WhatsBroadcast GmbH (limited liability company), Herzog-Heinrich-Str. 9, 80336 München, Germany (“WhatsBroadcast“), is the developer and owner of the exclusive right of use of the digital publishing platform WhatsBroadcast (“platform“), which enables the distribution of digital content to end clients via messenger platforms (such as WhatsApp, Facebook Messenger, Insta or Telegram).
WhatsBroadcast is not connected to the company WhatsApp (WhatsApp Inc., 650 Castro Street, Suite 120-219, Mountain View, California, 94041, USA) or any other operating company of messenger platforms. There are no particular contractual relationships between WhatsBroadcast and the messenger platforms regarding the supply of services on the part of WhatsBroadcast to its clients.
WhatsBroadcast requires the services of the messenger platforms for the delivery of its services to the clients. Therefore, modifications on the part of these messenger platforms may affect and even prevent the services of WhatsBroadcast. WhatsBroadcast has no influence over either the delivery of services by the messenger platforms or their technical configuration.
This means that a situation may occur in which WhatsBroadcast is able provide its services to its clients only to a limited extent or not at all. In such circumstances, WhatsBroadcast and the client each has an exceptional right right to terminate.
1. RANGE OF APPLICATION; NO USE FOR INDIVIDUAL CONSUMERS
1.1 These general terms and conditions (“terms and conditions“) apply to all contracts made between WhatsBroadcast and its clients (“clients“) regarding the use of the platform (“usage agreement “).
1.2 The application of a client’s own terms and conditions is excluded. Deviating, opposing or complementary terms and conditions of a client will only be incorporated into the contract when expressly approved in writing by WhatsBroadcast. This approval requirement applies in each case, including, for example, when WhatsBroadcast, in full awareness of the client’s terms and conditions, unconditionally accepts payment from such client.
1.3 WhatsBroadcast only makes this platform available on these terms and conditions to clients who are not individual consumers according to § 13 German Civil Code. The use of the platform is therefore not permitted if neither a commercial trade nor self-employed professional activities can be attributed to a client.
1.4 The agreed scope of platform usage, including, as applicable, agreed supplemental services, the commencement of the term of ongoing activities, payment and any further applicable services, will be set out either through booking a self-service offer via our website or via a separate order form concluded with the client for each publication.
1.5 Insofar as clauses of the order form conflict with particular clauses of these terms and conditions, the clauses of the order form take precedence.
2. FUNCTIONALITY OF THE PLATFORM
2.1 The client is able to configure and administer its digital media content (“media content”) for usage on smartphones and tablets (together: “devices”) via the platform.
2.2 The client is able to digitally distribute its existing media content as individual messages to end clients.
2.3 WhatsBroadcast provides the platform to the client as technical infrastructure. WhatsBroadcast will not provide content of its own.
2.4 WhatsBroadcast provides the platform on WhatsBroadcast’s server for use on access point of the data processing service center (“transit station of the service“). In order to utilise the platform, the client must have its own access to the Internet and thereby access the link to the service.
2.5 The platform is available 99% of the time. The availability signifies, in relation to the duration of a contract year, the ratio of the period for which the client was able to access the platform with existing Internet connection (including the period in which access was unavailable due to intended maintenance work or due to incidents over which WhatsBroadcast has no control) to the length of the entire contract year.
2.6 WhatsBroadcast uses the service of messenger platforms like WhatsApp but has no influence whatsoever either on their technical and contractual configuration or the scope of services provided by such messenger platforms. The messenger platforms may at any time modify or even terminate their scope of services which may therefore prevent the operations of WhatsBroadcast.
2.7 It is agreed between the parties that restrictions to the service, caused by modifications on part of the messenger platforms, may lead to the modification of the services or the termination of such on the part of WhatsBroadcast. The client and WhatsBroadcast each has an exceptional right to terminate in this particular case. Upon termination, WhatsBroadcast will be freed from its contractual obligation towards the client.
