Mobiteam

General Terms and Conditions of Business (GTB)

of Mobiteam AG (Service Provider), Hardturmstrasse 135, CH-8005 Zurich, with respect to the use of Internet, printed media, telephone services, SMS/MMS/WAP services and related services.

Contact: The Service Provider maintains a customer service department to deal with inquiries and complaints, which can be contacted from Monday to Friday between 9.00 and 17.00 hrs by calling 0848 800 200 (available within Switzerland) and by sending e-mails to: customer@mobiteam.com

1. Area of application and subject matter of the General Terms and Conditions of Business

   The following GTB shall apply to the legal relationship between customers and the Service Provider, as well as its contractual partners. The subject matter of these terms and conditions is the use of the services, SMS and MMS services, telephone services, short videos, photo services, printed media, subscriptions, ring tones, and all future mobile telephone and Internet applications which are made available to the customers for a charge, or free of charge, by the Service Provider and its contractors. The current and binding version of the GTB shall be published on the Internet at the aforementioned web address. A printed copy can be obtained free of charge from the Service Provider.

   These GTB shall form an integral part of the respective contract for use/telephone service contract.

   Customers' terms and conditions to the contrary shall not be valid, even if the Service Provider does not specifically object to them.

2. The Service Provider's services

   The Service Provider provides services in the areas of the Internet, printed media, telephone services, SMS/MMS/WAP and in related fields. With regard to services, the Service Provider offers customers the possibility of utilising various services provided by it. The Service Provider shall have the right to change the type, extent, price and terms of supply of the services provided by it at any time, and to block access to its services completely in the case of undue delay in payment, suspicion of misuse or for other reasons.

3. Sending of advertising, SMS and MMS messages

   By utilising one of the services provided by the Service Provider, the Customer revocably gives the Service Provider and its contractors the unrestricted and unlimited order to transmit advertising, offers and information of all kinds to his mobile telephone by SMS and MMS, and to have advertising, offers and information of all kinds sent to him by direct mail, i.e. by post, by e-mail and by any other way (so-called explicit OPT-IN). In this regard, the Service Provider and its contractors shall observe time limits, conditions, restrictions, provisions, regulations, guidelines, codes of practice, codes of conduct, contracts, agreements, usages, ordinances and bans otherwise applicable to sending advertising by SMS and MMS. The unlimited and unrestricted sending of SMS and MMS messages as well as the unlimited and unrestricted sending of advertising, offers and information of all kinds by post, by e-mail and by any other way shall be regarded as explicitly approved by the Customer; however, this can be terminated at any time, for example by calling the Service Provider (OPT-OUT). The advertising covered by this article shall not represent unwanted spam messages.

4. The Customer's obligations

   The Customer shall be obliged to take appropriate precautions against the misuse of his fixed-line network, Internet and mobile telephone connections by third parties. In the case of the loss of his mobile telephone as a result of leaving it behind or theft, the Customer shall be liable for the services utilised via his mobile telephone as long as the loss of the mobile telephone has not been notified to the telephone company. The Customer shall be obliged to notify the Service Provider, on request, of his current data, such as name and address and relevant changes, by e-mail, in writing or by fax. In any case the Customer shall have to assume responsibility for the use of his connection, passwords and codes. This shall also apply to the use of services for a charge, and in the case of the use or misuse of his communication equipment by third parties. The Customer shall have to keep all contractual data secret, such as his PIN code and other codes and passwords; in particular, he undertakes to keep the data in safe custody and not to make them accessible to anybody. In the case of disregarding this protective clause, he shall be liable for any damage resulting therefrom.

5. Conclusion of the contract

   The contract between the Customer and the Service Provider shall come into being informally through the utilisation of services, pursuant to Art. 4 par. 2 CO (Swiss Federal Code of Obligations). The specification and scope of services are defined by these present GTB and any possible individual agreements.

6. Prices

   The prices for all services made available by the Service Provider and its contractual partners shall be stated in the advertising. In the case of telephone services, the prices shall be announced before applying charges. There are cheap rates which, pursuant to Art. 11a par. 1 PAO (Price Announcement Ordinance), do not have to be announced. In the case of SMS and MMS services, the Customer shall be informed of the price by SMS. Changes in the Service Provider's prices and discounts shall be notified to the Customer in good time. Should the Customer be considerably disadvantaged by such a change, he shall be entitled to terminate the contract as of the entry into force of the new prices. This right of termination shall lapse with the entry into force of the new prices. Changes in tax or other decisive fiscal charge rates (changes in telephone companies' tariffs) shall entitle the Service Provider to adjust its rates without prior notice. In this case, the Customer shall not have any right of termination.

