These General Terms and Conditions are incorporated into and expressly made part of all contracts between BEABLOO, S.L., its subsidiaries, affiliates and related companies of the BEABLOO Group (hereinafter collectively known as BEABLOO), a limited liability company incorporated in Spain and identified with Corporate Tax Identity Number (CIF) B64894066, with registered address at Llacuna Street 161, 4th floor 1, 08018 Barcelona, Spain, registered at the Companies Register of Barcelona on the 8th of July, 2008 under Registration No. 40588, Folio 127, General Section, Sheet 368353, 1st Entry, and its CLIENTS. BEABLOO and its CLIENTS shall hereinafter collectively be known as the PARTY or PARTIES.
These General Terms and Conditions are a legal contract between BEABLOO and the CLIENT as further described hereunder, and by using the SERVICES as further described hereunder, the CLIENT agrees to be bound by this contract, regardless of whether a BEABLOO Service Contract has been entered into or not, so you should read these General Terms and Conditions carefully before using the SERVICES.
1.- OBJECT OF THE CONTRACT.
1.1. BEABLOO makes available to the natural or legal person whose particulars are stated in the BEABLOO Service Contract or who otherwise is provided or has access to the SERVICES (hereinafter known as the CLIENT), the services and products offered by BEABLOO, which shall consist of the management, maintenance and marketing of contents to be displayed on advertising media located at establishments open to the general public and on digital media such as mobile phones, websites and social media, through the use of BEABLOO’s proprietary software for digital marketing including:
a. BEABLOO Website (www.beabloo.com)
b. BEABLOO Operating System
c. BEABLOO Content Management System (private area of the BEABLOO Website)
d. BEABLOO Places (mobile application)
e. BEABLOO CLIENT Website
f. BEABLOO Advertising Server for the aggregated marketing and sale of free advertising capacity on BEABLOO Interactive Points (BIP). BIPs are defined as the number of players and the number of screens located at CLIENTS’ premises that broadcast its BEABLOO Channel to the CLIENT’s customers and/or the general public.
g. Any other customized developments and solutions as provided under the terms and conditions provided in the BEABLOO Service Contract
h. Additionally BEABLOO may supply to the Client the equipment, mounts, cabling, installation and maintenance services required for the provision of the SERVICES, for the consideration and under the terms and conditions provided for in the BEABLOO Service Contract.
and as the object of the present General Terms and Conditions, the products and services described above and elsewhere in this provision shall be hereinafter collectively known as SERVICE(S).
1.2. The CLIENT shall have access to the private area of the BEABLOO Website, hereinafter known as the BEABLOO Content Management System, wherein he may create, edit and publish contents on his BEABLOO CHANNEL and determine the broadcasting options for each content item, which shall include the publication of the aforesaid contents, at the CLIENT’s choice, through some or all of the following channels, without limitation: BEABLOO Player, CLIENT’s homepage, Mobile Application and social media. The BEABLOO CHANNEL shall be defined as the collection of contents, either created or selected by the CLIENT or provided by BEABLOO, in accordance with the BEABLOO Service Contract, including, without limitation, any or all of the following:
a. Homepage of the CLIENT and / or third parties
b. RSS Feeds
c. Mobile Application for smartphones, tablet computers and other devices (application currently available for Apple IOS and Android IOS). Please check availability for particular devices and other IOS.
d. Any other application or source of data used by the CLIENT not owned by him
e. Third Party advertising contents.
1.3. The Mobile Application shall be available for download at the BEABLOO Website or at any other website, as BEABLOO may decide from time to time. Once installed in a mobile device such as a smartphone or tablet computer, it shall enable end users, such as the CLIENT’s customers, to have access to the CLIENT’s BEABLOO CHANNEL and/or to contents specifically created and published by the CLIENT for distribution through this communication channel. The CLIENT may at all times manage the contents through the BEABLOO Content Management System.
1.4. The CLIENT shall have the possibility to integrate contents to and from its BEABLOO CHANNEL and his profiles, personal or professional pages or other forms of participation in social media. The aforesaid functionalities can be managed using the BEABLOO Content Management System. For the avoidance of doubt, social media is understood as a generic term that encompasses various activities that integrate technology, social interaction and content creation. Social media, including without limitation Facebook, Twitter and other services that may exist now or in the future, are provided by third party companies unrelated to BEABLOO and shall be governed by the terms and conditions that the said third party companies establish from time to time.
1.6. BEABLOO has not reviewed the aforesaid social media services and has no control over such sites, therefore it cannot be held responsible for the information obtained therefrom or contained therein and neither can it guarantee the availability, reliability, merchantability or absence of legal, financial or reputational risks, for which the CLIENT shall be exclusively responsible. BEABLOO is not responsible for the content of the aforesaid social media, any updates or changes to such sites, or the privacy or other policies of such sites, and the fact that BEABLOO offers the possibility to integrate contents to and from those sites, at the choice and under the responsibility of the CLIENT, does not indicate any approval or endorsement of any material contained on any social media site. BEABLOO is providing the functionality allowing the integration of content with social media services to the CLIENT only as a convenience. Therefore content integration with any social media site in particular shall not be guaranteed and the CLIENT should consult the BEABLOO Content Management System regularly to check availability.
2.- SCOPE OF THE CONTRACT
2.1. The contractual relationship between the CLIENT and BEABLOO shall be governed by the provisions of these General Terms and Conditions, the BEABLOO Service Contract and/or any other Special Conditions that may be agreed between the PARTIES.
2.2. These General Terms and Conditions and the Special Conditions contained in the BEABLOO Service Contract are accepted by the CLIENT upon signature of the BEABLOO Service Contract. In the alternative, by using the SERVICES the CLIENT agrees to be bound by this contract, regardless of whether a BEABLOO Service Contract has been entered into or not. In case of conflict between the present General Terms and Conditions and the BEABLOO Service Contract, the Special Conditions of the BEABLOO Service Contract will prevail. Without prejudice to the provisions of Section 20, the CLIENT shall be bound by the General Terms and Conditions in the applicable version of the date of his signature of the BEABLOO Service Contract.
