General Terms and Conditions of Europe Online
Investments S.A.
45, Blvd. Pierre Frieden - L-1543 Luxembourg
1. General
These General Terms and Conditions of Contract
("General Terms and Conditions") will become an element of the legal
transactions between you (hereinafter referred to as "Customer") and Europe
Online Investments S.A. (hereinafter referred to as "Europe Online"). Europe
Online will perform all services and deliveries and make all performance, etc.
exclusively on the basis of the following General Terms and Conditions unless
other arrangements have been agreed in writing. You should therefore take the
time to read these General Terms and Conditions carefully.
2. Subject Matter of the Contract
2.1 Subject of Performance
Europe Online offers the Customer a unique experience
in interactive entertainment with, amongst other things, audio and video
streams in digital television quality and download opportunities. Through the
Services (defined below), the Customer can access electronically from the
Europe Online Web Site a range of content in the fields of music, film,
software, games and other areas offered from time to time by Europe Online to
its Customers.
In some countries, Internet access services are being
offered in addition to the services listed above.
Europe Online is dedicated to expanding the services
it offers. The expansion of services and programme offers will be provided to
the Customer electronically via the Europe Online Web Site. Some of these
expanded services may come on as an addition.
2.2 Scope of Performance
Europe Online will endeavor to provide the listed
services (hereinafter collectively referred to as "Services") to the best of
its ability within the scope of technical availability, provided the Services
or expansions of the Services have been ordered by the Customer or, if
applicable, have each been ordered separately, and the Customer has logged on
and registered himself pursuant to clause 3.1.
Europe Online does not offer the Services to merchants
within the meaning of the applicable commercial law and regulations, or to
minors.
Europe Online hereby expressly states that the
Services (particularly downloads and streaming as such) and the access to them
are provided via a combination of Internet and satellite or television cable
transmission routes terrestrial and terrestrial Internet backbone, the
availability of which Europe Online is unable to control. For this reason, the
continual and uninterrupted availability of the Services is not a part of the
contract entered into with the Customer. Europe Online is only obliged to
endeavour to the best of its ability to enable the accessibility of the
Services within the scope of technical and operational limitations. In any
event, maintenance periods shall not be taken into account when calculating
accessibility. To the maximum extendt possible, the Customer shall be informed
electronically in advance via the Europe Online Web Site of any maintenance
periods.
If the Customer has selected Internet access via
Europe Online, Europe Online will warrant Internet access to the Customer and
to various Services offered by Europe Online in accordance with these General
Terms and Conditions. Europe Online hereby expressly states that it does not
offer high speed Internet access as part of the Services.
The duty to render performance shall be limited to the
extent Europe Online is entitled to disconnect the Services (see clause 4.1) or
if the performance of the Services is impossible because of force majeure, in
which case clause 9 shall apply.
3. The Customer's Obligations and Duties of
Care
3.1 Personal Data
All of the information to be provided by the Customer
for the registration or use of Europe Online must be true, exact, up-to-date
and complete. The Customer shall inform Europe Online within one week of any
changes in the basic identifying data, credit card data and/or the debit
account number. The Customer is furthermore obliged not to give a false name
and not to provide any name he is not authorised to use. The provision of false
information when registering, the failure to update customer information or the
use of a false name by the Customer, entitles Europe Online to terminate this
Contract without notice.
3.2 System Requirements
In order to use the Services he has ordered, the
Customer must ensure at his own expense that the defined system requirements
exist and are in operation, including, but not limited to, satellite and
television cable connections, a modem or ISDN connection, access to the
telephone system and to an Internet access provider (to the extent Customer
does not make use of this service through Europe Online).
3.3 Protection of Minors
Express notice is hereby given that the Customer is
solely responsible for compliance with the laws, particularly the regulations
for the protection of minors, by persons receiving access to the System using
his password. The Customer must ensure in particular that persons under the age
of 18 are not given any access to content morally harmful to minors.
3.4 Responsibility for Own Content
The Customer shall assume the responsibility for all
content he transmits via Europe Online or the Services (including, but not
limited to, E-mails, newsgroup or chat Services).