7. Payment terms

   The Customer undertakes to pay the amount owed by the due date stated in the invoice. In the case of very small invoice amounts, the Service Provider shall be entitled not to render an invoice until after further services have been utilised. If the Customer does not meet his obligation to pay within the term of payment, then with the expiration of this term he shall be in default, without any reminder, and shall have to pay interest on late payments of 5% p.a. The Service Provider shall be entitled to charge at least CHF 10.00 per reminder.

   If the payment fails to be made by the expiration of the term of payment, the Service Provider and its contractual partners shall be entitled to suspend or discontinue all services to the Customer without further notification.

   In the event of important reasons (e.g. unlawful use), the Service Provider shall have the right to discontinue all or some services and to terminate the corresponding contracts with the Customer without notice. This shall apply in the case of a rapidly rising accrual of charges justifying the assumption that the Customer will not pay the charges pursuant to the contract, and if there are justified doubts about the Customer's ability and willingness to pay. In such cases, instead of giving notice of termination, the Service Provider and its contractual partners can suspend the service.

   If a Customer's subscription is suspended prematurely due to misuse, then he shall have no right to reimbursement.

8. Use of contents

   The Customer may use the contents made available to him and the programs, live services, recorded services, Internet applications, flirt, contact and dating applications released for his use and all other services supplied by the Service Provider and its contractual partners for his own purposes only. Any passing on of the contents to third parties for a charge or free of charge is not permitted.

9. Intangible property right / Copyright / Data protection

   1. The web sites, illustrations, photos, drawings, comics, image sequences, contents, texts, trailers, teasers, video clips and other video material of the Service Provider and its contractual partners operated under the above web reference or under other labels are protected worldwide, with no restrictions in time and subject matter. All rights remain reserved.

      The Service Provider or the licensor which granted permission of use to the Service Provider shall be irrevocably entitled to all intangible property rights concerned. If a customer infringes third parties' licence rights in this connection, and the Service Provider is held liable for this, the customer shall have to indemnify the Service Provider.

      The downloading, storage and playing of the unchanged programs for one's own use shall be allowed in the meaning of these GTB. Any other use, in particular the passing on of the contents to third parties, is forbidden. Any commercial use of the contents made available is also prohibited.

      An infringement of the above provisions shall entitle the Service Provider and its contractual partners to make extraordinary termination of all the contracts concluded with the Customer. Claims for damages shall remain reserved.

   2. Any use of the works protected by copyright that goes beyond this shall require the prior consent in writing by the Service Provider. This shall apply in particular to:

      • copying contents onto additional data carriers, and
      • establishing systematic collections.

10. Liability and warranty

    1. The Service Provider and its contractual partners shall be obliged to render the contractually warranted services to the Customer. The warranty shall be restricted in accordance with the following subsections.

       The Customer pledges, in particular with respect to the rights of use granted to him regarding specialist applications, to comply with the terms of use drawn up by the Service Provider pursuant to licence agreements and these present GTB.

       No liability shall be assumed for the statements and particulars given in the advertisements, either by the Service Provider or by its partners. The advertisers are free, responsible persons and have not entered into any commitments. Neither the Service Provider nor its partners shall assume any guarantees for successful personal contact. It cannot be ruled out that some ladies live abroad and use a pseudonym for their own protection. It is likewise recommended to the Service Provider's customers that they use a pseudonym for their own protection.

    2. The Service Provider exempts itself, within the scope of what is legally permissible, i.e. with the exception of deliberate or grossly negligent action, from any liability and warranty which could arise in connection with the use of the contents by the Customer. This shall apply in particular to:

       • the truth content of the advertisements which advertisers, whether private persons or companies or others, publish in magazines, brochures, inserts, publications, the Internet and other media published by the Service Provider,
       • all third-party information that can be called up via links,
       • damage which could occur to the Customer's hardware and/or software through programs of the Service Provider or those granting rights to it,
       • the Customer's anonymity; that is to say that neither the Customer's address nor his telephone number or e-mail address can be viewed anywhere.

    3. Anyone who publishes adverts in web sites, magazines, Teletext pages or on other platforms of the Service Provider or its contractual partners, or responds to such advertisements, shall be obliged to comply with the following laws and provisions:

       • Data Protection Act (DPA)
       • Telecommunications Act (TA)
       • Price Announcement Ordinance (PAO)
       • Code of Obligations (CO)
       • and the Penal Code (PC).

       The following, in particular, shall be illegal:

       • Representations of violence (Art. 135 PC)
       • Call for violence (Art. 259 PC)
       • Racial discrimination (Art 261bis PC)
       • Illicit gambling in the meaning of the Casino Act or the Lottery Act
       • Offering pornographic services in the meaning of Art. 197 subsection 3 and 3bis PC (so-called hard pornography/excrement pornography).