3.- PRICES AND FEES.
3.1. Applicable prices, quotas and/or fees are stated in the BEABLOO Service Contract and / or in any other written agreement between the CLIENT and BEABLOO.
3.2. For the avoidance of doubt, the following services, without limitation, are excluded from the SERVICES provided according to these General Terms and Conditions and any other agreement concluded between the PARTIES if not specifically confirmed in writing and shall be paid by the CLIENT against separate invoice:
a. Any performance not expressly included in the definition of the SERVICES.
b. Supplies and services for the detection, analysis and repair of service interruptions for causes that are not attributable to the SERVICES provided and / or maintained by BEABLOO, or when the cause cannot be reproduced (i.e. misuse of the SERVICES through unauthorized manipulations or interventions, under the action of third party products; change of data via programs or interfaces not provided by BEABLOO).
c. Supplies and services for the repair of failures and / or interruptions caused by force majeure and or physical interventions by third parties, including but not limited to extraordinary physical, chemical or electrical impacts, lightning, power supply, animals and forces of nature.
d. Costs caused by non-compliance of the CLIENT with his duty to cooperate, as set forth under Section 10.
e. Costs and damages created by the attacks of software viruses, any attacks to the CLIENT’s computer software and systems.
3.4. In the absence of an express agreement to the contrary, all prices, quotas and/or fees shall be denominated in the currency provided in the BEABLOO Service Contract. In the absence of any agreement concerning the currency, all prices, quotas and/or fees shall be denominated and paid in Euro.
3.5. ALL PRICES ARE NET PRICES EXCLUSIVE OF TAXES, DUTIES, AND OR ANY OTHER FEES, COSTS OR CHARGES. The CLIENT shall pay all taxes, duties and levies of any governmental authority legally applicable from time to time, and in particular Value Added Tax (IVA in Spain, Mehrwertsteuer in Germany) if applicable.
3.6. If not expressly otherwise agreed in writing or hereinafter, prices shall be adjusted every six months by the corresponding increase, if any, in the HICP (Harmonised Index of Consumer Prices published by the European Central Bank from time to time, commencing on the first of January of the second calendar year of the term of the BEABLOO Service Contract, if the contract has been signed on the first semester of the year, or on the first of July of the second calendar year, if the contract has been signed in the last semester of the preceding year.
3.7. After 2 (two) months of the commencement of the BEABLOO Service Contract or the commencement of the provision of the SERVICES, BEABLOO reserves the right to increase prices in the event of significant cost increases, due to reasons including but not limited to the conclusion of collective bargaining agreements, price increases of materials and equipment or the unreasonable and unforeseen increase in work hours required to provide certain services for causes that are not attributable to BEABLOO. At the request of the CLIENT, BEABLOO shall supply evidence of the underlying cost increases.
3.8. Prices agreed for test periods are not definitive and shall be subject to express confirmation when the BEABLOO Service Contract is entered into. Activation costs are one-time, non-refundable payments.
3.9. Prices for products and services that are partially or totally provided by third parties, such as software licences and third party maintenance services shall be subject to change in the event of material changes in the rates charged by third party suppliers.
3.10. Compensation for training and / or travelling will be calculated based on the agreed hourly fees for employees of BEABLOO and / or its partners as well as based on invoices for transportation and accommodation services, as applicable. All-in fees may be agreed on a case by case basis, at the request of the CLIENT. A kilometre allowance for use of own vehicles will be charged, at the rates agreed in the BEABLOO Service Contract or otherwise.
3.11. In the event that the CLIENT requests an upgrade of the SERVICES or any other change or addition of additional products and services not originally included in the BEABLOO Service Contract, the upgraded SERVICES and/or additional products and services shall be charged at the current prices, quotas and /or fees at the date of conclusion of the amendment to the contract including them.
4.- INVOICING AND PAYMENT DETAILS.
In the absence of any written provisions to the contrary in the BEABLOO Service Contract or other special conditions, the following payment terms shall apply:
4.1. BEABLOO shall invoice the CLIENT in advance of the invoicing period and service option chosen in the BEABLOO Service Contract, for the amounts owed by the CLIENT for his use of the SERVICES. All invoices shall be remitted to the CLIENT in paper or electronic format, as agreed in the BEABLOO Service Contract, at the postal or electronic address that the CLIENT has communicated to BEABLOO.
4.2. All invoices shall contain a detailed breakdown of the amounts owed for each of the SERVICES that have been provided, special offers, discounts and other conditions offered by BEABLOO, as well as of legally applicable taxes.
4.3. Invoices for SERVICES shall be paid 14 days following the date of invoice if not otherwise agreed or defined herein. Outstanding amounts shall be considered as paid upon the receipt of the amount in BEABLOO’s bank account.
4.4. Except as otherwise agreed in writing, the payment method shall be as agreed in the BEABLOO Service Contract or in the alternative, by wire transfer to BEABLOO’s bank account, all bank transfer fees and other charges to be paid by the CLIENT.
4.5. Except as otherwise agreed in writing, the invoicing period shall be as agreed in the BEABLOO Service Contract in respect of SERVICES delivered during the preceding period. Notwithstanding the foregoing, BEABLOO may invoice the CLIENT and demand immediate payment of any amounts owed or pending payments in any of following circumstances: -SERVICES suspension; -expiration or termination of the contract or SERVICES interruption; -CLIENT’s breach of the present General Terms and Conditions or of any other General or Special Conditions agreed by the latter to govern the supply of the SERVICES.
