General Terms and Conditions
Developer Garden
(in the version from 25.05.2010)
1. Parties to the agreement
The agreement is concluded between Deutsche Telekom AG (hereinafter referred to as Deutsche Telekom), Friedrich-Ebert-Allee 140, 53113 Bonn, Germany, (registered with Bonn District Court HRB 6794) and the customer, who is an entrepreneur according to the definition in § 14 of the German Civil Code (BGB).
2. Subject matter of the agreement
1. The subject matter of this agreement is specified in these general terms and conditions, Apache License 2.0 and the service specifications, price lists and any additional conditions that apply to those services, which are part of this agreement. The above set forth service provision as well as the provision of software development kits provided by Deutsche Telekom.
Subject to technical and operational feasibility, Deutsche Telekom shall provide the following services with Developer Garden, :
– Provision of the Deutsche Telekom developer portal
– Provision of services for incorporation into customer applications
– Free-of-charge provision of software development kits to incorporate services into customer applications
– Free-of-charge provision of Beta software ¬versions (lab APIs) that are operated in test environments
and the service scope of which may be changed at any time.
Availability cannot be guaranteed for lab APIs.
These services shall be provided in connection with the German Telecommunications Act (TKG).
2. You need to have an Internet connection to use Developer Garden. This is not part of this agreement.
3. Establishment of the agreement
This agreement shall commence once the customer has registered and Deutsche Telekom has provided the services.
4. Rights of use
1. Software development kits
Deutsche Telekom shall grant the user the non-exclusive, transferable right free-of-charge to use the software development kits for the purpose of incorporation into the user's own applications, to modify said kits and to pass these on in the original or modified version free-of-charge to third parties.
All software development kits and the libraries integrated into them are subject to the Apache License 2.0 license terms and conditions. The Apache License 2.0 license text is included in the software development kit as a text file in English.
2. Services
The customer has the right to provide services to third parties in their own name and to invoice these services. However, the customer shall bear sole responsibility and answer to Deutsche Telekom for proper and appropriate use of said services. The customer shall pay any charges incurred by third parties who use these services with his consent.
5. The customer's duties and obligations
In particular, the customer shall have the following duties:
a) For any direct debit not honored or returned, the customer shall reimburse Deutsche Telekom for the costs incurred to the extent that the customer was responsible for the event giving rise to the costs.
b) The customer shall not make improper use of the services, in particular:
- The customer shall not send any legally prohibited and unsolicited information, material or other services, including unrequested and uninvited advertising by e-mail, fax, telephone or SMS, or illegal dialer programs.
- The customer shall not establish unlawful contact using telecommunications services(§ 238 of the German Penal Code [Strafgesetzbuch – StGB]).
- 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 of the German Penal Code (Strafgesetzbuch – StGB), incites hatred and violence against segments of the population, induces the commission of criminal offences or glorifies or trivializes violence, is sexually offensive, is pornographic as defined in § 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 Deutsche 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.
- The customer shall ensure that the use of individual functions and, in particular, the creation or sending of messages does not cause any disruption to Deutsche Telekom, other providers or any other third parties.
- The customer shall not establish calls that result in payments or other considerations from third parties to the customer.
- The customer shall observe national and international copyrights, trademark, patent, and name rights, as well as other industrial and personal rights of third parties.
c) Platform components and the Deutsche Telekom network may not be overloaded due to excessive use. In particular, the customer shall take the appropriate measures in his 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).
d) 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 should 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.
e) If the customer uses the Developer Garden services to collect, process or use personal data and there is no legal requirement in place regarding obtaining permission, the customer must first get permission from those providing the information. The customer is responsible for complying with the applicable requirements under data protection when using these services.
f) Deutsche Telekom and its agents shall be indemnified against all claims by third parties that are based on the illegal use of Developer Garden and the services connected with Developer Garden by the customer or with his consent, or which arise, in particular, from litigation involving data protection, copyright, or other laws in conjunction with the use of Developer Garden. 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 Deutsche Telekom without undue delay.
g) 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 his contractual obligation to Deutsche Telekom but also infringes upon the rights of third parties and therefore may also have to make compensation payments to third parties.
h) Customers using the Local Search service are under the obligation to integrate the graphic "powered by suchen.de" with a link to suchen.de on those Internet portals into which the Local Search function has been integrated or on which result records and linked result records are offered. Deutsche Telekom will provide the contracting party with this graphic in different sizes.