       Such contents must also not be made accessible to adults who have inquired about a forbidden content of their own accord. It is strictly forbidden to publish photos, portrayals, image sequences, illustrations, sketches, drawings, comics, animations, trailers, videos, video clips, teasers, texts, adverts, posters, banners, links, SMS messages, MMS messages, e-mail messages, attachments, as well as representations or texts that refer to, or show, sexual acts with children or with animals, human excrements or acts of violence.

       On account of the restrictions which are imposed on the Service Provider by the Data Protection Act (DPA) and the Swiss Federal Constitution (FC), the Service Provider cannot assume any liability in the event that improperly acting providers advertise forbidden contents in the Service Provider's publications. Should the Service Provider establish that illegal information is being made available, it shall be entitled to exclude culpable customers from further utilisation of its services without notification. Should the Service Provider establish that advertisers offer, or make available, illegal contents to consumers, the Service Provider shall be entitled to report the offence to the police and to exclude the party responsible for the improper use from any further business relationship. The Service Provider shall act in the same manner if advertisers offend against the provisions pertaining to the age of protection.

11. Data protection

    1. Data storage and exploitation

       Upon registration of the Customer, data shall be stored to set up and manage his accounts. In addition to this, data may be stored by the Service Provider and third-party suppliers in the event of the Customer making use of any services on offer.

    2. Passing data on to third parties

       The Service Provider uses customer data to render the services on offer in conformity with the contract and the law, to cultivate the customer relationship, and to submit specific offers.

       The Customer declares his complete agreement to the storage and exploitation of his data. The Customer can forbid the use and processing of his data for marketing purposes at any time. A corresponding notification is to be addressed to the Service Provider in writing, quoting the customer number.

       If the Service Provider, together with third parties or through third parties, renders services to customers in Switzerland and abroad, it shall be entitled to make available all the customer data known to it. It is pointed out that in other countries the keeping, processing and passing on of personal data may be subject to legal provisions that differ from those applicable in Switzerland. The Service Provider can deliver customer data to public authorities, courts and also companies which are entrusted with the collection of debts or credit information, if the delivery is made for the purpose of asserting claims.

    3. Telephone and Internet misuse / Recordings

       When utilising the services provided by the Service Provider and its contractual partners, the Customer shall be obliged to comply with these present GTB, any possible agreements set out in individual contracts, as well as the legal regulations. In particular, the services must not be misused for the planning or carrying out of elements of an offence under criminal law. Any resale is forbidden.

       The Customer expressly agrees that telephone conversations (orders received) can be recorded to guarantee customer satisfaction and to ensure the correct processing of customer complaints about the services rendered, and that the exchange of SMS messages (connection data) may be recorded in logbooks. Such recordings may only be used in the case of customer complaints and in officially ordered proceedings. Any improper passing on of such data to third parties is not permitted.

12. Prohibition of set-off

    The Customer shall have no right to set off claims for damages (expenses) being asserted by him against open and due invoices of the Service Provider or its contractors.

13. Default

    After the expiration of the term of payment, interest on late payments amounting to 5% p.a. shall be due to the Service Provider, without any reminder being necessary for this (Art. 104 CO).

    Without any objection by the Customer, an invoice shall be regarded as accepted 10 days after being sent. If the Customer is in default with payment, the Service Provider can stop access to all its services, as well as to all its contractors' services, and/or withdraw from the contract without notice.

14. Failure of services

    If the rendering of services is disturbed, impaired, impeded, delayed or made impossible for the Service Provider or its contractors through force majeure, such as unrest, natural disasters and similar events, or through the failure of third-party services, or the failure of the hardware/software of the Service Provider or its contractors, the obligation by the Service Provider or its contractors to render services shall be suspended. Such failure shall not give a right to compensation.

15. Customer service

    The Service Provider shall maintain a customer service department in accordance with the contact details given above.

16. Amendment of the GENERAL TERMS AND CONDITIONS OF BUSINESS

    The Service Provider reserves the right to amend the GENERAL TERMS AND CONDITIONS OF BUSINESS at any time. Amendments shall be notified to the Customer in an appropriate manner.

17. Legal venue and applicable law

    The ordinary courts at the company's registered office shall have exclusive jurisdiction for disputes resulting from this legal relationship, subject to the reservation of diverging compulsory legal venues under Swiss Federal Law.

    Swiss Law shall be exclusively applicable to this legal relationship and the rights and obligations resulting therefrom, to the exclusion of referrals to the jurisdiction of other countries on the basis of international private law.