Terms and Conditions of Service
These terms and conditions regulate the provision of services (the "Agreement") governing the business relationship between the LabsMobile platform (hereinafter, "LABSMOBILE"), and the Client.
The purpose of the Agreement is to establish the terms and conditions that will govern the provision by LABSMOBILE of the SMS sending service (the "Service(s)") in favor of the Client, as well as to establish the rights and obligations arising for each party.
The Contract shall have a duration of one (1) year as from its subscription, and shall be tacitly extended for additional identical periods, unless any of the causes for termination foreseen in clause 11 of the Contract should occur.
3. CONTRACTING AND CANCELLATION OF THE SERVICE
The contracting of the Service must be requested by the Client through the corporate web page of LABSMOBILE http://www.labsmobile.com (the "Web"), specifically through the account registration form. Once the account is registered, the Client will be sent the access credentials and instructions to operate under the account. The account will be validated by LABSMOBILE once the first purchase has been made through the same.
In the event that the Client is already registered on the Web and the data entered in the control panel are not correct, he/she will have the possibility of correcting them through the Web control panel and/or contacting the Customer Service Department.
During the term of the Contract, the Customer may proceed to purchase from LABSMOBILE the SMS sending packages he/she wishes. These may be sent during the 18 months following their acquisition and the price applicable to such sending will be the public price in force at the time of sending. The price and payment of the Service is configured as a credit system, the Customer pays an amount that constitutes a credit in its favor, from which the amounts corresponding to the price determined for each SMS will be deducted at the time the sending is requested.
The request for cancellation of the Service implies the termination of the Contract in accordance with the provisions of clause 11. From that moment on, you will no longer have access to the contracted Service and it will not be possible to recover the stored information.
4. PRICE AND FORM OF PAYMENT
The price applicable to the contracted Service is detailed in the "Prices" section of the Web, according to the type of contract selected by the Client. To the price will be added the Value Added Tax (VAT) or equivalent accrued tax that is applicable at all times according to the current regulations.
LABSMOBILE may modify the price applicable to the Service at any time, either for commercial reasons or for reasons beyond LABSMOBILE's control, such as cost increases by telecommunications providers. In any case, the price will be public at all times on LABSMOBILE's website.
The prices are determined in Euros, the prices that appear on the Web in other currencies are updated daily according to the corresponding exchange rate.
The current price of the contracted SMS pack will be paid by the Client at the moment the purchase is made by clicking on the "ACCEPT" button by means of any of the payment methods offered on the web and under the conditions specified therein. Notwithstanding the foregoing, the price of the SMS may be altered during the period of execution of the contracted shipments and therefore the number of SMS shipments contracted may be lower or higher depending on the monetary amount paid by the Customer, who has a credit against LABSMOBILE for such amount.
LABSMOBILE will issue a recapitulative invoice for all purchases made before the 16th day of the month following the month in which they were made. The invoices will be made available to the Client in the "Invoices" section of the personal space of the corporate Web, and LABSMOBILE will send an e-mail with the invoice attached.
5. FUNCTIONALITIES OF THE SERVICE
The main functionalities of the Service consist of connectivity (availability of the platform and connection of the routes) and sending SMS. The rest of the functionalities that appear on the corporate web page are provided free of charge and may be modified and/or cancelled at the discretion of LABSMOBILE, without the Client being entitled to any claim or compensation of any kind.
The Client will be able to consult, in the control panel of his account, the history of the SMS sent and the contact data stored during the last 12 months. The access to the contacts and SMS sent prior to said period and up to a maximum of 2 years old may be made by the Client by express request to LABSMOBILE through the channels described in the "Contact" section of the Web.
LABSMOBILE will also provide a technical assistance service to the Client to attend to the incidents arising from the Service, provided that they are not due to causes attributable to the Client. The assistance will be provided through the channels and tools provided in the Web described in the "Contact" section of the same.
