The terms contained in these General Conditions beginning with a capital letter are defined and havethe meaning as set out in this Article:
Agreement: any agreement concluded between CM Online and Client, including all associated schedules, to which these General Conditionsapply.
CM Online: the private limited liability company CM Online B.V. (Chamber of Commerce number: 55384911).
Codes of Conduct: (i) all applicable laws and regulations, government advice and codes of conduct laid down by competent authorities or industry in the country where the Service is delivered; and also (ii) all regulations, guidelines,conditions, policy rules or other requirements that are used by Operators in the country where the Service is delivered.
Connection: the connection between CM Online's Gateway and the Operator and/or the connection between CM Online's Gateway and the Client.
Client: every natural person or legal entity withwhom CM Online concludes an Agreement, negotiates on its formation, or towards whom CM Online performs any legal act in relation to the Service.
End User: a natural person who is in possession of or makes use of a mobile telephone and consequently is able to receive me ssages in connection with the Client's services.
Gateway: the system of CM Online that creates the connection between a GSM network and the system of the Client.
Message Traffic: message traffic to a mobile telephone.
Service: the services CM Online is to provide to the Clientunder the Agreement.
The General Conditions apply to all requests,quotations and Agreements between CM Online and the Client, unless the parties have expressly agreed otherwise.
All prices are in Euros and are exclusive of turnover tax (VAT) and any other levies imposed by the authorities.
Unless a fixed price has been expressly agreed, CM Online is entitled to change agreed prices and rates weekly by means of electronic notification to the Client. Changes shall apply as of the first Monday, 00:00 a.m. Central European Time (CET), following the electronic notification.
CM Online is in every instance entitled to pass on price increases arising from an obligation pursuant to legislation and regulations, from an increase in the purchase price of messages or from rates changes effected by Operators. CM Online shall inform the Client in advance of such price increases as much as possible.
At the start of the Agreement CM Online is entitled to demand payment of a deposit. During the term of the Agreement the deposit may be adjusted after mutual consultation. Upon termination of the Agreement the deposit will be refunded to the Client after set-off of the deposit against the amounts then due by the Client to CM Online, including among others the penalties referred to in Articles 6.2. Refund will take place within two (2) months following termination of theAgreement.
The Client shall pay all invoices within seven(7) days of the invoice date, unless the invoice contains express different payment terms, in which case the payment term stated on the invoice will apply.
The Client shall ensure that a sufficient working Connection is set up and maintained between the Client’s platform and CM Online’s platform.
The Client will ensure that the data which give access to CM Online’s system are securely stored.
The Client shall only use the Service for purposes as agreed and described in the Agreement. Any change to the Service is to be requested in writing.
The Client is responsible for the content of messages sent by the Client and guarantees that these comply with the applicable Codes of Conduct.
The Client will send CM Online the full name of its company, its address, Chamber of Commerce number and VAT number, and the name of its director(s) who are authorized to represent it. Changes to these details must be passed on immediately to CM Online in writing.
The Client accepts that CM Online may be obliged by Operators or the competent authorities:
a. to provide the data referred to in the previous paragraph to End Users, if the Client has not done so within two (2) Working Days on demand by CM Online;
b. to add the data referred to in the previous paragraph to an electronic database that is managed by or on behalf of an Operator or a competent authority.
The Client warrants that the content and the promotion of the Service under no circumstances infringe the (intellectual property) rights of third parties.
If the Client acts contrary to an obligation under the Agreement, these General Conditions or the Codes of Conduct, including among others the obligation to pay the amounts due to CM Online within the agreed payment term, CM Online is entitled to suspend provision of the Service.
The Client remains liable for payments for the period that the provision of the Service is suspended in accordance with the provisions of this Article.
CM Online is entitled to set off the amounts the Client owes to it, including the penalties referred to in Articles 6.2, against the amounts CM Online owes to the Client.
If the Client disputes the accuracy of an invoice sent by CM Online , the Client will make this known within ten (10) Working Days after the date of the invoice in question by registered post to CM Online
The parties undertake reciprocally, not to communicate in any way the content of the Agreement or any information of which it knows or should know that it is confidential and which originates from theother party or direct business relations of the other party, to third parties without the prior written consent of the other party. The provisions of this Article do not apply if disclosure is required by the authorities or by the Operator(s) concerned.
the Client solely receives the user rights and authorities expressly granted under the Agreement, these General Conditions or otherwise, and for the remainder shall not disclose, reproduce or make copies of any materials it receives on the basis of this Agreement from CM Online , nor shall the Client process or modify these materials, without prejudice to further arrangements between CM Online and the Client in this matter.
If so desired, the Client will have to arrange for message encryption itself.
The parties shall use the information that is obtained when processing messages to End Users in accordance with the applicable legislation and regulations concerning privacy and protection of personal data. CM Online will process the aforementioned data solely as the processor under the orders and instructions of the Client , and shall implement suitable technical and organizational measures in order to protect said data against loss or against any form of unlawful processing. the Client may supervise compliance with this following prior consultation.
5.CM Online reserves the right to allow the competent authority to view the Message Traffic.
the Client recognizes that access to the internet, the GSM network and other communication media is subject to risks in relation to authorizations, authenticity, data security, privacy, availability of services, reliability of transmission, etc. the Client recognizes that he/she is entirely and solely liable for such risks and their consequences.
