TITLE
terms and
conditions
8. Liability
Any liability of 1NCE for damages and/or reimbursement of expenses
arising from or in connection with the contractual relationship between
1NCE and the Customer shall be subject to the following limitations:
8.1 Liability according to Section 44a TKG
a) To the extent the Services consist of the provision of publicly
available telecommunications services, 1NCE as a provider of
such telecommunications services shall be liable for fi nancial
losses exclusively in accordance with the provisions of Section
44a TKG.
b) The wording of Section 44a TKG is as follows (non-binding
convenience translation):
Insofar as the provider of publicly available telecommunications
services is obliged to compensate an end user for fi nancial loss and
such liability is not based on intent, the liability is limited to a maximum
of EUR 12,500.00 per end user. If the obligation to pay damages
results from a uniform act or an event causing uniform damage to
several end users and this is not based on intent, the liability to pay
damages is limited to a maximum of EUR 10 million, without prejudice
to the limitation of liability in sentence 1. If the compensation payable
to several damaged parties due to the same event exceeds such
maximum limit, the compensation shall be reduced in proportion
to the sum of all claims for compensation. The limitation of liability
in accordance with sentences 1 to 3 shall not apply to damage
claims caused by the delay in payment of damages. In deviation to
sentences 1 to 3, the amount of liability towards end users who are not
consumers may be regulated by individual contractual agreement.
8.2 Liability outside the scope of Section 44a TKG
Outside the scope of application of Section 44a TKG (see Section 8.1
of these GTC) 1NCE is liable as follows:
a) In the event of intent or gross negligence, assumption of a quality
and/or durability guarantee or fraudulent concealment of a defect,
1NCE shall be liable in accordance with the statutory provisions.
b) In the event of slight negligence, 1NCE shall be liable without
limitation in the event of injury to life, limb or health. In all
other respects, 1NCE shall only be liable in the event of slight
negligence if a cardinal obligation is breached and only for the
foreseeable damage typical for this kind of contract. A cardinal
obligation means an essential contractual obligation, the fulfi lment
of which is a precondition for the proper performance of the
contract and upon which the Customer may regularly rely.
c) The liability for the foreseeable damage typical for this kind of
contract to be compensated in the event of a breach of a cardinal
obligation pursuant to lit. b) is limited to EUR 25,000.00 per
damaging event and to EUR 100,000.00 for all damaging events
occurring within one contract year.
d) Any strict liability without fault of 1NCE in accordance with Section
536a BGB for defects existing at the time of conclusion of the
contract is excluded; the provisions of lit. a) and b) above shall
remain unaffected.
8.3 Any liability pursuant to the provisions of the German Product Liability
Act (Produkthaftungsgesetz) shall remain unaffected.
9. Limitations to performance obligations: Force Majeure /
Reservation as to availability of supplies
9.1 Neither Party shall be liable for the fulfi lment of its obligations if
such fulfi lment is prevented by force majeure. This includes events
which are unforeseeable, irresistible and beyond the Parties’ control,
particularly including severe weather, fl ood, landslide, earthquake,
storm, lightning, fi re, epidemics, acts of terrorism, outbreak of military
hostilities (whether or not war is declared), riot, explosions, strikes
or other labour unrest, sabotage, interruptions of energy supply,
expropriation by governmental authorities.
9.2 1NCE’s obligation to perform is also subject to the proper and timely
availability of supplies with products or advance performances
provided by the suppliers of 1NCE. However, this shall be subject
to 1NCE having concluded with due care a congruent covering
transaction with the respective supplier and the improper or untimely
supply being not attributable to a fault of 1NCE. Products or advance
performances in the sense of sentence 1 shall include, but are not
limited to, services or transmission lines procured by 1NCE from other
suppliers of telecommunications services, supplies of hardware or
software or other technical services from third parties (e.g. electricity
supplies).
10. Data Protection / Confi dentiality
10.1 The Parties undertake to process any personal data transferred to
them by the respective other Party in the context of establishing
and implementing the contractual relationship in accordance with
the applicable legal provisions, in particular the provisions of the EU
General Data Protection Regulation (GDPR) and the Federal Data
Protection Act (Bundesdatenschutzgesetz).
