General Terms and Conditions of Kinza GmbH
§ 1 Applicability and Amendment
1.1 The following General Terms and Conditions (hereinafter referred to as "GTC") apply to all current and future services of Kinza GmbH. This shall apply even if, when doing follow-up business with the customer, Kinza GmbH does not refer again to these GTC.
1.2 Kinza GmbH renders services exclusively under these GTC, the service description, the software license agreement, and the prices that are quoted or that can be accessed at the Web site http://allo.kartina.tv (hereinafter referred to as "Web site").
1.3 Terms and conditions of the customer shall by no means become part of the agreement, even if Kinza GmbH does not expressly reject such. Rather, these GTC shall apply exclusively in all cases.
1.4 Notifications concerning the contractual relationship, especially amendments to these GTC or information about amendments may be sent by e-mail to the e-mail address specified by the customer or by SMS to the phone number specified by the customer.
1.5 Any amendments to the GTC, the service description, or the software license agreement will be submitted to the customer in the form of an offer. If the customer does not respond to the notification of the amendments or if he does not object within 6 weeks of the receipt of the amendment offer, an agreement will come into force at the amended conditions, provided that Kinza GmbH has expressly informed the customer of this consequence in the amendment offer.
1.6 When accessing the offer of Kinza GmbH with a mobile terminal device (e.g. mobile phone), the limitations of the display of this terminal device (e.g. due to the screen size) must be taken into consideration; if necessary, the data can be checked by using a standard-size computer screen (currently at least 17" screen diagonal).
1.7 By providing the contractual obligation, Kinza GmbH has the rights to chose the technical media, especially the technologies and the infrastructure. Kinza GmbH has the right to change the technical media, infrastructure, network provider and suppliers, as long as customers do not have justified rights against it. As far as possible, customer will have to contribute.
§ 2 Term and Termination
2.1 The agreement comes into force upon confirmation of the customer registration (framework agreement).
2.2 An individual agreement comes into force when the customer makes use of chargeable services. This is subject to the valid prices, which are announced before the telephone call.
2.3 Kinza GmbH shall be entitled to refuse the conclusion of an agreement or the provision of services if the customer gives incorrect information or if there are indications that he is unable or unwilling to comply with his obligations under the agreement.
2.4 In order to terminate the contract, customers have a notice period of 14 days prior to the end of each month. This is valid as long as not agreed in another way. The termination of the contract must be in written form.
2.5 Contract termination without notice is only possible with an important reason. This is e.g. possible for Kinza GmbH, when there is an assumption, that there is an abuse. Kinza GmbH has the right to block the customer with immediate effect, as long as there is no other regulation. If a violation is not reasonable, Kinza GmbH has the right to terminate all the services. Fot that, Kinza GmbH needs to issue warning.
2.6 In case of a termination for an important reason, Kinza GmbH to charge the amount from the price list. Customer has the obligation to prove that there is no or less damage for Kinza GmbH. Kinza GmbH may prove that there is a higher damage.
§ 3 Prices
3.1 The prices depend on the price information valid at the conclusion of the agreement. Currently, the call rates per time unit (minute) are announced before a connection is established and the announced rates are valid, not the rates on website.
3.2 The prices cover only the services rendered by Kinza GmbH. Costs incurred from calling the Kinza GmbH server are not included. Kinza GmbH has no influence on these costs, which result from the customer's agreement with his telecommunications provider. Kinza GmbH is not liable for any costs of other parties (providers).
3.3 The prices include the legal VAT.
3.4 The customer does not incur any costs by registering at the Kinza GmbH Web site.
3.5 Billing is done in 60 second increments with minimum call duration of 60 seconds.
3.6 Kinza GmbH is entitled in case of change of legal VAT, to change accordingly the prices from the moment effectiveness.
§ 4 Payments
4.1 Upon conclusion of the agreement, Kinza GmbH sets up a credit account for each registered customer.
4.2 Kinza GmbH provides its services on the basis of the credit of the customer transferred to this account.
4.3 The customer account can be filled by bank transfer, credit card, or PayPal service. To prevent misuse, credit card payments require the name of the cardholder to match the name registered at Kinza GmbH. Mistakes in connection with payments via bank transfer (incorrect phone number) shall be borne by the customer and may result in authorized use of the credit by third parties.
4.4 Payment claims of Kinza GmbH against the customer shall not be affected by objections of the contracting partners whom the customer engages for the payment.
