General Terms and Conditions (GTC) of sms.at mobile internet services gmbh
(hereinafter referred to as sms.at), FN 222236v, Münzgrabenstraße 92/4, A-8010 Graz, Austria
1. Introduction / Basics
We, at sms.at, provide various Internet and telecommunication services and operate, among others, the Internet platform www.mysms.com.
2. Scope of Application and Binding Character of the GTC, Amendments to the GTC
We offer all services exclusively on the basis of these GTC. These GTC form an integral part of each agreement concluded between us and you – the user. They also apply to services or contents which are provided by others, using our services or our platform www.mysms.com. When you use these services, you agree to be bound by the terms and conditions set out herein. We will inform you of any amendment to our GTC via www.mysms.com or in any appropriate manner 2 months prior to the date on which the new GTC will take effect. When you have an effective agreement with us and you do not object to the scope of application of the new GTC within this period by email, you will be deemed to have accepted the new GTC. For agreements concluded after any amendment to the GTC, only the new GTC shall apply.
3. Scope of Services, Changes to Scope of Services, Availability
Our services are provided partly against payment and partly free of charge. Some services will only be available to you once you have registered with us; some services do not require registration. Our services include - sending and receiving of SMS, MMS and emails; - Mobile Instant Messaging service. Our services are described on our website or wherever they are offered or are self-explanatory. There you will find the scope, duration of the offered usage and special conditions, as well as the price and payment terms, if any. Requesting a service from us constitutes placing a binding order with us. When we accept this order, you will receive a confirmation of acceptance from us or we will behave accordingly. When we accept your order and payment is secured, you may immediately use the services requested. Our services are subject to constant change as we want them to always be up-to-date and to be able to offer you the latest trends and features. Therefore, the services currently offered and retrievable, as well as the contents you store will not be available to an unlimited extent or for an unlimited period of time. Should we make a change within the scope of the effective contractual relationship we have with you we will inform you accordingly, complying with any stipulated notice period.
When you register with us, you will receive an account and login details consisting of user name and password. The functioning of our services and their billing depends on the information you supply being correct and up-to-date. You are, therefore, obligated to enter true, current and complete information when registering with us. You shall inform us of any change to such information, in particular the change of your mobile phone number, via your account, within one week. You shall not create an account for another person or create more than one personal account. We cannot guarantee the correctness and completeness of the data provided by you or other users.
5. Authorised Usage
You shall only be entitled to use our services when you comply with the provisions of the relevant service description and of these GTC and with the applicable legal provisions. You agree to respect the privacy of other users and not to make available or transmit any unsolicited, harassing, defamatory or threatening messages, information or contents. You shall be responsible for ensuring that the recipient of a message agrees with such receipt (e.g. MMS, SMS, etc.). It is strictly prohibited to use our services for promotional purposes or any other type of use for commercial purposes. Likewise, you shall not use our services to transmit unsolicited electronic messages or to send bulk SMS or bulk MMS, bulk emails or other forms of bulk transmissions (spamming, SMS bombing, etc.). Please note that we may add advertising messages or other information to the contents of users, e.g. SMS, etc. By using our services you are stating that you consent to this.
6. Third Party Usage
You shall keep your login details safe and protect them against third-party access. You shall not enable third parties to use youraccount. You shall be held responsible each time your account is accessed, if you allow third parties to use it or if your login details are unprotected. In any such event, each service subject to payment used via your account – i.e. when your user name and password have been used for login – will be charged to you. The same applies if you are logged in automatically by your browser, mobile phone etc., and a third party subsequently gains access. Even if your account has been used by a third party, with or without your knowledge and/or your intention, you shall be held responsible for the transmission or making available of prohibited contents (Item 10) or the illegal use of our services in violation of these conditions or of applicable legal provisions. As soon as you become aware that third parties have access to your login details, you shall immediately request us to block your account.
7. Grant of Rights
You may use our services to make available or transmit, either to the public or to certain persons or groups of people (e.g. based on your privacy settings), contents to which you own the rights. We are unable to prevent the contents which you make publicly available on the Internet from being retrieved, stored or processed by anyone worldwide. You shall grant us a non-exclusive, transferable, sub-licensable right of use, free of charge and without any space or time limitations, to all contents which you make publicly available using our services (e.g. photos, videos, texts, graphics, music, etc. on the Internet forum, blog, chat, My Site, etc.). We are entitled to copy, distribute, send, make available, edit, translate, etc. such contents. You may revoke any such rights; any use by us or by third parties authorised by us which has already occurred or is currently applicable shall be excluded. This grant of rights shall not apply to contents which you transmit to specified third parties or which you only make available to certain persons (e.g. based on your privacy settings) using our services.