6. LEVEL OF SERVICE
For the provision of the Service and the execution of the functions assumed, LABSMOBILE undertakes to comply with the service levels (SLA) determined in Annex I of the Agreement. The parties acknowledge that the penalty regime applicable to this Agreement is that set forth in Annex I.
7. OBLIGATIONS OF THE CUSTOMER
Without prejudice to the obligations specifically assumed in other clauses of the Agreement, the Customer undertakes to comply with the following obligations:
(a) To pay the price of the Service.
b) To guarantee the suitability, compatibility and security of the networks, systems, servers, equipment, devices and/or terminals that have access to the Service.
c) Use the Service in accordance with applicable law, morality, good customs and public order, expressly agreeing to avoid any action that could in any way damage, disable or overload the systems, equipment or services accessible directly or indirectly through LABSMOBILE, expressly including the computer equipment of third parties, as well as any type of content stored either in computer equipment of LABSMOBILE or any third party. In any case, the Customer will refrain from using the Service for illicit purposes or effects, damage the rights or image of LABSMOBILE or third parties. Thus, LABSMOBILE will not be liable for damages of any kind arising from the fraudulent use of the Service and the non-infallibility of the Service and the contents accessible through the Service.
d) To keep secret and make diligent use of the access credentials to the account of the Web, being also obliged to modify it immediately when it is known that third parties have unduly known them. In any case, LABSMOBILE is not responsible for the use made by the Client or any third party of the Client's credentials and other information. It will be the Client, as the person responsible for the custody of his credentials, who will be responsible for the expenses incurred in connection with the use of the same.
8. OBLIGATIONS OF LABSMOBILE
Without prejudice to the rest of the obligations specifically assumed in the Contract, LABSMOBILE undertakes to:
a) To make available and maintain its equipment and software necessary for the purpose of carrying out the provision of the Service, under the terms set forth in the Contract.
b) To dedicate the human resources necessary for the optimal development of the provision of the Service.
c) Fulfill its obligations under the Contract within the conditions and deadlines set forth therein.
d) Send the SMS using its platform in the shortest possible time.
e) Adopt and implement all necessary measures to comply with legal obligations and/or agreements with telephone operators and local administrations/entities in each country.
LABSMOBILE shall be liable for the direct and effective damages caused to the Client as an immediate consequence of the fraudulent or negligent breach by LABSMOBILE of the obligations arising from the Contract. Notwithstanding the foregoing, the total, maximum and sole liability of LABSMOBILE shall be limited to the amount received by LABSMOBILE for the specific Service that is the object of the claim.
Under no circumstances shall LABSMOBILE be liable for indirect damages that are the mediate or remote consequence of the breach of contract such as, but not limited to, loss of profits, loss of contracts, business interruption and/or loss of profits.
Thus, and in any case, LABSMOBILE will never be responsible for:
a) Any incidence, suspension, interruption and/or crash of the Client's systems that prevent the connection to the Internet and/or the availability and/or continuity in the provision of the Services.
b) Any incident or suspension of the Service attributable to actions or omissions of the telecommunications operators that prevent the Customer's equipment from accessing the Internet and/or the delivery of the SMS sent.
c) Any loss of data or operating time, use of the software and the platform, suffered directly or indirectly by the Client for reasons not attributable to LABSMOBILE, in particular, computer attacks, entry of intruders into the systems and/or the hijacking of its data by third parties.
d) Any infringement of regulations, third party rights or the terms of the Contract incurred by the Client during the term of the Contract.
e) The impersonation of a third party by the Customer in any communication made through the Service.
f) The breakdowns, failures, errors or loss of information that, directly or indirectly, are derived: (i) from the Client's failure to use the Service; (ii) from breakdowns outside the activity carried out by LABSMOBILE in the provision of the Service, nor from the repair of the same by the Client or a third party.
g) The breach of any of the obligations derived from the Contract due to force majeure. Force majeure" shall mean acts of God, pandemic, war, strikes, acts of terrorism, fire, earthquake, explosion, accident, flood or other natural disaster, sabotage, lack of adequate fuel, or lack of energy, raw materials, containers or transportation due to causes beyond the reasonable control of a Party; labor disputes, or any other cause that prevents or delays the performance of the Contract, arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the affected party.
