Terms of Service

Special trading conditions for the use of the SMS service (aspsms.com) of VADIAN.NET AG. Status: May 2018

1. Scope

These trading conditions rule the contractual relation between VADIAN.NET AG, Katharinengasse 10, CH-9000 St. Gallen, (mentioned VADIAN.NET in the following) and the customer for the usage of the SMS service aspsms.com. VADIAN.NET provides these services exclusively on the basis of these terms of service.

2. Contractual relationship

(1) The contractual relationship between the customer and VADIAN.NET for the use of the SMS service is the result of the customers application and the acceptance by VADIAN.NET to the actual tariffs. As far as nothing different was agreed, application is accepted tacitly by the contribution of the service.

(2) The contractual relationship can be terminated by both contracting parties at any time in written form (by E-Mail, fax or letter). The remaining SMS volume can be returned chargeable.

(3) The right for extraordinary termination of the contractual relationship remains unaffected.

3. Services of VADIAN.NET

(1) The range of the contractual performances results out of the service specification of VADIAN.NET.

(2) VADIAN.NET reserves itself the right to extend the services and to make improvements after the current technical state of the art and under keeping of the entitled interests of the customer.

4. Obligations of the customer

(1) The customer agrees to not use the SMS service to transmit contents which fulfill in particular the following conditions:

a) suitability to be interpreted as defaming, deceptive, misleading, insulting, displeasing, pornographic, racist, glorifying violence, etc.;

b) menace or disconcertion of third.

(2) The customer is obligated to use the VADIAN.NET services properly and only in the context of the legality. It is in particular obligated,

a) not to abusively use access to VADIAN.NET services and to omit illegal actions;

b) to accommodate recognized principles of data security, especially to keep passwords secret etc., resp. to immediately arrange modifications, if the assumption exists that unauthorized thirds attained knowledge of this kind of access information;

c) to immediately report a recognizable lack or damage (failure report) and in the context of the reasonable make measures that one all measures meet, which facilitate and accelerate removal of the disturbance and enable an statement of the lack or damage and their causes to VADIAN.NET;

d) to immediately report each modification in the person of the customer, the name or the designation, under whom it led in the operating documents of VADIAN.NET.

e) ASPSMS offers the possibility of defining any Originator. If this feature is made available publicly, the customer is obligated to guarantee by appropriate authentication measures (E-Mail is not sufficient) that this feature is not abused. If a customer misses this, account can be closed or the Originator is adjusted to a fixed value by VADIAN.NET.

f) VADIAN.NET reserves itself the right to monitor the SMS Traffic with an automatic Spam-Pattern-Engine to detect misuse.

g) VADIAN.NET reserves itself the right to check self defined originators at random base to detect misuse (eg. Advertising for premium rate numbers).

5. Sending advertising contents

(1) It is basically forbidden to send advertising content. Exception: Advertising, which the final customer agrees to by Opt-In.

• An Opt-In is present if ...
  • there is a "proof of order", which states that the final customer has ordered and used a service.
  • the final customer has registered, e.g. by SMS, E-Mail or in written form (e.g. competition) to receive advertising content.
• Implicit Opt-In: If a final customer uses the same offer three times, this is implicitly assumed to be the customer's interest in the service.
• Opt-Out: The final customer must have the possibility to log him- or herself out of an advertising feed.

VADIAN.NET reserves itself the right to request at any time information about the Opt-In basis for an advertising feed.

(2) Illegal or immoral advertising content or advertisement for products violating the law, may not be sent, even if a valid Opt-In is present.

6. Suspension of the SMS service

(1) VADIAN.NET reserves itself the right to lock the service if the customer uses the service abusively, in particular in the sense of 4. or 5. and/or offends against valid right.

(2) For the own security of the customer VADIAN.NET will lock the service, if the assumption is justified that the service is abusively used.

7. Liability and Responsibility of VADIAN.NET

(1) The responsibility for rough negligence is limited to the damage usually predictable in such cases. Responsibility and compensations are limited to the height of the order value.

(2) In case of failures of services because of disturbances outside of the area of VADIAN.NET's responsibility, VADIAN.NET does not reimburse any values.

(3) VADIAN.NET does not assume liability for the compatibility of the aspsms application with data, programs, configurations etc. of the customer. In particular VADIAN.NET does not incur any expenses, remuneration, expenditures or uses for the integration or missed integration of aspsms.

This covers in particular - however not exclusive - also the expenditure of time of the customer and/or its assigned ones.