4.6. Any invoices that remain unpaid after their due date, unless late payment is attributable to the financial institution used by the CLIENT, shall accrue interest at the official rate based on EURIBOR (European Interbank Offered Rate) as published by the European Banking Federation plus 2% (two percent) per month of delay each day following expiration of such 30 (thirty) days delay being counted as 1/30 a month. In addition to the aforesaid late payment interest, the CLIENT shall reimburse BEABLOO for all the costs or fees charged by the bank on the bounced invoice, if applicable, up to a maximum of 2% (two percent) of the unpaid amount and BEABLOO may demand immediate payment of all outstanding amounts.
5.- PAYMENT GUARANTEES.
5.1. Upon execution of the BEABLOO Service Contract or during its term, BEABLOO may request the CLIENT to deliver a guarantee by establishing a non-interest bearing deposit in cash or through a bank guaranty. After signature of the contract, BEABLOO shall be entitled to request the delivery of a guarantee in the event of a serious and repeated breach by the CLIENT of the payment terms and conditions.
5.2. In the event that BEABLOO requests a guarantee as aforementioned and the CLIENT fails to deliver it, BEABLOO may, at its choice, reject the CLIENT’s request of the SERVICES if the guarantee ought to have been delivered upon execution of the contract, or otherwise it may suspend and/or terminate the contract and interrupt the performance of the SERVICES, under the terms and conditions permitted by the applicable law, if the request was placed at a later moment as a result of a serious and repeated breach by the CLIENT, as stated in the preceding paragraph.
5.3. If a CLIENT with outstanding debts wishes to terminate the BEABLOO Service Contract or discontinue the SERVICES, or requests the assignment of the contract, the guarantee shall be forfeited and BEABLOO may draw thereon to the extent required to cover the full outstanding amount, including, without limitation, the principal debt, accrued late payment interest as well as any costs or fees charged by the bank on the bounced invoice and any other costs and fees including lawyer’s fees deriving from the CLIENT’s default, the remainder to be paid back to the CLIENT.
6.- CONSEQUENCES OF LATE PAYMENT
6.1. Reporting to credit rating agencies
Notwithstanding the provisions of the following paragraph regarding suspension of the SERVICES, if the CLIENT fails to timely settle the outstanding amounts, either partially or totally, after having been given notice for late payment and provided that the credit reporting time limit of six years from the due date of the debt has not expired, the personal data that is relevant to rate the credit or solvency of the debtor CLIENT may be included in files concerning default on payment obligations.
6.2. Suspension of the SERVICES or termination of the Contract
If the CLIENT defaults partially or totally on his payment obligations, late payment interest shall accrue as further described in Section 4.6. and BEABLOO may at its sole discretion, without prejudice to the provisions of Section 15, and more particularly Subsection 15.6:
a. Temporarily suspend the SERVICES affected by the non-payment, with prior notice to the CLIENT. BEABLOO shall resume the delivery of the SERVICES on the first working day after receiving confirmation of the settlement of the outstanding amount. The temporary suspension shall only affect those services for which payment has defaulted. At its choice, BEABLOO may definitively discontinue the SERVICES under the provisions of the BEABLOO Service Contract and the present General Terms and Conditions.
b. Continue with the contract and demand the immediate payment of all outstanding amounts including late payment interests as further described in Section 4.6.
7.- SERVICE CONDITIONS.
7.1. The CLIENT shall abide by the instructions and communications of BEABLOO concerning the proper use of the SERVICES and in particular comply with the provisions of the BEABLOO Service Contract. BEABLOO shall not be liable in case of circumstances beyond its control such as force majeure or unforeseeable circumstances, nor whenever public policy prevails.
7.2. The CLIENT shall refrain from using or launching any automated system, including without limitation, robots, spiders or offline readers that access the Software, Products, SERVICES or BEABLOO Website; using any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage, emulate, reverse-engineer, decompile or disassemble the Software, Products, SERVICES of BEABLOO Website, communication or protocols.
7.3. Under no circumstances shall BEABLOO be held liable for the temporary interruption or malfunction of the SERVICES caused by
a. The CLIENT’s serious breach of the present General Terms and Conditions, the BEABLOO Service Contract or any other General or Special Terms and Conditions agreed to by the CLIENT, and more particularly, in cases of fraud o payment default;
b. The replacement and/or connection by the CLIENT of equipment that has not been supplied or authorized by BEABLOO; or
c. Electrical supply and/or internet connection problems that are attributable to the utility company or telecommunications provider contracted by the CLIENT, that prevent the proper performance of the SERVICES.
7.4. The CLIENT undertakes to comply with all requirements necessary for BEABLOO to properly perform its SERVICES and to act according to applicable laws and regulations, especially referring to:
a. Taking responsibility of the economically successful use of the SERVICES like i.e. but not limited to the specification of goals and requirements (list of requirements), carefully choosing the SERVICES to be contracted and the adaptation of processes to the requirements of the SERVICES as necessary and reasonable.
b. Appointing a knowledgeable project manager authorized to take decisions and releasing such person from his ordinary duties in order to support project tasks as necessary.
c. Immediately reporting errors and interruption upon their occurrence, including exact descriptions and documentations thereof.
d. Taking the overall responsibility for CLIENT’s data integrity, security and privacy.
e. Making available and providing access to the CLIENT’s premises for the installation of products, including but not limited to, power supply lines, access permissions and time for BEABLOO employees, on-site or remote access to communication and data processing systems as required; safeguarding and insuring products supplied by BEABLO, in particular against casualties, damages and theft or destruction.
f. Providing, operating and maintaining the equipment to be provided by the CLIENT; coordinating and making available the services of third party companies contracted by the CLIENT.
g. Providing internet connection and / or telephone lines and managing their interfaces and suppliers’ contracts.
h. Immediately verifying, testing and commissioning supplies and SERVICES provided by BEABLOO.
i. Immediately notifying any malfunctions or defects. Notice of defects shall be accompanied by detailed descriptions and documentations.
j. Respecting the technical specifications and system requirements as published on the Beabloo Website.
