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 CM 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 Postscript Platform and Services, including but not limited to, the EU General Data Protection Regulations (GDPR), California Consumer Privacy Act (CCPA), and the Telephone Consumer Protection Act (TCPA), 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 CM 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 CM Platform or to CM.
CM: means CM.com US Inc., a Delaware corporation.
CM IP: the CM 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.
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 CM Platform.
Intellectual Property Rights: means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
Operator: a (mobile) electronic communications service provider that provides (wireless) voice and data communication or other related services to other Operators and/or for its subscribed end users.
Order: means an order placed by Client and accepted by CM for Services, which may be effected by way of a writing signed physically or electronically by the Parties or by way of CM’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 CM’s website.
Party: each of CM and Client.
CM Platform: the computing environment of CM designed to create the connection between an Operator network and the system of the Client.
Service: a service CM 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.
Working Day: Monday to Friday from 8.30 a.m. to 5.00 p.m. Pacific Time Zone, excluding public holidays in the United States.
2.1 These Terms and Conditions apply to all Orders, Order Forms, and agreements between CM 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, is hereby expressly excluded.
2.3 The Parties agree to contract electronically and that electronic signatures will have the same weight and effect as originals. A 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. CM will not provide warranties or be responsible in this regard.
3.1 All offers made by CM are without obligation and are non-binding unless expressly stated otherwise in an Order. An agreement with CM shall not be effective until CM has expressly accepted or confirmed an Order to that effect in writing.
4.1 All prices stated are in United States Dollars and are exclusive of sales tax and/or any other taxes, charges or levies imposed by any government authority. Client shall promptly pay all such amounts to the applicable government authority.
4.2 The applicable prices and rates are listed on the website of CM and/or described in the Agreement. Unless a fixed price has been expressly agreed an Order Form, CM 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 CM Platform via the connection of Client. The billing period is based on CE(S)T time zone.
4.3 If a fixed price has been expressly agreed in the Agreement for one or more Services, CM is only entitled to change the agreed fixed price(s) for those destinations after written agreement by the Client.
4.4 Notwithstanding clause 4.3, CM 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. CM shall use reasonable efforts to inform the Client in advance of such price increases.
4.5 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.
4.6 In the event that Client fails to pay CM the amounts due within the agreed period, late payment interest shall be applied at a rate of one per cent (1%) per month on the unpaid amount (or the lowest rate permitted by Applicable Law) and will fall due accordingly by the Client on the outstanding amount without any requirement from CM to communicate a notice of default. Client will reimburse CM 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 CM’s obligations and Client’s rights under this Agreement.
4.7 CM is entitled to require payment of a deposit as a condition to rendering Services. From time to time during the term of the Agreement, CM 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 CM. The deposit shall be transferred back to the client within two (2) calendar months following termination of the Agreement. CM shall not be obligated to maintain deposits in segregated accounts or and neither will the deposit accrue interest for the Client.
4.8 Client is responsible for payment of the applicable Goods and Services Tax (GST) and/or any other tax or levy on its End User Service. The Client shall indemnify CM for and against all claims by tax authorities related to Client’s failure to perform its obligations under Sections 4.1 and 4.8 and for all losses, penalties and costs arising therefrom.
4.9 Where bank fees occur, Client shall bear the costs imposed by its own bank, any intermediate bank and the bank of CM as indicated on the invoice when making payments under the Agreement. The net amount received by CM shall correspond to the amount invoiced. In this regard, the Client remains liable to pay any shortfall of outstanding amounts due.
4.10 Notwithstanding clause 4.3, CM 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 Consumer Price Index. For purposes hereof "Consumer Price Index" shall mean the Consumer Price Index for All Urban Consumers, U.S. City Average, published by the Bureau of Labor Statistics of the United States Department of Labor, All Items (1982-84=100).
5.1 Client will ensure a secure, continuously working connection at its own cost to the CM Platform.
5.2 Client shall ensure that access to the aforementioned 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.
5.3 Client is responsible for the sending and/or delivery of Traffic up to the point of interconnection with the CM Platform. Client is responsible for appropriate encryption and security of its Traffic.
5.4 Client shall only use the Services for its 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 CM Platform; (ii) resell the CM Platform or otherwise use or allow any person to use the CM 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 CM Platform, or any data or content contained therein or transmitted thereby; (iv) collect data from or regarding the CM Platform, save for Service features provided by CM use expressly for such purposes; or (v) use the Service, CM Platform or any other CM 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 CM Platform.
