Terms and conditions

Part I. General

1. Definitions

The terms contained in the Agreement and these Terms and Conditions initially capitalized are defined and have the meaning as set out in this Clause:

Agreement: each agreement entered into by and between bluecom.media and Client, including all associated Orders, to which these Terms and Conditions apply.

Applicable Law : (i) then-current national, local or other law, rule, regulation, enforceable regulatory guidance, order, judgment, decree, or ruling in any jurisdiction in which Customer accesses and uses the bluecom.media Platform and Services, including but not limited to, the EU General Data Protection Regulations (GDPR), all of which that apply to providing or receiving the Service and/or End User Service in the country where the Service and/or the End User Service is delivered; and also (ii) all regulations, guidelines, conditions, policy rules and/or other requirements of Operators in the country where the Service and/or the End User Service is delivered.

Client: the Party with whom bluecom.media enters into this Agreement.

Client Materials: all information, data, content and other materials, in any form or medium, that is provided by or on behalf of Client through the bluecom.media Platform or to bluecom.media.

bluecom.media IP: the bluecom.media Platform, the Service, all improvements, modifications or enhancements to, or derivative works of, the foregoing, and all Intellectual Property Rights in and to any of the foregoing.

Data Protection Laws: the data protection laws and regulations of the country in which Client is established and any Data Protection Laws applicable to Client and/or bluecom.media in connection with the Agreement.

Effective date: means the date on which a particular Agreement comes into effect, as reflected in an Order Form.

End User: a natural person or entity who is authorized by Client to make use of the Client’s End User Services.

End User Service: service provided by Client to its End Users, via the bluecom.media Platform.

Operator: a (mobile) electronic communications service provider that provides (wireless) voice and data communication and other related services to other Operators and/or for its subscribed end users.

Order: means an order placed by Client and accepted by bluecom.media for Services, which may be affected by way of a writing signed physically or electronically by the Parties or by way of bluecom.media’s website.

Order Form: means a document in physical or electronic form reflecting an Order, whether designated as an “Order”, “Statement of Work”, or otherwise, and will include, in all events, an Order effected through bluecom.media’s website.

bluecom.media Platform: the computing environment of bluecom.media designed to create the connection between an Operator network and the system of the Client.

Personal Data: any information relating to an identified or identifiable natural person (‘Data Subject’) that is Processed by bluecom.media in its role as Processor as part of providing the Service to Client under the Agreement.

Processing/to Process: any operation or set of operations which is performed on Personal Data, whether or not by automatic means, including collecting, accessing, storing, using, combining, transferring, disclosing or deleting of Personal Data.

Service: a service bluecom.media provides to the Client under the Agreement as expressly described in an Order Form.

Traffic: electronic communication and/or data traffic from and to a mobile telephone and/or fixed line, mobile device or online application. Such traffic includes without limitation SMS, MMS, Push, OTT, RCS, voice and/or data.

2. Scope

2.1 These Terms and Conditions apply to all Orders, Order Forms and agreements between bluecom.media and the Client, unless the Parties have expressly agreed otherwise in writing.

2.2 The applicability of any general (purchasing) terms and conditions used by Client, or any other terms and conditions other than this Agreement and Order Forms, are hereby expressly excluded.

2.3 The Parties agree to contract electronically and that electronic signatures will have the same weight and effect as originals. Reference to “writing” anywhere in this Agreement shall be considered all communication in either electronic or paper format.

2.4 Applicable Law applies to the End User Services offered by Client to its End Users. Client shall familiarize itself with all Applicable Law (including by procuring independent legal advice if needed) applicable to the use of the Service and offering of the End User Service. bluecom.media will not provide warranties or be responsible in this regard.

3. Prices, payment and taxes

3.1 All prices stated are in USD and are exclusive of value added tax (VAT) and/or any other taxes, charges or levies imposed by any government authority.

3.2 The applicable prices and rates are listed on the website of bluecom.media and/or described in the Agreement. Unless a fixed price has been expressly agreed in an Order Form, bluecom.media reserves the right to change prices and rates without notice. The Client shall be charged for all Traffic that is sent to, and received by the bluecom.media Platform via the connection of Client.

3.3 If a fixed price has been expressly agreed in the Agreement for one or more Services, bluecom.media is only entitled to change those fixed price(s) after written agreement by the Client.

3.4 Notwithstanding clause 3.3, bluecom.media is in every instance entitled to change its prices following from changes to Applicable Law, from an increase in the purchase price of messages and/or from rates changes effected by Operators. bluecom.media shall use reasonable efforts to inform the Client in advance of such price increases.

3.5 The Client shall pay all invoices without suspension, set-off or deduction within fourteen (14) days of the invoice date, unless the Agreement explicitly contains different payment terms.

3.6 In the event that Client fails to pay bluecom.media the amounts due within the agreed period, statutory commercial interest shall be applied and will fall due accordingly by the Client on the outstanding amount without any requirement from bluecom.media to communicate a notice of default. Client will reimburse bluecom.media for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. Timely payment of all amounts due is a condition precedent to all of bluecom.media’s obligations and Client’s rights under this Agreement.

enable you to use our products and services, publicly facing websites and contact our Customer Support team. personalize your experience of our products and services, and make recommendations. improve and (further) develop products, which includes analyzing usage data. operate our business More detailed information on the purposes we fulfill can be found under ‘Why we collect personal data’.