7.5. In the event that the CLIENT tries to repair any malfunction or damage of the SERVICES and in doing so causes further damage or worsens an existing malfunction, the CLIENT shall be responsible for all and any of the consequences and shall indemnify, hold harmless and defend BEABLOO against any claims deriving from the aforesaid actions by the CLIENT. The same applies if such measures have been undertaken by any third party not expressly authorized by BEABLOO in writing. Should BEABLOO agree to undertake the repair of such a malfunction, the costs for such maintenance and repair works shall be borne by the CLIENT, payable immediately upon the receipt of the corresponding invoice from BEABLOO.
7.6. The same rules further described in the previous subsection shall apply if the CLIENT or any third party not authorized by BEABLO changes any program or application of the BEABLOO SOFTWARE. Non-compliance with this provision shall result in a claim for compensation for the infringement of essential contractual obligations.
7.7. The CLIENT shall use the private area of the BEABLOO Website under its exclusive responsibility, whether doing so personally or through its employees or associates. The CLIENT shall also be responsible for the safekeeping, change or disclosure to third parties of its access keys. In the private area of the BEABLOO Website the CLIENT may create, edit and publish contents that shall be incorporated in its BEABLOO Channel. The CLIENT, by using the content editing features, declares that he holds the rights or has obtained the required permissions to incorporate, reproduce and/or broadcast those contents to the public. The CLIENT will indemnify, hold harmless and defend BEABLOO from any criminal or civil claim, or of any other nature, in particular from claims by governmental institutions or concerning intellectual or industrial property rights, arising from the use of the contents that are broadcast by the CLIENT.
7.8. BEABLOO, at its sole discretion, may choose to contract or sub-contract the provision of the SERVICES, either partially or totally, to a third party of its choice. BEABLOO will be responsible and remain bound by these General Terms and Conditions and the BEABLOO Service Contract, and shall ensure the performance of all contractual obligations at the agreed conditions.
8.- INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS.
8.1. BEABLOO is a Registered Trademark of BEABLOO, S.L., and the use by third parties, by any means, of the BEABLOO trademark, including the trade name and the logo, is strictly forbidden without the express written permission, given in a verifiable manner, of the legal representatives of the company.
8.2. The BEABLOO Website, Software, Trade Secrets and Know-how, Products, Services, Patents, Designs and Registered Trademarks, without limitation, contain confidential and proprietary information that is protected by intellectual and industrial property laws and treaties and is fully protected under Spanish, European Union and international laws on intellectual and industrial property. Reproduction, broadcasting, distribution and/or transformation of the aforesaid website and other protected elements is strictly forbidden without the express written permission, given in a verifiable manner, of the legal representatives of the company.
8.3. The CLIENT shall refrain from any actions that may jeopardize, limit or interfere with BEABLOO’s intellectual and industrial property rights of the BEABLOO Website, Software, Trade Secrets and Know-how, Products, SERVICES, Patents, Designs and Registered Trademarks.
8.4. The BEABLOO trademarks and logos may not be used in connection with any other product or service that does not belong to BEABLOO, or in any other way that may cause confusion to the end users, disparage or discredit BEABLOO in any manner. The CLIENT is not permitted to and shall not register or use any trade name, trademark, logo, domain name or any other names or signs that incorporate (in whole or in part) any of BEABLOO’s intellectual property, or that are confusingly similar thereto, and neither will the CLIENT have them registered or used by third parties.
8.5. All other trademarks, trade images and other materials protected by intellectual or industrial property rights that appear on the BEABLOO Website and/or are incorporated into the advertising contents or of any other nature broadcast as part of the SERVICES and that do not belong to BEABLOO or its related companies, are the exclusive property of their respective owners.
8.6. The CLIENT shall be solely responsible for the contents broadcast through the equipment supplied by BEABLOO, and shall indemnify, hold harmless and defend BEABLOO from any criminal or civil claim, or of any other nature, in particular from claims by governmental institutions or concerning intellectual or industrial property rights, arising from the use of the contents that are broadcast by the CLIENT in its BEABLOO Channel.
8.7. The non-authorized reproduction, distribution, marketing and sale or transformation of the aforesaid products, trademarks, logos, etc. will be considered a serious breach of the intellectual or industrial property rights of BEABLOO and BEABLOO reserves the right to seek regress in court or out-of-court through any procedures or actions that it may have at its disposal for the protection of its rights as aforesaid.
8.8. The CLIENT shall refrain from claiming any interest or ownership over patents, trademarks, trade names or industrial designs in connection with the products, services or any materials provided by BEABLOO.
8.9. The CLIENT shall also refrain from filing, either directly or through THIRD PARTIES for any patent, trade mark, trade or business name (including service marks), copyright (including copyright in programs and databases), internet domain name or design that is either similar or an imitation of any patent, trade mark, trade or business name (including service marks), copyright (including copyright in programs and databases), internet domain name or designs wherein BEABLOO or its affiliates have any rights, title and interest, whether the aforesaid rights, title and interest are registered, unregistered or form pending applications.
8.10. BEABLOO undertakes to protect within normal limits the trademarks against infringement and to take action against infringers. The CLIENT shall in no manner contest BEABLOOS’s decision in that matter.
8.11. If the CLIENT becomes aware of such infringement it shall immediately inform BEABLOO and make available all evidence relating to such infringement. If BEABLOO were to be forced to protect its rights relating to the intellectual and industrial property by means of legal proceedings, the CLIENT shall fully cooperate with BEABLOO.
9.1. The CLIENT may contact BEABLOO at the telephone number or electronic address stated in the BEABLOO Service Contract, during the business hours and under the conditions stated therein or else through the BEABLOO Website.
10.- PROTECTION OF PERSONAL DATA.