5.5 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 any third-party rights. The Client will maintain up to date records of end user consent and provide these to CM upon request. The Client will not send any unsolicited traffic, nor other unethical, illegal, punishable or otherwise fraudulent or illicit traffic or content.
5.6 Client hereby grants CM 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 CM’s other related products, services and technologies during the term of this Agreement.
5.7 Client shall cooperate with CM and provide any information reasonably required for boarding and acceptance procedures of Operator(s). Without limitation, Client will provide CM the full name of its company, its address, EIN and the name of its officers authorized to sign the Agreement. Changes to these details must be passed on to CM in writing.
5.8 Client acknowledges and agrees that CM 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 CM within three (3) Working Days.
5.9 Client shall cooperate with any audit which investigates whether the Client is acting in accordance with Applicable Law.
6.1 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) CM’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 any is in breach of Applicable Law.
6.2 Client will indemnify, defend and hold CM harmless for all losses, damages, liabilities and costs (including reasonable attorneys’ fees) (“Losses”) incurred by CM resulting from any claim, suit or proceeding brought by a third party against CM 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 CM Platform and Service by Client in a manner that is not in accordance with this Agreement. CM 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 CM's prior written approval unless the settlement is for a monetary amount, unconditionally releases CM from all liability without prejudice, does not require any admission by CM, and does not place restrictions upon CM's business, products or services). CM 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, CM may defend itself and obtain reimbursement from Client.
7.1 If the Client acts contrary to its obligation under clause 5, Applicable Law, Operator guidelines or the obligation to pay the amounts due to CM within the agreed payment terms, CM is entitled to suspend provision of the Service without limitation to any other remedy available to CM, including cancellation of this Agreement and/or a claim for specific performance and/or damages.
7.2 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.
7.3 As soon as the reason for suspension in accordance with the provisions of this clause is removed by Client, CM shall resume delivery of the Service unless CM believes that the nature and/or frequency of Client's non-compliance is such that the provision of the Services should be cancelled permanently.
8.1 CM makes no warranty or guarantee that any Traffic will be correctly delivered to or received by End Users after leaving the CM Platform. CM provides no warranty or guarantee on behalf of any carrier and/or Operator regarding system capacity, throughput, response times or delivery. CM cannot guarantee that Traffic will be accepted by any Operator or that any of the Operators will maintain connectivity with CM.
9.1 CM is entitled to set off the amounts the Client owes to CM against the amounts CM owes to the Client.
9.2 If CM and the Client or any of their affiliates have entered into more than one Agreement, the CM may set off amounts under any of those agreements, regardless of the Agreement from which the payment obligations in question derive.
10.1 If the Client disputes the accuracy of an invoice sent by CM, Client will provide a detailed complaint within the payment term applicable to the invoice in question by written notice to CM. Client may only dispute an invoice if the amount in dispute is greater than USD$150 (excluding taxes) or three (3%) percent of the invoice amount (excluding taxes).
10.2 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 GST). Client shall promptly pay any undisputed portion of any invoice.
11.1 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 CM Platform and the Service will be deemed Confidential Information of CM. 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 CM’s ability to use or disclose any general know-how, experience, concepts and/or ideas that CM or its personnel acquire or obtain in connection with the performance of CM’s obligations hereunder.
11.2 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.
11.3 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.
11.4 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.
11.5 Client hereby grants to CM the right and permission to use Client's name and company logo in marketing, sales, financial, and public relations materials and other communications of CM to identify Client as a Client of CM. CM hereby grants to Client the express right to use CM's logo solely to identify CM as a provider of Services to Client, subject to CM’s prior written approval in each instance. All goodwill and improved reputation generated by Client’s use of CM’s name and logo inures to the exclusive benefit of CM; and all goodwill and improved reputation generated by CM’s use of Client’s name and logo inures to the exclusive benefit of CM. 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.
12.1 Subject to the limited rights expressly granted hereunder, CM reserves and, as between the Parties, CM will solely own, all rights, title and interest in and to the CM IP. No rights are granted to Client hereunder other than as expressly set forth herein and CM reserves all right, title, and interest in and to the CM 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.
13.1 The Client recognizes that access to the internet, wireless 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. CM does not warrant that the Services are or will be completely error-free, bug-free or uninterrupted. CM 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 CM Platform, Client’s use of the CM 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, CM shall use its reasonable efforts to restore the Service in accordance with proper practices recognized in the electronic communications industry.