3.7 bluecom.media is entitled to require payment of a deposit. as a condition to rendering Services. From time to time during the term of the Agreement bluecom.media may adjust the amount of deposit after consultation with Client. Upon termination of the Agreement the deposit will be refunded to the Client after set-off of the deposit against any outstanding amounts then due by the Client to bluecom.media. The deposit shall be transferred back to the client within two (2) calendar months following termination of the Agreement. bluecom.media shall not be obligated to maintain deposits in segregated accounts or and neither will the deposit accrue interest for the Client.

3.8 Client is responsible for payment of the applicable value added tax (VAT) and/or any other tax or levy on its End User Service. The Client shall indemnify bluecom.media for and against all claims by tax authorities in this regard and shall indemnify bluecom.media for all losses, penalties and costs arising therefrom.

3.9 Where bank fees occur, Client shall bear the costs imposed by its own bank, any intermediate bank and the bank of bluecom.media as indicated on the invoice when making payments under the Agreement. The net amount received by bluecom.media shall correspond to the amount invoiced. In this regard, the Client remains liable to pay any shortfall of outstanding amounts due.

3.10 Notwithstanding clause 3.3, bluecom.media shall have the right to make adjustments to its prices (fixed or general) on an annual basis at the beginning of each subsequent calendar year to reflect the annual changes in the national Consumer Price Index (CPI). bluecom.media shall use reasonable efforts to inform the Client in advance of such price increases

4. Obligations

4.1 Client will ensure a secure, continuously working connection at its own cost to the bluecom.media Platform.

4.2 Client shall ensure that access to the connection and the account of Client is limited to authorized employees of Client and that log-in credentials are stored securely. It is not permitted to authorize use to other persons and/or third parties. Client is responsible for all activity occurring on its account, even if not authorized by Client.

4.3 Client is responsible for the sending and/or delivery of Traffic up to the point of interconnection with the Platform of bluecom.media. Client is responsible for appropriate encryption and security of its Traffic.

4.4 Client shall only use the Services for their intended and normal purpose and/or purposes as agreed and described in the Agreement. Without limitation, Client shall not: (i) reverse engineer or otherwise attempt to gain unauthorized access to any component of the bluecom.media Platform; (ii) resell the bluecom.media Platform or otherwise use or allow any person to use the bluecom.media Platform or Service for any purpose other than for the benefit of Client in accordance with this Agreement; (iii) interfere with, or disrupt the integrity or performance of, the bluecom.media Platform, or any data or content contained therein or transmitted thereby; (iv) collect data from or regarding the bluecom.media Platform, save for Service features provided by bluecom.media use expressly for such purposes; or (v) use the Service, bluecom.media Platform or any other bluecom.media Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Service or bluecom.media Platform.

4.5 Client is responsible for the content of Traffic sent by Client, the lawfulness of the Traffic and the identity of the relevant End User, including as to whether such End User has provided a valid consent to receive Traffic, and guarantees that it complies with Applicable Law and does not infringe third-party rights. The Client will maintain up to date records of end user consent and provide these to bluecom.media upon request. The Client will not send any unsolicited traffic, nor other unethical, illegal, punishable or otherwise fraudulent or illicit traffic or content.

4.6 Client hereby grants bluecom.media a non-exclusive, worldwide, royalty-free right and license, with the right to sublicense, to use, host, reproduce, display, perform, modify the Client Materials solely for the purpose of operating, improving and providing the Service and bluecom.media’s other related products, services and technologies during the term of this Agreement.

4.7 Client shall cooperate with bluecom.media and provide any information reasonably required for boarding and acceptance procedures of Operator(s). Without limitation, Client will provide bluecom.media the full name of its company, its address, Chamber of Commerce or company registration number and VAT number (if applicable) and the name of its director(s) / officer(s) authorized to sign the Agreement. Changes to these details must be submitted to bluecom.media in writing.

4.8 Client acknowledges and agrees that bluecom.media may be obliged by Operators and/or competent authorities to provide the data of Client as described in the previous paragraph and the data of other parties that are being connected via Client. Client shall provide all such data requested by bluecom.media within three (3) Working Days.

4.9 Client shall cooperate with any audit which investigates whether the Client is acting in accordance with Applicable Law.

5. Client Warranty and indemnification

5.1 Client represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Client Materials as contemplated by this Agreement; (ii) bluecom.media’s use of the Client Materials in accordance with this Agreement will not violate any Applicable Law or cause a breach of any agreement or obligations between Client and any third party; and (iii) the promotion of the End User Service will not infringe the Intellectual Property Rights of third parties or violate Applicable Law.

5.2 Client will indemnify, defend and hold bluecom.media harmless for all losses, damages, liabilities and costs (including reasonable attorneys’ fees) (“Losses”) incurred by bluecom.media resulting from any claim, suit or proceeding brought by a third party against bluecom.media arising from (i) the End User Service or Client Materials, including, without limitation, (A) any claim that the End User Service or Client Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any claim that the use, provision, transmission, display or storage of the Client Materials violates any Applicable Law; and (ii) use of the bluecom.media Platform and Service by Client in a manner that is not in accordance with this Agreement. bluecom.media will promptly notify Client of the claim for which indemnity is being sought, and will reasonably cooperate with Client in the defense and/or settlement thereof. Client will have the sole right to conduct the defense of any claim for which Client is responsible hereunder (provided that Client may not settle any claim without the bluecom.media’s prior written approval unless the settlement is for a monetary amount, unconditionally releases bluecom.media from all liability without prejudice, does not require any admission by bluecom.media, and does not place restrictions upon bluecom.media’s business, products or services). bluecom.media may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if Client refuses to fulfill its obligation of defense, bluecom.media may defend itself and seek reimbursement from Client.

