Terms and Conditions

Status: August 2022

§ 1 Subject Matter of the Agreement

1. InternetQ GmbH (IQ) is a provider of telecommunications services, telecommunications-based services, and billing services (IQ Services) for the technical implementation and billing of value-added services (Value-Added Services) of its customer (Customer).

2. IQ is neither itself a provider of Value-Added Services nor does it provide its own or third-party content for Value-Added Services. The Customer bears the marketing risk for the Value-Added Services.

3. The Customer is not entitled to resell IQ Services to third parties, including to contractual partners of the Customer. However, the Customer may use vicarious agents to provide Value-Added Services.

4. The Customer may only have those Value-Added Services billed that have been agreed upon between the Customer and IQ.

5. The Customer may use IQ Services exclusively in the exercise of its commercial or independent professional activity within the meaning of § 13 BGB (German Civil Code). Consumers within the meaning of § 13 BGB are excluded from the services of IQ.
   
   

§ 2 Basis of the Agreement

1. IQ provides the IQ Services in accordance with these General Terms and Conditions (GTC). In addition to the GTC, Special Terms and Conditions including service descriptions (STC), rate sheets, and the IQ contract form become part of the agreement.

2. In the event of contradictions, the following order of precedence applies (starting with the highest-ranking document): individual supplementary agreements, rate sheets, contract forms, service descriptions, other provisions in the STC, GTC, SLA.

3. Deviating terms and conditions of the Customer do not become part of the agreement; they do not apply even if IQ has not expressly objected to them in an individual case.

4. Both contracting parties must comply with the applicable statutory requirements, in particular all data protection provisions as well as the regulations for the provision of telecommunications services.
   
   

§ 3 Conclusion and Amendments of the Agreement

1. A contract is concluded through an order placed by the Customer (offer) and an order confirmation by IQ (acceptance). The Customer is bound to its order vis-à-vis IQ for two weeks. IQ remains free to accept orders.

2. Acceptance of an order by IQ may also occur through the activation or provision of the respective commissioned IQ Service, provided that a corresponding intention of IQ to submit a declaration of acceptance is clearly evident therefrom.

3. Even prior to the conclusion of the contract, IQ is entitled to check the Customer's creditworthiness and to transmit the necessary data to credit agencies or credit insurance companies for this purpose.

4. IQ is entitled to adapt IQ Services in the event of changed legal requirements and changed requirements on the part of subscriber network operators (SNO), provided that this does not impair the usability of the IQ Services for the Customer.

5. Furthermore, IQ is entitled to adapt the technical and operational conditions of the IQ Services at any time (technical adaptation), provided that the adaptation is not unreasonable for the Customer. A technical adaptation is not unreasonable if the technical adaptation leads to an improvement of the IQ Services or the IQ Services are not impaired to the detriment of the Customer.

6. Other changes to the contract, in particular adjustments to the GTC, STC, or other conditions, shall be offered to the Customer in text form by sending the new contractual terms at the latest 6 weeks before the proposed effective date. The Customer may either accept or reject the changes before the proposed effective date. The Customer's consent shall be deemed granted if the Customer has not notified its rejection before the proposed effective date of the changes. IQ will specifically draw attention to this approval effect in its offer. If changes to conditions regarding payment services are offered to the Customer, the Customer shall have no right of termination with respect to the framework agreement for payment services affected by the change.
   
   

§ 4 Statistics

1. If IQ provides the Customer with statistics on the transactions executed or billed by IQ, the personal data of the users of the Value-Added Services (Users) shall be anonymized in accordance with the applicable data protection regulations.

2. Depending on the agreement, the transmission of the statistics shall take place either via retrieval by the Customer or by transmission from IQ.

3. All statistics are of a purely informative nature and are not relevant for billing purposes.
   
   

§ 5 Billing and Settlements

1. The Customer receives monthly invoices and credit notes from IQ (Settlements) regarding the fees to be paid by the Customer and the amounts to be paid out by IQ to the Customer (Provider Remuneration).

2. Settlements are made in accordance with the agreed rate sheets for the respective IQ Services.

3. Monthly costs of IQ are always billed monthly in advance, even if the IQ Services start or end during a current month. IQ Services billed by IQ by the hour are always charged per commenced hour. Billing for traffic minutes or transactions is based on the respective volume.

