TMS Telecom Marketing Services AG (hereinafter referred to as “TMS”)
is a telecommunications enterprise that offers comprehensive services on a prepaid basis for access and usage in the fields of fixed and mobile network telephony and the Internet.
1. Field of Application
These General Business Conditions (GBCs) apply to all services
provided, as long as there are no special regulations in existence
covering individual services. In case of conflict, all other contractual stipulations, such as the description of services provided, user guidelines, prices etc. shall have priority over these GBCs.
2. Responsibilities of TMS
TMS shall provide the services specified in the descriptions of services in force at the time in question. All fees, prices and services offered are subject to change at any time and without prior notice and shall be
adapted continuously to suit the current market conditions. By responding to the offer of services, the customer accepts the prices and conditions in force at the time in question.
3. Acceptance of the Service Contract
The contract shall be deemed to have been accepted upon receipt of the moneys due for the advance payment in question. TMS retains the right to refuse any contract if it should be used for the purposes of illegal dealings of any kind or if it fails to comply with legal stipulations.
4. Services
TMS shall provide the services in accordance with its published offers. TMS specifies expressly that it is under no obligation to indicate the caller’s telephone number to the subscriber being called.
5. Billing
The invoice (payment slip) in CHF, complete with the list of individual calls made (List of Calls), is available free of charge in the Internet. The List of Calls is also available free of charge in the form of a standard file in the Internet. The invoice(s) can be retrieved from the Internet for a period of 1 (one) year and the List of Calls for a period of 6 (six) months.
If the TMS customer wishes to receive a printed invoice (payment slip) and/or List of Calls, TMS shall charge a sum of 5.-- (five) CHF for each invoice and a sum of 7.-- (seven) CHF for each List of Calls. The fees for printed invoices shall be charged to the customer’s account after each payment procedure, while the fees for each List of Calls shall be charged likewise on each occasion after the print has been run. TMS retains the right to change these costs without prior notice.
Any charge made to the customer’s account may be challenged in writing within fifteen days after the expiry of the month in which the charge was made. The charge in question shall remain valid and extant until such time as the challenge has been settled.
6. Payment
The phone-for-less service is provided exclusively on a prepaid basis and is only available as long as the customer’s account shows a positive balance. In order to make a call, a sum comprising at least the price for one minute for the call in question, plus the connection fee or the set-up fee, must be available in the account. As soon as the customer’s credit comes near to exhaustion, the customer will be informed repeatedly during a conversation that his credit will shortly have been used up. Once the credit has been used up, the service can no longer be used until new credit has been paid into the account.
The credit in the customer’s account can currently be renewed using the payment slip, by credit card and by coupon. In addition, it is also possible to stipulate an agreement whereby the credit is automatically renewed by charging a given sum to a credit card once an individually-determined limit has been reached. This can only be done on condition that all the credit card information provided is correct and that the credit card has unlimited validity. Nevertheless, such a credit renewal by credit card does not guarantee the continuation of a current conversation. Similarly, an automatic alert can be sent by e-mail to the latest address provided when an individually determined limit has been reached.
Prepayments shall expire without restitution 1 (one) year after the prepayment in question was made. The customer shall receive a written alert of the imminent expiry, delivered to the last address provided, 3 (three) months before the end of the year in question. If the account is
not used for one year, it may be extinguished by TMS.
The repayment of any prepayments made, including coupons, and the transfer of any form of credit to third parties are expressly excluded.
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7. Blocking the Account
A customer may have his account with TMS blocked in order to avoid misuse. Said customer shall provide TMS with all requested information about his/her identification, otherwise the account will not be blocked. TMS is entitled to make a charge for the costs accruing to it in the process of blocking and unblocking accounts manually.
8. Liability
TMS hereby undertakes to the customer to provide the agreed services with due care and attention and to eliminate any disturbances to the service as quickly as possible within the framework of its technical and managerial possibilities.
Regardless of the reasons therefore, TMS liability is limited to cases of premeditation or gross negligence on the part of TMS or of its duly commissioned legal representatives, employees and/or accomplishing staff. TMS expressly excludes all and any liability in the case of direct and indirect consequential damages and damages to third parties as well as for losses of data and loss of earnings. Liability is in any case limited in each case to the last sum to have been paid in.
TMS shall not respond for damages brought about as a consequence of lost authorisation numbers and PINs. In particular, the customer is responsible for keeping the authorisation number and the PIN separately and with due care and attention and is liable for all services activated with his authorisation number and his PIN. Customers are required by contract to keep secret all contractual data, specifically their PIN codes, their authorisation numbers and any other codes and passwords.
Similarly, TMS shall not respond for damages brought about by causes of force majeure. This includes in particular natural phenomena, fire, strikes, war and instructions issued by the authorities.
9. Communications to Customers
TMS is entitled to deliver its communications and notices of termination to the last address communicated by the customer. It is the responsibility of the customer to ensure that TMS is always supplied with the latest information.
10. Secrecy of Telecommunications and Data Protection
TMS guarantees the secrecy of telecommunications. All use it makes of customer data is in strict compliance with the stipulations contained in the law on data protection. Customers hereby declare their agreement to TMS processing their data domestically and abroad or having them so processed by third parties, to the extent that this is necessary for the execution of the telecommunications services ordered. Conversation records may be erased after 180 days. TMS may use data for its own statistical purposes and for settlements with business partners.
11. Duration and Notice of Termination
This contract shall come into force when the first prepayment is booked and the services are approved for provision by TMS and may be terminated at any time by either party, in the case of TMS vis-à-vis Pre-Select customers by issuing a notice of 30 days. The right shall be retained to terminate without notice for important reasons.
Should an account register no movement for more than six months and have a credit balance of less than CHF 1.--, this contract shall expire automatically at the end of the sixth month after the last movement. The residual credit shall be extinguished to the credit of TMS.
In case of any suspicion of misuse of the services provided by TMS or of any infringements of the law currently in force or of these contractual conditions, TMS is entitled at any time to suspend the provision of services without delay and to terminate the contract without notice. In the case of such a block or termination of contract, the customer shall be liable for the full extent of all and any damages.
In the case of an ordinary notice of termination, TMS shall return any payments received (except coupons) after the period of notice has come into force. Customers may also continue to use their residual credit in the framework of these GBCs by means of a Call-by-Call system after an ordinary contractual termination. In the case of termination for important reasons, this claim shall not apply and any residual credit remaining in the customer’s account shall be credited to TMS.
12. Final conditions
There are no oral agreements ancillary to this contract. All amendments shall be made in writing. If any individual points are void, the remainder shall not be affected thereby.
All legal relationships between customers and TMS are subject to Swiss Law. Jurisdiction is vested exclusively in the Court of Zug.
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