6. Service availability

6.1 Services are rendered and made available in accordance with the bluecom.media Service Level Agreement (‘SLA’) included herein by reference.

6.2 If the Client acts contrary to an obligation under clause 4, Applicable Law, Operator guidelines or the obligation to pay the amounts due to bluecom.media within the agreed payment terms, bluecom.media is entitled to suspend provision of the Service without limitation to any other remedy available to bluecom.media, including cancellation of this Agreement and/or a claim for specific performance and/or damages.

6.3 If any monthly fees are due under the Agreement the Client remains liable for payment of such fees for the period that the provision of the Service is suspended in accordance with the provisions of this clause.

6.4 As soon as the reason for suspension in accordance with the provisions of this clause is removed by Client, bluecom.media shall resume delivery of the Service unless bluecom.media believes that the nature and/or frequency of Client’s non-compliance is such that the provision of the Services should be canceled permanently.

7. Setting-off

7.1 bluecom.media is entitled to set off the amounts the Client owes to bluecom.media against the amounts bluecom.media owes to the Client.

7.2 If bluecom.media and the Client or any of their affiliates have entered into more than one Agreement, the bluecom.media may set off amounts under any of those agreements, regardless of the Agreement from which the payment obligations in question derive

8. Disputes regarding amounts payable

8.1 If the Client disputes the accuracy of an invoice sent by bluecom.media, Client will provide a detailed complaint within the payment term applicable to the invoice in question by written notice to bluecom.media. Clients may only dispute an invoice if the amount in dispute is greater than €150.00 (excluding taxes) and greater than three (3%) percent of the invoice amount (excluding taxes).

8.2 The Client will only be entitled to suspend payment of the disputed part of the invoice, if the amount disputed by the Client exceeds 5% of the total amount of the invoice in question (excluding VAT). Client shall promptly pay any undisputed portion of any invoice.

9. Confidentiality and publicity

9.1 As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. [For clarity, the bluecom.media Platform and the Service will be deemed Confidential Information of bluecom.media. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. Without limiting the foregoing, nothing in this Agreement will limit or restrict bluecom.media’s ability to use or disclose any general know-how, experience, concepts and/or ideas that bluecom.media or its personnel acquire or obtain in connection with the performance of bluecom.media’s obligations hereunder.

9.2 The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or enforce its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

9.3 Each Party’s obligations with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under Applicable Law.

9.4 The terms and conditions of this Agreement will constitute Confidential Information of each Party, but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

9.5 Client hereby grants to bluecom.media the right and permission to use Client’s name and company logo in marketing, sales, financial, and public relations materials and other communications of bluecom.media to identify Client as a Client of bluecom.media. bluecom.media hereby grants to Client the express right to use bluecom.media’s logo solely to identify bluecom.media as a provider of Services to Client, subject to bluecom.media’s prior written approval in each instance. All goodwill and improved reputation generated by Client’s use of bluecom.media’s name and logo inures to the exclusive benefit of bluecom.media; and all goodwill and improved reputation generated by bluecom.media’s use of Client’s name and logo inures to the exclusive benefit of bluecom.media. Other than as expressly stated herein, neither Party shall use the other Party’s name(s), marks, logo’s, URL’s or specifications without the prior written permission of the other Party.

10. Personal data

10.1 bluecom.media may process personal data either as a data controller or as a data processor. Personal data may include Client Personal Data and End-user Personal Data.

10.2 Where bluecom.media is processing Client Personal Data they shall act as a data controller under applicable Data Protection Laws. Data concerning the Client may include contact data, financial data and Platform usage data. Any such data is processed for contract management purposes, customer support, credit checks, prevention of fraud and criminal activities and ‘know your customer’(‘KYC’) processes. Data can additionally be used for statistical research and to contact Client for marketing activities of bluecom.media and its affiliates. bluecom.media will process such data only where this is necessary for the performance of the Agreement, in order to comply with a legal obligation to which bluecom.media is subject or where the processing is necessary for the purposes of the legitimate interests pursued by bluecom.media or a third party. For the purpose of carrying out credit checks and monitoring to prevent fraud and criminal activities, bluecom.media may also share Client Personal Data for these purposes with third parties working on behalf of CM or in order to comply with a legal obligation to which bluecom.media is subject.

10.3 Where bluecom.media is processing End-user Personal Data as a public electronic communication service provider, under the applicable telecom laws and Data Protection Laws they shall act as an independent data controller with respect to the processing of Personal Data (including but not limited to End-user data) which is necessary for the operation of the electronic communication service. Such data includes but is not limited to Traffic Data. Purposes for which End-user Personal Data are processed are providing the Service, providing continuous information to Client through bluecom.media Analytics, billing purposes, financial administration, handling complaints and disputes, traffic control, providing information to emergency services, preventing fraud and criminal activities. bluecom.media will process such data only where this is necessary for the performance of the Agreement, in order to comply with a legal obligation to which bluecom.media is subject or where the processing is necessary for the purposes of the legitimate interests pursued by bluecom.media or a third party.

10.4 When processing data under clauses 10.2 and 10.3 above, bluecom.media shall fully comply with its obligations under applicable Data Protection Laws

10.5 Where bluecom.media is processing End-user Personal Data other than as a public electronic communication service provider and are not otherwise determining purpose and means for the processing of such personal data, they are data processors under applicable Data Protection Laws. Part II (data processing) of these Terms applies to any such processing of End-user Personal Data.

