Subject of the terms and conditions
sms77.io, a service offer of sms77 e.K., is a telecommunication provider for mobile short messages with its own gateway for the national and international delivery of mobile short messages such as SMS, automated phone calls (voice) and other telecommunication services. The Customer intends to use this Gateway to send messages for its own use or to provide its own customers, in its own name and for its own account, with services for mobile messages.
sms77.io is commissioned by the customer to carry out the technical operation of the gateway. The services offered by sms77.io are aimed exclusively at traders. By concluding the contract, the customer assures that he is a trader and that the short messages are sent as part of his business.
For the use of the services of sms77.io the following general terms and conditions apply in their respective version and valid at the time of conclusion of the contract performance descriptions and price lists or their subsequent changes, as far as the customer has not expressly contradicted. Performance descriptions and price lists are available on sms77.io. Deviating terms and conditions of the customer do not apply, even if sms77.io does not expressly contradict them. Verbal side agreements must be confirmed in writing by sms77.io in order to be valid.
- The Telecommunication Service Agreement between sms77.io and the customer is concluded on the basis of the customer’s registration on the Internet via the website www.sms77.io on the designated registration page, by telephone or by email and the subsequent activation of the SMS tariffs.
The presentation of the service on the website does not constitute a binding offer to conclude a contract. The registration of the customer represents a request of the customer, which can only be submitted and transmitted, if the customer has read and accepted these terms and conditions. The receipt of this application will be confirmed immediately by sms77 to the specified email address.
- Due to legal regulations, sms77.io is obliged to maintain a customer register in which the company name, customer name, address, email, telephone number as well as the beginning and end of the contract are stored. sms77.io reserves the right to request proofs from the customer about the correctness of his information, for example a commercial register exract or a business registration.
- sms77.io is not obliged to accept an application for conclusion of a contract, in particular if the applicant provides false information or if there is a reasonable suspicion that the customer intends to misuse the services.
§2 Scope of service
- sms77.io enables the customer to use the gateway to send and receive mobile short messages within the existing technical and operational possibilities.
- The gateway can be called via the Internet and especially via the “Hypertext Transfer Protocol” (HTTP). For the connection to the gateway, the customer receives an interface description and the necessary access data from sms77.io.
- sms77.io allows the contracting party to send with one account a maximum of 10 SMS per second at the same time. sms77.io endeavors to ensure the immediate transmission of mobile messages and provides the customer with sufficient bandwidth for this.
- sms77.io ensures the operation of its technical infrastructure 365 days a year, 24 hours a day with an annual average availability of 99.9%. This doesn’t include failures due to maintenance work, that are previously announced by e-mail, and technical malfunctions that are outside sms77.io’s sphere of responsibility and that may affect the quality of mobile services in the reception and transmission area of the used mobile network at certain times and locations. These can be amongst other things:
- due to official orders or judicial decisions,
- for technical reasons, in particular due to radio-technical, atmospheric or geographical circumstances,
- due to measures that are also in the interest of the customer, such as maintenance and repair work,
- in emergencies and disasters or
- in other cases of force majeure.
sms77.io will make every reasonable effort to eliminate such impairment as quickly as possible or to work towards its fastest possible removal. sms77.io can not guarantee that the service will be available at all times. The customer is aware that there is no guarantee for the delivery of messages in the world wide web as well as in data radio. Such a guarantee is also not taken by sms77.io.
- sms77.io will carry out maintenance and other technical changes, e.g. at the interface, if possible without any harm to the customer. Should a restriction be unavoidable, sms77.io will inform the customer as soon as possible on the status page.
- sms77.io offers its customers support by email, as far as technical matters of the service provided by sms77.io are concerned. sms77.io can not and will not clarify any technical issues, that aren’t related to the system of sms77.io, but rather are the responsibility of the customer or a third party.
- Free additional services, which were not contractually agreed, will not be the subject of the owed service and can be stopped by sms77.io at any time. There is no availability guarantee.
- sms77.io transfers the delivered mobile messages to the respective network operators. The customer is not entitled to any particular form, way and manner of the transfer to the network operators or receiving devices. sms77.io reserves the right to send short messages also via foreign network operators.
- sms77.io reserves the right to extend services, modify them and make improvements, in particular, if this is for technical development, necessary to prevent misuse or if sms77.io is required by law to do so.
§3 Obligations of the customer
- sms77.io provides the customer exclusively with a technical connection for transfer mobile messages. The customer is solely responsible for the operation, marketing and permissibility of the operated services using sms77.io’s gateway.