13.2 THE CM PLATFORM, SERVICE AND OTHER CM IP ARE PROVIDED ON AN “AS IS” BASIS, AND CM MAKES NO WARRANTIES OR REPRESENTATIONS TO CLIENT OR TO ANY OTHER PARTY REGARDING THE CM IP, INCLUDING THE CM PLATFORM, SERVICE OR ANY OTHER SERVICES PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CM 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 ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CM HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE CM PLATFORM OR SERVICE WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
13.3 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) LOSS OF INCOME, (X) DAMAGE TO OR LOSS OF DATA; (XI) LOSS OF GOODWILL OR REPUTATION, OR (XII) 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.
13.3 IN NO EVENT WILL CM’S TOTAL LIABILITY TO CLIENT IN CONNECTION WITH THIS AGREEMENT, THE CM IP OR THE SERVICE EXCEED THE FEES ACTUALLY PAID BY CLIENT TO CM IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED.
13.4 THE LIMITATIONS ON LIABILITY SPECIFIED IN CLAUSE 13.2 AND 13.3 SHALL NOT APPLY IN THE EVENT OF FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR IN CASE OF PERSONAL INJURY OR DEATH, OR AMOUNTS OWED CM OR CLIENT’S UNAUTHORIZED USE OF THE CM PLATFORM OR THE SERVICE.
14.1 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, 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.
14.2 If a Party is prevented from complying with its obligations due to force majeure, it shall make this known to the other Party within ten (10) Working Days following the day on which the situation of force majeure arose.
15.1 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.
15.2 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.
15.3 CM may terminate the Agreement or the provision of a Service at any time, effective on written notice to Client, if it considers that further execution of the Service cannot reasonably be expected on economic grounds.
15.4 Either Party may 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.
15.5 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 14 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).
15.6 If at the time of such termination as is referred to in clause 15.4 and 15.5 the Client has already received any performance in the execution of the Agreement, any amounts invoiced by CM before the termination in connection with that received performance shall remain fully due and shall become immediately payable upon termination.
15.7 The following provisions will survive expiration or termination of this Agreement: 1, 4, 5.4, 5.5, 6, 8, 9, and 11-18.
16.1 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.
16.2 CM is entitled to engage affiliates and other third parties for delegating the performance of the Agreement.
17.1 This Agreement (and any matters arising from or related hereto) will be governed by and construed in accordance with the laws of the State of New York 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.
17.2 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved shall be finally settled by binding arbitration in Los Angeles, California under the Rules for Commercial Arbitration of the American Arbitration Association, by one arbitrator appointed in accordance with such Rules. The arbitrator shall apply the laws of the State of New York to the merits of the dispute. Judgment on the award entered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, CM may apply to any court having jurisdiction for a temporary restraining order, preliminary injunction, specific performance, or other interim or conservatory relief, without any abridgment of the power of the arbitrator, to protect the Service, CM Platform, or its intellectual property rights.
18.1 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 CM’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.
18.2 Contact persons for each Party may only represent and bind Parties insofar as this concerns “day-to-day” operational performance of the Agreement.
18.3 All notices required or permitted under this Agreement will be in writing, will reference this Agreement. All notices to CM will sent to [address], 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.
18.3 CM is authorized to modify these Terms and Conditions at any time. CM 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 will remain applicable. However, CM then alternatively has the right to cancel the Agreement with Client by giving one (1) month written notice.
This Part II specifies the obligations of the Parties in relation to the Processing of Personal Data of which the Client is the Controller, or in respect of which the Client has a Processing or sub-processing relationship with the Controller, for the purposes of the applicable Data Protection Laws, within the scope of and related to the Agreement for the provision of Services between the Parties. Under the applicable telecom and Data Protection Laws providers of public electronic communication services shall act as independent controllers with respect to the Processing of Personal Data which is necessary for the operation of the electronic communication service, which shall include any information Processed for the purpose of the conveyance of a communication (Traffic Data) on an electronic communications network or for the billing thereof.
19.1 In Part II of these Terms and Conditions, except where set forth otherwise, the following terms shall have the following meanings:
Controller: means (i) the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; and (ii) shall also include equivalent terms defined under applicable Data Protection Laws.
Data Protection Laws: the Data Protection Laws of the country in which Client is established and any Data Protection Laws applicable to Client and/or CM in connection with the Agreement.
Data Subject: the identified or identifiable natural person to whom Personal Data relates.