2.8 In the event that WhatsApp only blocks individual SIM-cards from its service, WhatsBroadcast will let the affected client know and continue to provide its service via new SIM-cards. Recipients of messages who were assigned to the now blocked number will need to actively re-register for the service. The corresponding communication with recipients is a responsibility of the client and not of WhatsBroadcast. This applies equally to other messenger platforms.
2.9 All further functionalities and system requirements of the platform result from the specification of services or the current status of the self-service interface valid at the time the contract was made or the order placed.
3. RIGHT OF USE OF THE PLATFORM
3.1 WhatsBroadcast provides its clients with a geographically unrestricted, non-exclusive and non-transferable right to use the platform solely for the fulfilment of the purpose of the respective usage agreement. The right of use ceases to exist after the expiration of the contract.
3.2 The client is not permitted (i) to rent out, lease, lend, reproduce, resell the platform or the access to such or distribute or pass it on in any other way either via the Internet or any other downstream public or private data network; (ii) to use the platform to develop other activities; (iii) to activate and use the functionalities of the platform of which the client has not been conceded rights of use; (iv) to transmit the right of use of the platform to third parties or allow the access to the platform by third parties; (v) to change, translate, duplicate, decompile or investigate the functions of the source code of the platform except unless obligatory by law as permitted in accordance with § 69d or § 69e German Copyright Law; as well as (vi) to eliminate, disguise or modify legal information especially in regards to WhatsBroadcast’s intellectual property rights.
4. SUPPORT SERVICES
4.1 WhatsBroadcast provides certain support services to its clients free of charge. The extent of those results from the assignment of the mission.
4.2 Other support services, requested by the client, will be invoiced by WhatsBroadcast to the client on a time and material basis. These include particular consulting and technical services. The client will be informed and its written consent obtained before any such costs are incurred.
5.1 Payment for the services is on the basis of WhatsBroadcast’s currently valid prices and order forms. WhatsBroadcast accepts the payment details, which appear in the individual client’s WhatsBroadcast account.
5.2 WhatsBroadcast may change its prices in each case with the next contract extension. The client will be advised in written form at least four weeks in advance in case of modified prices. In the case of any price increase, the client shall be entitled to terminate the contract within a period of not less than 2 weeks prior to the end of the not yet extended contract. Otherwise the increase in prices will be effective for the next extension of the contract.
5.3 Invoicing will be carried out electronically unless otherwise specified. The invoice will be sent via WhatsBroadcast’s access to the client.
5.4 Regular payments during the contract period shall be made in advance. Usage-dependent payments will be billed monthly after service provision. Invoices are due upon billing and payable within 10 days.
5.5 All agreed payments are net amounts and VAT, if applicable, shall be added at the statutory rate.
5.6 A counterclaim by the client or the withholding of payments owing to such claims is valid only inasmuch as the counterclaims are undisputed or established as final and absolute.
5.7 Any objection to invoices is to be raised directly to WhatsBroadcast in written form within a period of four weeks after the date of issue of the invoice; the invoice is otherwise deemed to be approved. Legal claims by the client remain unaffected if claimed after the period has lapsed.
5.8 The enforcement of the right of retention and the right to refuse performance remains reserved.
5.9 In case of any unjustified delay in payment by the client, WhatsBroadcast is entitled to claim interest on account of delay in the statutory amount (at present 8 percentage points above the Bundesbank base rate).
6. A CLIENT’S OBLIGATION TO CO-OPERATE; LICENCE; THIRD PARTY RIGHTS
6.1 The client grants WhatsBroadcast the non-exclusive, non-permanent and geographically restricted right to duplicate, modify, transmit and if applicable any other use of the media content only insofar as this is required in order to fulfil the contractual obligations of WhatsBroadcast.
6.2 The customer agrees to be mentioned as a reference customer by WhatsBroadcast.
6.3 The client warrants (i) that it is the holder of all requisite rights of media content in order to grant WhatsBroadcast the rights specified above, (ii) that the client is entitled to freely dispose of these and (iii) that the media content is not burdened by rights of third parties.