8. Costs and Methods of Payment
Any services which we offer free of charge shall remain free of charge. If we make any changes in this respect we will inform you in due time, complying with any given notice period. You need Internet access and/or a mobile phone to use our services, both of which incur additional costs (e.g. in accordance with a mobile phone agreement) particularly the transfer of data via mobile Internet. These are not part of our services and you shall be responsible for these additional costs. We offer different methods of payment for our services provided against payment. You shall not make any payments by using unauthorised means (e.g. a credit card belonging to a third party). We are not obligated to provide or render the services prior to the receipt of the fee applicable to the service, and we are entitled to withhold the service (e.g. the sending of a SMS), until payment is received. If you disagree with any invoice received by us, you may object to it in writing within four weeks after receipt. If, in our opinion, such objection is unsubstantiated, we will inform you in writing.
9. Withdrawal from the Agreement
If you are a consumer and have ordered services via distance selling, you may cancel your order within seven working days of order placement. Sending the declaration of withdrawal within seven working days shall suffice to this end. This right of withdrawal shall not apply to services which commence within seven working days after the conclusion of the Agreement, or to audio or video recordings or software which have been removed from their packaging.
10. Prohibited Contents
You shall be held solely responsible for ensuring that the contents made available or transmitted by you using our services does not infringe any legal provisions or third party rights. You agree not to make available or transmit contents of pornographic, National Socialist, abusive, insulting, racist, xenophobic, defamatory, sexually degrading, blasphemous, discriminating, discrediting, politically extremist or morally reprehensible nature or such which are in violation of regulations for the protection of children and young people, personal honour, criminal law regulations, regulations under the Data Protection Act, the Trademark Protection Act or the Copyright Protection Act or other legal provisions. It is also prohibited to make available or transmit links or other information leading to such contents. As a rule, we do not check the contents made available or transmitted by you or others using our services, and we are not responsible for such contents. If we become aware of the transmission or the availability of contents in violation of legal provisions or in violation of these GTC, we will delete them or block the account used for such purpose. Should you become aware of such transmission or such contents, you shall inform us immediately.
11. Third Party Rights, Unauthorised Use
All contents and services provided or rendered by us and the contents of other users are protected. We are entitled to rights of prohibition of use and rights of exploitation to these contents and services, either on a statutory basis (e.g. under copyright, trademark or patent law) or on a contractual basis. You may only use these contents and services in the form expressly authorised by us. You shall not pass on to others any software, pictures, ring tones, music, videos, etc. which we have provided or delivered to you, either against payment or free of charge. You shall not use our services to transmit, store or make available contents which you are not authorised to dispose of e.g. because you do not have the consent of the author or of the trademark holder.
Any change to software e.g. on your mobile phone may result in significant, unforeseen faults in its functions or the functions of other software or hardware (e.g. the mobile phone or mobile phone network). In this respect you shall bear the sole risks and responsibility. You shall not make any attempt to develop or execute programs (scripts, robots, viruses, etc.) which might change the process and functions of our services e.g. change or bypass the user interface.
13. Blocking, Deletion of the Account
If you are in breach of the provisions of these General Terms and Conditions or if we have reasonable grounds for suspecting a breach, in particular in respect of entering incorrect data during registration, the creation of more than one account (Item 4.), use of our services to harass, threaten or insult other users (Item 5.), use of our services for promotional purposes (Item 5), third party access, with or without consent (Item 6), transmission or making available of prohibited contents (Item 10.), infringement of third party rights or attempt to manipulate our services (Items 11. and 12.), misleading statements regarding your identity, age and business activity or failure to meet payment obligations despite warnings that your account will be blocked, and despite granting a 14 day grace period, we shall be entitled to immediately withdraw our services, block your account and delete the contents transmitted or made available by you (e.g. nickpage, forum entries, blogs, etc.). We are also entitled to delete your account and the services associated therewith if you do not use your account for more than 12 months.
14. Warranty and Liability
We assume no warranty that our services and the user contents are correct, up-to-date or suitable to fulfil a purpose expected or intended by you or a third party. We assume no warranty that the contents provided by us shall work on any other mobile phone or terminal device than the one stated by you in your purchase order or that they shall look or sound the same way as offered on our website. We assume no liability that software (games, applications, etc.) provided by other users is free of errors, or malicious programs, which may restrict the functionality of your terminal device. We shall be fully liable for any damage caused intentionally or by gross negligence. Our liability will be limited to the replacement of the foreseeable damage typical to the Agreement and to an amount of EUR 1,000.00. This limitation does not apply to damage arising from injury to life, body or health. We shall not be liable for claims or damages arising from user violation of these GTC or legal provisions. We shall not be held liable for contents transmitted or made available using our services.