3.5 No Viruses
The Customer agrees not to use Europe Online or the
Services in order to intentionally distribute computer viruses or similar
computer programmes (such as so-called "worms" or "Trojan horses") to third
parties.
3.6 No Illegal Content
The Customer agrees not to use Europe Online or the
Services to offer information with unlawful or immoral content, and in
particular not to transmit any information inciting racial hatred, glorifying
or trivializing violence, information which is sexually offensive,
pornographic, glorifying war, capable of causing serious moral harm to children
or teenagers or threatening their welfare. The Customer furthermore agrees not
to use Europe Online or the Services to offer to provide information which
could damage the reputation of Europe Online. The Customer also agrees to
refrain from accessing the aforementioned content, such as through links.
3.7 No Impairment of the Function of the
Services
The Customer is obliged not to use the Services in
any manner which could lead to a total or partial interruption, damage or
impaired performance of the Services or to an impairment of the effectiveness
or functionality of the Services in any other way.
3.8 No Infringement of the Rights of Third
Parties
The Customer is obliged not to use the Services in
any manner that could lead to the injury of a person, company or an
infringement of their rights. This shall include, without limitation, the
rights of third parties to their intellectual property and the confidentiality
of the knowledge concerning Europe Online and the functionality of the Services
within the scope of the contractual relationship.
3.9 Damage Caused by Third Parties
Should the Customer suffer damage through the use of
the Service caused to him by third parties without any liability on the part of
Europe Online on any legal grounds whatsoever, the Customer shall independently
file his own claims. No support of the Customer by Europe Online shall be given
in these cases. E-commerce transactions with third parties are conducted by the
Customer completely at his own risk and under his own responsibility.
3.10 Indemnification against Third-Party
Claims
The Customer agrees to indemnify Europe Online
against the claims of third parties of any kind resulting from the unlawfulness
of content transmitted by the Customer via the Services. The same shall apply
in the event of the infringement of the rights of third parties caused by the
Customer when using the Services, including, but not limited to, the
infringement of the intangible rights of third parties. In any event, the
indemnification obligation shall include the obligation to indemnify Europe
Online fully against the costs of its legal defense including, without
limitation, lawyers' and court fees.
3.11 Restrictive Covenants
The Customer is obliged not to undertake or
participate in particular in the following actions or solicit or promote such
actions or the participation therein:
- sending unwanted junk mail, or mass E-mails;
- sending chain letters or selling systems under a
pyramid scheme;
- sending mail bombs, that is, sending either very
long or a large number of E-mails with the intention of harassing the recipient
or making the systems of an Internet service provider incapable of receiving
other E-mails because they are overloaded;
- damaging a system or blocking its Internet access,
forging or blocking headers and/or addresses or carrying out other actions
whose purpose is to discredit or damage third parties;
- entering third parties onto E-mail lists if the
Customer does not have a specific authorization to do so;
- disclosing binary data (that is, data such as
pictures, audio clips, etc.) in news groups except for those which have been
set up especially for the disclosure of binary data;
- which interfere in the technical process of the
Services or interrupt the normal course of a communication.
3.12 Use of PIN and other Identifying Data
The Customer is obliged to log on using the Personal
Identification Number ("PIN") allocated to him together with the activation
code allocated to him. Thereafter, the Customer shall log on the Services using
the unique user name and password chosen by the Customer. The Customer is
responsible for the confidential treatment of the activation code, PIN, user
name and password. To the extent he discloses this information to third parties
(such as family members), he must tell them that this data is to be treated
confidentially and protected against misuse. In the event of the disclosure of
this data, the Customer must make the third parties aware of these General
Terms and Conditions, provide them with an opportunity to become familiar with
them and, furthermore, tell them that the use of the Services is only on the
basis of these General Terms and Conditions. The Customer bears the full
responsibility for all activities carried out under his activation code, PIN,
user name and password, including, but not limited to, the use by third parties
whether or not this use is authorized. Should the Customer allow another person
such as a minor the use of his access, he acknowledges that he is responsible
both for the online behaviour of the user and the consequences of any misuse.
