Terms of use

1. Preamble

1.1. These General Terms and Conditions apply to all contracts of itk communications® GmbH, Gotzkowskystr. 20/21, 10555 Berlin for services to business customers (non-consumers).

1.2. Upon conclusion of the contract, the customer acknowledges these General Terms and Conditions as well as the respective valid, product-specific service description and price list.

1.3. The customer's own terms and conditions do not apply, even if itk communications® GmbH does not expressly contradict them.

1.4. Changes to these General Terms and Conditions, price changes, and changes in the scope of services will be announced in advance. Changes that are disadvantageous to the customer entitle him to object or, in the case of unreasonable changes, also to terminate the contract, whereby the contract cannot be terminated before the changes take effect. The right to object/terminate expires if it is not exercised within 4 weeks of notification. The right to object/terminate does not exist if the changes are based on legal, judicial, or official requirements (e.g., change in VAT rate, price adjustments in the area of regulated charges, etc.).

1.5. The General Terms and Conditions also apply to all future transactions with the customer, even if they are not expressly referred to again.

1. Conclusion of the Contract

2.1. The contract is concluded by itk communications® GmbH confirming the customer's order or providing the commissioned service.

2.2. itk communications® GmbH is not obliged to accept orders and reserves the right to make acceptance dependent on, among other things: a) credit check, b) technical feasibility (in particular LAN suitability, SDSL availability), c) if necessary, reasonable security provided by the customer.

1. Regulatory Conditions

3.1. The parties agree that the fulfillment of the contract is significantly influenced by the applicable regulatory conditions (in particular the TKG, the legal ordinances issued in this context, the interconnection and billing conditions agreed with Deutsche Telekom AG and other network operators, as well as decisions of the BNetzA, administrative courts, and possibly other authorities or courts).

3.2. In case of changes to these framework conditions, itk communications® GmbH is entitled to adjust the terms and conditions at its reasonable discretion (§ 315 BGB). If a change makes the performance economically or technically significantly more difficult, itk communications® GmbH has the right to extraordinary termination for a significant reason if an adjustment of the contract does not lead to appropriate and reasonable results. This termination does not lead to further claims by the customer.

1. Service Description

4.1. Dates and deadlines are only binding if itk communications® GmbH has expressly confirmed them in writing and the customer has fulfilled his cooperation obligations in a timely manner.

4.2. itk communications® GmbH may use third parties (subcontractors) to fulfill the contract.

1. Right of Withdrawal

itk communications® GmbH is entitled to withdraw from the contract if significant obstacles to performance emerge after the contract has been concluded, making it (e.g., technically) impossible to fulfill the contract.

1. Customer's (Cooperation) Obligations

6.1. The customer shall create all conditions within his operational sphere that are necessary for the proper execution of the contract. In particular, the customer is obligated to a) provide itk communications® GmbH's employees or representatives with the necessary information and documents for their activities and grant access to premises and technical facilities as required, b) ensure, if necessary, that the party with real rights to the property permits the installation, testing, and maintenance of accesses to a public telecommunications network (according to Annex § 45 aTKG), c) provide the required conditions for use (e.g., electricity) at his own expense, d) keep passwords, PINs, TANs, etc. confidential and change them immediately or have itk communications® GmbH change them if he suspects that unauthorized third parties have gained knowledge of them, e) use the agreed services only in accordance with the applicable legal provisions and in no case misuse them, f) take all reasonable measures to enable the identification of defects and damages and their causes, g) immediately notify itk communications® GmbH in text form of changes to the participant data required for the execution of the contractual relationship, h) inform all employees or co-users of the connection about the issuance of itemized billing and, if available, involve the works council or staff council in accordance with legal regulations.

6.2. Further cooperation obligations may arise from the service description.

1. Telecommunications Services

The availability of telecommunications services averages 98.5% over the year. Planned and communicated maintenance work as well as downtime in fault clearance for which itk communications® GmbH is not responsible are not included in the availability calculation. Otherwise, the service description applies.

1. IP Devices

8.1. itk communications® GmbH optionally offers IP devices (IP phones, IP hardphones/softphones, and other IP devices).

8.2. IP devices are only provided to the customer within the scope of the respective contract. In the case of rental, they do not become the property of the customer and must be handled properly and with care by the customer from the time of delivery.

8.3. The provision of services is subject to correct and timely self-supply. The limitation period for warranty claims by the customer is one year. The start of the limitation period is determined according to the legal regulations.

