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Standard Terms of Use for eCall SMS and Fax Service

1. Applicability of the Standard Terms of Use

These Standard Terms of Use apply between Dolphin Systems AG, CH-8832 Wollerau (hereinafter referred to as “Dolphin Systems”) on the one hand and every natural or legal person (hereinafter referred to as a “subscriber”) who is registered for the Internet call service “eCall” on the other. They apply in addition to the Dolphin Standard Business Terms for Services (see below).


2. Subscribers’ rights and duties

2.1 Unless otherwise agreed in writing with Dolphin Systems in advance, only the subscriber is permitted to use the contractual services provided by Dolphin Systems. The subscriber is expressly prohibited from making such services available for use by third parties. The subscriber may only transfer contractual rights and duties to third parties with the express written consent of Dolphin Systems.

2.2 The subscriber is responsible for any and all use of his connection and agrees, at all times, to comply with applicable provisions of domestic and foreign law including the laws and regulations related to data protection, telecommunications, copyright and criminal law, when using the contractual services of Dolphin Systems (transmitting and/or accessing).

2.3 The subscriber is required to report to Dolphin Systems any unlawful use by third parties (hackers, etc.) of the services provided.

2.4 The subscriber agrees to put measures in place to ensure the secure flow of data and to thus prevent unauthorized access to third party systems and the distribution of viruses to the best possible degree. The subscriber is required to reduce data protection-related risks in the subscriber's sphere of control (emails, news groups, file transfers, etc.) to the greatest extent possible, e.g. codification, encryption, period password changes, etc.

2.5 The subscriber is required to maintain devices used by the subscriber to access the contractual services provided by Dolphin Systems (hardware and software) in good working order at all times. The subscriber is required to bear the associated material and installation costs as well as current telecommunications fees.

2.6 The subscriber may only send messages to recipients if the subscriber knows that these recipients consent to the receipt of such a message.

2.7 The subscriber is solely responsible for the contents of the messages it sends, the frequency with which they are sent and the times of transmission. In particular, the subscriber is prohibited from sending contents that are unlawful or that may otherwise pose a nuisance for the recipient. Dolphin Systems has the right to block the subscriber’s account without prior notice in the event of a legitimate suspicion of improper use.

2.8 If the subscriber sends promotional materials, the subscriber must also include a hotline number in the text.

2.9 Dolphin Systems will block any illegal users who have been reported or discovered.

2.10 Risks that are posed by crimes or events (hacker attacks, crashes, viruses, etc.) related to connected computer systems and that do not result from intent or gross negligence on the part of Dolphin Systems must be resolved by the subscriber and/or the subscriber will undertake the necessary steps at his own expense and initiative given that the degree of risk to data protection is controlled by the subscriber and must likewise be optimized by the subscriber (e.g. firewall, backups, anti-virus software).

2.11 Credit card numbers, passwords and other sensitive data shall be passed on by the subscriber and at the subscriber’s sole risk. Risk associated with e-shopping (online purchases) is solely borne by the subscriber. The foregoing does not apply if Dolphin Systems acts maliciously or negligently.

2.12 Sending messages containing premium rate telephone numbers in the text (e.g. 0900) is prohibited.

2.13 Accounts that have not been used during a continuous period of twelve months (no login on record) will be deleted automatically resulting the loss of any remaining account credits.


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GENERAL TERMS AND CONDITIONS

for services provided by DOLPHIN Systems AG – hereinafter referred to as “Dolphin Systems”

 

1. Scope
These General Terms and Conditions apply to all business relationships between Dolphin Systems and its customers. However, these General Terms and Conditions only apply in cases where the customer enters into a contractual relationship with Dolphin Systems within the scope of their professional or commercial activities and is thus not acting as a private individual or consumer within the meaning of applicable law.


2. Type and scope of services
The quality, type and scope of services required to be provided, as well as the contract term, are exclusively specified in the respective service contract and the eCall terms of use with respect to the eCall business SMS&Fax portal.


3. Error reports and notice of defects
The customer is required to report any defects or malfunctions it discovers in Dolphin Systems services and systems without delay. Such notice must include a detailed, comprehensible description and be provided in writing (e-mail or fax).


4. Cooperation by the customer
Any services to be performed or materials to be provided by the customer, whether by agreement or that are necessary and expedient for the performance of the contract, inter alia those specified in the contract, are deemed to be material contractual obligations of the customer.


5. Prices / Payment terms
5.1 To the extent not agreed otherwise in a specific case, the fees to be paid by the customer for the services are to be based on the then-applicable price list plus statutory value added tax and any other statutory levies.


5.2 Price changes for the services are reserved. In the event of a price change, Dolphin Systems will notify the customer of the new price at least two months before it takes effect. In the case of a price increase of more than 5% within twelve months, the customer is entitled to terminate the contract on one month’s written notice of receipt of notification of the price increase to take effect concurrent with the price increase.


5.3 During any period of default, fees are to be subject to statutory default interest. Dolphin Systems expressly reserves the right to assert additional claims for damages in the event of default. Starting with the second reminder, Dolphin Systems imposes a fee of EUR 15.00.


5.4 The customer may only assert claims for set-off or rights of retention on the basis of claims that are undisputed or have been finally determined by a court and may only assert a right to withhold performance on the basis of such claims. This is without prejudice to the customer’s reciprocal rights in the case of defects.


5.5 Objections to the amount of usage-based fees for services included in an invoice must be submitted in writing within 30 days of receipt of the respective invoice. Failure to submit a timely objection is deemed to be approval.