10. INTELLECTUAL PROPERTY RIGHTS
LABSMOBILE, for the sole purpose of receiving the Service, grants the Customer a non-exclusive and non-transferable license, without the right to transfer to third parties, to access and use the software and contents of the SMS sending platform (the "Software") owned by LABSMOBILE.
Accordingly, the Customer agrees to:
(a) Use such Software solely for the purposes inherent to the contracted Service. The Customer assumes all responsibility derived from the selection of the Service to achieve the objectives and results proposed.
b) Allow the use of the Software only to those users authorized to do so.
c) In no case modify, decompile, disassemble, recreate, copy, reproduce, reverse engineer and/or make derivative versions of the Software and/or carry out any action contrary to the Intellectual and Industrial Property Rights on the application.
d) Not to carry out any action with the purpose of circumventing, violating or otherwise rendering ineffective measures of any nature intended for the protection of the Software.
e) Comply with the provisions and rules of use that are provided in particular on the Web.
The Client accepts that the Software may not be available for reasons not attributable to LABSMOBILE such as, but not limited to, periodic system maintenance, acts of God, technical failures, computer attacks or fluctuations in the demand for the Service. Thus, any guarantee in relation to the operation of the Software is excluded when the lack of availability of the same by the Client is due to causes beyond the control of LABSMOBILE.
11. TERMINATION AND EFFECTS
The Contract shall be terminated in advance in the following cases:
a) By express agreement of the Parties.
b) By will of each Party, provided that one (1) month's prior written notice is given to the other Party.
c) When a Party seriously or repeatedly breaches any clause of the Contract and the breach, if it can be cured, is not cured within the following fifteen (15) calendar days in which the non-breaching Party informs the breaching Party of such breach. If the non-compliance is considered insubstantial or makes it impossible for the complaining party to perform the Contract, the termination may be immediate. In any case, the breach by the Client of the Contract and/or of the regulations in force, will entitle LABSMOBILE to suspend or interrupt, without prior notice, the rendering of the Service, and this without prejudice to the right to request from the Client the corresponding compensation for damages.
At the date of termination of the Contract, the Service will be considered as terminated and extinguished for all purposes.
This Agreement may be assigned by LABSMOBILE to any company that may provide the Service, communicating in any case such circumstance to the Client.
13. PROTECTION OF PERSONAL DATA
The personal data relating to the Parties provided for in the Contract will be processed by the same for the purpose of executing the Contract. The legitimacy of the processing is the execution of the contractual relationship. The data will be kept for the period provided for by the regulations in force (especially in accounting and tax matters) and will not be communicated to third parties except to the Public Administration in the cases provided for by law and, where appropriate, to financial institutions for the collection of the Service. Each Party may exercise the right of access, rectification, deletion, opposition, limitation and portability, at the registered office of the other Party. In the event that the Parties would like further information with respect to any of these rights, they may contact the Control Authority.
Due to the fact that LABSMOBILE will have access to personal data under the responsibility of the Client (name and surname, telephone number and, if applicable, the content of the SMS), LABSMOBILE will act as "Data Processor" and, consequently, is obliged to the following:
a) To use the personal data only for the purpose of the Service and, under no circumstances, for its own purposes.
b) To process the personal data in accordance with the Client's instructions.
c) To keep, in writing, a record of all categories of processing activities carried out on behalf of the Client.
d) Not to communicate the data to third parties, except with the express authorization of the Client and in the cases provided for by law. LABSMOBILE may communicate the data to other data processors of the Client, in accordance with the Client's instructions. In this case, the Client will identify, in advance and in writing, the entity to which the data must be communicated, the data to be communicated and the security measures to be applied in order to proceed with the communication. If LABSMOBILE must transfer personal data to a third country or an international organization, it will inform the Client of this legal requirement in advance, unless such Law prohibits it for important reasons of public interest.
