1. Parties to the agreement

The agreement shall be concluded between Telekom Deutschland GmbH, a limited liability company under German law with headquarters at Landgrabenweg 151, 53227 Bonn Germany, registration no: HRB 5919 in the local court of Bonn, VAT ID: DE122265872 (hereinafter referred to as Telekom) and the customer, who is an entrepreneur as defined in § 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) (hereinafter referred to as “Customer”).

2. Subject matter of the agreement

2.1

The subject matter of this agreement is specified in these general terms and conditions and further contractual documents (such as but not limited to the Service Specification and the Price List). They govern the service provision of “SMS API” over Application Programming Interfaces (APIs). Subject to technical and operational feasibility, Telekom shall provide the following services: Provision of APIs to incorporate A2P SMS (“Application to person short message service(s)") services into the Customer’s applications. A Service Specification of SMS API can be found on the portal under “Products”. These services shall be provided in connection with the German Telecommunications Act (TKG).

2.2

The Customer needs to have an internet connection to use T Developers Portal. This is not part of this agreement.

3. Establishment of the agreement

This agreement shall commence upon receipt of an order confirmation, or upon provision of the services by Telekom (provision of the first API) at the latest.

4. Rights of use

4.1 APIs and SDKs

Telekom shall grant the Customer the non-exclusive, transferable right free-of-charge to use the APIs for the purpose of incorporation into the user's own applications, to modify these and to pass these on in the original or modified version free-of-charge to third parties. All APIs and the libraries integrated into them are subject to the terms and conditions.

4.2 Services provided by the Customer to its customers

The Customer has the right to provide services to third parties in its own name and to invoice these services. However, the Customer shall bear sole responsibility vis-à-vis Telekom for proper and appropriate use of said services. The Customer shall pay any charges incurred by third parties who use these services with its consent.

5. Duties and obligations of the Customer

The following duties are incumbent on the Customer:

1. For any direct debit not honored or returned, the Customer shall reimburse Telekom for the costs incurred to the extent that the Customer was responsible for the event giving rise to the costs.

2. The Customer shall not make improper use of the services provided, in particular

   1. The Customer shall not send any legally prohibited and unsolicited information, material or other services, including unrequested and uninvited advertising by email, fax, telephone, or SMS, or illegal dialer programs.
   2. The Customer shall not establish unlawful contact using telecommunications services (§ 238 of the German Penal Code [Strafgesetzbuch – StGB]).
   3. The Customer shall not convey or post on the internet any information that is illegal or in violation of accepted moral standards, nor may reference to such information be made. This shall include, in particular, information that, as defined in §§ 130, 130a and 131 StGB, incites hatred and violence against segments of the population, induces the commission of criminal offenses or glorifies or trivializes violence, is sexually offensive, is pornographic within the meaning of § 184 StGB, is apt to seriously endanger the moral welfare of children or juveniles or to affect their general welfare, or that could damage the reputation of Telekom. The provisions of the Agreement of the German Federal States regarding the Protection of Human Dignity and Juveniles in Radio and Televised Media (Jugendmedienschutzstaatsvertrag – JMStv) and the Juvenile Protection Act (Jugendschutzgesetz) shall be complied with.
   4. The Customer shall ensure that the use of individual functions and the creation or sending of messages does not cause any disruption to Telekom, other providers or any other third parties.
   5. The Customer shall not establish calls that result in payments or other considerations from third parties to the Customer.
   6. The Customer shall observe national and international copyrights, trademark, patent, and name and labeling rights, as well as other industrial rights and personal rights of third parties.

3. Platform components and the Telekom network may not be overloaded due to excessive use. In particular, the Customer shall take the appropriate measures in its software application to prevent excessive use of the platform, e.g., by using automatic identification programs (bots, spiders) or unchecked data entries (e.g., empty or invalid input parameters).

4. Personal access data (e.g., user ID, password) may not be provided to third parties and must be kept in a location that is protected against third-party access. The data shall be changed upon first-time use of the service and then at regular intervals for security reasons. If there is reason to suspect that the access data has been disclosed to unauthorized persons, the customer must change this data immediately. Such data may only be stored on electronic storage media (e.g., PC, USB memory stick or CD-ROM) in encrypted form.