10.1. The protection of personal data is regulated within the European Union by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. This Directive has been transposed by all member states into national legislation, such as i.e the German Bundesdatenschutzgesetz, under the supervision and control of the Bundesbeauftragter für Datenschutz und Informationsfreiheit or the Spanish Organic Act 15/1999, dated 13th of December, on Protection of Personal Data and accompanying legislation, under the supervision and control of the Spanish Agency for Data Protection (Agencia Española de Protección de Datos). The existence of common EU rules ensures a level playing field for companies and individuals alike throughout the territory of the European Union, whereby individuals’ personal data enjoys a high standard of protection everywhere in the EU. Furthermore the US-European Union Safe Harbor Framework provides a streamlined means for U.S. organizations to comply with EU data protection law.
10.2.- For the purposes of Spanish Organic Act 15/1999, dated 13th of December, on Protection of Personal Data (Ley Orgánica 15/1999, de 13 de diciembre, de Protección de Datos de Carácter Personal) (hereinafter known as “LOPD”) and Royal Decree 1720/2007, dated 21st of December, whereby the Regulation for implementation of the LOPD is approved (Real Decreto 1720/2007, de 21 de diciembre) (hereinafter, the “Regulation”), BEABLOO informs the CLIENT that all the personal data that he willingly provides for the purpose of concluding the contract and/or providing the SERVICES as well as any other data that is generated by virtue of and during the term of the contract, shall be incorporated into an automated database of personal data property of BEABLOO, which has been registered at the Registry of the Spanish Data Protection Agency. The CLIENT’s data held by BEABLOO shall only be used and/or processed for the purposes of entering into a contract, providing, maintaining, fine-tuning, invoicing, controlling, enlarging and improving the SERVICES and shall not be further processed. BEABLOO S.L. is the Data Controller of record for the databases and the personal data collected, stored and processed therein.
10.3.- BEABLOO informs the CLIENT that in order to receive the SERVICES and any other supplementary or value-added services, the CLIENT must provide the personal data requested in the BEABLOO Service Contract. In the event that the data is not provided or is inaccurate BEABLOO may refuse to activate the service and should this default remain unaddressed, BEABLOO may terminate the BEABLOO Service Contract immediately.
10.4.- The CLIENT hereby consents to the processing of this personal data for the following purposes, excepting only when the CLIENT expressly objects thereto through a written notice to BEABLOO S.L., sent to the electronic address email@example.com :(i) Service quality surveys, (ii) data segmentation to create and analyze usage profiles and habits and (iii) sending special promotions and offers that include information about the BEABLOO products and services, through any means of communication, whether by postal or electronic mail or other equivalent electronic communication means, in compliance with the relevant provisions of the Spanish Information Society Services Act (Ley 34/2002, de 11 de julio, de Servicios de la Sociedad de la Información).
10.5.- The CLIENT may freely withdraw its consent to the processing of its data for any of the purposes described on Subsection 10.4 hereinabove, by any of the means of communication provided for in the present Section for the exercise of the rights of access, rectification, deletion or objection.
10.6.- The CLIENT may object to the further processing of its data as provided hereinabove through a written notice to BEABLOO at the electronic address firstname.lastname@example.org Furthermore, the CLIENT may at any time withdraw its consent to any or all of the aforementioned processing instances through written notice addressed to BEABLOO S.L. at the electronic address email@example.com
10.7.- Personal data provided by the CLIENT shall not be disclosed or transferred to any third parties except with the CLIENT’s prior written consent, as provided in the present General Terms and Conditions and more particularly as set forth in Subsection 11.5, or as authorized by the applicable laws.
10.8.- CLIENT data shall be stored by BEABLOO for the duration of the contractual relationship with the CLIENT. After termination for any reason BEABLOO may preserve the data for the time needed for invoicing and debt collection, and to fulfil any other statutory obligations and in particular tax obligations, in compliance with the applicable laws. BEABLOO undertakes to fulfil its obligation to keep the personal data confidential and that it shall take the appropriate measures to protect the personal data against alteration, loss, unauthorized processing or access, subject to state-of-the-art technology.
10.9.- BEABLOO may perform a credit check of the CLIENT by requesting information on the CLIENT’s credit ratings and risk positions from credit and financial solvency rating agencies. BEABLOO may also verify the accuracy of data provided by the CLIENT. By signing the BEABLOO Service Contract or starting to use the SERVICES, the CLIENT authorizes the automatic processing and storage of this data concerning financial solvency for statistical purposes as well as for the evaluation of credit-worthiness and risk prior to the activation of the services.
10.10.- In compliance with the principle of data quality, the CLIENT shall inform BEABLOO in writing, by any means that certifies BEABLOO’s receipt of notices, of any inaccuracies of its personal data and/or concerning invoicing of the SERVICES, so that BEABLOO may make the necessary corrections. In the absence of a CLIENT’s communication to the contrary, the data stored by BEABLOO in its databases shall be deemed to be accurate.
10.11.- BEABLOO informs the CLIENT that he may exercise the right of access, rectification, deletion or objection by written communication, including a copy of his identity document (Spanish Tax Identity Card, Foreign Resident Identification Number or others) addressed to BEABLOO, S.L. at the electronic address firstname.lastname@example.org, without prejudice to any additional means of identification or authentication that may be required.
11.- SECURITY MEASURES
11.1. BEABLOO has adopted all the technical and organizational measures required to guarantee the security and integrity of the personal data being processed, as well as to prevent their alteration, loss, non-authorized processing or access thereto. To that end, BEABLOO declares that it has adopted the security measures required by Royal Decree 1720/2007, dated 21st of December, whereby the Regulation for implementation of the LOPD is approved (Real Decreto 1720/2007, de 21 de diciembre), hereinafter known as the Security Measures Regulation. The Security Measures Regulation implements the requirements and provisions of European Union by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as further described in Section 10.1. hereinabove.