8.4. The warranty of itk communications® GmbH for possible material or legal defects is initially limited to the device repair/exchange service as defined in the service description.

8.5. Claims for damages due to defects in the goods are limited to the extent determined in item 20.2. § 444 BGB remains unaffected.

8.6. In the case of rental, the devices must be returned to itk communications® GmbH at the customer's expense in proper condition at the end of the contract.

8.7. If third parties assert rights (e.g., liens, etc.), the customer must immediately inform itk communications® GmbH in writing and inform the third parties of the third-party ownership.

8.8. itk communications® GmbH recommends operating the services it offers – as far as possible – exclusively with end devices provided by itk communications® GmbH.

1. Invoicing

9.1. The customer usually receives an invoice from itk communications® GmbH on a monthly basis. The invoice is sent as an online invoice to an email address specified by the customer.

9.2. When using offline-billed value-added services (e.g., 118xx, 0900, 0190), depending on third-party services, there may be delays in billing these uses and inaccuracies in current cost statistics.

1. Payment Terms

10.1. The prices agreed upon in the contract apply, in addition to the statutory VAT applicable at the time of performance.

10.2. The customer is obligated to pay the invoice amounts.

10.3. The calculation and collection of incurred fees are carried out in the name and on behalf of itk communications® GmbH.

10.4. All claims become due upon receipt of the invoice.

10.5. Fees due on an ongoing basis must be paid immediately upon operational readiness of the system or delivery of licensed software for the remainder of the current calendar quarter, and thereafter quarterly in advance.

10.6. An agreement on direct debit authorization in favor of itk communications® GmbH is part of the contract. The invoice amounts are collected from the customer's account according to this agreement via direct debit. If the direct debit authorization is revoked or not granted, a processing fee for the higher collection expenses of €5.00 plus statutory VAT per invoice will be charged. In the case of a chargeback or returned direct debit caused by the customer, itk communications® GmbH may charge a fee of €20.00 plus statutory VAT.

10.7. Any overpayments will be credited to the customer's invoice account and offset against the next due claim.

10.8. Any objections to the invoices of itk communications® GmbH must be made in writing at the address specified in the invoice within 4 weeks of receipt. Failure to object in a timely manner is considered approval. itk communications® GmbH will specifically indicate the consequences of a failure to object in the invoice.

10.9. The traffic data required for proper billing is deleted by itk communications® GmbH 6 months after invoice dispatch, unless the customer has chosen a shorter storage period. In the case of invoice objections, the traffic data may be stored until the objections have been finally resolved.

10.10. If, for technical reasons or at the customer's request, no traffic data are stored or stored traffic data are deleted at the customer's request or due to legal obligations, itk communications® GmbH is not obliged to provide proof of the services rendered or to provide information on individual connections.

10.11. Services outside the contractually agreed scope will be invoiced separately by itk communications® GmbH. This includes in particular: a) expenses for inspecting the system after a fault report, if it turns out that there was no fault in the technical installation of itk communications® GmbH or the damage or defect lies within the customer's area of responsibility. b) labor time and material costs, especially travel and transportation costs. c) services by third parties that the customer has used via the telecommunications services, such as information services (118xx) or premium rate services (0900, 0190).

10.12. itk communications® GmbH is entitled to have the billing towards the customer and/or the collection of outstanding claims carried out by a third party, to assign claims to this third party, and to share the necessary data for billing/collection with the third party according to legal regulations.

1. Default

11.1. If the customer is in default, interest at a rate of 9.0% above the respective base rate of the European Central Bank will be charged, subject to the assertion of further default damages. itk communications® GmbH is also entitled to charge the costs of reminders incurred after default.

11.2. itk communications® GmbH reserves the right to assert further claims due to payment default.

1. Set-off, Right of Retention

12.1. The customer may only offset claims of itk communications® GmbH with the consent of itk communications® GmbH or legally established counterclaims.

12.2. The customer may only assert a right of retention or right to refuse performance due to acknowledged or legally established counterclaims.

1. License Rights

13.1. The customer receives the Click-to-Dial software free of charge. The Open Source License GNU General Public License GPL 2.0 (hereafter GPL 2.0) applies. The customer receives the license terms of GPL 2.0 with the Click-to-Dial software and upon request in the original English version and in a non-binding German translation.

