The following general terms and conditions (GTC) regulate the contractual relationship between Inbox Solutions GmbH, Pretzfelder Straße 7 – 11, 90425 Nuremberg (hereinafter: Inbox) and its clients / contractual partners (hereinafter: customers) (in a B2B relationship).
Inbox operates the digital messenger application ChatWerk. This application enables customers to communicate with their end customers via messenger channels such as (Telegram, WhatsApp, etc.). Inbox only makes the messenger application ChatWerk available to customers in accordance with these terms and conditions who are not consumers within the meaning of Section 13 of the German Civil Code (BGB).
§ 1 scope
These general terms and conditions are part of all contracts with Inbox and apply to the entire business relationship between Inbox and the customer. The general terms and conditions also apply exclusively to all future transactions between Inbox and the customer as agreed, even if Inbox does not expressly indicate this. Conflicting or deviating conditions of the customer have no validity, even if the provider, knowing of conflicting or deviating conditions of the customer, performs the service without contradicting the conditions of the customer. Verbal collateral agreements do not exist. Inbox is entitled to change or add to the general terms and conditions with a reasonable period of notice. If the customer does not object to the changes within four weeks after receipt of the notification of the change, the changes will take effect according to the announcements.
§ 2 conclusion of contract
A contract for the use of Inbox’s services is not concluded when the order form is sent. The presentation of the services on the website is not a legally binding offer, but only represents a non-binding invitation to place an order. The web form completed by the customer represents a binding application by the customer to conclude a contract for the services of the provider listed therein. The contract is concluded with the acceptance of the offer by the provider, at the latest with the provision of the service by the provider.
§ 3 Services
Inbox provides services based on the contract concluded with the customer, in accordance with the package / individual order booked by him. Details of the subject of the service (contractual services) result from the current product order pages of the supplier at the time of the conclusion of the contract or from the individual offer / order.
Inbox can change or discontinue free services (e.g. Free) also in parts at any time. Inbox will take into account the legitimate interests of the customer and – as far as technically possible and reasonable – inform the customer of this in advance with a reasonable period of time.
Inbox provides the customer with the application as a technical infrastructure and does not create its own content.
Inbox makes the contractual services available to the customer for use 24 hours a day, 365 days a year (“system runtime”). The provider guarantees an annual average availability of the contractual services of 98%. In relation to the duration of a contract year, availability refers to the ratio of the period in which the customer was able to use the application with an existing Internet connection (plus the period in which the access was due to planned maintenance work or malfunctions that were not included in the Influence of Inbox was not possible), in relation to the length of the entire contract year.
Inbox uses messenger platforms such as WhatsApp, but has no influence on the technical and contractual structure or the scope of the service provided by the messenger platforms. The messenger platforms can change or even discontinue their scope of services at any time and thus also prevent Inbox’s services.
§ 4 Rights of Use and Exemption
Inbox grants the customer the locally unrestricted, time-limited, non-exclusive and non-transferable right to use the contractual services within the scope of the respective contractual purpose, exclusively for the fulfillment of the purpose of the respective usage contract. Beyond the purposes of the contract, the customer is not entitled to use, reproduce, download or make available to third parties the contractual services of the provider. The right of use expires at the end of the contract period.
The customer is obliged to indemnify the provider and his vicarious agents from all third-party claims that are based on an illegal use of the provider’s services by the customer or that are made with his approval or that arise in particular from data protection, copyright or other legal disputes with related to the use of the services. If the customer recognizes that such a violation is imminent, there is an obligation to inform the provider immediately.
§ 5 Customer’s duty to cooperate
The customer is obliged to design and use the contractual services in accordance with the relevant legal requirements in the area of the intended distribution. In doing so, he must in particular observe the corresponding copyrights, trademarks, patent rights and other industrial property rights and personal rights of third parties and may not use any files or information with illegal content or representations and / or make them publicly accessible.
If there are disruptions in the use of services, the customer will inform the provider of this immediately.
§ 6 Violation of the customer’s obligation to cooperate
The provider is entitled to delete illegal content at any time without prior notice or – if necessary – to give the customer access to the affected content or contractual services in the event of a violation of the provisions in No. 4 of these terms and conditions until the violation has been remedied. In the event of a serious breach of the customer’s obligations under no. 4 of these terms and conditions, the provider is entitled to terminate the contractual relationship for an important reason and without observing a notice period. If the customer is responsible for the violation, he is obliged to compensate the provider for the resulting damage.
§ 7 Prices, Payments, Due Date
The customer pays Inbox the price list valid at the time of conclusion of the contract or the price listed in the individual order. All prices are net prices and do not include the statutory value added tax. All additional costs such as bank / transfer fees are to be borne by the customer.
Inbox creates the invoice in electronic form. The billing of the prices to be paid for the use of the services takes place in accordance with the payment method selected by the customer.
Invoices are due when the invoice is issued and payable within 7 days. Usage-dependent remuneration is billed monthly after the service has been provided. The payment is only considered to have been made when the provider can dispose of the payment amount.
