSoftware vis-à-vis third parties or to assign rights of any nature in respect of the Voip Software to third parties.
- 9.3. Software and technology provided by third parties, where Betamax is clearly not and does not claim to be the supplier or the contractual partner, are to be covered by separate licensing agreements between the customer and the respective third party. This shall also apply in cases where such software or technology is offered and operated in conjunction with the VoipSoftware.
- 9.4. Betamax reserves the right to add further functions or features or program improvements, updates or upgrades to the Software. In such cases, the warranty rights of the customer in respect of the software shall remain unaffected.
- 9.5. Subsequent new versions of VoipSoftware shall not be deemed to be the object of the present contract. The present contract does not entitle the customer to receive new versions of the VoipSoftware.
- 9.6. At the end of the present agreement, the customer undertakes to delete the VoipSoftware from his systems and/or to destroy all copies.
- 10. Obligations of the Customer
- 10.1. The customer is obliged to use the Service and the VoipSoftware only for lawful purposes in accordance with the conditions of the present contract. If it suspects that improper use is being made of the Service and the VoipSoftware, Betamax shall be entitled to impose an immediate block in accordance with the terms of § 19 TKV.
- 10.2. If an unauthorised use of his VoipSoftware is suspected, the customer is advised to inform Betamax immediately through his Online Account and to block the Service. If his suspicions continue, the customer shall be obliged to implement such a block.
- 10.3. The customer shall not be permitted to make any improper use of Voip services, and in particular, the possibility of gratuitous telephony, of the Voip-In-Number or of commercial offers or in any way that could adversely affect the Betamax network or other customers, or the access to or the use of the Betamax network.
- 10.4. Improper use shall include in particular if the customer uses the Service for his own commercial ends or in a manner allowing third parties chargeable access to or the use of the Service or the ability to benefit from commercial offers (resale), without obtaining the prior written consent of Betamax. In such cases, Betamax shall be entitled, at its option, to debit the customer for the costs of the improper use of otherwise non-chargeable telephony and/or to terminate the present contract with immediate effect or to withdraw individual functions from the Service.
- 10.5. The customer undertakes not to use any equipment or to carry out any applications that could lead to changes in the physical or logical structure of Betamax systems and/or the networks that these use.
- 10.6. The customer undertakes to notify Betamax on the web portal under his customer portal of any change of his connection details, including his connection numbers, and also of any changes in his personal details (name, address and bank details).
- 10.7. In order to guarantee that the Service can be effectively provided, the customer undertakes to download and install all updates made available by Betamax on the web portal where this is reasonable. If the customer neglects to do this, Betamax shall be entitled to block the Service if the safety, the functioning or the calculation features of the services could be compromised without the installation of the update in question. As a rule, updates of this nature shall be regarded as being reasonable if they do not require any especial input on the part of the customer.
- 11. Changes in technology, software and passwords
- 11.1. Betamax reserves the right to change the access data, the VoipSoftware or VoipIn numbers whenever this is necessary for operational reasons and where it is reasonable for the customer.
- 11.2. Further changes may also be introduced in accordance with § 313 BGB in the event of any changes in the nature of the contract.
- 12. Termination of the Service (Framework Agreement) by the customer
- 12.1. If the customer has not purchased any credit, he shall be able, without giving any grounds or notice, to terminate his use of the VoipSoftware by notifying Betamax of his intention either by e-Mail or by letter sent to the latter's address. Alternatively, he can notify his wish to terminate in the dedicated Betamax web portal. In all cases, this notification is to be in text form.
- 12.2. If the customer has purchased credit, the minimum duration of the present Framework Agreement shall be six months. This minimum period shall re-commence with each fresh purchase of credit. After the expiry of the minimum duration period, the customer shall be entitled to give notification of termination at any time in accordance with No. 12.1.
- 12.3. In addition, in the case of distance contracts, the customer shall be entitled to terminate the present agreement in accordance with current legal provisions, in this respect see No. 20 for details.
- 13. Termination of the Service (Framework Agreement) by Betamax
- 13.1. If the customer has not purchased any credit, Betamax shall be able to terminate the present contract at all times. This termination may be notified on the Betamax web portal. If the customer has a credit balance, Betamax shall be able to terminate the present contract at the end of the minimum period of duration.