4. Unless noted otherwise, all fees of IQ are exclusive of the applicable country-specific value-added tax, and all Provider Remunerations are net of any withholding tax or similar taxes.

5. Payouts are made non-cash. The Customer bears any incurred bank fees and charges.

6. Settlements are made in the local currency of the country for which the respective IQ Service is offered. Unless agreed otherwise, payouts to the Customer are made in EURO. (The calculation of the final payout amount is based on the exchange rate applied to IQ by the intermediary payment service providers. IQ has no influence on the level of this exchange rate. The exchange rate specified on the settlement is merely indicative, non-binding, and may differ from the exchange rate actually applied. Exchange rate fluctuations in the context of chargebacks shall be borne by the Customer.)

7. Invoices from IQ are due for payment immediately upon receipt by the Customer. If the Customer is in default of payment by more than five calendar days, IQ shall charge default interest at a rate of 9% p.a. above the respective applicable base interest rate. IQ reserves the right to claim further damages caused by default. In the event of default by the Customer, IQ will charge the Customer a reasonable processing fee as part of its dunning process. The Customer is permitted to prove that the actual dunning costs were lower or did not arise.

8. Objections to settlements must be raised in writing vis-à-vis IQ. Settlements from IQ shall be deemed approved by the Customer unless objected to in writing within four weeks after receipt of the settlement.

9. The Customer may only set off against IQ with claims that are legally established or undisputed; the same applies to the exercise of rights of retention. IQ is entitled to directly set off claims of the Customer against its own due claims against the Customer.
   
   

§ 6 Prevention of Abuse

1. The Customer undertakes to use the IQ Services exclusively in compliance with all applicable statutory provisions and contractual agreements, above all not to offer or otherwise provide any unlawful (e.g. immoral, criminal, or otherwise illegal) Value-Added Services, and not to unlawfully advertise the offered Value-Added Services. Furthermore, the Customer must ensure that neither Users nor potential users receive unsolicited advertising, calls, or other messages. The Customer also undertakes not to commit any violations of the Act Against Unfair Competition (UWG) that may go beyond this. The Customer warrants that the offered Value-Added Services are free from third-party copyrights, ancillary copyrights, or other third-party rights and may be offered by it in each case.

2. In addition to the applicable statutory regulations, ordinances, and official orders, the Customer is obliged to comply with all applicable codes of conduct of the country from which the provided Value-Added Services can be accessed (e.g. FSK age limits). The Customer is obliged to independently inform itself about the country-specific regulations and disclosure obligations.

3. As the provider of the Value-Added Services, the Customer is solely responsible for their content, realization, and advertising. In accordance with IQ's requirements, the Customer must provide IQ with a detailed written description of the planned Value-Added Services prior to the provision of the respective IQ Service, in particular information on tariff, content, and provider, as well as the media in which the Value-Added Service is to be advertised. The IQ Services designated for this purpose may only be used after written approval of a Value-Added Service by IQ. Sentences 2 and 3 apply accordingly to all changes to a Value-Added Service. Approval by IQ does not mean confirmation of legal harmlessness, nor does it mean permanent approval of the Value-Added Service in question. IQ is entitled to refuse approval for good cause.

4. IQ bears no responsibility for the content of the Value-Added Services offered by the Customer. In the design of the Value-Added Service, the Customer shall make it clear to Users that it bears the legal responsibility for it. Under no circumstances may the impression be created that IQ is responsible for such Value-Added Services.

5. The Customer undertakes to refrain from any abusive use of IQ Services, in particular:
   a) not to bypass security measures of IQ or third parties,
   b) not to transmit or solicit the transmission of computer viruses or other malicious or harmful software, and
   c) not to use applications that may lead to damage to or impairment of the facilities of IQ or third parties.

6. In the event of a breach of paragraphs 1 to 5, IQ may demand that the Customer remedy the breach. The Customer must completely remedy a complained-of breach without undue delay, but at the latest within two days after receipt of the request.

