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Terms of Service

Special trading conditions for the use of the SMS service (smsblaster.com) of VADIAN.NET AG. Status: Mai 2005

1. Scope

These trading conditions rule the contractual relation between VADIAN.NET AG, Katharinengasse 10, CH-9000 St.Gallen, (mentioned VADIAN.NET in the following) and the customer for the usage of the SMS service aspsms.com. VADIAN.NET provides these services exclusively on the basis of these terms of service.

2. Contractual relationship

(1) The contractual relationship between the customer and VADIAN.NET for the use of the SMS service is the result of the customers application and the acceptance by VADIAN.NET to the actual tariffs. As far as nothing different was agreed, application is accepted tacitly by the contribution of the service.

(2) The contractual relationship can be terminated by both contracting parties at any time in written form (by E-Mail, fax or letter). The remaining SMS volume can be returned chargeable.

(3) The right for extraordinary termination of the contractual relationship remains unaffected.

3. Services of VADIAN.NET

(1) The range of the contractual performances results out of the service specification of VADIAN.NET.

(2) VADIAN.NET reserves itself the right to extend the services and to make improvements after the current technical state of the art and under keeping of the entitled interests of the customer.

4. Obligations of the customer

(1) The customer agrees to not use the SMS service to transmit contents which fulfils in particular the following conditions:

a) suitability to be interpreted as diffaming, deceptive, misleading, insulting, displeasing, pornographic, racistic, glorifying violence, etc.;

b) menace or disconcertion of third.

(2) The customer is obligated to use the VADIAN.NET services properly and only in the context of the legality. It is in particular obligated,

a) not to abusively use access to VADIAN.NET services and to omit illegal actions;

b) to accommodate recognized principles of data security, especially to keep passwords secret etc., resp. to immediately arrange modifications, if the assumption exists that unauthorized thirds attained knowledge of this kind of access information;

c) to immediately report a recognizable lack or damage (failure report) and in the context of the reasonable make measures that one all measures meet, which facilitate and accelerate removal of the disturbance and enable an statement of the lack or damage and their causes to VADIAN.NET;

d) to immediately report each modification in the person of the customer, the name or the designation, under whom it led in the operating documents of VADIAN.NET.

e) ASPSMS offers the possibility of defining any Originator. If this feature is made available publicly, the customer is obligated to guarantee by appropriate authentification measures (E-Mail is not sufficient) that this feature is not abused. If a customer misses this, account can be closed or the Originator is adjusted to a fixed value by VADIAN.NET.

f) VADIAN.NET reserves itself the right to monitor the SMS Traffic with an automatic Spam-Pattern-Engine to detect misuse.

g) VADIAN.NET reserves itself the right to check self defined originators at random base to detect misuse (e.g. Advertising for premium rate numbers).

5. Suspension of the SMS service

(1) VADIAN.NET reserves itself the right to lock the service if the customer uses the service abusively, in particular in the sense of 4. and/or offends against valid right.

(2) For the own security of the customer VADIAN.NET will lock the service, if the assumption is justified that the service is abusively used.

6. Responsibility of VADIAN.NET

(1) The responsibility for rough negligence is limited to the damage usually predictable in such cases. Responsibility and compensations are limited to the height of the order value.

(2) In case of failures of services because of disturbances outside of the area of VADIAN.NET΄s responsibility, VADIAN.NET does not reimburse any values.

(3) VADIAN.NET does not assume liability for the compatibility of the aspsms application with data, programs, configurations etc. of the customer. In particular VADIAN.NET does not incur any expenses, remuneration, expenditures or uses for the integration or missed integration of aspsms.

(4) VADIAN.NET does not assume liability for server side managed address data of the client.

This covers in particular - however not exclusive - also the expenditure of time of the customer and/or its assigned ones.

7. Responsibility of the customer

(1) The customer is responsible for all consequences and disadvantages for VADIAN.NET and third parties, which are the result of the abusive or illegal use of the SMS service (in particular with offence against 4.) or the result of that the customer does not follow his other responsibilities and has to represent this.

(2) The customer keeps VADIAN.NET free from any third party claims, which are demanded because of the culpable violation of the rights of third parties by the customer or because of the customers behaviour contrary to the terms of the agreement or by the customer breaking the law.

8. Terms of payment

(1) The payment of the SMS service takes place in advance, as far as not agreed differently.

(2) Price adjustments: If VADIAN.NET has additional costs because of price adjustments of external partners, VADIAN.NET has the right to adjust its price structure. In such cases, VADIAN.NET does a refund of the remaining credit balance on request. If VADIAN.NET receives knowledge about such a price adjustments afterwards, possible extra costs can be charged also retroactively to the customer.

9. Privacy

(1) Personal data, that is raised in the context of the use of the SMS service, is raised and protected according to the relevant regulations of the federal privacy law. Employees of VADIAN.NET, who handle personal data, are obligated on privacy.

(2) As far as VADIAN.NET uses the help of third parties to provide its services, VADIAN.NET is, in the context of the relevant privacy regulations, fully justified to transmit the inventory data if this is necessary for the assurance of the operation and the interests worth to protect of the customer are not impaired.

10. Rights of use

(1) All copyrights and rights of use, which are located in the property of VADIAN.NET, remain reserved to VADIAN.NET.

(2) Copying and modifying, circulation and publication or other use of all service contents by the customer or by third parties, if it has to be represented by the customer, is forbidden, if it was not explicitly approved by VADIAN.NET in written form.

(3) The customer commits itself further to spread only such contents for which the customer has the appropriate rights of use.

11. Final provisions

If one or more regulations of these terms of service should be ineffective, then this does not involves the inefficacy of the entire contract. The ineffective regulation is replaced by the relevant legal regulation.

Area of jurisdiction and place of delivery are St. Gallen / Switzerland.