11.2. Furthermore, BEABLOO undertakes to fulfil its duties of secrecy and confidentiality as Data Controller.
11.3. BEABLOO undertakes to ensure that the personal data remain secret and to comply with the basic level security measures outlined by the Security Measures Regulation. Furthermore, BEABLOO undertakes to process the personal data in its possession solely in accordance with the authorized purposes. Consequently, the personal data to which BEABLOO is given access shall not be used for any other purposes then those authorized, shall be kept confidential and shall not be published or disclosed to third parties without your prior consent or in accordance with the applicable legal provisions.
11.4. Notwithstanding the foregoing, BEABLOO informs you that your personal data may be transferred to the company or companies hosting the BEABLOO Website and to third parties who assist in the design or use of the BEABLOO Website, or provide BEABLOO with services or analyze collected data. These third parties will use the data solely for the purposes of carrying out the tasks described above, and undertake to respect and maintain the personal details when required to do so by law. BEABLOO will take reasonable steps to ensure that third parties to whom BEABLOO transfers any data will provide sufficient protection of that personal data.
11.5. In addition your personal data may be transferred to companies that form part of the BEABLOO Group (if you would like further information about these companies, please visit the BEABLOO Website or send us an email at email@example.com) and for the purposes described earlier in the present General Terms and Conditions; if you do not want to receive information from these companies, please send us an e-mail to firstname.lastname@example.org. Other than in these cases, BEABLOO does not sell, trade or transfer your personal details in any form to third parties without informing you first and in accordance with the data protection legislation currently in effect.
11.6. Despite these measures, whenever the CLIENT or the end users provide their personal details on the Internet, there is a risk that this information may be intercepted and used by third persons whom BEABLOO is unable to control. Although BEABLOO makes every effort to protect personal details and privacy, BEABLOO is unable to guarantee the security of this information which you make available over the Internet at your own risk.
12.- NO ASSIGNMENT.
12.1. The BEABLOO Service Contract and / or any other written agreement between the CLIENT and BEABLOO and any of the SERVICES that are the object of this contract and / or such an agreement are personal. The CLIENT may not assign the BEABLOO Service Contract or the rights and obligations deriving therefrom without the prior express and written consent of BEABLOO. In the event that BEABLOO authorizes the assignment to a third party, the CLIENT shall pay the assignment fee at the current applicable rates or as expressly agreed; in the absence of a prior agreement, BEABLOO shall inform the CLIENT of the assignment fee together with its authorization to the latter. Any attempt to assign any rights or obligations hereunder without BEABLOO’s written consent will be a material breach of this contract and will be void.
12.2. BEABLOO may assign its rights and obligations, totally or partially, to any or all of its wholly-owned or controlled subsidiaries. Any changes resulting from corporate structure amendments at BEABLOO, such as transformation, merger, split-off or spin-off of an area of commercial activity, shall not be deemed assignment and BEABLOO shall only be obliged to notify the CLIENT.
12.3. Notwithstanding foregoing, this contract will bind and inure to the benefit of the PARTIES and their permitted successors and assigns. There are no third party beneficiaries to this contract.
13.- RIGHTS AND OBLIGATIONS OF THE CLIENT.
13.1.- The CLIENT shall have the right to:
a) Receive the BEABLOO Products and SERVICES under the terms and conditions agreed in the BEABLOO Service Contract and the present General Terms and Conditions.
b) Make any legitimate complaints as provided by the present General Terms and Conditions.
c) Unilaterally terminate the contract, provided always that the CLIENT notifies BEABLOO in accordance with the conditions and with the minimum prior notice defined in the BEABLOO Service Contract and pays the agreed penalty, if applicable.
13.2.- The CLIENT shall be obliged to:
a) Pay all amounts owed to BEABLOO in a timely and proper manner.
b) Use the SERVICES for the authorized purposes and under the conditions of broadcast time, visibility and contents, if applicable, agreed in the BEABLOO Service Contract and the present General Terms and Conditions.
c) Refrain from assigning the right to use the SERVICES under the present Contract without the prior written consent of BEABLOO, as further described in Section 12 hereinabove.
d) Provide true and accurate personal data and inform BEABLOO of any changes of business address, registered address or any other identification details that may take place during the term of the contract. In particular, the CLIENT must inform BEABLOO concerning all the personal data that is legally required under the applicable laws.
e) Fulfil any other obligations that derive from the BEABLOO Service Contract, its annexes and the present General Terms and Conditions and any other general or special terms and conditions agreed to by the CLIENT.
14.- RIGHTS AND OBLIGATIONS OF BEABLOO.
14.1.- BEABLOO shall have the right to:
a. Receive timely payment of any amounts owed by the CLIENT for its use of the SERVICES at the agreed prices, quotas and fees, in accordance with the provisions of the present General Terms and Conditions, the BEABLOO Service Contract and any other Special or General Terms and Conditions agreed to by the CLIENT and, for this purpose, assign the right to collect the outstanding invoices to a debt collection agency.
b. Make any changes that are needed for organizational purposes or due to requirements of the SERVICES, or for the convenience or technical requirements of the CLIENT’s systems, facilities and/or devices, with prior notice to the latter and respecting at all times the agreed quality and conditions of the SERVICES.
c. Request from the CLIENT personal guaranties, bank guaranties, advance payment of the SERVICES’ fees with the CLIENT’s consent, and guarantee deposits and/or restrict the provision of services on the basis of the use, consumption and/or untimely payment thereof, in accordance with the provisions of Sections 5 and 6 of the present General Terms and Conditions.
d. Terminate the contract and discontinue the provision of the SERVICES in case that the CLIENT does not fulfil its obligations, commits acts of disloyalty or against contractual good faith, commits acts that may jeopardize or damage BEABLOO’s corporate image and/or credit rating, that entail the improper, illegal, malicious or fraudulent use of the SERVICES or of any complementary services or acts with the intent to disrupt or disturb other CLIENTS or that violate BEABLOO’s intellectual and industrial property rights.