4.5 If the customer uses the automatic refill option, he shall ensure an adequate account balance.
4.6 The amount to be paid is debited after using the exchange service of Kinza GmbH in 1-minute increments.
4.7 If the customer uses credit from special campaigns of Kinza GmbH (e.g. free start-up credit) in violation of the campaign terms and conditions (e.g. unauthorized multiple use), Kinza GmbH shall be entitled to debit the customer's credit after learning of this. Kinza GmbH reserves the right to assert further claims.
4.8 The customer may only assert objections against the debit transaction within 8 weeks of the debit transaction.
4.9 Kinza GmbH is under no obligation to produce evidence of services rendered or of individual calls if the data required for this are no longer available:
a) due to a statutory obligation;
b) because the customer had objected to the storage of the traffic data, or
c) because the customer has requested the deletion of the traffic data.
4.10 The contract can be cancelled if the quality of Kinza GmbH is below the average standard. If customer still has a balance upon termination of the framework agreement, it will be paid to a bank account specified by the customer upon written demand of the customer. The return of the unused funds will be minus any process, handling and bank charges.
4.11 If a chargeback occurs, Kinza GmbH will charge the price of the chargeback costs. Customer has to prove, that the price of the chargeback was lower or there was no charge at all.
4.12 Customers receive free credits on their account from Kinza GmbH. Customer may not receive this credit as a payment. The customer does not have a legal entitlement.
§ 5 Limitation of Services
5.1 When the customer's credit is used up, the active call is automatically interrupted. Therefore, the customer must ensure a sufficient account balance before making a call. Currently, an announcement is made to inform the customer of the impending interruption. Kinza GmbH reserves the right to suspend this service at all times without prior notice.
5.2 Technical requirements, e.g. of the Federal Network Agency (BNA) can result in changes in the services of Kinza GmbH.
5.3 The Flat Rate call plans are only for private usage. Should these call plans be used excessively or for ony other purposes, Kinza GmbH reservs the right to suspend this service at all times without prior notice.
5.4 Kinza GmbH has the right to disconnect the phone call after 60 minutes of talk, without announcing the disconnection.
§ 6 Warranties
6.1 Due to technical reasons, Kinza GmbH cannot guarantee perfect quality at all times.
6.2 The availability of the exchange services of the Kinza GmbH exchange amounts to an annual average of 97%.
6.3 Refund claims of the customer are limited as specified in sections 7.3, 7.5, 7.6 and 7.7.
6.4 The responsibility of Kinza GmbH pursuant to sections 7.1, 7.2, and 7.4 remains unaffected by the aforesaid provisions.
6.5 In case a complaint is not based on a mistake of Kinza GmbH and the customer should have known this, had he exercised due care, Kinza GmbH may charge a fee for the troubleshooting expenses incurred by Kinza GmbH. This expense fee will be calculated according to the required working time.
§ 7 Limitation of Liability
7.1 The liability of Kinza GmbH for culpable injury to life, body, and health is unlimited.
7.2 The liability of Kinza GmbH due to grossly negligent or intentional violation of obligations on the part of its employees, legal representatives, and agents is unlimited.
7.3 In the event of slight negligence, Kinza GmbH shall only be liable within the scope of material contractual obligations (compliance with which is of special significance for the achievement of the purpose of the agreement). In the event of slightly negligent violation of a material contractual obligations, the liability of Kinza GmbH shall be limited to EUR 500.
7.4 The liability under the German Product Liability Act (ProdHaftG) remains unlimited.
7.5 Should the customer lose data within the scope of the services of Kinza GmbH, Kinza GmbH will only assume liability for damages for which it is responsible to the extent that the customer has backed up his data at adequate intervals and in a suitable form so that these can be restored with an acceptable effort.
7.6 The liability of Kinza GmbH in the event of negligent damage according to Section 44 of the German Telecommunications Act (TKG) is limited to EUR 12,500 if the customer is a legal or natural person that does not operate public telecommunication networks or renders telecommunication services to the public ("end user").
7.7 The liability to the entirety of the customers according to Section 44a of the German Telecommunications Act (TKG) is limited to EUR 10,000,000 per damage-causing incident. If the amounts to be paid to several customers due to the same incident exceed the maximum limit, the compensation for damages shall be reduced in the proportion of the total of all damage compensation claims to the maximum limit. The limitation of liability shall not apply if the damaged was caused intentionally. Liability is in any case excluded.