10.6 Notwithstanding anything in this clause 10 and/or Part II of these Terms and Conditions, bluecom.media will have the right to collect, extract, compile, synthesize and analyze non-personally identifiable data or information resulting from Client’s use or operation of the Services including, by way of example and without limitation, information relating to volumes, frequencies, bounce rates, or any other information regarding communications (“Service Data”) Client, its End Users or recipients generate and send using the Services. To the extent any Service Data is collected or generated by bluecom.media such data will be solely owned by bluecom.media and may be used by bluecom.media for any lawful business purpose without a duty of accounting to Client, provided that such data is used only in an aggregated form, without directly or indirectly identifying any person.

11. Intellectual Property

11.1 Subject to the limited rights expressly granted hereunder, bluecom.media reserves and, as between the Parties, bluecom.media will solely own, all rights, title and interest in and to the bluecom.media IP. No rights are granted to Client hereunder other than as expressly set forth herein and bluecom.media reserves all right, title, and interest in and to the bluecom.media Platform and Service, the underlying technology and code, and all enhancements, adaptations, improvements, or modifications to the foregoing whether developed during or independent of this Agreement and all Intellectual Property Rights associated therewith.

12. Liability

12.1 The Client recognizes that access to the internet, telecommunication networks and other communication media are subject to uncertainties, including but not limited to, in relation to availability of services, reliability of transmission, authorizations, authenticity and data security. bluecom.media does not warrant that the Services are, or will be completely error-free, bug-free or uninterrupted bluecom.media shall not be liable for any stoppages, slowdowns, interruption of the Service, performance problems or other problems, that are due to circumstances beyond its control, including, but not limited to, disturbance of radio, telephone and/or telecom transmissions outside the bluecom.media Platform, Client’s use of the bluecom.media Platform in a manner that is not in accordance with this Agreement, deficiencies or limitations in Client’s hardware, systems, software, or processes, deficiencies or limitations in internet or wireless connections. In the event of an error, bug or interruption, bluecom.media shall use its reasonable efforts to restore the Service in accordance with proper practices recognized in the electronic communications industry.

12.2 The bluecom.media Platform, Service and other bluecom.media IP are provided on an “as is” basis. bluecom.media makes no warranties or representations to Client or any other party regarding the bluecom.media IP, including the bluecom.media Platform, Service or any other services provided hereunder. To the maximum extent permitted by applicable law, bluecom.media hereby disclaims all warranties and representations, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose or non-infringement, and warranties arising out of course of dealing or usage of trade. Without limiting the foregoing, bluecom.media hereby disclaims any warranty that use of the bluecom.media Platform will be error-free, bug-free or uninterrupted.

12.3 To the maximum extent permitted by applicable law, neither Party will be liable to the other under or in relation to this Agreement or the provision of the Service, even if advised of the possibility of such damages and whether such liability arises from any claim based on tort, including negligence, breach of contract, strict liability, or otherwise, for any of the following: (i) loss of profits, revenues or sales; (ii) loss of bargain; (iii) loss of opportunity; (iv) the cost of substitute services or other economic loss, (v) loss of use of any service or any computer equipment; (vi) loss of time on the part of management or other staff; (vii) professional fees or expenses; (viii) business interruption (ix) damage to or loss of data; (x) loss of goodwill or reputation, or (xi) any indirect, special, incidental, exemplary, punitive or consequential damages of any kind howsoever arising, and whether or not a party was advised of the possibility of such loss or damage.

12.4 The limitations on liability specified in this Clause 12 shall not apply in the event of willful intent or gross negligence by either party, or in case of personal injury or death.

13. Force majeure

13.1 A Party is not bound to meet any obligation under the Agreement (other than any obligation to pay amounts due under this Agreement) if it is prevented from doing so as a consequence of force majeure. The term ‘force majeure’ is used in this context to include but is not limited to: government interventions, strikes, disease, pandemic, epidemic, acts of terrorism or threat thereof, interruption of operations, energy disruptions, interruptions in telecommunications facilities of third parties, failure or late compliance by ancillary suppliers of bluecom.media or other third parties engaged by bluecom.media, as well as every other circumstance that a Party could not reasonably have avoided or prevented, which creates an obstacle to the normal performance of the Agreement.

13.2 If a Party is prevented from complying with its obligations due to force majeure, it shall make this known to other Party within ten (10) Working Days following the day on which the situation of force majeure arose.

14. Duration and termination of the Agreement

14.1 The initial term of this Agreement begins on the Effective Date and expires at the end of the initial term specified in the Order Form (the “Initial Term”). If the Initial Term is not specified in the Order Form, then the Initial Term will expire one (1) year from the Effective Date.

14.2 Following the Initial Term, this Agreement will automatically renew for additional periods of the same duration as the Initial Term, or for a period of one (1) year, whichever is shorter (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party terminates the Agreement in writing by giving three (3) months’ notice to the other Party before the end of then-current Initial Term or Renewal Term.

14.3 bluecom.media may terminate the Agreement or the provision of a Service at any time, effective on written notice to Client and without any liability towards Client if bluecom.media considers that further execution of the Service cannot reasonably be expected on economic grounds.

14.4 Either Party may terminate the Agreement effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured ten (10) Working Days after the non-breaching Party provides the breaching Party with written notice of such breach.

14.5 Either Party may further terminate the Agreement effective on written notice to the other Party : a. if the other Party becomes the subject of a voluntary or involuntary petition in bankruptcy or proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; b. if the situation of force majeure as referred to in clause 13 lasts longer than twenty (20) Working Days; c. if such termination is required by the authorities or because of changes to the terms and conditions of Operator(s).

14.6 If at the time of such termination as is referred to in clause 14.4 and 14.5 the Client has already received any performance in the execution of the Agreement, any amounts invoiced by bluecom.media before the termination in connection with that received performance shall remain fully due and shall become immediately payable upon termination.