13.2. If software not covered by GPL 2.0 or another open-source license is provided to the customer, the customer receives a simple, non-exclusive, and non-transferable right to use the respective software in object code for the duration of the contract. All existing copyrights and other protective rights to this software, the associated documentation, and any further written material remain unaffected. This applies in particular to such rights of itk communications® GmbH. The software may not be copied, reverse-engineered, further developed, translated, or otherwise altered or processed. The written material may not be duplicated, nor may derivative works be created from the documentation. The customer's right to duplicate the software - as far as necessary for the use of the software and for creating a backup copy - as well as further rights mentioned in § 69 g paragraph 2 of the Copyright Act remain unaffected.

1. Modification of Service

14.1. Customer modification requests can only be placed on the internet at the address provided to the customer [www.itk-communications.de/kontakt] with their personal customer number and will only become effective if confirmed by itk communications® GmbH in text form.

14.2. A reduction in the number of provided IP devices is limited to a maximum of 10% per contract year; an increase in the provided IP devices is possible without limits.

14.3. Upon the effectiveness of the modification, the fees will be recalculated accordingly.

14.4. Expansion of additional sites is only possible by agreement and only if additional connections are locally available or with the desired bandwidth.

1. Reporting Faults

The customer must immediately report all faults that become known to them to the fault hotline of itk communications® GmbH and describe them as detailed as possible.

1. General Rights of itk communications® GmbH

16.1. Offers and services of itk communications® GmbH are subject to technical and operational feasibility.

16.2. itk communications® GmbH uses third-party communication networks as a preliminary service to establish connections. The obligation of itk communications® GmbH to provide services is limited by the availability of these preliminary services.

16.3. Capacity bottlenecks in the transmission paths, disturbances in the facilities of the network operators, operational disruptions, difficulties in power supply, or disturbances due to other measures (e.g., maintenance, repairs, etc.) necessary for proper or improved operation are not excluded and do not constitute a defect in the services of itk communications® GmbH. Temporary interruptions and restrictions may also result from force majeure, strikes, and lockouts. In such cases, the customer's claims for damages are excluded.

16.4. Agreed provisioning dates and availabilities are only valid under the condition of timely fulfillment of all customer obligations.

16.5. Delays in initial activation are not at the expense of itk communications® GmbH. Accordingly, claims for damages by the customer against itk communications® GmbH are excluded in this respect.

16.6. Temporary interruptions or disturbances may particularly occur during: a) installation work to connect the end devices, b) installation work on the customer's LAN infrastructure, c) delays in number porting. Claims for damages by the customer in such cases are excluded.

16.7. If required for reasons of public safety, network operation security, maintenance of network integrity, service interoperability, data protection, or due to operational or technically necessary work, itk communications® GmbH is entitled to interrupt, limit the duration of, or temporarily, partially, or completely discontinue the services. In such cases, claims for damages by the customer are excluded.

16.8. The functions Call-by-Call and Preselection are not available. The customer does not have any claims arising from this.

16.9. Insofar as itk communications® GmbH provides services free of charge, these can be discontinued at any time and without prior notice. The customer does not have any claims, regardless of the legal reason.

16.10. itk communications® GmbH is always entitled to install new hardware or software at the customer's premises to improve the services and may require the customer's reasonable cooperation.

1. Suspension

17.1. itk communications® GmbH is entitled to suspend the connection in whole or in part in accordance with legal provisions (e.g., § 45k TKG) and in particular to protect the customer or in case of a) a justified suspicion of misuse, b) the prerequisites for extraordinary termination are met, c) the customer fails to provide itk communications® GmbH with a deliverable company address.

17.2. Suspension due to payment arrears can be averted by the customer by providing an adequate security deposit, which must be at least three times the amount of the highest monthly bill ever incurred.

17.3. Reconnection can only take place during normal business hours.

1. Transfer and Assignment

18.1. The customer may transfer rights and obligations from this contract to third parties only with prior written consent from itk communications® GmbH.

18.2. The customer is liable for all expenses and damages attributable to him/her that arise from the use of the contractual services by third parties, provided he/she has enabled or otherwise is accountable for such use. The same applies to charges incurred due to authorized or unauthorized use by third parties.

1. Duration of Contract, Termination

19.1. The contract is concluded with an agreed fixed minimum term. The contractual relationship begins with the conclusion of the contract. It extends to the current year after commissioning and subsequently to the minimum contract term. The contract automatically extends for one year if it is not terminated in writing at least three months before expiration.