5. Should any personal data be collected, processed or used by the customer in connection with the use of T Developers Portal services and a statutory requirement to obtain consent does not apply, the necessary consent of the party involved must be obtained. The customer shall be responsible for complying with the applicable requirements under data protection legislation when using these services.

6. Telekom and its agents shall be indemnified against all claims by third parties that are based on the illegal use of T Developers Portal and the services connected with T Developers Portal by the Customer or with its consent, or which arise from litigation involving data protection, copyright, or other laws in conjunction with the use of T Developers Portal. If the Customer realizes or can be expected to realize that a violation of this type is about to occur, he shall be obligated to notify Telekom without undue delay.

7. The Customer does not have the right to edit, copy, distribute, make public, promote or use the content provided within the scope of this contractual relationship (such as result records) or any part thereof in any form for purposes other than those stated in this agreement, e.g., uploading content onto file sharing systems or for commercial purposes such as internet tickers or SMS services. By using this content for commercial purposes, the customer not only violates its contractual obligation to Telekom but also infringes upon the rights of third parties and therefore may also have to make compensation payments to third parties.

6. Use in violation of the agreement

Telekom reserves the right to block access to T Developers Portal and/ or to the SMS API service should the Customer initiate an illegal violation against any of the essential obligations set forth in this agreement. Access shall be restored only if the violation of the essential obligation concerned has been permanently rectified or the danger of repeated violation has been ruled out by submitting to Telekom an appropriate declaration with penalty clause stating that such violation shall no longer occur.

7. Credit account

7.1

The Customer can post EUR credit into an individual EUR credit account for SMS API provided by Telekom by prepaying a specified amount. Credit shall be booked immediately after posting.

7.2

The Customer can post credit into its credit account at any time. The balance of the credit account can be checked at any time. However, for technical reasons, the credit account balance will not be provided at the exact time of the query and for these reasons is not binding and does not constitute any independent claim to the establishment of A2P SMS in the equivalent value.

7.3

In the event of a change in the statutory VAT rate the prices shall be changed accordingly as of this point in time.

7.4

If using a credit card or PayPal to post credit, the Customer shall accept the invoice for the amount posted. This amount shall be invoiced by the credit card company indicated by the Customer. The Customer’s credit card shall be charged after the specified amount has been posted in the credit account.

7.5

If the Customer has no more credit remaining in its credit account, the SMS API services shall not be provided. The SMS API services shall be released for use within approx. 24 hours after the Customer has posted more credit, giving the Customer a positive balance in its account.

8. Terms of payment/Charges

8.1

The charges the Customer has to pay per A2P SMS to the respective destination are specified in the daily updated Price List on https://developer.telekom.com/products/sms-api/pricing

8.2

Charges shall be payable upon the provision of each A2P SMS and shall be debited from the Customer’s credit account.

8.3

The posted amounts shall be payable upon successful completion of the posting process. Payment shall be made by credit card or PayPal.

8.4

The Customer may only offset undisputed or legally enforceable claims. The Customer shall be entitled to assert a right of retention only for counterclaims arising from this agreement.

8.5

Complaints against the debiting of prepaid credits from the Customer’s credit account must be received by Telekom within eight weeks of the debit at the latest.

9. Changes to the General Terms and Conditions and service specifications

9.1

If there is any price regulation, Telekom shall be obligated to agree only those charges or price-relevant elements of the General Terms and Conditions and Service Specifications that the Federal Network Agency has approved, reviewed, or decreed by way of order. Agreements containing other prices or price-relevant elements shall be effective provided that the approved, reviewed, or decreed price or price-relevant element replaces the agreed price or price-relevant element. Telekom shall notify the Customer in writing about any such changes. In the case of price increases or other changes to the Customer's disadvantage, the Customer shall have the right to terminate the agreement with effect from the date the change goes into effect. Telekom shall make specific reference to this special termination right in the change notification. Notice of termination must be received within six weeks after receipt of the notification.

9.2

If Telekom intends to make any changes to the General Terms and Conditions or Service Specifications, the Customer shall be notified in text form at least one month, but not more than two months prior to the effective date of the changes. Any change made to the General Terms and Conditions or Service Specifications shall entitle the Customer to terminate the agreement without notice, effective from the date the change enters into force. Telekom shall make specific reference to this special termination right in the change notification. If the Customer does not terminate the agreement in text form within three months of receipt of the change notification, the changes shall become part of the agreement effective from the date they enter into force.