- The customer assures not to forward any messages to the Gateway or any other sms77.io applications that violates any laws or rights of third parties. The transfer of messages with the following content or messages referring to such content is prohibited:
SMS containing illegal, punishable, harassing, defamatory, discriminatory, threatening, vulgar, obscene, pester (§238 StGB), unauthorized or otherwise punishable content, messages that are likely to damage the image and reputation of sms77.io.
- The use of sms77.io to send unwanted messages, e.g. unwanted advertising via SMS (spam) is not permitted. The customer assures that he will not send messages to subscribers who haven’t agreed to receive such messages. sms77.io reserves the right to take the necessary legal measures in case of an infringement.
It is forbidden to use value-added numbers both in messages and as the sender. The service “0800” is excluded from this.
- The customer must observe the national and international copyright, patent, name and trademark rights as well as other industrial property rights and personal rights of third parties.
- If sms77.io is claimed for breach of the above conditions, the customer agrees to exempt sms77.io from all third party claims.
- The customer must keep the access data communicated to him with utmost care and to exclude a misuse of these. The customer acknowledges that he is responsible for the contractual use of sms77.io. The customer is liable for all damages in connection with the passing on of the access data. The customer must immediately notify sms77.io of the loss, theft or unauthorized use of the access data so that access can be blocked.
- For the use of the gateway and possibly other applications / features of sms77.io a registration is mandatory. The user is responsible for the accuracy of his personal information and must keep it up to date during the contract period. Changes to the personal data can be made at any time in the personal customer area, which can be reached via sms77.io by logging in with individual access data. An exchange of the contracting party requires the written consent (for example by email) through sms77.io.
§4 Prices and payment terms
- Prerequisite to send messages is that there is a credit balance on the account (advance payment obligation of the customer). Unless otherwise agreed, chargeable services will only be provided until full consumption of the credit balance.
- The amount of the costs of the services provided by sms77.io can be viewed on the sms77.io website at any time after entering the access data in the personal area of the customer. The information about the credit balance can for technical reasons deviate from the actual existing status and does not justify any independent claim of the customer for services in the corresponding amount. The prices stated in the public area of the sms77.io website apply exclusively to new contracts and are for informational purposes only. For the use of the services, the fees valid at the time of conclusion of the contract shall be decisive or subsequently agreed changes in charges.
- Unless otherwise agreed, the customer will be invoiced for the current prices / tariffs at the time of his registration, which are mentioned in the public area of sms77.io’s website.
- All prices exclude the applicable value added tax.
- All prices may be changed within 24 hours of written notice by email to the address given by the customer.
- Upon completion of the contract, sms77.io will create a credit account for the customer which will record all outputs (e.g., for mobile messages sent) and all inputs (e.g., account top up). The customer can view this account at any time after entering the access data in the personal customer area on the website of sms77.io.
- The customer can always top up the account managed by sms77.io by bank transfer in order to use the mobile message services. The account will be kept net, the respective VAT will be deducted directly at top up and the remaining amount will be credited to the account. Other ways of payment (such as PayPal) may be canceled by sms77.io at any time and without giving any reason or charged according to the current price list.
- Notwithstanding §4 1. there is the possibility of payment on account (postpaid) on request under the following conditions:
- The credit account can be exceeded up to a predetermined and individually agreed limit (credit line) and thus become negative.
- The credit line is only reset when the unpaid bills are received.
- On the first day of each month the customer receives an invoice for the message volume and the use of all sms77.io services for the previous month.
- The payment term of the invoice is 7 days. If the customer defaults on payment of an invoice, sms77.io reserves the right to revoke the agreement for payment on account immediately.
- An invoice for the top up of the sms77.io account by bank transfer, “Sofortüberweisung” (instant transfer), direct debit, Paypal, crypto currencies or credit card is created stating the customer number, the charging date and the respective top-up amount and made available to the customer in his personal customer area. The customer has the opportunity to receive the invoice in paper form for a fee according to the price list.
- It may take up to 5 business days after payment until the top up appears on the customer’s account.
- If the customer chooses the SEPA direct debit option for top up, he grants sms77.io a direct debit authorization and instructs his bank to redeem these recurring direct debits. Amount and debit date will be communicated to the customer by email with a lead time of at least two working days before debiting. If the customer and the account holder are not identical, the customer is obliged to forward this information to the account holder.