14.2.- BEABLOO shall be obliged to:
a. Provide the SERVICES to the CLIENT in accordance with the agreed conditions and express guarantees agreed in writing.
b. Upon receipt of the BEABLOO Service Contract and the accompanying documentation, carry out the initial connection to and activation of the SERVICES, as well as supply and/or install the required equipment, if applicable, in accordance with the CLIENT’s chosen option and the conditions agreed to on the BEABLOO Service Contract and the present General Terms and Conditions.
c. Provide the CLIENT with updated information on the SERVICES and access to the private area of the website, including its BEABLOO Channel, as well as access to the present General Terms and Conditions and any other information that is legally required, at the BEABLOO Websitewww.beabloo.com.
d. Promptly address any information requests, applications and complaints that the CLIENT may have regarding the performance of the SERVICES.
e. Perform the agreed maintenance duties and repair as soon as possible any malfunctions in the infrastructure dedicated to the provision of the SERVICES, regardless of the cause of the said malfunction, in accordance with the terms and conditions agreed on the BEABLOO Service Contract.
f. Fulfil all other obligations deriving from the BEABLOO Service Contract and the present General Terms and Conditions.
15.- EXPIRATION AND TERMINATION OF THE CONTRACT.
15.1.- The BEABLOO Service Contract shall expire or be terminated for any of the causes stated in the present General Terms and Conditions and for any other general causes for contract termination.
15.2. BEABLOO shall have the right to terminate this contract and discontinue the SERVICES in case of payment default as further described in Section 6.2.
15.3. BEABLOO may terminate this contract in the event that the CLIENT fails to deliver the BEABLOO Service Contract duly filled in and executed, together with the accompanying documentation that the CLIENT is requested to provide prior to concluding the contract, in order to enable BEABLOO to verify its identity, legitimacy and solvency before the activation of the SERVICES.
15.4. If not otherwise agreed in writing, the CLIENT shall be released from any obligation to BEABLOO if for reasons that are attributable to BEABLOO, the latter does not commence the provision of the SERVICES within fifteen calendar days from receipt of the contract and the accompanying documentation. Should the CLIENT terminate the contract before the expiration of the aforesaid period, the CLIENT shall pay the applicable termination penalty.
15.5. The expiration or termination of the present contract shall not release the CLIENT from its obligations to BEABLOO, including, without limitation, payment obligations, deriving from the use of the SERVICES up to the moment of the final interruption of the SERVICES, or of those obligations deriving from events of default by the CLIENT by reason of the CLIENT’s other commitments.
15.6.- The consequences of expiration or termination shall be the following:
a. The provision of the SERVICES shall cease immediately.
b. In the event that the equipment is in bailment (deposit), the CLIENT shall return same to BEABLOO in perfect working order, within a maximum of 48 hours from the end of the term of the contract.
c. The CLIENT shall settle all outstanding amounts within a maximum of 10 days from the termination of the BEABLOO Service Contract.
d. The payment guarantees that the CLIENT may have been requested to deliver shall be returned to the CLIENT, if applicable. In case of payment default, the guarantees shall be used to settle, totally or partially, the outstanding amounts and in the event that the debt remains, totally or partially, BEABLOO may exercise its rights to collect the debt by any means, either in court or out of court.
e. The CLIENT shall immediately cease to use the BEABLOO Website, Software, Trade Secrets and Know-how, Products, Services, Patents, Designs and Registered Trademarks protected by BEABLOO’s intellectual and industrial property rights.
16.- EXCLUSION OF WARRANTIES, LIMITATION OF LIABILITY
16.1 No Warranties.
TO THE MAXIMUM EXTENT PERMITTED BY LAW: THE SOFTWARE, SERVICES, PRODUCTS, AND WEBSITES OF BEABLOO ARE PROVIDED “AS IS” AND USED AT THE CLIENT’S SOLE RISK WITH NO WARRANTIES WHATSOEVER.
BEABLOO DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES OF ANY KIND, WITH RESPECT TO THE SOFTWARE, SERVICES, PRODUCTS, AND WEBSITES OF BEABLOO INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE.
BEABLOO FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, PRODUCTS AND/OR BEABLOO WEBSITES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE.
NEITHER DOES BEABLOO WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET.
16.2 Limitation of liability.
BEABLOO’S TOTAL LIABILITY TO THE CLIENT UNDER OR IN CONNECTION WITH THESE GENERAL TERMS AND CONDITIONS SHALL NOT EXCEED IN AGGREGATE THE AMOUNT PAID BY THE CLIENT FOR THE PRODUCTS IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM.
17.1. Except as otherwise agreed in writing, the CLIENT shall treat as strictly confidential any conversations, negotiations, actions and information disclosed or delivered to him and shall take all reasonable action within its power to confine their use thereof strictly to its own organization on a “need to know” basis and hereby undertakes not to disclose their contents, totally or partially, to third parties without the prior written approval of BEABLOO.
17.2. Notwithstanding the foregoing, the CLIENT undertakes to refrain from revealing, unless so required by law, to any third party, the BEABLOO know-how (including trade secrets and confidential business information), methods, technical processes, industrial or intellectual property, business plans, contracts, prices, profit margins, documents, software or other information conveyed to him. This obligation does not concern any information already in the public domain or information obtained through other methods as described hereinabove.
17.3. The CLIENT shall impose the same obligation upon its employees, affiliates or any third party with which it may enter into contractual relations.
17.4. To be released from all or part of its secrecy commitments under the present General Terms or any other written agreement with BEABLOO, the CLIENT further agrees that within one (1) month following the disclosure of the said information the CLIENT must provide evidence that the information was already in its possession prior to BEABLOO’s disclosure to him or that the said information was in the public domain at the time of its disclosure to third parties. In the event that the CLIENT is required by law to disclose the confidential information, it shall inform BEABLOO prior to the disclosure and if not possible, as soon as possible thereafter.