- 13.2. Additionally, Betamax shall be entitled in particular to notify the customer of an extraordinary termination of the present contract if a) the customer suspends his payments when payments are due, or b) if payment for the services used by the customer is no longer guaranteed, in particular if an application to open insolvency proceedings is brought against the customer or if the customer is required to make a statutory declaration on accordance with § 807 ZPO.
- 13.3. Regardless of the grounds for the termination of the present contract, the customer shall remain liable for all charges, costs and interest that he has incurred as a result of his use of the Service.
- 14. Warranty
- 14.1. As the customer has been provided with the VoipSoftware free of charge, Betamax's guarantee in respect of the VoipSoftware is limited to material and legal defects and to the wilful concealment of such material and legal defects.
- 14.2. With regard to the telephone service, within the framework of the restrictions deriving from the nature of the Service (cf. No. 1.4.), Betamax guarantees the availability of the level of service and, in the event of breakdowns, that these will be rectified as quickly as possible.
- 15. Liability
- 15.1. Insofar as Betamax, as a provider of telecommunication services, has an obligation to the public to indemnify one or more end users in respect of prejudice to property excepting where this is due to a wilful cause, its liability shall be limited to a maximum of ?12,500 to each end user. If this liability is incurred as the result of a single action or a single prejudicing event committed against a number of end users, and if it is not due to a wilful cause, without prejudice to the limitation indicated in the first sentence of the present paragraph, liability shall be limited to a total of 10 million Euro. If the amount of indemnity to be paid in respect of prejudice suffered by a number of parties as a result of the same event exceeds the maximum amount shown in the second sentence of the present paragraph, the amount of compensation to be paid to each party shall be reduced in such a way that the total amount payable does not exceed this maximum amount. The above limitation of liability shall not apply to claims for compensation in respect of prejudice sustained as a delay in the payment of compensation claims.
- 15.2. With regard to material prejudice and prejudice to property with a cause that is not connected with telecommunication services, Betamax and its associates shall only be liable, regardless of the legal grounds therefor, if Betamax or its associates are in breach of a fundamental contractual obligation (a cardinal obligation) in a manner likely to compromise the object of the present contract, or if the prejudice is attributable to gross or wilful negligence on the part of Betamax or its associates. If the culpable breach of a fundamental obligation is not attributable to gross or wilful negligence, Betamax's liability shall be limited to that for typical contractual prejudice that could have reasonably been foreseen by Betamax at the time of concluding the present contract, but to a maximum amount of 12,500 Euro.
- 15.3. Betamax's liability in respect of guaranteed properties and personal injury and claims under product liability legislation shall not be affected by the above provisions.
- 15.4. Insofar as Betamax's liability is effectively excluded or limited, this shall also apply to the personal liability of its employees and other members of Betamax's personnel, organs, representatives and associates.
- 15.5. Betamax shall not be liable in the event of cases of force majeure, which render Betamax's service more difficult or impossible to deliver. In such cases, Betamax shall be entitled to defer the performance of its obligations by an amount of time equivalent to the duration of the event in question and a reasonable restarting period. Betamax shall not be liable for the consequences of breakdowns and interruptions in its telecommunication services insofar as these are inevitable in terms of their nature and duration or are necessary for the effective or improved operation of the service. In the same way, Betamax cannot be held liable for the non-performance of contractual obligations, if such non-compliance is shown to be due to events that lie beyond the control of the contractual parties.
- 16. Changes in the Contract
- 16.1. Without prejudice to other rights contained in the present contract, Betamax shall be entitled to introduce changes into the present contract provided that these are not unfair or unreasonable for the customer.
- 16.2. Any changes to the terms, the call charges or the scope of the Service as defined in the present contract shall be notified to the customer, at Betamax's option, in one of the following ways: a) by being displayed on the internet page of the respect Voip service for the customer to view, b) by means of an individual written notification sent to the customer at least one month before the entry into effect of the change, or c) in the case of changes to fixed call charges: by means of a new list of charges to be published and requiring confirmation in the system before these are entered in the system.