The Customer shall inform Europe Online without undue delay in the event the
Customer becomes aware of the unauthorized use of the activation code, PIN,
user name or the password or in the case of any security breaches in respect of
this data.
3.13 Back-up Copies
The Customer is responsible for making his own
back-up copies of all content and files he receives in connection with Europe
Online or the Services. Europe Online is not responsible for the loss of
files.
4. Rights of Europe Online
Europe Online has in particular the following rights
in relation to the Customer. These rights shall exist without prejudice to any
other rights under applicable law or a separate agreement with the
Customer.
4.1 Right to Refuse to Make Performance/
Disconnection of Services
In the event that inexact, old or incomplete
identifying data is provided by the Customer, Europe Online shall have the
right to refuse to perform the Services.
Europe Online is entitled to refuse access to all or
part of the Services if the transmission of the calling line identity ("CLI")
of the telephone line used for the Services of Europe Online is blocked or
suppressed and it is not possible to track the use of Services which is not in accordance with contract or is unlawful or the use of Services
within the context of unlawful acts.
Europe Online is entitled to disconnect access to
part of the Services, including, but not limited to, access to the use of the
E-mail account if and to the extent the Services and particularly the E-mail
account are being used to store or transmit unlawful content or for other
objectively unlawful purposes. In this case Europe Online is entitled to
disclose the name and address of the Customer to any investigating government
agencies, courts or other government bodies in order to enable legal
prosecution.
Europe Online is entitled to refuse the provision of
Services for the duration of any default or arrears in payment of the Customer
in the amount of charges to the Customer of EUR 75.00 or more.
Europe Online is entitled to disconnect access to
parts of the Services if the use of this part by the Customer has been
excessive with respect to the downloading of large files, leaving large amounts
of E-mails on the central servers, etc. and the Customer is thus in breach to a
considerable extent of the interests of the other users of Europe Online or the
Services.
In the event of a disconnection of the Services for
any of the aforementioned reasons the Customer is obliged to pay the agreed
charges through the end of the then current term of the contract.
4.2 Notices
Europe Online is entitled to send all notices and
invoices concerning Europe Online or the Services to the subscribers by E-mail,
normal mail or fax to the address provided by the Customer on the application
form.
4.3 Links
Europe Online is entitled to make links available to
other providers. These links are third-party content.
5. Prices and Method of Payment
5.1 Calculation of Charges
Charges are calculated on the basis of the
subscription contract and, if required, the information agreed at a later time
for other Services. Any additional charges and fees for telephone connections
to the Internet access provider selected by the Customer (whether a third party
or Europe Online) and any third party Internet access fees shall be borne
separately by the Customer. They are not included in the subscription charges
for Europe Online.
5.2 Increase of Charges
Europe Online has the right to increase the charges
in accordance with clause 13.
5.3 Fixed Charges/Due Date
Fixed fees shall be paid by the
Customer in advance. They are due for the first time on the date the
subscription contract is concluded. Thereafter, the monthly fees shall be due
on the day of each subsequent month bearing the date of the day of the
conclusion of the subscription contract (e.g. June 10, July 10 etc.).
5.4 Variable Charges/ Due Date
Any additional fees for the so-called pay-per-view
programmes, additional services and e-commerce shall be due for payment at the
time at which the respective Service or programme was ordered or the e-commerce
transaction was consummated.
5.5 Default Interest
Should the Customer be in default of the payment of
fees which have become due, he shall be obliged to pay 5 % interest p.a. unless
the Customer is able to prove that Europe Online has incurred a lesser loss for
interest charges. The assertion of other claims, including, but not limited to,
the proof of a greater loss for interest charges, is not excluded under this
clause.
5.6 Return Debit
If the Customer has opted for the opportunity of to
pay by direct debit from Customers' bank account, and should payment not be
honoured by the credit institution of the Customer (return debit), Europe
Online shall be entitled to processing fees in the maximum amount of EUR 100.00
per return debit.