Personal Data: has the meaning assigned to the term “personal data” or “personal information” under applicable Data Protection Laws and is Processed by CM in its role as Processor as part of providing the Service to Client under the Agreement. For the avoidance of doubt, Processing of data, such as Service Data and Traffic data, which is necessary for the operation of the electronic communication service and business contact information of Client shall not be subject to Part II of these Terms and Conditions.
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.
Processor: means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller; and (iii) shall also include equivalent terms defined under applicable Data Protection Laws.
Push Services: sending of push notifications to a mobile device.
Service Data: has the meaning given to that expression in clause 19.3.
Technical and Organizational Measures: measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alternation, 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.
19.2 References in Part II of these Terms and Conditions to the 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.
19.3 Notwithstanding anything in Part II of these Terms and Conditions, CM will have the right to collect, extract, compile, synthesize and analyze de-identified and/or aggregated 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 CM such data will be solely owned by CM and may be used by CM for any lawful business purpose without a duty of accounting to Client, provided that such data is used only in a de-identified and/or aggregated form, without directly identifying any Data Subject.
19.4 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.
19.5 Data of the Client is collected by CM at registration. This data consists of contact details of the Client and its employees and is required for contract management and customer support, conducting credit checks and preventing fraud and criminal activities on the CM Platform. The data can additionally be used for statistical research and to contact Client for marketing activities of CM and its affiliates. For the purpose of carrying out credit checks and monitoring to prevent fraud and criminal activities, CM may share data with third parties with whom it has a contractual relation for these services and under applicable data processing terms safeguarding the confidentiality of such data.
19.6 CM processes Traffic data (including personal data), for the following purposes: providing continuous information to Client through CM Analytics, billing, financial administration, handling complaints and disputes, traffic control, providing information to emergency services, preventing fraud and criminal activities.
19.7 The processing of data mentioned in the previous clauses 19.3, 19.5 and 19.6 is necessary for the delivery and operation of the Services and associated invoicing, therefore CM is considered to be a Controller for the aforementioned data and you must obtain the requisite consent from the relevant Data Subjects for CM to use such data. CM will act according to Applicable Law associated with its status as Controller. The Parties acknowledge and agree that no data is made available under clauses 19.3 and 19.6 in exchange for valuable consideration.
20.1.1 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.
20.1.2 Client shall maintain accurate and complete records of the use of the Service under the Agreement during the term and as required under the Data Protection Laws. Upon reasonable written notice, Client shall provide information as requested and where required by CM, 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 the lawful basis for Processing in accordance with applicable legislation and regulations, and shall maintain a record of each such consent and/or lawful basis.
21.1.1 CM 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.
21.1.2 In case CM is required to Process Personal Data under mandatory law as specified in this Part II or the Agreement, CM shall for those purposes be considered an independent Controller. If CM is required to Process Personal Data under mandatory law CM shall inform Client hereof in writing before Processing unless the law prohibits providing such information.
21.2 Technical and Organizational Measures
21.2.1 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, CM 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. Up to date information regarding Technical and Organizational Measures can be found on CM.com/about-cm/security-compliance/.
21.2.2 CM shall test, assess and evaluate the effectiveness of Technical and Organizational Measures for ensuring the security of the Processing on an ongoing basis. CM shall continuously enhance and improve Technical and Organizational Measures.
21.3 Personnel requirements CM ensures that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
21.4 Confidentiality CM agrees that it shall maintain the Personal Data in confidence. In particular, CM agrees that it shall not disclose any Personal Data supplied to CM 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.
21.5 Data Subject Rights
21.5.1 Where Client so instructs CM, CM shall transfer, correct, delete or block Personal Data if Client receives a request from a Data Subject to exercise the Data Subject's rights in Personal Data under Data Protection Laws (“Data Subject Request”).
21.5.2 CM shall promptly notify Client if CM receives a Data Subject Request. Taking into account the nature of the Processing, CM shall assist Client, for the fulfilment of Client’s obligation to respond to a Data Subject Request under Data Protection Laws. CM shall assist Client in responding to such Data Subject Request, to the extent CM 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 non-negligible costs arising from CM’s provision of such assistance.
21.6 Assistance with Client’s compliance CM shall provide to Client further assistance reasonably required to ensure compliance with Client's obligations under Data Protection Laws.
21.7 Compliance, information and audit
21.7.1 CM has obtained third-party certifications set forth in the Security & Compliance section on the website of CM, 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, CM shall make available to Client, that is not a competitor of CM (or Client’s independent, third-party auditor that is not a competitor of CM) a copy of CM’s then most recent third-party certifications and information regarding the IT architecture and security, as applicable and reasonably requested.