6. Usage in breach of contract
Deutsche Telekom reserves the right to block access to Developer Garden should the customer initiate an illegal violation against any of the 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 Deutsche Telekom an appropriate declaration with penalty clause stating that such violation will no longer occur.
7. Credit account
1. The customer can post credit onto an individual credit account provided by Deutsche Telekom by prepaying a specified amount. Credit will be booked as soon as it has been posted.
2. The customer can post credit onto his credit account at any time. The customer can use any post credit during the duration of this agreement by using the Developer Garden services subject to charge.
3. If using a credit card 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 will be charged after the specified amount has been posted on the credit account.
4. If the customer does not have anymore credit remaining on his credit account, the services will not be provided. The services will be released for use within 24 hours after the customer has posted more credit giving him a positive balance on his account.
8. Terms of payment
1. Charges are due upon service provision and will be booked from the customer's credit account.
2. Direct recharging services shall be due upon the successful completion of the recharging operation. Payment shall be made by credit card.
3. The customer may only offset undisputed or legally enforceable claims. The customer shall only be entitled to assert a right of retention for counterclaims arising from this contractual relationship.
9. Changes to General Terms and Conditions, Service Specifications and prices
1. If there is any price regulation, Deutsche Telekom shall be obligated to agree on only those prices or price-relevant elements of the General Terms and Conditions and Service Specifications that the German Federal Networks 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. Deutsche Telekom shall notify the customer in writing about any such changes.
In the event of an increase in price or other changes to the disadvantage of the customer, the customer may terminate the agreement effective from the time the change goes into effect. Deutsche 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.
2. If Deutsche Telekom intends any other changes to its General Terms and Conditions, Service Specifications or prices, the customer shall be notified in writing no later than six weeks prior to the effective date of the changes. Any amendment to the General Terms and Conditions or Service Specifications and any price increase shall entitle the customer to terminate the agreement without notice, effective from the time the change goes into effect.
Deutsche Telekom shall make specific reference to this special termination right in the change notification.
If the customer does not terminate the agreement in writing within six weeks after receipt of the change notification, the changes shall become part of the agreement effective from the time they enter into force.
10. Default
1. Deutsche Telekom has the right to block customer access to activated services if the customer is in arrears with his payments. If the customer fails to pay the outstanding amount by the specified deadline, despite a second request for payment, Deutsche Telekom may terminate the agreement without notice.
2. Deutsche Telekom reserves the right to assert any other claims arising from a default in payment.
11. Warranty
For software development kits and Sandbox
Deutsche Telekom and/or its license provider is/are not liable for functionality, particularly for any errors in the software development kits or whether or not these are appropriate for particular purposes or objectives, meet individual demands or function seamlessly without glitches.
Neither Deutsche Telekom nor its license provider guarantee that the software installation will be compatible with the customer's operating system or that it will not cause damage to said operating system.
Should the user experience data loss upon using the software, Deutsche Telekom is only liable for any resulting damages to the extent that the user has backed up his data in an appropriate form and at suitable intervals or at least once a day so that these can be recovered with a reasonable amount of effort.
Deutsche Telekom is only liable for damage to materials and defects of title in case of fraudulent concealment. The provisions set forth in Item 12 shall apply to any claims for damages.
12. Liability
1. Telecommunications services
Deutsche Telekom shall be liable in accordance with the provisions set forth in the TKG for any damage caused by the use of telecommunications services provided for the public.
2. Software development kits and Sandbox
Deutsche Telekom is fully liable for all damage caused by and attributable to use of the software development kit and Sandbox 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, Deutsche 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.
3. Other services
Deutsche Telekom shall be fully liable in cases of intent, gross negligence or the lack of a guaranteed feature.
In the event of slight negligence, Deutsche Telekom shall be fully liable in the case of injury to life, limb or health. If, as a result of slight negligence, Deutsche Telekom fails to perform its service on time, if it has become impossible to perform the service, or if Deutsche 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 this Agreement. This shall also apply to lost profit and unachieved savings.
An essential obligation shall be an obligation whose fulfillment is a prerequisite for the proper performance of the agreement, the infringement of which jeopardizes the achievement of the purpose of the agreement, and upon whose compliance the customer can normally rely. Liability for any less direct consequential damage due to defects shall be precluded.
In the event of a loss of data, Deutsche 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 Deutsche Telekom, this liability shall apply only if the customer properly backed up the data on a daily basis.
4. The limitation of liability contained in these terms and conditions shall not apply to claims under the German Product Liability Act.
