General terms and conditions of REA Mobile AG for the usage of REA Mobile Services for service transactions and billing of services via mobile telephones (»mobiles«)
Preamble
REA Mobile AG offers a service (referred to in the following as »REA Mobile Services«), which enable registered customers (referred to in the following as »users«) to purchase goods (e.g. mobile entry tickets) or to pay for the use of services (e.g. use of car parking facilities, use of public means of transport) by using the REA Mobile Application on his mobile phone. In the name of and with authorization of the communities linked to the REA Mobile System, other public institutions and service companies, REA Mobile will provide cashless billing and collection of due fees and purchase costs from Users. Billing is implemented via a user account which is created for each user at REA Mobile AG.
By accepting these general terms and conditions, the user expressly acknowledges understanding of this billing and collection practice. He or she expressly grants approval by accepting these general terms and conditions.
Each user can view his user account at any time and offset any due amounts (»Postpaid«) or establish a credit balance (»Prepaid«) by transferring funds through direct debit, direct transfer from a bank account or with a credit card. By confirming a transaction through inputting his REA Mobile PIN in the REA Mobile application, the user authorizes REA Mobile AG to charge the fees or purchase costs laid out in the respective tariffs or price lists to his user account at REA Mobile AG. Usage of the service is only possible after corresponding remuneration of the car park account; according to present laws in Germany, the fees are payable before a public parking space is used. After the maximum permitted parking time has been exceeded, the parking process is canceled and the user informed. The arising parking fees are then charged. Remittance is sent periodically to the relevant provider for all fees or purchase costs billed through REA Mobile AG. Payments are handled by financial service providers who have been approved by the German Federal Banking Supervisory Office (Bundesaufsichtsamt für das Kreditwesen, BAKred) to perform the corresponding payment methods. All agreements between REA Mobile AG and users are made on the exclusive basis of these general terms and conditions. These general terms and conditions take precedence over any general terms and conditions of the user or intermediaries. Contractual terms and conditions which differ from these general terms and conditions shall only become part of the contract with the user if they are documented in writing and legally undersigned by both parties. The content of brochures, advertisements etc. from REA Mobile AG is not part of the contract, unless express reference is made in writing to such documents.
The user has the right to object in writing to any changes or additions to these general terms and conditions within a period of six weeks.
1. Registration and cancellation
In order to use the REA Mobile Service, a user needs to register in writing, disclosing his mobile telephone number, data for his user account and the preferred method of payment. No right to registration exists. Registration itself is free, and is performed in response to a request made by the user at the REA Mobile website. Users are generally allowed to open more than one user account. A contract relating to the use of the REA Mobile Service (referred to in the following as the »license agreement«) comes into force between REA Mobile AG and the user once the registration has been confirmed. REA Mobile Service can be used by legal entities and contractually capable persons. Underage persons in particular are not permitted to use the REA Mobile Service. REA Mobile AG reserves the right to make changes to the pricing model. Users may cancel the license agreement in writing at any time with immediate effect and without notice either by registered mail/fax or by sending an e-mail to info@rea-mobile.de. On the other hand, REA Mobile AG may cancel the license agreement at any time with a 14-day period of notice by issuing a statutory notice of termination through the post, by fax or by e-mail, respectively to the last address, fax number or e-mail address provided by the user. REA Mobile AG is entitled to terminate the license agreement extraordinarily with immediate effect if serious grounds are given, according to which a continuation of the contract would be unacceptable due to loss of trust or due to loss of the implicit basis of the contract. Such serious grounds are given in particular if the user uses false data to register, a direct debit payment is returned and canceled, the user violates the rights of third parties in conjunction with his use of the REA Mobile Service, abuses the services of REA Mobile AG or insolvency proceedings are brought against the user or simply rejected due to a lack of assets. In the event of termination of the license agreement the user account is deactivated and any remaining credit balance is transferred to the user. From this point onward the REA Mobile Service can no longer be used.
2. Duty of the user to supply information
The user agrees to immediately inform REA Mobile AG in writing if there are any changes to any of his details which are relevant in terms of the contract. This applies in particular to changes to the billing address, bank account details, mobile telephone number(s) and if the phone contract is passed on to a third party. If the user fails to supply the required information then REA Mobile AG is entitled to charge the user for any additional expenses incurred by REA Mobile AG or by the contracted company as a result of involving a financial service provider (as well as any costs associated with obtaining the relevant information). If the user fails to notify REA Mobile AG about a change of address and the user fails to receive legally significant statements sent by REA Mobile AG to the last notified address then such declarations are still deemed to have been received.