The customer may object to such a direct debit up to eight weeks after the debit date. In case of unfounded opposition the following applies:
- The customer undertakes, in addition to the invoice amount, to bear the processing costs for the return debit note as well as the delay damage amounting to a flat rate of 12, – Euro plus value added tax.
- The customer irrevocably authorizes the bank providing the account to inform sms77.io of the full name and address of the account holder in order to assert the claim.
- The user agrees that his account data will be entered in a blacklist database and the lock will be transmitted to other companies affiliated to the database. After completion of the claim, the entry will be deleted immediately.
- If due to the return debit notes, for that the customer is responsible, or a reversal of direct debit charges at the request of the customer a negative balance is created on his account, the customer must settle this immediately.
- sms77.io is entitled to offset claims of the customer with liabilities of the customer. This applies in particular to return debits. The customer can only set off claims against sms77.io with uncontradicted or legally established claims. The same applies to the assertion of a right of retention.
- The customer can consume a credit balance granted him by sms77.io without consideration (in particular a starting balance) only for the use of the gateway. Such a credit can not be paid out.
- A disbursement of the credit balance during the contract period is excluded, without prejudice to any claims of the customer according to §6 Abs. 6.
- Should the customer make no use of the services of sms77.io for a period of more than six months in a row, then sms77.io may deduct a monthly inactivity fee, amounting to 10% of the last account top up, from the remaining balance, with the further availability of the gateway and the provision of technical capacity for message transfer for the customer be ensured. Active use by the customer occurs when at least one account transaction has taken place. If the balance on the account is used up by calculating the inactivity fee or if there is no credit balance after 6 months of inactivity, sms77.io has the right to terminate the contract.
- sms77.io is liable for financial losses caused by sms77.io due to a negligent breach of the obligation as a provider of telecommunications services to the public, according to the provisions of §44a Telecommunications Act (TKG).
- Incidentally, sms77.io is only liable for intent or gross negligence. sms77.io is only liable for damages due to simple negligence of sms77.io or its vicarious agents if a material contractual obligation was violated, the fulfillment of which enables the proper execution of the contract in the first place, whose breach jeopardizes the achievement of the purpose of the contract or on the latter Compliance with the customer regularly familiar. In the latter case, however, sms77.io is not liable for any unforeseeable, not contract-typical damage.
- In particular, sms77.io assumes no liability and guarantees for the receipt of mobile messages by mobile devices, as this is the sole responsibility of the respective network operator. sms77.io is also not liable for damages caused by delayed or omitted delivery of SMS. This applies in particular to the incorrect sending of SMS messages.
- In the event of damage to life, body and health, sms77.io is liable to the customer unlimited.
- The liability of the provider under the Product Liability Act remains unaffected.
- sms77.io is not liable for damages resulting from claims of third parties, lost profits, lost savings and all direct and indirect consequential damages. sms77.io is also not liable for insignificant breaches of duty and for the loss of data from mobile operators.
- If the customer culpably violates the obligations laid down in §3 (2), (3) and (4), sms77.io is entitled to a lump-sum claim for damages in the amount of € 1,000.00. The customer can bring a proof against the the lump sum that the damage was not incurred at all or substantially lower than the lump sum. sms77.io reserves the right to assert further claims for damages in addition to the contractual penalty against the customer who infringes §3 (2), (3) and (4). A contractual penalty paid shall be set off against claims for damages by sms77.io.
§6 Contract period/ termination
- The service contract has no minimum period and runs indefinitely.
- The customer can terminate the contract with sms77.io and his personal account at any time without observing a notice period. The termination must be done via the login on the profile page.
- In the event of termination, sms77.io has the right to refuse a renewed contract offer by the customer.
- sms77.io can terminate the customer’s account with a notice period of four weeks. In particular, sms77.io reserves the right to terminate the contract if the customer is completely inactive for at least six consecutive months or has no credit balance. Full inactivity occurs when the customer doesn’t send or receive a message at least once.
- The right of the parties to terminate the contract for important cause (for example, breach of these terms and conditions) remains unaffected. If termination takes place for an important reason, sms77.io may terminate it at any time without notice under stating the reason. An important reason exists in particular if the customer
- uses the services fraudulently
- seriously and finally stops the fulfillment of the contract, in particular its payments, in an unjustified manner,
- infringes §3 (2), (3) or (4),
- makes misrepresentation in the registration or later change of its data against better knowledge.
- In case of termination, unused credit balance expires without replacement. This shall not affect the payment of the remaining credit balance in case of termination by sms77.io pursuant to §6 (4), termination by the customer for good cause pursuant to §6 (5) or a statutory right of withdrawal.