- 16.3. Where a change is to the disadvantage of the customer, the latter shall, where so notified as in 16.1 a) or b) above, be entitled to give notice to terminate the Service within a period of one month from the date on which the change becomes effective.
- 16.4. If Betamax makes use of the alternative indicated in No.16.1. c), that is to say that the customer first learns of a change in charges from an announcement made in the system and is required to confirm this, he shall be entitled to terminate with immediate effect. If he fails to make use of this termination right, the change shall become effective at the expiry of the period of notice. If no termination is notified in response to the above alternative c), it shall become effective with the first call made by the customer after the confirmation of the new charges has been received in the system.
- 17. General powers of Betamax and an improper use of the Services
- 17.1. Betamax reserves the right a) in response to an order from a regulatory authority to suspend the Service with immediate effect; b) to suspend the Service temporarily for reasons of repair or maintenance or other such work to the installations relating to the delivery of the Service being carried out to ensure the effective or the improved operation of the Service. Betamax undertakes to make every effort to remedy any disruptions to the service or to take steps to ensure that these are remedied.
- 17.2. Where necessary, in accordance with §§ 96, 97, 100 TKG, Betamax may take, process and use personal and call data that may be necessary in order to detect and remedy any deterioration of performance or any other improper use of the telecommunication services.
- 18. Telephone secrecy and data protection
- 18.1. Betamax guarantees telephone secrecy and data protection in line with current legislation. A summary of the protection that is afforded is given below:
- 18.2. Betamax may record, process and use the customer's personal data as necessary in order to enter into or to modify a contract for the delivery of telecommunication services including the design of these with the customer (personal data). Personal data may also be processed and used by Betamax where this is necessary for the purposes of contacting the customer, for publicity and for internal market research purposes and also for the required design of the telecommunications services by Betamax if the customer has given his agreement. Call data, and in particular the number of the caller and the called party, personal passwords, VoipSoftware, location passwords for mobile connections, the start and finish of calls together with any other services required may be recorded, processed and used by Betamax within the framework of current legislation. Betamax may store and transmit call data to the extent that this may be necessary for Betamax's calculations with other companies or telecommunication network operators.
Data processing shall take place in the company's offices and also within the area of the European Economic Community, in particular in Germany and the Netherlands. - 18.3. Once the customer's consent has been provided in text form, he will be allocated an individual call authority, which, if he so requires, can be applied to all chargeable calls and also, if he so requires, to all non-chargeable calls. The customer also undertakes to notify all future users of this facility. The individual call authority shall not cover calls made to advice centres within the sense of § 99 (2) TKG.
- 19. Applicable law, place of jurisdiction
- 19.1. In the event of one or more of the terms of the present conditions being or becoming invalid, the validity of the remaining terms shall not be affected. The invalid term is to be rephrased in such a way that the original purpose, provided that this is lawful, is still achieved. If this is not possible, the invalid term is to be replaced by another term that comes as close as possible to the original intention of the contract.
- 19.2. Betamax shall be entitled to assign the present contract to an associated company within the meaning of § 15 AktG. Alternatively, Betamax shall be able to assign the present contract to any other company provided that it notifies the customer of the identity of the company before such an assignment is effected and advises the customer of his right to terminate the contract subject to a period of one month's notice to be given in writing or in text form and quoting his address. Any such assignment shall not be able to take place before this notification is given and before the expiry of the period of notice.
- 19.3. The law to be applied shall be that of the Federal Republic of Germany. The place of jurisdiction shall be the customer's domicile.
- 20. Provisions and information on Distance Contracts
- 20.1. Since and insofar as, in accordance with § 312 b BGB, the present contract has been concluded by distance communication (and in particular by fax, e-mail, web or post for the transmission of the contract and the application), it is understood to be subject to the following terms and conditions:
- 20.2. The company's registered address is at Mediapark 8, 50670 Cologne, and the company is listed in the Commercial Register at Cologne under No. HRA 23157 (AG Köln). The company is represented by miss Karin Naab, Managing Director.
- 20.3. The object of the present contract is the provision of VOIP telephone services by Betamax GmbH & Co.KG (cf. No. 1.4 above for details).