3. Duty of the user to take due care
The personal identification number (REA Mobile PIN) which is chosen by the user during registration and can be changed by the user at any time must be kept secret by the user at all times. The same applies to the REA Mobile password. The REA Mobile-PIN and the REA Mobile password should be changed from time to time. The REA Mobile password is required in order to access the personal user account via the REA Mobile website. If the user notices that his user account has been misused then he is obliged to inform REA Mobile AG immediately so that the user account can be blocked. The user is not liable for any damages resulting from misuse of his account after REA Mobile AG have received notification of the misuse. In this case the user account of the user will not be charged. The liability of the user for damages resulting from misuse before the problem is reported to REA Mobile AG is limited to a maximum of EURO 400.00. However, this liability does not apply if the user can prove that he has not acted deliberately or with gross negligence in relation to his duty to exercise due care, in particular in respect of the duties outlined above.
4. Dishonoring of direct debits
In the event that a direct debit is not honored, REA Mobile AG is expressly entitled to pass on the known address, name, date of birth and bank details of the user to the contracting company, so that the contracting company can pass on the demand if necessary to a debt collection agency or a solicitor for recovery. REA Mobile AG is entitled to charge to the user any bank charges incurred as a result of the user’s failure to honor a direct debit. By acknowledging these general terms and conditions the user declares his express agreement with this process.
5. Data protection and data protection legislation
REA Mobile AG will acquire and process the data provided voluntarily by the user during registration relating to his own person as well as any other personal data which are brought to the attention of REA Mobile by the user himself or by third parties during the course of the contractual agreement in order to verify the identity, legal and contractual capability of the user. The user expressly agrees that his personal data will be stored and processed in an automated system for the purpose of lawful fulfillment of the contractual relationship. REA Mobile AG will handle the personal data of the user in accordance with the data protection laws which apply in Germany. The personal data will be treated confidentially by REA Mobile AG and only used for the purpose of providing the REA Mobile Services. They will not be passed on to third parties. During the course of the due settling of fees with the contracting companies, said companies will be given access to the transaction data listed below as and when required in order to perform controls and checks: Name and address of the user, transaction date and time, type of service purchased, amount charged. By recognizing these general terms and conditions the use declares that he expressly agrees for his personal data to be exchanged between REA Mobile AG and the companies accepting the service. However, the user grants his express approval for master data and other personal data, which are significant in terms of identity and which are required for the purposes of credit searches and/or for the collection of debts, to be shared with creditor associations, banks or solicitors. This will only happen for the sole purpose of running a credit check on the user. REA Mobile AG cannot guarantee the security of information provided by the user. The user alone bears the risk of providing such information.
6. Liability of REA Mobile AG
REA Mobile AG accepts no responsibility or liability for constant availability of the REA Mobile Service, in particularly in relation to the availability of mobile phone networks and the functional integrity of mobile terminal devices. No liability is accepted for damages resulting from any non-availability of the REA Mobile Systems or from the truncation or mutilation of transmitted data, provided such damages are not caused by deliberate actions or gross negligence on the part of REA Mobile AG. REA Mobile AG accepts no liability for the services provided by the contracting companies. REA Mobile AG is liable in accordance with statutory requirements for damages which are caused by deliberate actions, gross negligence or culpable violation of substantial contractual obligations on the part of REA Mobile. In the event of gross negligence, the liability of REA Mobile is limited to the losses foreseeable and typical for this type of contract; this also applies in the case of non-grossly negligent violation of obligations on the part of legal representatives and vicarious agents. Liability on the grounds of culpable harm to life, body or health is unaffected, as is liability according to the German product liability act (»Produkthaftungsgesetz«), provided they cannot be legally excluded. REA Mobile AG accepts no liability to the user for services provided by the contracting companies, services provided by suppliers of payment systems or for services provided by any other third parties acting on behalf of the aforementioned.
7. Changes or additions to these general terms and conditions of business and other terms
REA Mobile AG reserves the right to change these general terms and conditions of business at any time and without justification. The user will be notified in writing of any changes or additions to these general terms and conditions. If the user has notified his e-mail address to REA Mobile Services then the notification of changes to the general terms and conditions may also be sent by e-mail. Newly received versions of the general terms and conditions are deemed to have been approved if the user does not declare any objections in writing within a period of one month. Minor alterations or other reasonable alterations to our contractual obligations are deemed to be approved in advance. In the event that any of the clauses in these general terms and conditions should be ineffective then the remaining terms and conditions will not be affected by this. The ineffective clause is to be understood to have been replaced by an equivalent clause which matches the intended meaning and purpose of the ineffective clause in legally binding fashion in the closest possible manner. The same applies to any gaps in the rulings. Verbal ancillary agreements are not valid. All changes or additions to the license agreement must be documented separately in writing.
8. Applicable law and place of jurisdiction
The contractual relationship is subject to German law. Application of the UN Convention on the Sale of Goods is excluded. The sole place of jurisdiction for any disputes arising from this contract is Darmstadt, provided the user is a businessman, a person of public law or a separate estate governed by public law.
Date: 31.08.2006