e) In order to subcontract to other entities, LABSMOBILE shall inform the Customer in writing. The subcontracting may be carried out if the Client does not express its opposition within three (3) calendar days. The subcontractor, who shall also have the status of data processor, shall also be obliged to comply with the obligations established in this clause for LABSMOBILE and the instructions issued by the Client. It is up to LABSMOBILE to regulate the new relationship, in such a way that the new processor is subject to the same conditions and formal requirements as the latter, with regard to the adequate treatment of the personal data and the guarantee of the rights of the affected parties.
f) Maintain the duty of secrecy with respect to the personal data to which it has had access by virtue of the provision of the Services, even after they are terminated.
g) To guarantee that the persons authorized to process personal data undertake, expressly and in writing, to respect confidentiality and to comply with the corresponding security measures, of which they must be duly informed, and to keep at the Client's disposal the documentation accrediting compliance with said obligation.
h) Where appropriate, to assist the Client in responding to the exercise of the rights of access, rectification, deletion and opposition, limitation, data portability and not to be subject to automated individualized decisions (including profiling). When the affected parties exercise the rights of access, rectification, erasure and opposition, limitation of processing, data portability and not to be subject to automated individualized decisions, before LABSMOBILE, the latter must notify the Customer.
i) To notify the Client, without undue delay, of any breach of security of the personal data under its responsibility of which it becomes aware, together with all relevant information for the documentation and communication of the incident. Notification shall not be required when such security breach is unlikely to constitute a risk to the rights and freedoms of natural persons. It shall be the Client's responsibility to communicate data security breaches to the Spanish Data Protection Agency.
j) To make available to the Client all the information necessary to demonstrate compliance with its obligations, as well as for the performance of audits or inspections carried out by the person in charge or any other auditor authorized by him.
k) To implement security measures in accordance with the risk assessment carried out.
l) Destroy the personal data upon termination of the Contract. However, LABSMOBILE may keep a copy, with the data duly blocked, as long as liabilities may arise from the execution of the Contract.
On the other hand, the Client undertakes to:
a) Comply with the personal data protection regulations in force.
b) Supervisar el tratamiento, incluida la realización de inspecciones y auditorías.
The Client undertakes to hold LABSMOBILE harmless against any claim that may be filed (including any disciplinary proceeding that may be initiated by the competent Authority) for the breach by the Client of the regulations on the protection of personal data, accepting to pay the amounts that by way of penalty, fine, compensation, damages and interests it may be obliged to satisfy.
The Customer authorizes LABSMOBILE to appoint the following categories of third party processors for the purpose of providing the Services:
- Network operators for the sole purpose of terminating communication with the end recipient's terminal.
- Data center operators for the purpose of storing data of the end recipient and hosting the service.
Both parties shall maintain the strictest reserve and confidentiality on all information of each of them to which they have access on the occasion of the provision of the services covered by this Agreement, committing to use such information only for the development of such services.
If the Client proceeds to resell the Service to third parties (the "Reseller") it will transfer to its clients all the obligations foreseen for itself in the Contract, exonerating LABSMOBILE from any responsibility. In any case, the customers of the Reseller will proceed to contract the Service directly with the Reseller, not having any direct relationship with LABSMOBILE.
In the case of resale of the Service, the Customer may exceptionally sublicense to its customers, for the sole purpose of receiving the Services, the license granted in its favor under clause 10 of the Agreement. In this case, the Client shall transfer to its customers the obligations indicated in letters a) to e), both included, of clause 10, as well as the rest of the content of the clause that is applicable.
The Contract and the Annexes represent the only valid agreement between the Parties in relation to the subject matter hereof and supersede any other agreements previously reached by the Parties, whether verbal and/or written. In the event of contradiction between the provisions of the Contract and those set forth in the Annexes, the provisions of the Contract shall prevail in all cases.