21.7.2 Client has the right to appoint an accredited external expert at most once per year to audit the procedures regarding CM’s Processing of Personal Data. CM will cooperate with such audit upon a reasonable prior written notice of no less than ten Working days. Client shall reimburse CM for any time expended by CM for any such audit at CM’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.
21.7.3 CM is entitled to request that the external expert signs a confidentiality declaration in favor of CM. 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 CM. Client shall ensure that the audit hinders CM's operations as little as possible.
21.8 Records CM shall maintain complete, accurate and up to date records of Processing activities carried out on behalf of its Clients.
21.9 Affiliates and Sub-processors
21.9.1 Some or all of CM’s obligations under the Agreement may be performed by Affiliates of CM that are domiciled in other jurisdictions. For the purpose hereof an “Affiliate” means a legal entity directly or indirectly Controlling, Controlled by, or under common Control with CM, 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. CM and its Affiliates have entered into intra-company arrangements, under which its Affiliates Processing Personal Data adopt safeguards consistent with those of CM. CM is responsible for compliance of its Affiliates' with this Agreement.
21.9.2 Client acknowledges and agrees that (a) CM’s Affiliates may be retained a sub-processors; and (b) CM and CM’s Affiliates respectively may engage third-party subcontractors to Process Personal Data in connection with the provision of the Services (each a “Sub-processor”). Provided always CM or a CM Affiliate has entered into a written agreement with each Sub-processor containing data protection obligations consistent with 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.
21.9.3 CM shall be responsible for each of its Sub-processors to the same extent CM would be responsible if performing the services of each Sub-processor directly under the terms of the Agreement.
21.10 Breach Notification In respect of a Personal Data Breach, CM shall: (a) notify Client of a Personal Data Breach involving CM or a Sub-processor without undue delay 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 that is required under applicable Data Protection Laws including regarding any communication of the Personal Data Breach to the Data Subject and data protection authorities. CM 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, CM 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.
CM 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 CM Platform shall be Processed and stored in accordance with the CM’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. CM shall carry out deletion of Personal Data by de-identifying data into anonymized data after the applicable retention period. This will result in data that includes no Personal Data or unique identifiers that could later be used to refer to the Personal Data or Data Subject to which the data was once associated.
23.1 Nature and Purpose of Processing CM 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.
23.2 Categories of Data Subjects Client may submit data to CM 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.
23.3 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.
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 CM’s platform.
In the event that messaging Services are a part of the Service provided to Client under the Agreement, the following conditions apply:
The Client is responsible for the content of all messages sent by Client and represents and warrants that these comply with Applicable Law.
26.1 The messaging account(s) of Client have a standard message limit of 50,000 messages. CM will send Client an electronic notice (e-mail) when Client reaches 75% of the standard message limit.
26.2 After receiving the message limit notification, Client will be able to pay for the messages for which no payment has been received by CM. 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 CM 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 CM. Until the credit limit has been increased or messages have been paid by Client, CM has the right to suspend the Services without further notice and/or any liability. CM 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.
27.1 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, before Processing or transferring any information of said End User using OTT, social media channels or push messaging. CM shall not have any responsibility in this regard and CM shall provide (access to) OTT, social media and Push Services and all information on “as is” and “as available” basis.
27.2 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 CM 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.
In the event that Voice Services are a part of the Service provided to Client under the Agreement, the following conditions apply:
28.1 Client represents and warrants that it will refrain from: (i) using the Voice Services for other than normal use as intended by CM, (ii) infringing intellectual property rights of third parties, (iii) misusing allocated access codes or issuing such to third parties, (iv) teasing, spamming, offending, causing hurt or annoyance, hacking or causing a nuisance in some other way, (v) establish connections on a large scale to sales numbers or services, (vi) as well as every action as a result of which payments owing to CM are improperly restricted.
28.2 Client shall not use or permit others to use the Voice Services in a manner that is fraudulent or unauthorized. CM may, without notice and without liability, interrupt all Client's communications to prevent or terminate fraudulent and/or unauthorized activities.
28.3 CM is obligated to use reasonable efforts to enable interoperability of services in order to make telephone numbers reachable from as many networks as possible. However, CM must rely on the interoperability of services of Operator(s) in each country for end-to-end connectivity. CM does not warrant and represent that all telephone numbers from all networks will be reachable at all times.