6. Warranties and Disclaimers
6.1 Europe Online does not warrant that the
Services comply with the requirements of the Customer or that they will be
provided at all times without interruption, on time, securely or free of
defects. Europe Online furthermore does not make any warranty in respect of the
freedom of the Services from defects, including, but not limited to, the
freedom of the Services or the servers providing them from computer viruses or
other harmful components.
6.2 The services of other providers (delivery
of goods and services or the like) are, for Europe Online, third party
services. Europe Online does not make any warranty in respect of the goods and
services of other providers purchased via Europe Online or the Services nor for
transactions handled via Europe Online or the Services.
6.3 In the event that links are provided
through Europe Online or the Services, Europe Online does not make any warranty
in respect of the availability of such external sites or resources. 6.4
Provided that Europe Online is not guilty of any fault for the loss of data or
content the Customer has received via Europe Online or the Services, Europe
Online does not make any warranty in respect of the existence or recovery of
such lost content or data.
7. Limitation of Liability
7.1 The Customer uses data transmission routes
of other providers for parts of the Services (particularly E-mail). Europe
Online does not assume any liability for the functioning of these data
transmission routes, nor is Europe Online liable for the loss of electricity or
the breakdown of servers not within Europe Online's control.
7.2 Provided it does not originate from Europe
Online, the information requested via the Services is not subject to control by
Europe Online. For Europe Online, this information is third party content. To
the extent Europe Online does not make this third party information its own
content by agreement with such third party, Europe Online shall not be liable
for the content of the third party information requested via Europe Online and
the Services. The same shall apply for links to third party content.
7.3 Provided Europe Online does not make third
party content its own by agreement with such third party, Europe Online shall
not be liable for any loss which may be incurred by Customer through the
offered outside content or its use.
7.4 The liability of Europe Online for any
information loaded up or down by the Customer or other users shall be excluded
to the extent Europe Online does not have positive knowledge of such
information and it is not technically reasonable or possible for Europe Online
to prevent this type of use. This shall apply equally whether such information
is being sent or received.
7.5 Europe Online does not assume any
liability for loss incurred by the Customer through the loss of data or content
transmitted to the Customer onto his storage media. The Customer has been
advised of his duty to secure his data (clause 3.13).
7.6 Europe Online does not assume any
liability for loss incurred by the Customer through the loss or misuse of his
password, his user name, his activation code, or his PIN.
7.7 The pre-contractual, contractual and
non-contractual liability of Europe Online shall only exist in cases of
intentional or grossly negligent behaviour on the part of Europe Online or its
servants and agents. For slight negligence Europe Online shall only be liable
in the event of the breach of material contractual obligations. In the event of
liability for slight negligence, the amount for claims to compensation for
pecuniary loss shall be limited to the extent of the foreseeable loss. To the
extent Europe Online performs telecommunications services within the meaning of
the applicable law, the limitations of liability under this clause 7.7 shall
apply to the extent they do not conflict with mandatory consumer protection
provisions under such applicable law; at the same time, the maximum liability
of Europe Online is limited to the amount provided for in such applicable
law.
8. Data Protection
8.1 The personal data of the Customer and the
data relevant to billing shall be stored in accordance with the applicable data
protection laws. For the sole purpose of processing the subscriber contract,
providing Customer support services and for billing the data of the Customer
can be disclosed to third parties. Otherwise, the personal data provided to
Europe Online shall not be disclosed to third parties without the consent of
the Customer.
8.2 To the extent, however, that requests by
government agencies or the courts for information are made under which there is
an obligation to disclose the identifying data, Europe Online will disclose
such personal data. This shall also apply in the case of an obligation to this
effect under applicable law.
8.3 Information on the Customer and his user
behaviour concerning Europe Online or the Services may be disclosed by Europe
Online to third parties for the purpose of market research and/or debt
collection if the Customer has given his consent and to the extent the Customer
has used or purchased such third partys' products or services through the
Europe Online Services and the information does not contain the name of the
Customer, his address, his electronic address, his telephone or fax number, or
his user name.