7. In the event of a culpable breach of paragraphs 1 to 5, the Customer is obliged:
   a) to reimburse all expenses that IQ was reasonably entitled to deem necessary in order to eliminate the breaches of paragraphs 1 to 5 and their consequences (e.g. vis-à-vis the SNOs),
   b) to indemnify and hold IQ harmless from all claims asserted by SNOs and third parties against IQ, including the costs of IQ's necessary legal defense and all court and attorney fees in the statutory amount, and
   c) furthermore to pay liquidated damages to IQ in the amount of € 1,000 for each violation. In the case of paragraph 7 c), the Customer is permitted to prove that the actual damage was lower or did not arise. The liquidated damages shall be credited against other claims for damages. The continuation of offense doctrine (Fortsetzungszusammenhang) is excluded.

8. The Customer must actively cooperate in clarifying circumstances that could constitute a breach of paragraphs 1 to 5. For all inquiries regarding the Value-Added Services or their advertising, IQ may refer the inquiring party directly to the Customer and transmit its contact details. For this purpose, the Customer must notify IQ of its summons-capable address, including the names and addresses of the authorized representatives; any change in this inventory data must be notified to IQ in writing without undue delay. These provisions shall continue to apply after the termination of this agreement.

9. IQ expressly reserves the right to assert further claims for damages.
   
   

§ 7 Dates and Deadlines

IQ will provide the agreed IQ Services to the Customer within the bindingly agreed deadlines. Dates and deadlines are only binding if they have been expressly confirmed to the Customer in writing as binding. In the event of a temporary and unforeseeable obstacle to performance for which IQ is not responsible, bindingly agreed deadlines shall be postponed by a reasonable period; the same applies if the Customer fails to fulfill its necessary duties to cooperate.

§ 8 Customer's Notification Obligations

1. The Customer will inform IQ without undue delay of any impending non-insignificant changes in traffic volume that are recognizable to it. The Customer is furthermore obliged to inform IQ without undue delay of any other unusual uses or changes of IQ Services.

2. Insofar as the Customer is required to provide a forecast, IQ's performance obligation shall be limited to the capacity specified in the forecast. The temporary handling of a higher capacity does not give rise to an obligation for IQ to handle this increased capacity in the future as well. If the Customer wishes to change a forecast, it must notify IQ in writing four weeks in advance. The change will only take effect once IQ confirms it in writing.

3. The Customer must report any malfunctions that occur to the IQ support hotline without undue delay. Further details are governed by the respective agreed Service Level Agreement (SLA).

4. A prerequisite for prompt troubleshooting is that the Customer fulfills its duties to cooperate. In general, the Customer must cooperate to a reasonable extent in the fault analysis. If the Customer fails to fulfill its cooperation duties, or does not fulfill them completely, the resulting extended downtime will be taken into account in favor of IQ with respect to port availability and response times. § 254 BGB applies accordingly.

5. If the Customer is responsible for a malfunction, or if a malfunction reported by the Customer does not exist, the fees agreed in the rate sheet or the fees in the price list shall apply to the activities performed by IQ in this context. The elimination of malfunctions on terminal devices and other technical facilities of the Customer is the sole responsibility of the Customer.
   
   

§ 9 Warranty

1. Within the framework of operational and technical possibilities, IQ ensures the proper operation of the IQ Services. It warrants the provision of its services in accordance with the recognized and customary state of the art and in compliance with all legally applicable safety regulations.

2. To provide its contractual services, IQ may make full use of the services of third parties, in particular the services of SNOs, other interconnection network operators, service providers, or payment service providers. Insofar as IQ procures services from third parties, it has, in particular, no influence on the quality, quantity, and continuous availability of the networks and transmission paths used. In this case, IQ is only liable for proper selection and instruction (forwarded order). In this respect, IQ assigns the warranty claims to which it is entitled against other providers to the Customer, who accepts this assignment in lieu of performance.

3. The Customer is aware that the use of the IQ Services depends on the upstream performance of the SNOs and that it uses the IQ Services together with other customers. Contractual breaches by other customers may lead to SNOs suspending the upstream service to IQ altogether with immediate effect, even if neither the Customer nor IQ is responsible for this. The parties are aware of the dependency on the SNOs. IQ bears no responsibility for failure of IQ Services due to a cessation of the activities of the SNOs, provided that the cessation of the activities of the SNOs is not attributable to IQ.