- 20.4. Right of revocation
You may revoke your contractual declaration in text form (e.g. by letter, fax or e-mail within a period of two weeks) without having to cite grounds. This period shall commence as soon as your notification in text form is received, but not before the conclusion of the present agreement and not before our information obligations have been satisfied in accordance with §§ 312c (2) BGB in conjunction with § 1 (1, 2 and 4) BGB-InfoV together with our liabilities in accordance with § 312e (1) ss1 BGB in conjunction with § 3 BGB-InfoV. To comply with the revocation period, the revocation must be sent promptly. It should be sent to the following address:
Betamax GmbH
Mediapark 8,
50670 Cologne Germany
Consequences of revocation
In the event of an effective revocation, the services performed by both parties must be returned together with any additional benefits obtained thereby (e.g. interest). If you are unable to return the service you have received in full or in part or if you are only able to return it in a deteriorated condition, you will be required to reimburse us with the equivalent value. This can result in you being required to fulfil your contractual payment obligations for the period up to the date of effective revocation. Obligations for the reimbursement of payments must be satisfied within a period of 30 days. This period shall start for you on the date on which your declaration of revocation is sent and for us on the date that it is received.
Special Note
Your right of revocation shall lapse prematurely if the present contract is, at your express request, completed by both parties before you have exercised your right of revocation.
Fair Use Policy
Summary
1. It is important to VoipZoom that all eligible VoipZoom customers are able to access our Services. Accordingly, We have devised a Fair Use Policy which applies to:
(a) usage of VoipZoom free calls
(b) usage of VoIP-In numbers
(c) usage of promotions; and
(d) any other promotions which are advertised by VoipZoom as subject to the Fair Use Policy ("Fair Use Promotions").
2. We reserve the right to vary the terms of the Fair Use Policy from time to time.
3. VoipZoom may rely on the Fair Use Policy where your:
(a) usage of VoipZoom free calls;
(b) usage of your VoIP-In number
(c) participation in a Fair Use Promotion, is excessive or unreasonable, as defined below.
Excessive Use
1. In the case of VoipZoom free calls, there are restrictions on the maximum number of calls and the duration of the calls.
2. In the case of VoipIn numbers, applying for more than one number is excessive use
3. In the case of Fair Use Promotions, what is excessive use will either be advertised by VoipZoom at the time of the relevant promotion or included in this Fair Use Policy prior to the commencement of the relevant promotion.
4. It is NOT possible to make more than one free call at the same time. In case of simultaneous free calls only one call will be free and other calls will be charged at the standard rates.
Unreasonable Use
1. It is unreasonable use of VoipZoom Services where Your use of VoipZoom Services is reasonably considered by VoipZoom to be fraudulent or to adversely affect the VoipZoom Network or other VoipZoom customers' use of or access to a VoipZoom Service or the VoipZoom Network.
2. It is unreasonable use of the free calls is reasonably considered by VoipZoom to be fraudulent or to adversely affect the VoipZoom Network or other VoipZoom customers' use of or access to a VoipZoom Service or the VoipZoom Network.
3. It is unreasonable use of the VoIP-In numbers where it is reasonably considered by VoipZoom to be fraudulent or to adversely affect the VoipZoom Network or other VoipZoom customers' use of or access to a VoipZoom Service or the VoipZoom Network.
4. It is unreasonable use of a Fair Use Promotion where Your participation in a Fair Use Promotion is reasonably considered by VoipZoom to be fraudulent or to adversely affect the VoipZoom network or another VoipZoom customer's use of or access to a VoipZoom service or the VoipZoom network.
5. Among other things, "fraudulent use" includes resupplying a VoipZoom Service without VoipZoom's consent so that someone else may access or use VoipZoom or take advantage of a Fair Use Promotion.
Our rights
1. VoipZoom may charge you a cost-price based rate for any subsequent calls to one of the free destinations, terminate your account, or deny the use of the VoipZoom service or features of it.
Free calls with VoipZoom
By registering you can call all the destinations marked as "FREE" for free for only EURO 2, 50 a month! When you make your first payment you will be charged EURO 5,- and you will be able to make FREE calls for two months, after the first month your account will be topped up automatically by EURO 2,50 so you can keep calling lots of Destinations for FREE! Additionally you can buy credit to call the non-FREE countries at very cheap rates.
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