17.5. This obligation of confidentiality shall survive the expiration or termination for whatever cause of any agreement between the CLIENT and BEABLOO and it shall continue in full force and effect notwithstanding such expiration or termination, for an unlimited duration.
17.6. Upon expiration or termination for any reason whatsoever of this contract, the CLIENT shall immediately return, free of charge, to BEABLOO all commercial and advertising materials, documents and other information that it may have in its possession, without limitation.
17.7. The CLIENT and BEABLOO shall enter into a separate NDA (Non-Disclosure Agreement).
18. FORCE MAJEURE
18.1. If any PARTY hereto is prevented, hindered or delayed from performing its obligations hereunder as a result of Force Majeure, such prevention, hindrance or delay shall not be considered as a breach of this contract and that PARTY shall be released from its obligations for the duration of such Force Majeure event, provided however that there is a direct relation between such prevention, hindrance or delay and the Force Majeure event.
18.2. Force Majeure as used herein shall mean any event which was unpredictable, sudden, insurmountable and outside the control of the PARTIES such as but not limited to epidemic, flood, explosion, fire, earthquake or any other acts as war, civil disturbances, strike (except strike limited to the other PARTY’s staff), government orders or decisions or administrative measures of whatever nature.
18.3. In case of Force Majeure, the PARTIES shall do their utmost to remedy the situation as quickly as possible.
18.4. Should the consequences of an event of Force Majeure prevent the normal operation of the SERVICES or the fulfilment of any obligations of either PARTY beyond THIRTY (30) DAYS from the date of notification of the event of Force Majeure, either PARTY without having to pay indemnity to the other shall be entitled to terminate this AGREEMENT, with effect at the date at which the appropriate written notice with acknowledgement of receipt of termination has been received by the concerned PARTY.
19.1. The communications that are made pursuant to the provisions of the present contract and in compliance thereof shall be in writing, by any means that enable the verification of their date, including without limitation electronic mail to the address email@example.com, by certified mail with acknowledgement of receipt, burofax or any other similar means, or through the online contact form at the BEABLOO Website www.beabloo.com.
19.2. Notwithstanding any provisions to the contrary, for the purpose of service of written communications BEABLOO may be validly notified at the registered address stated at the heading hereof and/or in the BEABLOO Service Contract and the CLIENT, at the address that stated on the BEABLOO Service Contract.
20.1. BEABLOO may amend the present General Terms and Conditions at any time, with a prior written notice of ONE MONTH addressed to the CLIENT at its electronic mail address. At the expiration of the aforesaid period of ONE MONTH without any notice to BEABLOO, the CLIENT shall be deemed to consent to the amendments and they shall henceforth govern the contractual relationship between the CLIENT and BEABLOO. The amendments that do not materially affect or are clearly beneficial for the CLIENT shall immediately enter into force.
20.2. In the event that the CLIENT does not accept the amendments and notifies BEABLOO accordingly within the aforesaid period, the CLIENT may terminate the BEABLOO Service Contract without penalty.
20.3. CLIENTS’ objections shall not delay or preclude the entry into force of the amended General Terms and Conditions, which shall become fully applicable and be incorporated as an integral part of the contract upon expiration of the aforesaid ONE MONTH period.
20.4. The current version of the General Terms and Conditions can be downloaded at any time from the BEABLOO Website web www.beabloo.com. The CLIENT is strongly recommended to read AND download the General Terms and Conditions, which form and integral part of the CLIENT’s contract with BEABLOO.
21.1 The division of these General Terms and Conditions, the BEABLOO Service Contract or any other special conditions incorporated into the contract into Articles, Sections and/or subsections and the insertion of headings are for convenience only and shall not affect the construction or interpretation of these General Terms and Conditions, the BEABLOO Service Contract or the contract as a whole.
21.2. Failure by either PARTY to enforce any term or provision of the contract will not be deemed a waiver of future enforcement of that or any other term in these General Terms and Conditions or any other agreement that may be in place between the PARTIES. The PARTIES’ respective rights and remedies under these General Terms and Conditions or the contract as a whole are cumulative and not exclusive of any other rights or remedies to which the PARTIES may be lawfully entitled under these General Terms and Conditions, the contract or at law or equity, and the PARTIES will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.
21.3. If any provision of these General Terms and Conditions, the BEABLOO Service Contract or any other special conditions incorporated into the contract, were to be or become fully or partly invalid or unenforceable for any reason whatsoever, or to violate any applicable law, the same shall be considered divisible as to such provision and such provision shall be deemed deleted herefrom, and the remainder hereof shall be valid and binding as if such provision were not included herein. The PARTIES hereto shall then, if necessary, negotiate for an appropriate amendment of these General Terms and Conditions, the BEABLOO Service Contract or any other special conditions incorporated into the contract. These General Terms and Conditions, the BEABLOO Service Contract or any other special conditions incorporated into the contract shall be construed in all respects as if such invalid or unenforceable provision had been omitted.
22.- LANGUAGE OF THE CONTRACT.
22.1. For your convenience, the present General Terms and Conditions are translated into several languages and available on the BEABLOO Website www.beabloo.com. In the event of any discrepancy between a non-Spanish version of these General Terms and Conditions and the Spanish version, the Spanish version shall prevail.
23.- GOVERNING LAW AND JURISDICTION.
23.1. The contract between the CLIENT and BEABLOO shall be governed by the Spanish Commercial Code, the Special Acts and general rules of commercial and civil law of Spain (excluding regional laws known as “derecho foral”). This contract shall be governed by and interpreted in accordance with the laws of Spain, including, without limitation, its validity and fulfilment.
23.2. The PARTIES hereto shall endeavour to resolve any disputes that may arise during the course of the contractual relationship amicably.
23.3. The CLIENT and BEABLOO expressly waive any other jurisdiction and irrevocably submit to the exclusive jurisdiction of the Courts of Barcelona, Spain for the determination of disputes deriving from their contractual relationship.