2.CM Online is solely liable for direct loss attributable to it. By direct loss shall exclusively be understood:
a. the reasonable costs incurred to establish the cause and the extent of the loss;
b. any reasonable costs incurred to have CM Online 's faulty performance meet the conditions of the Agreement, unless such faulty performance cannot be attributed to CM Online ;
c. reasonable costs incurred to prevent or limit losses, insofar as the Client demonstrates that said costs have led to the limitation of direct losses as meant in this Agreement.CM Online 's maximum liability is limited to the amount of the agreed price per month for the Agreement (excluding VAT). In no event, however, shall the total compensation for any direct loss exceed € 50,000.00 (fifty thousand Euros).
If CM Online suffers loss as a consequence of the Client acting contrary to an obligation under the Agreement, these General Conditions or the Codes of Conduct, the Client is obliged to compensate CM Online for the resulting loss.
The parties shall not be liable for indirect loss, consequential damage, loss of profits, lost savings, loss due to loss of data or data files, or loss due to business stagnation.
However, the limitations on liability specified in Articles 12.2 and 12.4 shall cease to apply if and insofar as the loss is due to the intent or willful recklessness of the liable party.
CM Online is not bound to meet any obligation under the Agreement if it is prevented from doing so as a consequence of force majeure ('non-attributable shortcoming'). The term 'force majeure' is used in this context to mean: government interventions, strikes, interruption of operations, energy disruptions, interruptions in telecommunications facilities of third parties, failure or late compliance by ancillary suppliers of CM Online or other third parties engaged by CM Online , as well as every other circumstance that CM Online could not reasonably have avoided or prevented, which creates an obstacle to the normal performance of the Agreement.
the Client has the right to appoint an external expert at most once per contract year to audit the quality of the Gateway and the processes at CM Online . CM Online will cooperate with such audit.
CM Online is entitled to request that the external expert signs a confidentiality declaration in favor of CM Online (of which CM Online shall receive a copy). The confidentiality declaration shall contain the terms and conditions that are usual for this type of declaration.
The Agreement is entered into for the duration agreed between the parties in the Agreement, failing which an indefinite period shall apply.
Either Party may terminate the Agreement by registered letter with a one (1) month prior notification.
If CM Online , in accordance with the provision set out in Article 4.2, increases the prices and rates with more than 15%, where the Client 's Message Traffic during the previous three (3) months will be used as underlying principle for the calculation of the increase, the Client shall be entitled within five (5) Working Days following the electronic notice as referred to in Article 4.2 to terminate the Agreement for convenience in writing with immediate effect.
Either Party may terminate the Agreement for cause, wholly or partially, by registered letter if the other party imputably fails to comply with itsobligations under the Agreement, and – insofar as compliance is permanently impossible – if, after sending the most detailed possible written notice of default while allowing a term of 10 (ten) Working Days to remedy the failure, the other party continues to fail to comply.
Either Party may terminate the Agreement for cause, wholly or partially and with immediate effect, by registered letter without need for notice of default:
a. if the other party – whether temporarily or not – is granted suspension of payments, or if a petition in the other party's bankruptcy is filed, or if the other party is declared bankrupt, , or if a significant part of the other party’s assets are seized, or the other party’s business is liquidated or terminated other than for the purposes of restructuring or merging undertakings, or if the other party transfers business activities relevant to the implementation of the Agreement to a third party;
b. if the situation of force majeure as referred to in Article 15 lasts longer than 20 (twenty) Working Days;
c. if such termination is required by the authorities or because of changes to the terms and conditions of Operator(s).
If at the time of such termination as is referred to in Article 15.5 and 15.6 the Client has already received any performance in the execution of the Agreement, such performance and any payment obligation connected therewith shall not be subject to any obligation to undo the Agreement unless the Client demonstrates that CM Online is in default with respectto such performance.Any amounts invoiced by CM Online before the termination in connection with matters already performed or provided by the same in execution of the Agreement shall remain fully due subject as provided in the preceding sentence and shall become immediately payable upon termination.
the Client is not entitled to transfer rights and obligations under this Agreement wholly or partially to a third party without CM Online ’s prior permission, which shall not be withheld on unreasonable grounds. CM Online is entitled to attach conditions to the granting of such permission.
CM Online is entitled to transfer the rights and obligations deriving from the Agreement wholly or partially to a group company.
All offers from and Agreements with CM Online and their performance will be governed exclusively by Dutch law. The applicability of the Vienna Sales Convention 1980 (CISG) is hereby explicitly excluded.
Notifications, including promises or (detailed) agreements from one to the other party, that are important for performance of the Agreement, only bind the parties if they are sent or confirmed by a person authorized thereto in writing.
Contact persons may only represent and bind parties insofar as this concerns the performance of the Agreement. Contact persons are not authorized to amend the Agreement or these General Conditions.
Amendments or additions to the Agreement or these General Conditions only apply if they are agreed in writing and have been signed by the persons authorized for this purpose on behalf of both parties. Any amendment or addition will only apply to the relevant Agreement.
Failure by one of the parties to demand compliance by the other party with any obligation will not affect the right still to demand compliance, unless the party in question has expressly agreed to the non-compliance in writing.