14.7 Provisions which by their nature are intended to survive termination of the Agreement shall continue to apply after the end of the Agreement. These provisions among other things form part of clauses 5 (Client Warranty and Indemnification), 7 (Setting-off), 9 (Confidentiality & Publicity), 10 (Personal Data), 11 (Intellectual Property), 12 (Liability), 13 (Force Majeure), 14.6 and 14.7 (Duration and Termination of the Agreement), 16 (Applicable law and Disputes) of these Terms and Conditions.

15. Transfer of rights and obligations; subcontracting

15.1 This Agreement may not be assigned by either Party without the written consent of the other Party, in whole or in part, such consent not to be unreasonably withheld; provided, however, that either Party may assign this Agreement without prior notice or permission to any affiliate of such entity or to a third party that succeeds to all or substantially all of such entity’s business and assets relating to the subject matter of this Agreement, whether by merger, acquisition, sale of a majority of its equity, sale of substantially all of its assets , or a similar transaction. Any prohibited assignment shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns.

15.2 bluecom.media is entitled to engage affiliates and other third parties for delegating the performance of the Agreement.

16. Applicable law and disputes

16.1 This Agreement (and any matters arising from or related hereto) will be governed by and construed in accordance with the laws of Spain without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.

16.2 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be settled by the competent court in Madrid.

17. Miscellaneous provisions

17.1 Without prejudice to clause 17.4, amendments and additions to the Agreement or other notifications are only valid and binding upon the parties if they are agreed in writing and have been signed by the persons authorized for this purpose on behalf of both Parties. Any amendment or addition will only apply to the relevant Agreement.

17.2 This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the Parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the Parties may agree in writing. No amendment to this Agreement or waiver of any provision hereof will be valid or binding unless reduced to writing and duly executed by the party or parties to be bound thereby. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the Parties. Neither Party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other Party. Neither Party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other Party, or to bind such other Party in any manner. Nothing contained in this Agreement will be deemed to create any third party beneficiary right upon any third party whatsoever, except that bluecom.media’s parent company and affiliates will be third-party beneficaries of the provisions in this Agreement and such provisions will apply to such parent and affiliates, including (but not limited to) those relating to intellectual property, indemnity, disclaimers, arbitration, and damages limitation and waivers. Each of the Parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the Parties’ intent as manifested herein.

17.3 Contact persons for each Party may only represent and bind Parties insofar as this concerns “day-to-day” operational performance of the Agreement.

17.4 All notices required or permitted under this Agreement will be in writing, will reference this Agreement. All notices to bluecom.media will sent to CM Communication Platform & Technology SL, Calle Sardenya 229, 4a, 28001, 08013 Barcelona (ES), and all notices to Client will be sent to the address set forth in the relevant Order Form; or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 18.3. Such notices shall deemed given: (i) when delivered personally; (ii) one (1) Working Day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (iii) three (3) Working Days after having been sent by registered or certified mail, return receipt requested, postage prepaid.

17.5 bluecom.media is authorized to modify these Terms and Conditions at any time. bluecom.media will inform Client of any modifications. If Client doesn’t object in writing within a month from the date of sending of the modification notification, the modifications to the Terms and Conditions are deemed accepted by Client. If Client objects, the previous Terms and Conditions remain applicable. However, bluecom.media then alternatively has the right to cancel the Agreement with Client by giving one (1) month written notice.

Part II. Data Processing

18. Definitions and interpretation

18.1 In Part II of these Terms and Conditions, except where set forth otherwise and in addition to the terms set out in Part I, the following terms shall have the following meanings:

Technical and Organizational Measures: measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against all other unlawful forms of Processing.

Personal Data Breach: a breach of security leading to the accident or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed.

Expressions such as, ‘Data Subject’, ‘Data Processor’, ‘Data Controller’, ‘Data Protection Impact Assessment’, etc. shall have the meaning ascribed to them in the Data Protection Laws.

18.2 References to Data Protection Laws shall be replaced with or incorporate references to any laws replacing or amending those Data Protection Laws, and the equivalent terms defined in such laws, once in force and applicable.

18.3 In case of any conflict, the provisions of this Part II concerning Processing of Personal Data shall take precedence over the provisions of the Agreement and/or Part I. Where individual provisions of this Part II are invalid or unenforceable, the validity and enforceability of the other provisions shall not be affected.

19. Obligations of the Client

19.1 Compliance

19.1.1 Client shall, in its use of the Service, Process Personal Data in accordance with the requirements of Data Protection Laws. For the avoidance of doubt, Client’s instructions for the Processing of Personal Data shall comply with Data Protection Laws. Client shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Client acquired Personal Data.

19.1.2 Client shall maintain accurate and complete records of the use of the Service under the Agreement during the term of the Agreement and as required under the Data Protection Laws. Upon reasonable written notice, Client shall provide information as requested and where required by bluecom.media, any Operator, regulator or other competent authority. Without limiting the generality of any other provision of the Agreement, prior to using the Service, Client shall obtain verifiable informed consent of the End Users or be able to provide confirmation of any other applicable lawful basis for Processing, and shall maintain a record of each such consent and/or lawful basis.

20. Obligations of the Processor

20.1 Instructions

20.1.1 bluecom.media shall Process Personal Data in accordance with this Part II and the Agreement, and for the purposes and in the manner specified by Client from time to time in the Agreement and further instructions within the scope of the Agreement.