28.4 Client is responsible to securely connect its network or systems with the CM Platform. Client is responsible for all Traffic submitted to the CM Platform or initiated from the Client account and is without exceptions also fully responsible for the payment of all aforementioned Traffic. Client is responsible for its own calling behavior, call destinations and Traffic to and/or through the CM Platform.
28.5 Client is required to send along the correct information with regard to the location where the call is initiated/set up (“Caller” or “Sender ID”) with every call that comes through the CM Platform via the connection of Client. Withholding that actual location information - intentionally or by accident - is in any case, but certainly in the event of trying to lower costs, considered to be unreasonable use of the Service by Client and is strictly forbidden. In this event, CM may take immediate proportionate measures including but not limited to applying a surcharge and disconnecting the Service.
28.6 Client shall indemnify, defend and hold harmless CM 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 this clause.
The following Terms and Conditions shall apply if CM provides the Client with the CM Sign Service.
The capitalized terms used in this chapter and in these Terms and Conditions are defined and have the meanings set out in this clause.
Digital Signature: data in electronic form that are attached to or logically connected to the Document and that are used by the End User to sign a Document.
Document(s): the Client's documents that are offered digitally to End Users with the aid of the Service for approval or signature by means of a Digital Signature. Certificate: the electronic file issued by the Certification Authority containing the identification details of the holder of the certificate and a cryptographic key for the verification of the electronic signature for which it is used. Certification Authority: An organization responsible for creating, issuing, withdrawing and managing certificates. GMO GlobalSign, Ltd. is the Certification Authority.
30.1 The Service offers the Client the opportunity to send Documents that can be electronically signed by End Users by means of a Digital Signature that is created using the Certificate.
30.2 The Client is responsible for sending Documents to the relevant End Users. Once the End User has accepted the User Terms and Conditions, the End User will be given access to the Document. Depending on the Client's request, the End User will be asked to read, approve and/or electronically initial and/or sign the Document.
31.1 For the issuance of the Digital Signature, CM uses a Certificate issued by Certification Authority Globalsign to CM.com B.V. CM uses this Certificate for the issue of the Digital Signature.
31.2 The Digital Signature shall be linked to the CM Certificate and the Document with a public key and the identity details.
31.3 Client shall be solely responsible for use of the Digital Signature and determination whether it meets legal or other requirements.
32.1 Without prejudice to the other provisions of the Terms and Conditions, the Client is fully responsible and liable for the content of each Document, the identity and identification of End Users and the power of representation of the End User. In respect of the foregoing, CM does not provide any guarantee and does not carry out any checks as to the identity or authority of End Users or the content of Documents.
32.2 Client guarantees and warrants that it has all necessary permission from the End User to send the Document, including the use of the End User's Personal Data and use of electronic communication services for the provision of Documents to the End User.
32.3 Client indemnifies CM against damages and claims by third parties which are the result of, or are based on the ground that the Documents contain inaccuracies, defects or incompleteness, or are in conflict with Laws and Regulations.
32.4 It is not permitted to distribute information that infringes the rights of third parties or to offer content through the Service and/or Documents that is manifestly fraudulent, defamatory, racist, discriminatory and/or in any other way unlawful, spread spam, unsolicited communications or malicious content such as viruses.
33.1 Subject to clause 11 of these Terms and Conditions, CM will treat all Documents as confidential information and store the Documents securely on the Platform.
33.2 Documents will be stored by CM on behalf of the Client for a limited period, unless agreed otherwise in writing. CM will not store the Documents for longer than is necessary for the delivery of the Service.
33.3 Client is responsible for the storage and retention of the Documents as made available to Client by CM through the Service.
In the event that Client uses any Service(s) on a Pre-Paid Basis and/or account, the following conditions apply:
34.1 Definition of Pre-Paid Client: the Client who uses the Service on a pre-paid basis. The Pre-Paid Client will make occasional payments to CM in accordance with an Order, which are credited to its account. The credit allows the Pre-Paid Client to use the Services.
34.2 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.
34.3 Pre-paid credits and balance can be used by the Pre-Paid Client the day following the day the amount is received by CM. 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.
34.4 The Pre-Paid Client is in default if a credit card payment is charged back. In such a case, CM is entitled to terminate the Pre-Paid Client’s account when a credit card payment is charged back.
34.5 Client will indemnify CM against misuse of pre-paid balance by third parties.
34.6 CM is entitled to refuse a Pre-Paid Client registration to the service without giving reasons and to terminate an existing membership 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.