6.4 The client undertakes that while using the platform it will not save on WhatsBroadcast’s servers and/or require WhatsBroadcast to save any illegal content or content violating the law or the licensing requirements and orders, especially content which advocates violence, is unconstitutional or pornographic according to § 4 para.1 No. 10 German Interstate Treaty for the Protection of Minors in the Media and any other illegitimate proposals as of § 4 para. 1, para. 2 German Interstate Treaty for the Protection of Minors in the Media.
6.5 Notwithstanding other rights, the client shall indemnify WhatsBroadcast in respect of any liability towards third parties, including reasonable legal expenses if the client is in breach of the preceding warranties and undertakings set out in this clause 6, provided that WhatsBroadcast shall notify the client of any such third party claim and shall not settle any such claim without the written consent of the client.
6.6 WhatsBroadcast is further entitled to delete content which does not conform with clauses 6.1, 6.3, or 6.4 if the client refuses to delete these even after having been requested to do so.
6.7 The client is aware that WhatsBroadcast does not generate a separate backup copy of the media content and will delete the media content in accordance with clause 6.5 and, after expiry of the contract term, in accordance with clause 10.6. The client is responsible for independently creating backup copies of the media content.
7.1 Regarding defects of the platform, §§ 536 et seq. German Civil Code are generally applied. The liability regardless of negligence or fault is excluded for initial defects. The fault-based liability of WhatsBroadcast is not excluded. In establishing liability, the client acknowledges that software cannot be created completely error-free.
7.2 The rectification of defects occurs at WhatsBroadcast’s own choice either through rectification of the defect at no charge or replacement.
7.3 A client’s cancellation as of § 543 para. 2 S. 1 No. 1 German Civil Code on grounds of refusal to grant contractual usage is only permitted if WhatsBroadcast has been with sufficient opportunity to rectify the defect and has failed so to do.
7.4 WhatsBroadcast does not warrant either the client’s or its end customer’s access to the Internet, especially the availability and dimension of the access to Internet. The client itself is responsible for the access to Internet at the point of transfer of the service.
8.1 WhatsBroadcast is subject to unlimited liability concerning defects which violate life, body or health insofar as they result on a neglect of duty on the part of WhatsBroadcast, a legal representative or a vicarious agent of WhatsBroadcast as well as for defects resulting from the absence of one of WhatsBroadcast’s guaranteed conditions or in case of fraudulent behavior of WhatsBroadcast.
8.2 WhatsBroadcast is subject to unlimited liability concerning defects, which have been caused deliberately or through gross negligence by WhatsBroadcast, a legal representative or a vicarious agent of WhatsBroadcast.
8.3 In the case of breaches of material contractual obligations caused by negligence, WhatsBroadcast’s liability is limited to reasonably foreseeable contractual damages except for the case of clauses 8.1, 8.2 or 8.4. Material contractual obligations are those duties, whose completion, in the first place, enable the due implementation of a contract and on whose compliance the parties to a contract may generally rely.
8.4 The liability according to the law on product liability remains unaffected.
8.5 Except as specified in these terms and conditions, any liability of WhatsBroadcast is excluded.
8.6 The statutory period of limitation regarding client claims for damages against WhatsBroadcast amounts to a year except in the cases of clauses 8.1, 8.2 or 8.4.
9. PROTECTION OF DATA PRIVACY
9.1 WhatsBroadcast expressly points out to the client that the protection of data privacy and data security for data transmission cannot be guaranteed in the current state of technology in open networks like the Internet. WhatsBroadcast has taken all technical and organizational measures in accordance with law in order to protect all personal data saved by WhatsBroadcast from abuse and unauthorized access. However, especially through the data transmission over the Internet, third parties are beyond the scope of responsibilities of WhatsBroadcast and may possibly have the ability to monitor the communication traffic unauthorized.
9.2 The client is responsible for safeguarding the privacy-compliant use of WhatsBroadcast by the end customer.
10. CONTRACT DURATION; TERMINATION OF ACCESS
10.1 The client is permitted to utilize the platform for the period of contract duration. The contract duration starts with the date of assignment.