20.1.2 In case bluecom.media is required to Process Personal Data under mandatory law as specified in this Part II or the Agreement, bluecom.media shall for those purposes be considered an independent controller. If bluecom.media is required to Process Personal Data under mandatory law bluecom.media shall inform Client hereof in writing before Processing unless the law prohibits providing such information.

20.2 Technical and Organizational Measures

20.2.1 Taking into account the state of the art, the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, bluecom.media shall implement appropriate Technical and Organizational Measures (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data) to ensure a level of security appropriate to the risk.

20.2.2 bluecom.media shall test, assess and evaluate the effectiveness of Technical and Organizational Measures for ensuring the security of the Processing on an ongoing basis. bluecom.media shall continuously enhance and improve Technical and Organizational Measures.

20.3 Personnel requirements

bluecom.media ensures that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Access to Personal Data is restricted to personnel who require access in order to perform the Services under the Agreement.

20.4 Confidentiality

bluecom.media agrees that it shall maintain the Personal Data in confidence. In particular, bluecom.media agrees that it shall not disclose any Personal Data supplied to bluecom.media by, for, or on behalf of Client to any third party without Client’s prior consent, except as foreseen and required for the performance of the Service under the Agreement or mandatory law.

20.5 Data Subject Rights

20.5.1 Where Client so instructs bluecom.media, bluecom.media shall transfer, correct, delete or block Personal Data if Client receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”).

20.5.2 bluecom.media shall promptly notify Client if bluecom.media receives a Data Subject Request. Taking into account the nature of the Processing, bluecom.media shall assist Client, for the fulfillment of Client’s obligation to respond to a Data Subject Request under Data Protection Laws. bluecom.media shall assist Client in responding to such Data Subject Request, to the extent bluecom.media is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws. To the extent legally permitted, Client shall be responsible for any costs arising from bluecom.media’s provision of such assistance.

20.6 Assistance with Client’s compliance

bluecom.media shall provide to Client further assistance reasonably required to ensure compliance with Client’s obligations under Data Protection Laws, including with respect to: (a) data protection impact assessment, by providing such information and cooperation as Client may require for the purpose of assisting Client in carrying out a data protection impact assessment and periodic reviews to assess if the Processing of Personal Data is performed in compliance with the data protection impact assessment; (b) prior consultation with a data protection supervisory authority regarding high risk Processing.

20.7 Compliance, information and audit

20.7.1 bluecom.media has obtained third-party certifications set forth in the Security & Compliance section on the website of bluecom.media, which provides information on Technical and Organizational Measures and data security. Upon Client’s written request, and subject to the confidentiality obligations set forth in the Agreement, bluecom.media shall make available to Client, that is not a competitor of bluecom.media (or Client’s independent, third-party auditor that is not a competitor of bluecom.media) a copy of bluecom.media’s then most recent third-party certifications and information regarding the IT architecture and security, as applicable and reasonably requested.

20.7.2 Client has the right to appoint an accredited external expert at most once per year to audit the procedures regarding the data Processing for Client. bluecom.media will cooperate with such an audit upon a reasonable prior written notice of no less than ten Working days. Client shall reimburse bluecom.media for any time expended by bluecom.media for any such audit at bluecom.media’s then-current professional services rates, which shall be made available to Client upon request. Before the commencement of any such audit, the Parties shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Client shall be responsible.

20.7.3 bluecom.media is entitled to request that the external expert signs a confidentiality declaration in favor of bluecom.media. The confidentiality declaration shall contain the terms and conditions that are usual for this type of declaration. Any report or statement provided by the external expert shall be made available to bluecom.media. Client shall ensure that the audit hinders bluecom.media ‘s operations as little as possible.

20.8 Records

bluecom.media shall maintain complete, accurate and up to date records of Processing activities carried out on behalf of its Clients.

20.9 Affiliates and Sub-processors

20.9.1 Some or all of bluecom.media’s obligations under the Agreement may be performed by Affiliates of bluecom.media. For the purpose hereof an “Affiliate” means a legal entity directly or indirectly Controlling, Controlled by, or under common Control with bluecom.media, for so long as such Control lasts. “Control” shall exist through the direct or indirect ownership of more than 50% of the share capital of the legal entity or of more than 50% of the issued share capital entitling the holders to vote for the election of directors or persons performing similar functions. bluecom.media and its Affiliates have entered into intra-company arrangements, under which its Affiliates Processing Personal Data adopt safeguards consistent with those of bluecom.media. bluecom.media is responsible for compliance of its Affiliates’ with this Agreement.

20.9.2 Client acknowledges and agrees that (a) bluecom.media’s Affiliates may be retained as Sub-processors; and (b) bluecom.media and bluecom.media’s Affiliates respectively may engage third-party Sub-processors in connection with the provision of the Services. Provided always bluecom.media or a bluecom.media Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations not less protective than those in this Agreement with respect to the protection of Personal Data to the extent applicable to the nature of the Service provided by such Sub-processor.

20.9.3 bluecom.media shall be responsible for each of its Sub-processors to the same extent bluecom.media would be responsible if performing the services of each Sub-processor directly under the terms of the Agreement.

20.10 Breach Notification

In respect of a Personal Data Breach, bluecom.media shall: (a) notify Client of a Personal Data Breach involving bluecom.media or a sub-contractor without undue delay (but in no event later than forty-eight hours after becoming aware of the Personal Data Breach). (b) provide reasonable cooperation and assistance to Client in relation to any action to be taken in response to a Personal Data Breach under applicable Data Protection Laws, such as Art. 33(3) and 34(3) GDPR, including regarding any communication of the Personal Data Breach to the Data Subject and data protection authorities. bluecom.media will promptly investigate a Personal Data Breach and take reasonable measures to identify its root cause(s) and prevent a recurrence. As information is collected or otherwise becomes available, unless prohibited by law, bluecom.media will provide Client with a description of the Personal Data Breach, the type of data that was the subject of the Personal Data Breach, and other information Client may reasonably request. The Parties agree to coordinate in good faith on developing the content of any related public statements or any required notices for the affected Data Subjects and/or the relevant data protection authorities.