If any of the clauses of the Contract is declared, totally or partially, null or ineffective, such nullity or ineffectiveness shall only affect such provision or the part thereof that is null or ineffective, and the Contract shall remain in force in all other respects, and such provision or the part thereof that is affected shall be deemed not to be in force. For such purposes, the Contract shall cease to be valid only with respect to the invalid or ineffective provision, and no other part or provision of the Contract shall be annulled, invalidated, impaired or affected by such invalidity or ineffectiveness, unless such invalidity or ineffectiveness is essential and would affect the Contract as a whole.
17. APPLICABLE LAW AND COMPETENT JURISDICTION
The Contract shall be governed by and construed in accordance with the laws of Spain. For any controversy that may arise in relation to the interpretation and/or execution of the Contract, the parties, expressly waiving any other jurisdiction that may correspond to them, submit to the jurisdiction of the Courts of the city of Barcelona (Spain).
Availability service level agreements (SLAs) make it possible to establish a commitment in relation to the reliability and maintenance of the message delivery service provided by LABSMOBILE.
LABSMOBILE is committed to guaranteeing the following levels of service:
- Availability of the message delivery service (API). Monthly Availability Index: 99.95%
- Availability of the web platform (WebSMS). Monthly Availability Index: 99.95%
- Availability of the message sending service (API): provision of the function for accepting requests for transmission of communications.
- Availability of the web platform (WebSMS): accessibility and operability of the administration and management web application.
- Monthly Availability Index: the total number of minutes of the month in question after subtracting the number of minutes of Non-Availability of the corresponding month, all divided by the total number of minutes of the month in question.
- Non-Availability: the loss of access or connectivity to the Services for more than three (3) consecutive minutes due to causes directly attributable to LABSMOBILE. In no case will "Non-Availability" be understood for the purposes of this Annex, and therefore will not be computed for the calculation of this service level agreement (SLA), the loss of access or connectivity of the Services caused by, to non-limiting enunciative title, the following causes:
(i) events or factors beyond the control of LABSMOBILE such as, but not exclusively, force majeure, action of a third party, connection problem to the internet network, failure of the internet network, malfunction or misuse of hardware or software under Customer's control;
(ii) breach by the Client of its obligations acquired under this Contract (such as lack of collaboration to resolve the incident);
(iii) misuse or inappropriate use of the Service by the Client;
(iv) planned maintenance;
(v) hacking, attack or computer hacking.
LABSMOBILE constantly monitors its infrastructure through monitoring requests of the ARP Ping (Address Resolution Protocol) type. The unavailability time is calculated by LABSMOBILE from the opening of the case or incident by the monitoring software until the reestablishment of connectivity and service.
If the established availability service levels are not reached, the Customer may request the following compensation. Recharge of balance equal to 0.5% of the average monthly amount paid by the Client (calculated in relation to the recharges of the last year) for each interval of ten (10) consecutive minutes of Unavailability (from the breach of the SLA), with a limit of 25% (twenty-five percent) of the average monthly amount.
Balance top-ups are made directly to the Customer's account at the latter's request. The Client must obligatorily request it no later than the month following the one in which the Non-Availability has been verified. Failing that, the Customer will lose the balance recharge. Said balance must be consumed by the Client in the calendar month following the moment in which it was recharged in the Client's account. Failing that, you will lose the balance and will no longer be able to use it. In no case will the recharged balance be reimbursed to the Client in cash.
It is expressly agreed that the aforementioned balance recharges constitute for the Client a flat-rate compensation for all the damages resulting from the non-observance by LABSMOBILE of the service commitments in question, the Client waiving any other request, claim and/or or action.
In no case may the Client enforce this clause and claim the aforementioned balance recharges in the event that the unavailability of the Services is not directly attributable to LABSMOBILE.
The causes of the unavailability of the Services will be determined by LABSMOBILE by any means, and especially based on the elements of LABSMOBILE's information system (such as connection data).