6. Usage of data
6.1 Dolphin Systems processes and uses personal data provided by the customer solely for the customer and according to their instruction (contract data processing). Any additional technical and organisational measures for the processing and use of such personal data will be specified by the customer in consultation with Dolphin Systems. The customer shall reimburse Dolphin Systems for any and all costs and expenses associated with the implementation of such measures based on the then-applicable price list.


6.2 The foregoing is without prejudice to the provisions of the Swiss Federal Data Protection Act (Bundesgesetz über den Datenschutz) and other applicable data protection laws and regulations.


7. Defects and malfunctions
7.1 Agreements made concerning the quality of performance comprise the primary basis of liability for defects on the part of Dolphin Systems. If quality has not been agreed upon, the evaluation of whether a defect exists or not shall be carried out in accordance with the provisions of applicable law.


7.2 Dolphin Systems will investigate reported defects in its services without delay and, to the extent Dolphin Systems is obliged to remedy a defect, initiate remedial measures.


7.3 The customer is only entitled to effect a reduction in remuneration on the basis of defects if it has provided notice of the specific defect for which they intend to reduce the remuneration pursuant to section 3. However, a reduction is only permitted to the extent of the limitation on potential uses resulting from the claimed defect.


7.4 Dolphin Systems will bear the costs necessary for inspection and remediation in the case of an actual defect. However, should it be determined that there is no defect and/or that the malfunction fell within the customer’s area of responsibility, Dolphin Systems may request the customer to reimburse expenses resulting from the improper request to remedy a defect (more particularly inspection and travel expenses), unless the absence of a defect could not be ascertained by the customer without unreasonable expense.


7.5 The limitations period for claims based on material defects or defects of title concerning services provided by Dolphin Systems is one year from the start of the statutory limitations period. This is without prejudice to Article 371 Swiss Law of Obligations (Schweizerisches Obligationenrecht – OR).


8. Liability

Liability on the part of Dolphin Systems for all rights and claims arising under, or in connection with, the conclusion and performance of the contract for services is – regardless of factual or legal basis – limited as set out below, whereby this is without prejudice to the provisions of section 7.


8.1 In the case of intentional acts, fraud, claims under the Product Liability Act (Produkthaftungsgesetz) or in the case of injury to life, limb or health, Dolphin Systems is solely liable based on the provisions of applicable law. The following limitations on liability do not apply in such cases.


8.2 In the case of gross negligence, liability on the part of Dolphin Systems is limited to typical damages that were foreseeable by Dolphin Systems at the conclusion of the contract. This limitation on liability does not apply to gross negligence on the part of a legal representative or executive employee of Dolphin Systems.


8.3 In the case of simple negligence, Dolphin Systems is only liable to the extent that damages were caused by a violation of a material contractual obligation, whereby such liability is limited to typical damages that were foreseeable by Dolphin Systems at the conclusion of the contract. As referred to above, material contractual obligations are such obligations that are essential to the proper performance of the contract, on which the party to whom they are owed relies and is entitled to rely upon and the culpable non-performance of which endangers achievement of the contractual purpose. Liability for typical, foreseeable damages is capped at a maximum of EUR 500,000.00.


8.4 Dolphin Systems is only liable based on a guarantee it has provided to the extent that rights, claims and liability may be derived from the wording of such guarantee.


8.5 Any contributory fault on the part of the customer must be considered.


8.6 Provided that no other limitation on liability has been expressly agreed between Dolphin Systems and the customer, liability for typical, foreseeable damages is capped at a maximum of EUR 500,000.00. The customer shall expressly inform Dolphin Systems in the event that the customer estimates that typical, foreseeable damages may exceed the limitation on liability set out above. In such cases, the parties will agree to a higher liability amount in exchange for the customer’s assuming the costs of excess of loss insurance.


8.7 In the event that services are only provided subject to the condition that Swisscom or other telecommunications service providers provide access to transmission channels, Dolphin Systems assumes no responsibility for the provision and availability of such transmission channels, provided that availability is not prevented as a result of intentional or grossly negligent acts on the part of Dolphin Systems.


8.8 Dolphin Systems is not responsible for malfunctions in communications systems, devices and/or accessories that are not provided by Dolphin Systems, except to the extent that any such malfunction was the result of intentional or grossly negligent acts on the part of Dolphin Systems.


8.9 The provisions of this section 8 apply accordingly with regard to claims to reimbursement for expenses and other liability claims asserted against Dolphin Systems.


9. Third-party use
The customer is not permitted to make the service provided available for use by a third party without the consent of Dolphin Systems. The contractual relationship does not authorise the customer to provide the service to third parties.


10. Miscellaneous
10.1 Ancillary agreements, supplemental provisions, amendments and additions to the service contract, including the performance specifications, must be in writing to be effective. Any waiver of this written form requirement must likewise be set out in writing.


10.2 Any standard business terms of the customer are not applicable unless, and to the extent that, Dolphin Systems has expressly acknowledged their inclusion in writing.


10.3 Upon the conclusion of the contract, Dolphin Systems is entitled to retain or destroy all documents and information obtained from the customer, except in cases where mandatory provisions of law require otherwise.


10.4 Rights or duties may only be assigned or transferred with the prior written consent of the other respective party.


10.5 The exclusive place of jurisdiction for all disputes arising under, or in connection with, the service contract is Wollerau.


10.6 Swiss law is applicable to all legal issues arising in connection with the service contract or its performance subject to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.