4. Force majeure events that significantly impede IQ's performance of its contractual services or make them impossible entitle IQ to postpone the performance of its obligations for the duration of the impediment plus a reasonable restart period, or to suspend them completely. Force majeure is equated with other circumstances that are unforeseeable, serious, or through no fault of IQ. IQ will inform the Customer without undue delay of the occurrence of such an event, insofar as this is possible and reasonable under the circumstances.
   
   

§ 10 Liability

1. If IQ is held liable by a Customer for financial loss arising from telecommunications services of IQ, IQ shall be liable up to a maximum amount of € 12,500 per damage event per Customer. Liability towards the totality of the customers is limited to € 30,000,000 per damage-causing event. If the amounts payable to multiple customers due to the same damage-causing event exceed this maximum limit, the damages shall be reduced in the proportion that the sum of all claims for damages bears to the maximum limit. The limitation of liability does not apply if the damage was caused intentionally or through gross negligence, or for claims for compensation for damage resulting from default in payment of damages or compensation. For all other financial losses, IQ's liability is limited to an amount of € 12,500 per damage event.

2. For all other damages (including all financial losses not based on telecommunications services), IQ is liable for itself and its vicarious agents only:
   a) if an essential contractual duty (cardinal duty) was culpably breached in a manner that endangers the purpose of the contract,
   b) if the damages result from injury to life, body, or health,
   c) or the damage is attributable to gross negligence or intent.
   If the culpable breach of a cardinal duty is not committed with gross negligence or intent, liability shall be limited in amount to such contract-typical damages that were reasonably foreseeable at the time the contract was concluded.

3. For damages based on a negligent or non-culpable breach of duty, liability on the part of IQ is excluded, unless provided otherwise in paragraphs 1 and 2.

4. IQ's liability for guaranteed characteristics as well as under the provisions of the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.

5. To the extent that IQ's liability is effectively excluded or limited, this also applies to the personal liability of the vicarious agents, governing bodies, and representatives of IQ.

6. Unless liability already exists pursuant to § 6 paragraph 7, the Customer shall indemnify and hold IQ harmless on first demand, even beyond the end of this agreement, from all third-party claims asserted against IQ by third parties due to a culpable breach of duty by the Customer, in particular due to content inaccuracy, defectiveness, or illegality of Value-Added Services or due to other violations by the Customer of its contractual obligations and/or its obligations regarding the requirements of the SNOs.
   
   

§ 11 Blocking and Right of Retention

1. IQ is entitled to prevent the use of IQ Services with immediate effect (blocking) if:

• the Customer does not provide a remedy in due time after a warning letter pursuant to § 6 paragraph 6,

• a danger to the facilities or a danger to public security threatens,

• investigation proceedings by the police or public prosecutor's office are pending due to a Value-Added Service offered by the Customer, or there is sufficient suspicion of a criminal offense committed by the Customer,

• the Customer has given cause for an extraordinary termination of the agreement without notice,

• the Customer is in default with payment obligations of at least € 150 and any provided security has been exhausted,

• the sum of the accrued Provider Remuneration increases to a very high degree (over 50% within four weeks) and facts justify the assumption that the Customer, in the event of a later blocking, will not pay the fees for services rendered, not pay them completely, or not pay them in a timely manner, and any provided securities have been exhausted,

• the sum of the accrued Provider Remuneration suggests the suspicion that the traffic volume could have arisen, at least in part, through manipulation or abusive use,

• IQ is informed by SNOs that there could be clawbacks by Users against the Customer due to non-contractual performance of Value-Added Services, or

• the Customer generates revenue of less than € 500 (incl. VAT) in three consecutive months (inactivity).

2. Insofar as the requirements for blocking pursuant to paragraph 1 are met, IQ is furthermore entitled to a right of retention regarding the Provider Remuneration to be forwarded until final clarification.

3. Both a blocking and the scope of a right of retention must be proportionate.

4. In the event of a blocking or the exercise of a right of retention, the Customer remains obliged to continue paying agreed remuneration to IQ, provided that the Customer itself has no right of retention.

5. Insofar as the Customer has culpably caused the requirements of paragraph 1, IQ may set off the Provider Remuneration against claims pursuant to § 6 paragraph 7 and other claims of IQ.