8. Responsibility of the customer

(1) The customer is responsible for all consequences and disadvantages for VADIAN.NET and third parties, which are the result of the abusive or illegal use of the SMS service (in particular with offence against 4.) or the result of that the customer does not follow his other responsibilities and has to represent this.

(2) The customer keeps VADIAN.NET free from any third party claims, which are demanded because of the culpable violation of the rights of third parties by the customer or because of the customers behavior contrary to the terms of the agreement or by the customer breaking the law.

9. Terms of payment

(1) The payment of the SMS service takes place in advance, as far as not agreed differently.

(2) Price adjustments: If VADIAN.NET has additional costs because of price adjustments of external partners, VADIAN.NET has the right to adjust its price structure. In such cases, VADIAN.NET does a refund of the remaining credit balance on request. If VADIAN.NET receives knowledge about such a price adjustments afterwards, possible extra costs can be charged also retroactively to the customer.

10. Data Privacy and Data Protection

(1) Personal data, that is raised in the context of the use of the SMS service, is raised and protected according to the relevant regulations of the federal privacy laws in Switzerland and in EU (GDPR regulations). Employees of VADIAN.NET, who handle personal data, are obligated on privacy, bound to confidentiality and have previously been familiarized with the data protection provisions relevant to their work.

(2) VADIAN.NET shall only collect or process personal data in such a manner, as is necessary for provision of the SMS service and in accordance with the privacy laws applicable to VADIAN.NET in its role as data processor.

(3) VADIAN.NET is not selling or giving any of the personal data to third-parties. However, in order to provide SMS services, VADIAN.NET is acting as a data-processor where VADIAN.NET transmits messages on behalf of its clients to a range of message recipients. During that transmitting process, some personal data like a recipient phone number, message content and sender phone number will be sent to mobile operators and to other telecommunications providers which act as sub-processors during the transmit. VADIAN.NET responsibilities regarding those sub-processors are following:

a) As VADIAN.NET is using third-parties like mobile operators and other telecommunications providers (sub-processors) to perform data-processing (message transmit) on its behalf, VADIAN.NET is obliged in terms of the European GDPR regulations to use only sub-processors providing sufficient guarantees to implement appropriate technical and organisational measures in order to meet the requirements of the GDPR.

b) If the sub-processor processes the Services outside the EU/EEA/Switzerland, VADIAN.NET shall ensure that the transfer is made pursuant to European Commission approved standard contractual clauses for the transfer of personal data which the customer authorizes VADIAN.NET to enter into on its behalf, or that other appropriate legal data transfer mechanisms are used.

(4) VADIAN.NET has implemented and maintains appropriate technical and organizational measures in accordance with relevant GDPR regulations. Such measures include but not limited to physical and IT measures, and organizational measures to protect personal data processed against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.

(5) In the event that VADIAN.NET ever experiences a personal data breach, VADIAN.NET shall inform the customer about that data breach as soon as possible but no later than within 72 hours after the data breach has been identified.

(6) Customer rights

a) Customer has a right to request his own aspsms account to be deleted. Upon customer’s request, VADIAN.NET will destroy copies of personal data held in its systems and confirm this to customer in writing unless required to keep certain personal data in order to comply with applicable laws.

b) Where personal data is processed for direct marketing purposes (newsletter) the customer has the right to object at any time and the personal data will no longer be processed for those purposes. VADIAN.NET offers an automated opt-out mechanism as part of all marketing communications. VADIAN.NET only sends marketing communications to customers who have opted-in to that marketing communications.

c) Customer has right at any time amend personal data, request deletion of personal data, request restriction of processing or object to processing and request export of personal data in structured format.

11. Rights of use

(1) All copyrights and rights of use, which are located in the property of VADIAN.NET, remain reserved to VADIAN.NET.

(2) Copying and modifying, circulation and publication or other use of all service contents by the customer or by third parties, if it has to be represented by the customer, is forbidden, if it was not explicitly approved by VADIAN.NET in written form.

(3) The customer commits itself further to spread only such contents for which the customer has the appropriate rights of use.

12. Changes to the Terms of Service

(1) VADIAN.NET may make changes to the Terms of Service from time to time. When these changes are made, VADIAN.NET will make a new copy of the Terms of Service available at http://www.aspsms.com/en/tos/.

(2) You understand and agree that if you use the Services after the date on which the Terms of Service have changed, VADIAN.NET will treat your use as acceptance of the updated Terms of Service.

13. Final provisions

If one or more regulations of these terms of service should be ineffective, then this does not involve the inefficacy of the entire contract. The ineffective regulation is replaced by the relevant legal regulation.

Area of jurisdiction and place of delivery are St.Gallen / Switzerland.