10.2 The Parties also undertake to treat all other confi dential information
of the other Party that the receiving Party becomes aware of in
connection with the contractual relationship as strictly confi dential
and not to disclose such information to any third party for an unlimited
period.
10.3 1NCE uses the payment service provider Stripe Payments Europe
Ltd, The One Building, 1 Grand Canal Street Lower, Dublin 2, Ireland
(hereinafter referred to as “Stripe”) for payment processing (see
Sections 5.1 and 5.2 of these GTC). All (personal) data provided by
the Customer during the payment process will be processed by Stripe
and in some cases also be collected directly by Stripe. For further
information on Stripe’s data protection, the Customer may refer to
Stripe’s privacy policy, which is currently available at: https://stripe.
com/de/privacy.
10.4 1NCE points out that it uses the usage data arising within the
framework of the implementation of the contractual relationships with
all customers in anonymous and aggregated form for its own statistical
purposes. This is done for the purposes of network capacity planning
as well as for continuous quality assurance and improvement of the
services provided by 1NCE.
11. Amendment of these General Terms and Conditions
11.1 1NCE shall be entitled to unilaterally amend these GTC – to the extent
they are included in the contractual relationship with the Customer
– insofar as this is to be considered appropriate or necessary for
adapting to a change of law or court rulings or other market conditions,
in particular technical conditions.
11.2 To the extent 1NCE intends to make such an amendment to these
GTC which does not exclusively relate to an adaptation to statutory law
or administrative orders, 1NCE shall notify the Customer of this in text
form at least six weeks before the amendment becomes effective. The
Customer is entitled to terminate the contractual relationship with effect
from the effective date of the relevant amendment. If the Customer
does not terminate within six weeks after receipt of the amendment
notifi cation from 1NCE in text form, the relevant amendment shall
become an integral part of the contract at the time it becomes effective.
1NCE shall inform the Customer of this legal consequence in the
amendment notifi cation.
12. Mandatory information under telecommunications law
12.1 Information on the procedures established by 1NCE to measure and
control traffi c to avoid full capacity utilization or congestion of a network
connection and information on the possible effects thereof can be
found on the internet at https://1nce.com/en/imprint/ (see the entry
“Mandatory information under telecommunications law”).
12.2 A list of measures 1NCE can take to respond to security or integrity
violations or threats or vulnerabilities can be found on the internet at
https://1nce.com/en/imprint/ (see the entry “Mandatory information
under telecommunications law”).
12.3 In the event of a dispute between the Parties about one of the cases
mentioned in Section 47a TKG, the Customer may, following a
prior attempt to reach an agreement with 1NCE, initiate arbitration
proceedings at the Consumer Arbitration Offi ce for Telecommunications
(Verbraucherschlichtungsstelle Telekommunikation) of the Federal
Network Agency (Bundesnetzagentur) in Bonn by means of an
application.
12.4 The Customer may request that
a) the use of its network access for certain number ranges is blocked
free of charge on the network side, to the extent this is technically
possible for 1NCE; and
b) the identifi cation of its mobile phone connection for the use
and billing of a service provided in addition to the connection is
blocked free of charge on the network side.
13. Final provisions
13.1 The Customer may only assign or transfer claims, rights or obligations
arising out of the contractual relationship to a third party after prior
consent of 1NCE in text form. Section 354a of the German Commercial
Code (Handelsgesetzbuch) remains unaffected.
13.2 1NCE shall be entitled at any time to have the Services rendered in
whole or in part by subcontractors. In this case, however, 1NCE fully
remains responsible for the provision of the Services in relation to the
Customer.
13.3 If any provision of these GTC is invalid, the remaining provisions shall
remain unaffected. The invalid provision shall be replaced by the
applicable statutory provisions.
13.4 The law of the Federal Republic of Germany shall apply to these GTC
and all legal relations between 1NCE and the Customer, excluding the
provisions of international private law which refer to another jurisdiction
and the UN Convention on Contracts for the International Sale of
Goods (CISG).
13.5 In business transactions with merchants, legal entities under public
law or special funds under public law, Cologne, Germany, is the place
of jurisdiction for all legal disputes arising out of or in connection with
the contractual relationship between the Parties. A potential exclusive
place of jurisdiction shall remain unaffected.