6. IQ is entitled to demand collateral from the Customer for any bad debts or chargebacks subsequently asserted by the SNOs. The amount of this collateral must be proportional to the realistically expected defaults. Alternatively, IQ may retain a corresponding amount from outstanding payouts. As soon as it is established that bad debts can no longer be asserted, IQ is obliged to release the collateral immediately. Sentences 1 to 3 also apply in the event of sharply falling customer revenues (>30% decline in 4 weeks).
   
   

§ 12 Rights of Use and Confidentiality

1. All proprietary rights in IQ Services and the work results obtained therefrom (e.g. service concepts) remain exclusively with IQ.

2. Each party hereby grants the other party, for the duration of this agreement, a temporary, non-exclusive, and non-transferable right to use the programs, applications, and concepts provided, created, or developed in connection with this agreement.

3. Each party is obliged, without undue delay upon termination of this agreement, to return the originals as well as all copies and partial copies of the programs, applications, and concepts provided to the other party for use. In the case of material recorded on machine-readable recording media, complete deletion or destruction of the recordings takes the place of return. If deletion is not reasonable, blocking takes the place of deletion.

4. The parties mutually undertake to maintain confidentiality regarding all information with respect to which, according to the reasonable understanding of the parties, an interest in confidentiality exists. This obligation applies to all information and facts, regardless of whether they have been expressly marked as confidential or secret, unless they are generally known, or the party concerned is obligated to disclose them by an official or statutory order (e.g. by the Federal Financial Supervisory Authority / BaFin), or there is an express, prior written consent of the other party for disclosure to third parties.

5. The duty of confidentiality shall continue to exist even after termination of the agreement.
   
   

§ 13 Term

1. The agreement has an indefinite term and may be terminated by either party with a notice period of twelve months to the end of a calendar quarter.

2. The agreement may be terminated by either party for good cause with immediate effect. Good cause for IQ exists, in particular, if:

• the Customer repeatedly breaches the obligations under § 6 paragraphs 1 to 5 despite a warning letter,

• the volume of complaints by Users rises to over 1% based on the transactions processed in a calendar month,

• measures are repeatedly taken against IQ (in particular disconnection requests from authorities or from SNOs, prohibition of billing, imposition of fines) that affect the Customer's Value-Added Services,

• the Customer is in arrears with two monthly payments or an insolvency reason exists or threatens,

• contractual partners of IQ discontinue their services, used numbers are disconnected, or relevant contracts concluded with IQ are terminated,

• IQ Services are prohibited or threatened to be prohibited due to statutory requirements or judicial or official measures,

• any other lasting economic, legal, or actual deterioration of an IQ Service occurs.

3. If IQ terminates extraordinarily for good cause for which the Customer is intentionally or negligently responsible, the Customer is obliged to compensate IQ for the resulting damage. Any further claims of IQ remain unaffected.

4. The termination of a framework agreement affects all IQ Services that IQ provides for the Customer under this framework agreement. All IQ Services end simultaneously with this framework agreement. Independent thereof, individual IQ Services may be terminated with a notice period of three months to the end of a month, provided that no deviating notice periods are specified in the relevant rate sheets or determined on the part of the SNOs.
   
   

§ 14 Final Provisions

1. The Customer may only assign or transfer rights and obligations arising from this agreement to third parties with the prior written consent of IQ.

2. Should individual provisions of the contract be or become legally invalid or unenforceable, in whole or in part, or lose their legal validity or enforceability later, this shall not affect the validity of the remaining provisions of this contract. In place of the invalid or unenforceable provisions, an appropriate provision shall apply that, as far as legally possible, comes closest to the economic success intended by the contracting parties. The same applies if it turns out that the contract contains a regulatory gap.

3. There are no oral side agreements to this contract. Supplements or amendments to the contract, in particular notices of termination, require written form. This formal requirement can likewise only be waived by a written agreement. The written form requirement is sufficiently satisfied by transmission via email or fax.

4. German law as applied between domestic persons shall govern the contractual relationship. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. If the Customer is a merchant or a legal entity under public law or has no general place of jurisdiction in Germany, the place of performance and place of jurisdiction is Norderstedt. Any exclusive place of jurisdiction remains unaffected thereby.