10. Disputes

10.1

The Customer shall notify Telekom in writing of any dispute no later than eight (8) weeks after the day the amount has been debited from the credit account. Any dispute shall be supported by substantial evidence.

10.2

Until the dispute is resolved, the disputed amount shall not be credited to the credit account.

10.3

Resolution of disputes is supported by the Platform Manager acting as an expert and not as an arbitrator. Disputes are resolved solely by reference to the T Developers Portal records. Telekom’s decision on the acceptance of any dispute is based on these T Developers Portal records, except in the event of manifest error, and shall be final and binding.

11. Default

11.1

Telekom has the right to block Customer access to activated services if the Customer is in arrears with its payments. If the Customer fails to pay the outstanding amount by the specified deadline, despite a second request for payment, Telekom may terminate the agreement without notice.

11.2

Telekom reserves the right to assert any other claims arising from a default in payment.

12. Defect as to quality [Sachmangel]

12.1

Telekom warrants that the software shall fulfill the functions described in the accompanying documentation to the extent the software is used on the operating system described in the agreement.

12.2

If the software has defects, the Customer may demand that Telekom, at its own choice, either make subsequent improvements or provide the service again (subsequent performance [Nacherfüllung]). If the deviation of the service from the agreed condition is insignificant, the Customer may only demand a reduction in payment. If the deviation of the service provided by Telekom from the contractually agreed condition is insignificant and does not limit its serviceability, the Customer shall not have any claim due to defects in quality.

12.3

If Telekom has provided services to detect a fault after a problem was reported, and if no defect in quality is found, the Customer shall bear the costs resulting therefrom. In calculating the costs, Telekom shall use the rates of remuneration valid at the time of service.

12.4

The liability for defects in quality shall not apply to services provided by Telekom that have been modified or otherwise interfered with by the Customer, unless the Customer proves that the intervention did not cause the defect. The liability for defects in quality shall also not apply if the Customer fails to report the defect to Telekom in writing without undue delay after it becomes apparent, or if the service is not used under the contractually agreed conditions as stipulated in the documentation.

12.5

In order for the defect to be properly remedied, it must be adequately described by the Customer and thus be identifiable by Telekom. In addition, the documentation required to remedy the defect must be made available to Telekom for inspection.

12.6

Claims of the Customer arising from necessary expenses incurred for the purpose of subsequent performance – in particular, the cost of transportation, labor and materials – shall be precluded hereby to the extent that the expenses are increased by the fact that the service was provided at a place of performance other than the one stipulated in the agreement.

12.7

Software defects shall be remedied, at the election of Telekom, by providing an update status of the software or a workaround. Until such time that an update status is provided, Telekom shall provide temporary solution for working around the defect, if Telekom can be reasonably expected to do so at a reasonable cost.

12.8

Claims of the Customer arising from a defect in quality shall be subject to a limitation period of one year from the commencement of the statutory limitation period. This restriction shall not apply to compensation claims that are based on the violation by Telekom of claims to subsequent performance in the event of defects. Compensation claims based on refusal to provide subsequent performance may only be asserted within the statutory period of limitation if the claim to subsequent performance is asserted by the Customer within the reduced period for material defect claims.

13. Defect in title [Rechtsmangel]

A defect in title shall exist if the rights required to use the software as provided by the agreement have not been effectively granted after the software is handed over. In the event of defects in title, Telekom shall honor its warranty, at its own choice, by providing the Customer with a legally unobjectionable way to use the software or by taking back the software at the billed price minus a reasonable compensation for usage. The latter shall be permissible only if Telekom cannot be reasonably expected to provide a different remedy. Claims of the Customer arising from a defect in title shall be subject to a limitation period of one year from the commencement of the statutory limitation period.

14. Liability

14.1 Telecommunications services

Telekom shall be liable in accordance with the provisions set forth in the TKG for any damage caused using telecommunications services provided for the public.

14.2 APIs

Telekom is fully liable for all damage caused by and attributable to the use of the APIs in the case of intent and gross negligence as well as a result of any missing features that were guaranteed as part of the service. In the event of negligence, Telekom shall be fully liable in the case of injury to life, limb or health. Liability shall otherwise be excluded, although liability in accordance with the Product Liability Act shall not be affected hereby.