15. Data Protection
We take the protection of data stored with us seriously. We only process your personal data if this is necessary to fulfil and render our services. As a matter of principle, we shall only store and process master and traffic data which you either provide or which we have collected. When you send messages using our services, you may determine yourself whether copies thereof should be stored on your account. We will not use such contents data. You may inspect the personal data stored by us at any time, via your account. When you use our location-based services your terminal device (e.g. mobile phone) will inform us of your current location. We will process and store this information insofar as it is necessary to render the service and to show you location-based offers from our promotional partners. We will use master data stored to send you, or provide you with, individual promotional offers. We will also use existing data we hold on you to prepare anonymous statistics used to help provide and improve our services and to control advertisements. We will delete or make anonymous your traffic data as soon as the relevant communication is completed, unless we need them for billing or are legally obliged to store them. We shall delete your master data as soon as the contractual relationship between us is terminated, no further open claims exist and we are no longer legally obliged to store the data. Our websites are used by web analysis services such as Google Analytics and Admob Mobile Analytics. These services use so-called “Cookies”, i.e. text files which will be stored on your computer and enable an analysis of your use of the website. Such information on the use of the website (including your IP address) generated by the Cookie will be transmitted to a server of this provider in the USA and stored there. Providers use such information to evaluate your use of the website to compile reports on website activity for us and to render other services associated with website and Internet use. In addition, these providers might transmit such information to third parties, if they are legally required to do so or insofar as third parties process such data on behalf of the provider. Under no circumstances will these providers connect your IP address with other data of these providers. You may prevent the installation of Cookies by using the relevant setting on your browser software. However, if you do so, you may not be able to access all the functions of our website. By using our services and websites, you agree to data collected about you being processed as detailed above and being used for the purposes mentioned above. You may revoke your consent to such data processing at any time, unless the data is required by us in order to provide our services.
16. Disclosure of Data to Courts and Authorities
We are entitled to disclose to courts and authorities any master data and traffic data, as well as information we hold on you, in the framework of legal provisions, in particular those of the Austrian Copyright Act, the Austrian Telecommunications Act and Austrian Criminal Law, if we are requested to do so either by a court or by the authorities. We will inform the police of all criminal activities of which we become aware.
17. Termination of the Agreement
You may terminate at any time an existing Agreement concluded with us, by using the “Delete user” option on your account. We may terminate an Agreement with you giving a notice period of one month and then subsequently deleting your account and the information provided by you. Any usage agreements concluded with us shall be in effect for an indefinite period of time. Agreements on one-off services (e.g. the sending of a SMS) will be cancelled once the service has been rendered. Our package offers (“Packages”) provide you with the opportunity to take advantage of different services within a certain period of time, at a flat-rate price to be paid in advance. If you terminate the Agreement during this period you may use the services until the end of the notice period. Payments for services rendered in the scope of other subscription services shall be paid in accordance with periodic billing (e.g. every three months for the next three months in advance). You may terminate these subscription services with effect from the end of the next billing period. In addition, the duration and termination of the Agreement will be defined in the relevant service descriptions. The right to immediate cancellation of the Agreement for compelling reasons remains unaffected. Compelling reasons are those which entitle us to block the account (Item 13) or if you default on payment of the agreed fee, despite a reminder containing a threat to block your account and despite granting you a grace period of 14 days.
If you infringe these GTC or legal provisions, you shall indemnify and hold us harmless against third party claims resulting therefrom.
19. Applicable Law and Place of Jurisdiction, Miscellaneous
If you are not a consumer, agreements deviating from these GTC will be effective only if they have been agreed in writing. Declarations which we make to you or which you make to us will be effective even if they are made by SMS, MMS or email. We will send declarations intended for you to the electronic contact address given when you registered. If one of the provisions in these GTC is, or becomes, ineffective or an omission has been made, the other provisions shall remain unaffected. If you are not a consumer the ineffective provision or omission will be replaced by an effective provision which most closely represents the economic purpose of the ineffective provision and the intention of the contractual parties. All contractual relations between you and us will be subject exclusively to Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods. If you are not a consumer, the competent court in Graz has jurisdiction. The Europe-wide emergency number is 112.