19.2. In the event of a change in the contractual service (see also item 14), the contract automatically extends from the time the change takes effect for the minimum term agreed under item 19.1.

19.3. The right of both parties to terminate for cause remains unaffected.

19.4. itk communications® GmbH is entitled to terminate the contract without notice and to suspend the services, especially if: a) a case of abuse or the suspicion of a criminal offense exists, b) the customer persistently fails to make payments (e.g., for 2 consecutive months), c) insolvency proceedings are opened over the customer's assets or are dismissed for lack of assets, or if a significant deterioration occurs in the customer's financial circumstances, indicating that the customer may not be able to meet his/her obligations temporarily or permanently, d) the customer culpably fails to fulfill his/her contractual obligations, e) the customer has made incorrect statements that are significant for the contractual relationship.

19.5. If the contractual relationship is terminated prematurely for reasons attributable to the customer, the customer must compensate all expenses incurred as a result of the contract, in particular for work already performed, payments made or to be made to third parties, and for the necessary dismantling of already installed technical facilities. The same applies if itk communications® GmbH terminates the contract for cause attributable to the customer. In these cases, connection fees will not be refunded. itk communications® GmbH reserves the right to claim incurred expenses even if the contract with the customer is terminated early for reasons of goodwill. Any claims for damages by itk communications® GmbH remain unaffected.

19.6. If the contractual relationship is terminated prematurely for reasons neither the customer nor itk communications® GmbH is responsible for, any cancellation costs invoiced to itk communications® GmbH by third parties must be borne by the customer.

1. Liability

20.1. In the provision of telecommunications services, itk communications® GmbH is liable for non-intentionally caused financial losses only up to an amount of €12,500 per customer. If the liability for damages arises from a single action or from a single event causing damage to several customers and is not based on intent, the liability for damages, notwithstanding the limitation in sentence 1, is collectively limited to a maximum of €10 million. If the compensations payable to several victims for the same event exceed the maximum limit, the compensation will be reduced in the ratio of the total of all claims for damages to the maximum limit. The limitation of liability according to sentences 1 to 3 does not apply to claims for compensation for damage caused by delay in the payment of damages.

20.2. itk communications® GmbH is liable without limitation for culpably caused damages resulting from injury to life, body, or health. For material and financial damages outside the scope of item 20.1, itk communications® GmbH is only liable for intent and gross negligence without limitation. Otherwise, itk communications® GmbH is only liable for culpable violation of essential contractual obligations, whereby the liability is limited to the compensation of the contract-typical, foreseeable damage. A damage of a maximum of €12,500 is considered contract-typical and foreseeable.

20.3. As far as internet access is not part of the services commissioned at itk communications® GmbH, itk communications® GmbH is not liable for performance restrictions resulting from the customer's lack of internet connection.

20.4. itk communications® GmbH is only liable for performance disruptions of the provided software and hardware if itk communications® GmbH fails to meet the reaction and fault clearance times specified in the service description in the event of disruptions.

20.5. itk communications® GmbH is not liable for performance restrictions or disturbances attributable to IP devices not provided by itk communications® GmbH but by an independent third party.

20.6. itk communications® GmbH does not have a no-fault guarantee liability for defects in the software and hardware.

1. Place of Fulfillment and Jurisdiction

21.1. The place of fulfillment for the customer's services is the registered office of itk communications® GmbH.

21.2. If the customer is a merchant or a public law entity, the seat of itk communications® GmbH is the jurisdiction. itk communications® GmbH is free to assert claims at the courts of the general jurisdiction of the customer. An exclusive jurisdiction remains unaffected by this.

21.3. The legal relations between itk communications® GmbH and the customer are exclusively governed by the law of the Federal Republic of Germany applicable to the legal relations of domestic parties, excluding the UN Convention on Contracts for the International Sale of Goods.

1. Arbitration

The customer can initiate an arbitration procedure with the Federal Network Agency in a dispute with itk communications® GmbH about whether itk communications® GmbH has fulfilled an obligation provided for in §§ 45 to 46 paragraph 2 and § 84 TKG towards him/her.

1. Final Provisions

23.1. Should one or more provisions of this agreement be or become invalid or unenforceable, this shall not affect the validity of the rest of the agreement.

23.2. In place of the invalid or unenforceable clause, a permissible and lawful clause that corresponds to the economic and liability-related purpose of the contract shall apply according to the intention of the parties.

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Effective: 2023