14.3 Other services

Telekom shall be fully liable in cases of intent, gross negligence, or the lack of a guaranteed feature. In the event of slight negligence, Telekom shall be fully liable in the case of injury to life, limb or health. If, as a result of slight negligence, Telekom fails to perform its service on time, if it has become impossible to perform the service, or if Telekom has failed to comply with an essential obligation, liability for any damage to property or pecuniary damage caused thereby shall be limited to foreseeable damage that is typical for the agreement. This shall also apply to lost profit and unachieved savings. An essential obligation shall be an obligation which must be fulfilled for the proper performance of the agreement, the infringement of which jeopardizes the achievement of the purpose of the agreement, and which the Customer can normally rely on being complied with. Liability for any less direct follow-up damage due to defects shall be precluded. In the event of a loss of data, Telekom shall be liable only for the necessary cost of recovering the data in cases where the Customer has properly backed up the data. In the event of slight negligence on the part of Telekom, this liability shall apply only if the Customer properly backed up the data daily.

14.4

The limitation of liability contained in these terms and conditions is not applicable to claims under the Product Liability Law.

15. Force majeure

15.1

Neither party shall be liable for any occurrence beyond the parties’ reasonable control, which materially impedes the fulfilment of a party’s obligations under the agreement, or which partly or wholly hinders the performance of such obligations for a certain period of time. Such event is defined as any occurrence beyond the parties' will and control and shall include, without limitations, natural disasters, pandemics, epidemics, governmental acts, decisions of authorities, blockades, war and other military conflicts, mobilization, riots, terror attacks, civil uprising, civil war, strikes, lockouts or other labor disputes, seizures, embargos or other occurrences, which are unforeseeable, material and not negligently caused by any of the Parties and which occur after the conclusion of this agreement.

15.2

To the extent one of the parties is hindered to perform its obligations under this agreement due to force majeure, such delay or non-performance shall not cause an infringement of the agreement, and all time periods or deadlines defined within or in connection with this agreement will be appropriately prolonged corresponding to the duration of the force majeure event. The same shall apply if Telekom depends on the service of a third party and this service is delayed because of force majeure.

16. Term of the agreement and termination

16.1

The agreement for SMS API may be terminated by either party with effect from the end of any business day. For any termination to be effective, Telekom or the Customer must be notified in writing or by email of said termination at least six weekdays prior to the date of termination. The Customer shall send a notice of termination via email to the following address developers@telekom.de. Saturdays and Sundays are not deemed to be weekdays.

16.2

The right to termination for cause without notice shall not be affected. Telekom considers default of the Customer and therefore grounds for termination for cause to exist if the Customer does substantially not fulfill its obligations specified in these GT&Cs.

16.3

After termination of the agreement, the Customer shall be entitled to reimbursement of any remaining credit purchased or topped up against payment. Credit provided free of charge by Telekom (credit given as a gift) shall not be reimbursed.

17. Data protection

17.1

To the extend Telekom processes personal data of the customer on its own behalf as a controller, this data privacy notice shall apply. If the customer commissioned Telekom with the processing of personal data on behalf of the customer, the customer is obligate to inform Telekom accordingly. In this case customer and Telekom shall enter into a standard data processing agreement of Telekom.

17.2

The customer must ensure that the necessary legal requirements for data protection are met, including, but not limited to obtain the respective consent of the data subjects.

18. Miscellaneous

18.1

The contractual relations shall be governed by German law. Place of jurisdiction shall be Bonn, Germany.

18.2

If the Customer, in turn, uses the contractually agreed services to provide telecommunications services for the public, the "Additional Terms and Conditions for Providers of Telecommunications Services for the Public" shall also apply.

18.3

The Customer shall not be entitled to transfer the rights and obligations under this agreement to a third party without the prior written consent of Telekom.

18.4

If the Customer intends to initiate arbitration proceedings with the Federal Network Agency (Bundesnetzagentur) in the event of a dispute with Telekom concerning any of the cases specified in § 68 TKG, it must file an application to this effect with the Federal Network Agency in Bonn.

18.5

Telekom shall be entitled to provide the services by subcontracting work to third parties (subcontractors). Telekom is liable for any services provided by subcontractors to the same extent that it is liable for its own actions.

General Terms and Conditions last revised: December 14, 2022