21. Storage, retention and deletion of Personal Data bluecom.media shall Process and retain data, including Personal Data, in accordance with Applicable Law, regulations, including but not limited to national telecom legislation and Data Protection Laws. The data, including Personal Data, submitted to the platform of bluecom.media shall be Processed and stored in accordance with bluecom.media’s data retention policy. The Personal Data shall be retained for no longer than is necessary for providing the Services under the Agreement, for the purposes as stated in Part I and as far as required and/or allowed under Applicable Law. bluecom.media shall de-identify or depersonalize data into anonymized data after the applicable retention period. This results in data that includes no Personal Data or unique identifiers that could later be used to refer to the Personal Data to which the data was once associated.
22. Description of Processing

22.1 Nature and Purpose of Processing bluecom.media will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Agreement, and as further instructed by Client in its use of the Services.

22.2 Categories of Data Subjects Client may submit data to bluecom.media in using the Service, the content of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects: • (Potential) customers (who are natural persons) of Client or its clients; • Employees, contractors, advisors, freelancers or persons hired by (customers of) Client; • Contact persons of Client’s prospects, customers and business partners; • Client’s users authorized by Client to use the Services.

22.3 Type of Personal Data Client may submit Personal Data to the Services, the extent of which is determined and controlled by Client in its sole discretion, and which may include, but is not limited to the following categories of Personal Data: First and last name, Contact information (company, address, email, phone), IP address.

23. Purposes of Processing The Personal Data is Processed for the following purposes: Provision of the Services as detailed in the Agreement, handling complaints and disputes, Client support, providing information to emergency services, preventing fraud and criminal activities on bluecom.media’s platform.

Part III. Messaging

In the event that messaging Services are a part of the Service provided to Client under the Agreement, the following conditions apply:

24. General The Client is responsible for the content of all messages sent by Client and guarantees that these comply with Applicable Law.
25. Additional Terms and Conditions SMS Messaging

25.1 The messaging account(s) of Client have a standard message limit of 50,000 messages. bluecom.media will send Client an electronic notice (e-mail) when Client reaches 75% of the standard message limit.

25.2 After receiving the message limit notification, Client will be able to pay for the messages for which no payment has been received by bluecom.media. Due and timely payment will prevent the messaging account from being (temporarily) suspended when the message limit is reached. Client may request an increase of the applicable message limit. Client hereby agrees that bluecom.media may, in its sole discretion, modify (increase or decrease) or cancel the message limit at any time by email notification to Client and with immediate effect. Any requested change of the message limit requires written approval of bluecom.media. Until the credit limit has been increased or messages have been paid by Client, bluecom.media has the right to suspend the Services without further notice and/or any liability. bluecom.media is under no obligation to send SMS messages until payment is received and/or the limit is increased and accepts no liability for the consequences of said SMS messages not being received by the End Users.

26. Additional Terms and Conditions OTT, Social Media and Push Services

26.1 OTT, social media and Push Services provide the Client with the possibility to communicate, share information with, and regarding individual End Users using OTT, social media applications and/or in-app push messaging. It is the sole responsibility of the Client to ensure the communication, the information obtained and sent to the End User is sufficiently secured and protected, and that Client has obtained the required informed consent of each individual End User, or has a lawful basis, before Processing or transferring any information of said End User using OTT, social media channels or push messaging. bluecom.media shall not have any responsibility in this regard and bluecom.media shall provide (access to) OTT, social media and Push Services and all information on “as is” and “as available” basis.

26.2 The terms and conditions of the organizations providing the various OTT, social media platforms and services integrated in the Service are applicable to the use of the Service by Client. It is Clients responsibility to ensure compliance with said general terms and conditions and Applicable Law. Client shall indemnify, defend and hold harmless bluecom.media and its affiliates against all liabilities, losses, damages, claims, penalties, fines and costs (including reasonable legal costs) resulting from or arising out of the failure by Client to comply with terms and conditions applicable to the Clients use of OTT, social media and Push Services.

27. Additional Terms and Conditions WhatsApp Business Solution In the event that WhatsApp Business Solution is a part of the Service provided to Client under the Agreement, the following conditions apply and Client hereby unconditionally accepts and agrees to the WhatsApp Business Solution Terms: www.whatsapp.com/legal/business-solution-terms. Notwithstanding anything in this Agreement to the contrary, the provision of WhatsApp Business Solution is expressly conditional upon the positive outcome of and approval by bluecom.media following the bluecom.media client screening procedure (Know your Customer or “KYC”), onboarding, screening and acceptance of Client by WhatsApp. In the event bluecom.media and/or WhatsApp do not approve and/or accept Client, this Agreement shall for the provision of WhatsApp Business Solution be null and void.

In connection with Customer’s use of WhatsApp Business Solution, Client may not grant any third party service provider (hereinafter referred to as ‘Independent Software Vendor’ and/or ‘ISV’) access to the WhatsApp Business account of Client and/or Client’s WhatsApp Business Traffic, unless the Client and ISV have signed the WhatsApp ISV Terms. bluecom.media reserves the right to immediately suspend Client’s use of WhatsApp Business Solution in the event Client provides access to and/or engages an ISV without prior acceptance of the ISV Terms by Client and the ISV, and approval of the ISV by WhatsApp. If Client intends to, or has engaged an ISV, Client shall immediately notify bluecom.media, provide the information of the ISV as reasonably requested and shall comply with the WhatsApp ISV Terms.