- Fees already paid for a longer period (for example, an annual fee) can not be reimbursed, even proportionally. The same applies to payment fees and credit balance from goodwill.
§7 Support / Service
- sms77.io monitors all technical systems automatically and around the clock and offers support for customers via email and chat on weekdays between 9am and 4pm. sms77.io strives to answer all emails and chat messages within 24 hours.
- In addition to basic support and service, sms77.io offers a separate, enhanced and additional service as part of a customized service level agreement (SLA). The conditions for the SLA are available to the customer on request.
- The customer is required to follow the appropriate instructions regarding the use of sms77.io, including those relating to error prevention.
§8 Confidentiality / Privacy
- Both contracting parties undertake to keep all information and data received from the contracting party in connection with the execution of this contract confidential and not to make it accessible to third parties, as far as and as long as this information is not generally available or has become available or the recipient haven’t been notified by a third party entitled to do so without any obligation of confidentiality or haven’t been demonstrably known to the other party prior to the date of receipt.
- The obligation also remains at the end of the contract.
- If one of the contracting parties detects that information requiring secrecy comes into the possession of a third party or if a document to be kept secret has been lost, it will immediately inform the other contracting party thereof.
- If traffic data is stored, it will be stored up to 60 days after billing, unless there are objections to the billing. In this case, these may be stored until the objections have been finally clarified. Insofar as no traffic data has been stored for technical reasons, no objections have been raised or stored data has been deleted due to legal obligations, sms77.io neither has a proof obligation for the provided connection services nor the obligation to provide information in accordance with §45i (1) TKG.
- When issuing an itemised bill, the customer must inform all current and future users of the mobile connection that he will be notified of the connection data. sms77.io stores the traffic data, required to prove the fees charged to the customer, completely in log files (sender, recipient possibly shortened, time) and keeps them available for the customer for a period of 60 days, thereafter sms77.io can delete the files. Objections or inquiries regarding the billing or calculation of messages must therefore be made within 60 days of sending messages. After expiry of the period of 60 days, the billing or determination of the log files is considered as approved by the customer.
- sms77.io will erase the inventory data no later than the expiration of the calendar year following termination of the customer relationship, unless legal requirements or the prosecution of claims require a longer storage period.
- sms77.io is entitled to send the customer information concerning the contractual relationship by sending it to the postal address designated by the customer, to the email address specified by the customer or by telephone call.
§9 Change of the terms and conditions, service descriptions and prices
- Changes to these terms and conditions or the service description can be agreed upon offering by sms77.io and acceptance by the customer. The offer of sms77.io is made by notification of changes in content by email to the customer’s email address. If the customer does not respond to sms77.io’s offer or if he does not object within 4 weeks of receipt of the notification of change, this constitutes an acceptance of the offer and the changes will take effect provided that sms77.io expressly has pointed to this consequence in the change notification. If the customer objects to the offer in due time, the contract will continue to apply to the previous conditions.
- The service description may be changed, if justified for good reason, whereby the customer objectively shouldn’t be worse off (eg retention or improvement of functionalities) compared to the service description included in the contract and the changes not significantly deviated from them. There is a valid reason if there are technical innovations with regard to the services owed or if third parties from whom sms77.io receives the necessary advance services for the provision of the agreed services change their service offer.
- Intended changes of the service description, which are not caused by legal or official orders, will be communicated to the customer by email at least four weeks before they take effect. The customer is entitled to a special right of termination at the time the changes take effect. If the customer does not terminate the contract in writing within four weeks of receipt of the notification of change, the changes become part of the contract at the notified time. The customer is particularly advised of the consequence of the change notification.
§10 Severability clause
If any provision of this contract, the terms and conditions or a future newly adopted provision be or become invalid in whole or in part, the remaining provisions remain unaffected from this. The contracting parties agree to replace the invalid provision with a valid provision, which economically best corresponds to the objective of the contracting party.
§11 Place of fulfillment / jurisdiction
The place of fulfillment for all services in connection with the business relationship is Kiel. If legally permissible, Kiel is agreed as the exclusive place of jurisdiction. All contracts concluded by sms77.io are subject to the law of the Federal Republic of Germany. If the customer wishes to initiate an out-of-court dispute settlement procedure pursuant to §47a TKG, he may submit an application to the Federal Network Agency: www.bundesnetzagentur.de
The valid price list is available on the Internet at www.sms77.io/en/prices einsehbar.