Objections to the invoice must be made in writing to Inbox within four weeks of receipt of the invoice; otherwise the invoice is considered approved. Statutory claims of the customer in the event of objections after the deadline remain unaffected.
We reserve the right to assert the statutory rights of retention and refusal of performance.
§ 8 Consequences of late payment
The customer is in default if he has not paid within fourteen days of the due date. In the event of default by the customer, Inbox is entitled to default interest at a rate of 7 percentage points above the respective base rate. The assertion of further claims remains unaffected.
In the event of default in payment by the customer, Inbox is entitled to discontinue its services immediately and without prior notice. Inbox will enforce outstanding, due claims without prior warning through the statutory dunning procedure or judicial procedure.
§ 9 Offsetting / Retention
The customer can only offset counterclaims against payment claims by Inbox if they have been expressly recognized by Inbox, are undisputed or have been legally established.
The customer can only assert a right to refuse performance or a right of retention insofar as the right arises from the same contractual relationship as Inbox’s claim.
§ 10 contract period / termination / compensation
Unless otherwise agreed between the parties, the contract period results from the booked product or the individual contract. Depending on the selected product, this has a minimum contract term of one, three, twelve or twenty-four months and can be terminated without observing a special notice period with a notice period of one or three months (with a 12 or 24 month term) at the end of the contract. If there is no timely termination before the end of the respective contract period, the contract is extended by the agreed minimum contract period. The right of both parties to terminate the contract without notice for an important reason remains unaffected.
The termination of the contract must be in writing to be effective.
Inbox has the right to terminate the contract without notice for an important reason in the following cases: (a) the customer finally refuses further payments (b) the customer becomes insolvent or over-indebted; (c) An application is made to open insolvency proceedings against the customer’s assets (whereby the regulation of §112 InsO remains unaffected), (d) the customer is in arrears with the payment of invoices or invoice partial amounts that exceed the package fee of two months or in a period that extends over more than two dates (e) the customer is in default and does not pay despite further reminders
After the contract period has expired, the customer can no longer use the application and the data stored by the customer on the platform will be permanently deleted by Inbox no later than one month after the end of the contract period.
The WhatsApp Business API number cannot be deleted; it can only be transferred to another Business Solution Partner. WhatsApp provides, as soon as a number has been linked to the API, that it can no longer be downgraded to the WhatsApp Business App or the WhatsApp Consumer App.
If Inbox terminates the contract without notice for an important reason, it is entitled to a flat-rate claim for damages in the amount of 50% of the package fee that would have accrued by the next proper termination date. The customer can counter the flat rate with evidence that the damage did not occur at all or was significantly lower than the flat rate. Inbox expressly reserves the right to provide evidence and assert further damage.
§ 11 Third Party Services
Inbox will use the services of third parties or provide such services to the customer in accordance with the individual contractual agreement with the customer.
When working with third parties, their contractual terms and conditions as well as the individual contractual agreements also apply. Insofar as changes in the conditions, in the scope of services or due to premature termination of the service provided by the third party affect the scope of services by Inbox, Inbox will notify the customer of this as soon as possible. The parties will then jointly agree on an adjustment of the scope of services that comes closest to the economic goal originally pursued by both parties.
Unless expressly agreed in an individual contract, Inbox has no obligation to monitor external service providers. Inbox is particularly not obliged to check or monitor the websites of publishers for illegal content. In this respect, Inbox is not responsible for legal violations by third parties.
§ 12 Warranty / Liability
The limitation period for claims for defects by the customer is one year, otherwise the warranty is based on the statutory provisions, unless special regulations result from the following provisions.
If the service is provided free of charge, the provider is not obliged to remedy the defect.
Sections 536 ff of the German Civil Code (BGB) apply to defects in the service. If the customer can assert claims for defects against Inbox, the removal of defects will take place at Inbox’s option either by free rework or replacement delivery.
A termination by the customer in accordance with Section 543 para. 2 sentence 1 no. 1 BGB due to non-granting of the contractual use is only permissible if Inbox has been given sufficient opportunity to remedy the defect and this has failed.
Inbox does not guarantee that the services of external service providers, in particular network services, are always uninterrupted, error-free and secure.
Liability for defects is excluded if the customer or another third party changes the service in an impermissible manner, intervenes in it in any other way, or if the customer or third party has used the service in a manner deviating from the contractual provisions and any documentation and this is the cause for the defect is.
Inbox is liable: a) without restriction according to the legal provisions for damage to life, body and health based on a negligent or willful breach of duty and according to the Product Liability Act, b) for damages based on willful or grossly negligent breaches of contract as well as malice. In these cases, the liability for damages is limited to the foreseeable, typically occurring damage, unless Inbox acted willfully. In the case of slight negligence, Inbox is only liable for property damage and financial loss in the event of a breach of essential contractual obligations. (c) for damage caused by simple negligence, insofar as this negligence concerns the breach of essential contractual obligations or a cardinal obligation. Inbox is only liable in these cases, however, insofar as the damage is typically associated with the contract and is foreseeable.