9. Force majeure
Europe Online is entitled to temporarily or
permanently alter the Services in the event that acts of God or other
circumstances for which Europe Online is not responsible require Europe Online
to do so. In this case the Customer shall not have any rights or claims against
Europe Online. In particular, Customer shall remain obliged to pay all fees. If
the download and stream Services are unavailable because of acts of God or
other circumstances for which Europe Online is not responsible, Europe Online
shall not be obliged to make performance.
If the performance of the Services is not possible
because of acts of God or other circumstances for which Europe Online is not
responsible, Europe Online shall be released from its obligation to make
performance.
10. Legal Relationship between Customer and third
party Providers
The correspondence between the Customer and third
party providers or retailer or the Customers' participation in the promotions
of providers or retailers through the Europe Online Web Site or the Services,
including the payment and delivery of any goods and services, as well as all
other business matters relating to such transactions, shall take place
exclusively between the Customer and such third party provider or retailer. In
such cases, contractual relationships shall be created exclusively between the
third party providers or retailers and the Customer. Europe Online shall not be
a party thereto.
11. Intellectual Property / License
11.1 All rights, including, but not limited
to, the rights to use and exploit the Services and content accessible through
the Europe Online Web Site under copyright law and the rights under trademarks
and intellectual property shall belong, in relation to the Customer,
exclusively to Europe Online, its licensees or other beneficiaries under law.
The Customer may only use this material with the express authorization of
Europe Online or its licensees and may not copy, reproduce, transmit,
disseminate or produce imitations thereof without express authorization.
Similarly, the Customer may not copy, reproduce, transmit or disseminate the
material or produce imitations thereof on a non-public network without express
authorization.
11.2 The material and the content within
Europe Online and the Services are intended exclusively for the personal use of
the Customer. The Customer may not disseminate or publicly use such material
and content. In addition, he may not assist third parties in such actions or
enable them to engage in such actions. Should the Customer become aware of such
dissemination or public use, he shall inform Europe Online thereof without
undue delay.
12. Term and Termination
12.1 The term of the contracts for the
individual Services shall be governed by the provisions on the specification of
services and/or in the subscription form.
12.2 In the case of contracts without a
minimum term, there shall be a right of termination with a notice period of 4
weeks to the end of the month.
12.3 In the case of contracts with a minimum
term, the contract can be terminated at the earliest upon the expiration of the
minimum term of contract. In this case the notice of termination must be
received by Europe Online at least four weeks prior to the day on which it is
meant to become effective. Thereafter, the individual contract term and notice
periods agreed in the subscription contract shall apply.
12.4 The notice of termination must be made to
Europe Online in any event in writing or by E-mail.
12.5 Both parties shall retain the right of
termination for cause. Cause entitling Europe Online to a termination shall
include, but is not limited to:
- the giving of incorrect identifying data by the
Customer;
- the fact that the Customer is a merchant, the
Services are used for commercial purposes or the Services are used within the
operation of a commercial enterprise;
- the default in payment by the Customer for a sum
in excess of one monthly payment or, in excess of EUR 75.00;
- the breach by the Customer of the Customer's
obligations pursuant to clauses 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.10, 3.11 and
3.12 of these General Terms and Conditions.
13. Miscellaneous
13.1 Changes in these General Terms and
Conditions shall be disclosed to the Customer in writing or by E-mail. Changes
to the detriment of the Customer shall be deemed to be approved if the Customer
does not raise any written objection. Europe Online shall advise him expressly
of this consequence when making the disclosure. The Customer must send his
objection within four weeks of the disclosure of the change to Europe Online.
If an objection has been raised, both parties shall have the right to terminate
the contract to the end of the next month of subscription.
13.2 Changes to the subscriber contract must
be made exclusively in writing. A change in this written form clause must also
be made in writing. Europe Online shall have satisfied the written form
requirement if the changes have been made available in a clearly visible manner
on the Web Site of Europe Online.
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