13. Force majeure
1. Deutsche Telekom accepts no liability for occurrences of force majeure that significantly aggravate contractual performance or temporarily hamper or render impossible the due implementation of the agreement by Deutsche Telekom. Force majeure shall be deemed to include all circumstances that are independent of the intention and influence of the parties, such as natural disasters, governmental measures, decisions by authorities, blockades, war and other military conflicts, mobilization, internal unrest, terrorist attacks, strikes, lockouts and other work-related unrest, confiscation, embargoes or other circumstances that are unpredictable, serious and not attributable to the parties and that occur following the conclusion of this agreement.
2. If one of the parties is prevented from fulfilling their contractual obligations due to force majeure, this shall not be considered to be a violation of the agreement and the periods set out in the agreement or on the basis of the agreement shall be extended accordingly, depending on the duration of the impediment. The same shall apply if Deutsche Telekom depends on the service of a third party and this service is delayed as a result of force majeure.
14. Term and termination
1. The agreement for Developer Garden and individual services may be terminated by either party with effect from the end of any business day. For any termination to be effective, Deutsche Telekom or the customer must be notified in writing or by e-mail of said termination at least six business days prior to the date of termination. The customer should send a notice of termination via e-mail to the following address: info@developergarden.com. Saturdays are not deemed to be weekdays.
2. The customer can also order or cancel individual services electronically by selecting them using the command button specified for that service in Developer Garden. The service will then be released or canceled as quickly as possible. The customer will be sent an e-mail confirming that the service has been released or canceled.
3. Customers with access to free services through Sandbox may use these services until such time as Deutsche Telekom cancels them. Deutsche Telekom has the right to cancel assigned rights of use at any time without reason. Deutsche Telekom will deactivate access once a service has been canceled.
4. This shall be without prejudice to the right to terminate the agreement without notice and for good cause. In particular, Deutsche Telekom considers good cause to exist if the customer substantially infringes upon the obligations specified herein.
5. The contractual relationship regarding individual services shall also be terminated upon termination of an agreement for Developer Garden. Any data saved by the customer shall be deleted once termination has become effective.
15. Data protection
1. Whenever Deutsche Telekom processes personal data for the customer, Deutsche Telekom shall be entitled to outsource the processing of such data to subcontractors in Germany or abroad without the prior consent of the customer. The subcontractors shall process the personal data according to Deutsche Telekom's instructions only and implement data security measures that at least meet the standard Deutsche Telekom owes to its customers.
2. The customer must ensure that the necessary legal requirements for data privacy are met, particularly the requirement to inform affected parties accordingly.
3. Deutsche Telekom shall ensure a sufficient level of data privacy when working with subcontractors outside of the European Economic Area.
16. Other provisions
1. The contractual relations shall be governed by German law.
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 apply in addition.
3. The customer shall have the right to transfer the rights and obligations under this agreement to a third party only with the prior written consent of Deutsche Telekom.
4. A generally accessible, complete and valid price list is available on the Internet at www.telekom.de/agb.
5. If the customer intends to initiate arbitration proceedings with the Federal Network Agency in the event of a dispute with Deutsche Telekom concerning any of the cases specified in § 47a TKG, he must file an application to this effect with the Federal Network Agency in Bonn.
6. Deutsche Telekom shall be entitled to provide the services by subcontracting work to third parties (subcontractors). Deutsche Telekom shall be liable for any services provided by subcontractors to the same extent that it is liable for its own actions.
17. SPECIAL INSTRUCTIONS FOR UTILIZATION OF LAB APIS
With immediate effect, Developer Garden is offering so-called “Lab APIs” for use free of charge. These APIs are distinguished from commercial APIs through their experimental nature. The LAB APIs are technically hosted in laboratory or test environments of Deutsche Telekom for which no availabilities are guaranteed on the part of Developer Garden. Developer Garden reserves the right to take the Lab APIs out of operation for changes to their scope of performance, or to deactivate them altogether.
In addition, special regulations under data protection law apply to the use of the Lab APIs. As long as user data is stored within the framework of utilization of Lab APIs, these are to be classified as publicly accessible. The Lab APIs are therefore not generally suitable for utilization in connection with confidential information and user data.
Further stipulations specific to Lab APIs are regulated in the relevant section of the Developer Garden under Open API in the so-called “Additional Terms and Conditions” (e.g., “Additional Terms and Conditions Voice Record Lab API”). These must also be borne in mind by the developer.
If a developer offers a service developed by himself on the basis of the Lab APIs to third parties for their utilization, the developer is then obliged to instruct his users regarding the listed stipulations.
This translation is not the authentic text. The German version shall be part of the agreement.
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