10.2 If not agreed otherwise, the minimum term of contract is one month. The licence contract automatically renews for another month after termination of the minimum term of contract unless cancelled by either party not less than five working days prior to termination of the monthly contract. The right to termination without notice as expressly permitted in these terms and conditions remains unaffected.
10.3 WhatsBroadcast has the right to terminate without notice for cause notably in the following cases: (i) the client becomes insolvent or overindebted; (ii) a petition is filed to open insolvency proceedings of the client’s assets (in which case the provisions of §112 German Insolvency Law, to the extent applicable, remain unaffected), or (iii) the client is in default with the payment of an agreed amount or a significant part thereof within two consecutive months or, for a period of time amounting to more than two months, is in default with the payment of the contractual amount of an amount equivalent to two consecutive months’ payments.
10.4 The client has the right to terminate without notice for cause if (i) WhatsBroadcast becomes insolvent or overindebted; or (ii) a petition is filed to open insolvency proceedings of WhatsBroadcast’s assets (in which case the provisions of §112 German Insolvency Law remain unaffected).
10.5 Notice of termination must always be in writing (post or email).
10.6 After termination of the contract duration, the client is unable to access the platform and the media content – subject to an extension of the contract or the renewed closing of a usage agreement – and the media content will be deleted from the platform by WhatsBroadcast. The media content, which has been saved on the platform by the client, along with all personal data of which the client is the data controller, will be ultimately deleted by WhatsBroadcast latest one month after termination of the contract.
11.1 The parties are bound to not make any confidential information accessible to third parties during and for a period of two years after the ending of the contract and to not use the confidential information for purposes, which are not serving the purpose of the agreement. Regarded as confidential are (i) all information regarding payment agreed between the parties, (ii) all information regarding the contract duration, (iii) all technical information as well as know-how that has been made accessible to the client, as well as (iv) any other information, which has been marked confidential on part of either of the parties or may, by its content, be reasonably regarded as confidential.
11.2 The obligations of confidentiality do not refer to information, which has been publicly announced or which has been known by either party out in the open, or which are required to be made accessible to third parties due to legal, judicial or governmental regulations.
12. MODIFICATIONS OF TERMS AND CONDITIONS
12.1 WhatsBroadcast reserves the right to modify its provided services, as well as terms and conditions insofar as respective modifications are necessary in order to display changes, which have not been foreseeable when placing the order and whose non-observance would affect the contractual balance between WhatsBroadcast and the client, especially insofar as WhatsBroadcast (i) is obliged to establish a consensus between the service and the applicable law, especially in case of amendments of the effective legal status; and/or (ii) thereby complies with a verdict or final judgment of authorities against WhatsBroadcast, and/or (iii) needs to adapt the platform due to mandatory technical demands on part of WhatsApp or other messenger.
12.2 At no point in time will there be a limitation of the fulfillment of the main contractual obligations on part of WhatsBroadcast when modifying the service.
12.3 For all other cases than clause 12.1 WhatsBroadcast shall inform the client in advance about the modifications of the terms and conditions. Unless the client challenges the validity of such modifications within four weeks after receipt of the notification of modifications, the modification will be seen as accepted with effect for the future. If the client challenges the modifications, WhatsBroadcast is entitled to terminate the contractual relationship. In its notification, WhatsBroadcast will draw the client’s attention to the effect of silence and the right of termination.
12.4 Any modification regarding the object of agreement and the principal liabilities, which would lead to a modification of the contractual arrangement altogether is excluded from the right of modification under clause 12.3. In any such cases, WhatsBroadcast shall inform the client of the intended modifications and offer a continuation of the contractual relationship in accordance with the modified conditions.
13.1 The arranged agreements between the parties, as well as these terms and conditions are subject to the substantive law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and the private international law.
13.2 The exclusive jurisdiction is Munich, Germany.
13.3 In case of present or expected invalidity of one or more of these terms and conditions, the validity of the other arrangements will not be affected.
13.5 Client may not, without the prior written approval of WhatsBroadcast, either permanently or temporarily transfer any rights and duties of the usage agreement to any third parties.