Any further liability on the part of Inbox is excluded regardless of the legal nature of the asserted claim. Insofar as Inbox’s liability is excluded or limited, this also applies to the personal liability of its employees, employees, representatives and vicarious agents
Liability on the part of Inbox is also excluded if Inbox cannot fulfill its contractual obligation due to improper performance by a supplier or service provider.
§ 13 data protection
The customer agrees that, within the framework of the contract concluded with him, personal data will be stored, changed and / or deleted and, if necessary, transmitted to third parties. Personal customer data that is not required for the execution of the contract will not be passed on to third parties unless the customer gives his consent. The customer can object to the storage of his data. The objection must be reported to Inbox by sending an email to firstname.lastname@example.org.
If the customer receives a password from Inbox, he is obliged to treat it with the utmost confidentiality. He is liable for any misuse that may result from unauthorized use of the password.
The customer is aware that all participants in the transmission path of the Internet generally have the option of taking note of the data being transmitted without authorization. By using the contractual services over the Internet, the customer consciously accepts this risk and releases Inbox with regard to any damage suffered as a result. Inbox has taken all technical and organizational measures in accordance with the law to protect personal data stored by Inbox from misuse and unauthorized access. However, especially when data is transmitted over the Internet outside the Inbox access area, third parties may be technically able to monitor the message traffic without authorization.
The customer is responsible for ensuring that Inbox is used by end customers in compliance with data protection regulations.
§ 14 References
The customer agrees that Inbox may use his name and logo on the Inbox website as well as for marketing activities, such as press releases or other advertising measures, and that his project may be adequately described therein. The customer can object to the reference by sending an email to email@example.com.
§ 15 Third Party Rights and Indemnification
Inbox is not liable for the content registered on behalf of the customer, especially if it violates the rights of third parties. To clarify, it is stated that the customer alone is responsible for ensuring that the content does not infringe the rights of third parties. Inbox is therefore particularly not liable for any violations of industrial property rights and / or claims by third parties under copyright or competition law against the customer.
If and to the extent that a third party asserts claims against Inbox with regard to the information provided by the customer or the aforementioned rights, the customer shall indemnify Inbox from all claims, including the reasonable costs of legal defense, upon first request. Further claims for damages by Inbox remain unaffected.
§ 16 Secrecy of Confidential Information
The parties undertake to keep all confidential information obtained in connection with the contractual cooperation strictly secret and not to use or exploit it beyond the fulfillment of their contractual obligations or to pass it on to third parties without express written consent. This applies in particular to all information about the remuneration agreed between the parties and the term of the contract.
Confidential information within the meaning of these terms and conditions includes all information communicated, as well as technical information / know-how, handed over data, documents and materials that are made available directly or indirectly within the framework of the contract and are designated as confidential.
The contracting parties will only provide their employees and employees with information to the extent necessary for the execution of the activities and ensure that the persons who are necessarily informed are also obliged to maintain confidentiality according to the conditions of these GTC.
The confidentiality obligation applies for a period of two years beyond the end of the contract, unless a different individual agreement has been made.
§ 17 Prohibition of Assignment
The assignment of the customer’s claims to a third party is only permitted with the prior written consent of Inbox. Otherwise an assignment is excluded.
§ 18 Employee protection and non-solicitation
The customer undertakes not to poach employees from Inbox, either directly or indirectly, or to establish direct contractual relationships with them. The above non-solicitation applies upon conclusion of the contract and continues for a period of one year from the end of the contractual relationship.
If the customer breaches this obligation, he will pay a contractual penalty of € 25,000 in each case of breach. The right to claim damages and / or injunctive relief remains unaffected. The contractual penalty will be offset against any claim for damages.
§ 19 final provisions
It is only the law of the Federal Republic of Germany. If sales law applies, UN sales law is excluded.
The exclusive place of jurisdiction for all disputes arising from this contractual relationship is Inbox’s registered office in Germany, Nuremberg.
The place of performance is Inbox’s headquarters in Germany.
Changes and additions to the contract must be made in writing when the contract is concluded. This also applies to changes to this regulation.
There are no side agreements.
Deviating terms and conditions of the customer are only effective if they are confirmed in writing by Inbox. Counter-confirmations by the customer and the reference to his terms and conditions are hereby expressly contradicted. Inbox’s terms and conditions also apply if it accepts the customer’s order in the knowledge of conflicting or deviating terms and conditions of the customer.
Inbox reserves the right to change these terms and conditions at any time without giving reasons, unless the change is unreasonable for the customer. Inbox will notify the customer in good time about changes to the terms and conditions. If the customer does not object to the validity of the new terms and conditions within two weeks of being notified, the changed terms and conditions are deemed to have been accepted by the customer.
Should one or more of the provisions set out here be or become wholly or partially ineffective, this shall not affect the validity of the remaining provisions. Instead of the ineffective provision, a regulation will apply that corresponds in a legally permissible manner to the economic sense and purpose of the ineffective provision.
Inbox, as of March 01, 2021