§ 8 Obligations of the Customer
8.1 Anybody who knows the e-mail address and password can use the services of Kinza GmbH. Therefore, the customer shall exercise additional care in protecting the confidentiality of these data in order to prevent misuse.
8.2 If the customer knows or should have known, had he exercised due care, that his data are being misused, he shall report this to Kinza GmbH without delay.
8.3 The customer shall inform Kinza GmbH without delay in the event of a change of the e-mail address or of the bank account/credit card details for direct debits.
8.4 For direct debits, the customer shall ensure an adequate bank account balance.
8.5 The customer is not entitled to make calls that result in payments to the customer within the scope of the call.
8.6 Without the express written consent of Kinza GmbH, the customer is not entitled to commercially offer the exchange services of Kinza GmbH.
8.7 In the event of culpable violation of sections 8.4 and 8.5 by the customer, the customer shall pay Kinza GmbH a penalty of EUR 500. Kinza GmbH reserves the right to assert further damages.
§ 9 Data Protection, Data Processing
9.1 The agreement partner is hereby informed pursuant to Section 33 (1) of the Federal Data Protection Act (BDSG) that Kinza GmbH collects, processes, and uses personal data of its customers that are necessary for the setup and change of the customer agreements within the framework defined by legal provisions.
9.2 If Kinza GmbH engages third parties for the provision of the services offered, Kinza GmbH shall be entitled to disclose the subscriber data if this is necessary in order to render the service.
9.3 Kinza GmbH guarantees that all individuals whom Kinza GmbH entrusts with the provision of services know and observe the data protection regulations in their applicable form.
9.4 Kinza GmbH is authorized and under the obligation to store data for the setup, arrangement, change, or termination of the contractual relationship (master data). According to Section 95 (2) of the German Telecommunications Act (TKG), Kinza GmbH may use the master data to send the customer text or image messages (e.g. SMS/MMS) for consulting, advertising of own offers, and market research purposes. The customer may at all times object, in written or electronic form, to the transmission of these data. Kinza GmbH will only send such messages to the customer by e-mail if the customer has consented to this use.
9.5 Pursuant to Section 113a of the German Telecommunications Act (TKG), Kinza GmbH is under the obligation to store data collected, processed, or used in connection with the provision of its services (traffic data) for 6 months.
9.6 After logging in to Kinza GmbH customer account, the customer can review the calls made via Kinza GmbH at all times in his personal account (except during unavoidable maintenance or repair work). The call record specifies the time, the phone number dialled, and the cost of the call. The customer cannot demand more detailed information about the call. The customer is under the obligation to keep his access data secret (section 8.1 of these GTC) in order to prevent the traffic data from being disclosed to third parties.
9.7 The customer's call data may be stored and transmitted if this is necessary for billing purposes.
§ 10 Right of Revocation
You have the right to terminate the contract within 14 days, without stating any reason. The period of revocation starts with 14 days from the day, when you or a third person from your side, who is not a carrier, took the goods in possession. To practice your right of revocation, you have to write to: Kinza GmbH, Röderbergweg 118, 60385 Frankfurt am Main, Telefax: +496996744620, E-Mail: firstname.lastname@example.org with a clear statement (e.g. a post letter, fax or e-mail) about your decision to terminate the contract. You can use the empty form below. You need to fill it in with your details. To preserve the right of revocation, it is enough that you practice it before the deadline.
EFFECTS OF THE REVOCATION:
If you revoke this contract, we have the obligation to pay back your payments as soon as possible, but not later than 14 days, when we have received the notice of revocation for this contract. The same payment type will be used as during the payment, as long as not agreed for a different payment type. We won’t charge any fees for the payment. Please note: when you revoke a contract, it revokes the whole contract.
Form for revocation (please fill out and send it back to us):
Address: Kinza GmbH, Röderbergweg 118, 60385 Frankfurt am Main
I/we hereby revoke the contract about the provided services:
Name of consumer:
Address of customer:
Signature of customer:
Please cross out out inapplicable.
§ 11 Applicable Law, Severability
11.1 The entire legal relationship between Kinza GmbH and the customer shall be governed by German law. The provisions of the Introductory Act to the German Civil Code (EGBGB) concerning the applicable law shall only apply to the extent that this results in the application of German law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
11.2 Should any provision of these GTC or any provision in supplementary agreements be or become invalid, this shall not affect the validity of the other provisions.