28. Additional Terms and Conditions RCS Business Messaging In the event that RCS Business Messaging is a part of the Service provided to Client under the Agreement, the following conditions apply and Client hereby unconditionally accepts and agrees to the RCS Business Messaging Terms: https://developers.google.com/business-communications/rcs-business-messaging/support/tos. Notwithstanding anything in this Agreement to the contrary, the provision of RCS Business Messaging is expressly conditional upon the positive outcome of and approval by bluecom.media following the bluecom.media client screening procedure (Know your Customer or “KYC”), onboarding, screening and acceptance of Client by Jibe Mobile Inc. (a wholly owned subsidiary of Google LLC). In the event bluecom.media and/or Jibe do not approve and/or accept Client, this Agreement shall for the provision of RCS Business Messaging be null and void.

RCS Business Messaging Traffic of Client may be processed by Jibe Mobile Inc. Client shall obtain and maintain any required consents necessary to permit the processing of personal data under RCS Business Messaging Terms by Jibe Mobile Inc. Client shall present or make available to each End User (in relation to RCS Business Messaging) an accurate, legally compliant, privacy policy and terms for Client’s End User Services associated with RCS Business Messaging. Such privacy policy and/or terms must (i) ensure the end user authorizes Jibe to conduct the data processing activities contemplated under the RCS Business Messaging Terms; and (ii) not conflict with or supersede the RCS Business Messaging Terms in any way.

29. Additional Terms and Conditions Apple Messages for Business In the event that Apple Messages for Business is a part of the Service provided to Client under the Agreement, the following conditions apply and Client hereby unconditionally accepts and agrees to the Apple Messages for Business Register Terms of Use : https://register.apple.com/resources/tou/register_en.html. Notwithstanding anything in this Agreement to the contrary, the provision of Apple Messages for Business is expressly conditional upon the positive outcome of and approval by bluecom.media following the bluecom.media client screening procedure(Know your Customer or “KYC”), onboarding, screening and acceptance of Client by Apple Inc. In the event bluecom.media and/or Apple do not approve and/or accept Client, this Agreement shall for the provision of Apple Messages for Business be null and void.

Part IV. Pre-paid

In the event that Client uses any Service(s) on a Pre-Paid Basis and/or account, the following conditions apply:

30. Additional Terms and Conditions Pre-Paid

30.1 Pre-Paid Client: the Client who uses the Service on a pre-paid basis. The Pre-Paid Client will make occasional payments to bluecom.media in accordance with an Order, which are credited to its account. The credit allows the Pre-Paid Client to use the Services.

30.2 If Client has a pre-paid account, charges are incurred for the use of some Services, which are debited from Clients’ pre-paid account. Services subject to charges can only be used if the applicable minimum amount has been paid into the Pre-Paid Clients’ account.

30.3 Pre-paid credits and balance can be used by the Pre-Paid Client the day following the day the amount is received by bluecom.media. Pre-paid credit is non-refundable and will expire twelve (12) months after the date on which the Pre-Paid Client purchased the prepaid balance.

30.4 The Pre-Paid Client is in default if a credit card payment is being charged back. In such a case, bluecom.media is entitled to terminate the Pre-Paid Client’s account when a credit card payment is charged back.

30.5 Client will indemnify bluecom.media against misuse of pre-paid balance by third parties.

30.6 bluecom.media, is entitled to refuse a Pre-Paid Client registration to its’ service without giving reasons and to terminate an existing account without giving reasons. Registration may only be made once per person or legal entity. The account will be deleted if the account is not charged within three (3) months of registration, or within three months after all credit has been used.

Part V. Data Services

In the event that Data Services are a part of the Service provided to Client under the Agreement, the following conditions apply:

31. Additional Terms and Conditions Data Services

31.1 Client agrees to, and shall ensure compliance with said terms and conditions. In case of conflict between the Terms and Conditions and the Data Services Terms, the latter prevail.

31.2 Data shall be submitted by Client or suppliers of Client to bluecom.media in a secure manner, by uploading to bluecom.media servers via a secure connection or the delivery of data carriers in a format supported by bluecom.media.

31.3 Client is responsible for the safe and correct delivery of the Data to bluecom.media by Client and its suppliers and shall ensure that a continuously working connection is set up and maintained between the Client’s platform and bluecom.media’s platform. If the Data is held by suppliers of Client, Client shall instruct these suppliers to transfer the data to a location designated by bluecom.media.

31.4 Client is responsible for the Data, the delivery of the Data and the creation and management of customer profiles and guarantees that the Data provided is free from any known viruses, worms, trap doors, time bombs, logic bombs, Trojan horses or similar items capable of altering, deleting or interfering with any data, information, software or (sub)systems of bluecom.media.

31.5 The Service and any results or reports generated by the Client using the Service provided by bluecom.media are based on the Data, events and information provided by the Client and the concepts, disciplines and procedures used and adopted by bluecom.media, including the bluecom.media IP, and bluecom.media does not warrant that the same will necessarily be achieved by other parties.

31.6 Except as expressly set forth herein, the Service and the subsequent results are provided “as is” and “as available”. bluecom.media makes no further warranties or representations of any kind, express or implied for the Service and the results provided. bluecom.media disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Client or any third party resulting from the Service and/or the results provided. .