1.1. These Terms and Conditions of Service are contractual clauses applicable to the use, by the “CUSTOMER” company, of the Platform described herein, developed and owned by SMARKIO, S.A., a limited liability company, with registered office at Rua Alfredo Allen, no. 455 e 461, in the parish of Paranhos, municipality of Porto, Legal Person No. (NIPC) 513 583 289, the “Provider”.
1.2. By using the Platform, the Customer declares to have read, understood and accepted these Terms and Conditions of Service.
1.3. The Terms and Conditions of Service may be amended unilaterally, and at any time, by the Provider, under the terms described herein.
2. Definitions and Interpretations
2.1 The following definitions, related to the applicable legislation in force, are used in these Terms and Conditions:
a) “Regulation (EU) 2016/679 of the European Parliament aon of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or GDPR);
b) Law 58/2019, of 8 August, which ensures the execution of the GDPR, and subsequent amendments, which includes the following definitions, used in this document: “Consent of the Data Subject”, “Personal Data”, “Data Controller”, “Data Processor”, “Data Subject”, “Processing of Personal Data”;
2.2 The following definitions and rules of interpretation apply to these Terms and Conditions of Service:
a) “Personal Data Protection Control Authority” refers to the national authority responsible and competent to control and monitor compliance with legal and regulatory provisions on the Protection of Personal Data. In this case, the Portuguese Data Protection Commission.
b) “Alfa Sender” refers to the identification of the SMS sender.
c) “Customer” refers to any natural or legal person that concludes an agreement with the Provider for the provision of this Service, namely the right to access and use the Platform, offering the payment of a price as consideration , while being able to transfer that right to third parties; these Terms and Conditions of Service shall apply to both.
d) “Agreement” refers to the written agreement between the Parties, annexes included.
e) “Cookies” refer to any information stored on the user’s terminal equipment by the Customer or the Provider, in accordance with the Customer’s instructions.
f) “Customer Account” refers to the form of access to the Platform’s restricted area, using a set of access data (“login”), consisting of a username and a password, assigned by the Provider to the Customer. The Customer Account is assigned to a single Customer and may be associated with more than one set of access data, username and password (“login”).
g) “Intellectual Property Right” refers to any and all rights, whether or not registered, granted, applied, or existing, currently or following the conclusion of the agreement between the parties, regarding or related to any patent, copyright, trademark right, business secret, database protection, sui generis right, or any other intellectual property law, and all the similar protection rights or forms, anywhere in the world.
h) “Confidential Information” refers to information in any format or medium (whether oral, written, electronic or other) disclosed to the other Party, and refers to any information that each Party to these Terms and Conditions of Service deems to be confidential or proprietary, including, without limitation: “know-how;” business secrets; technology; registrations; intellectual property; legal, commercial, accounting or tax information; information concerning business operations or models; strategies; customers; prices and marketing; performance; market surveys or analyses; software and databases, and the terms and existence of an agreement between the Customer and the Provider.
i) “List of Subscribed Services” refers to the document describing the services requested and subscribed by the Customer, as well as the respective price, payment and billing conditions.
j) “Subscription Period” refers to the term of the agreement between the Parties, indicated in the List of Subscribed Services, which is automatically renewable.
k) “Platform” refers to the set of applications known as “Smarkio,” developed and owned by the Provider, available online via the URL https://www.smark.io, and accessible through the Customer Account access data.
l) “Provider” has the meaning described in the preamble.
m) “Representatives” are the employees, managers or directors, agents or any other legal representative of each Party, as well as any third party subcontracted by the Party.
n) “Hosting Service” refers to the service provided by a third party to the Provider to host the Platform online and store the database necessary for the service provision, whose applicable terms are accessible via URL.
o) “Services” refers to the set of services requested by the Customer and provided by the Provider, such as the access to and use of the Platform, as well as any other type of service subscribed by the Customer through the List of Subscribed Services, excluding any service provided or to be provided by third parties.
p) “Terms and Conditions of Service” has the meaning described in the preamble.
q) “Customer Website” is the site, or set of Internet sites, owned by the Customer, or by third parties represented by the Customer, which is the subject of the service provision, or to which the rights to use this Service are transferred and which shall be, under these Terms and Conditions of Service, integrated with the Platform.
2.3 The reference to a person includes any natural or legal person, legally established or not, and all the Representatives of that person.
2.4 The use of words in the singular includes their plural, and vice versa.
2.5 Any gender reference includes reference to other genders.
2.6 The reference to any legal provision refers to the respective legal instrument in force, any update thereof, as well as any other law applicable by virtue of that legal instrument.
3. Service Subscription
3.1 Right of Use
3.1.1 The Provider grants the Customer the non-exclusive but transferable right to use the Platform during the term of the agreement between the Parties, under the terms and within the limits described herein.
3.1.2 The use of the Platform covers all the features available and accessible through the Customer Account, including any others specifically described in the List of Subscribed Services.
3.1.3 The Platform is modular and the Customer only has access to the functionalities that are under contract according to the List of Subscribed Services. The platform allows the Customer to:
a) act on databases and contacts, indicated by the Customer and integrated in the Platform.
b) act on the data and information collected through Cookies, when Web Tracking functionality is active.
c) act over the interactions of the user with any service integrated with the Platform, namely the Customer’s web pages – when the Web Tracking functionality is active – and e-mail and SMS messages when the functionalities for Email and SMS are active.
3.1.4 The integration referred to in the preceding paragraph means any admissible method for that purpose made available in the Platform, namely the import of CSV files, the manual creation via the entry of data in the form available on the Platform for that purpose, or via a Web or API service.
3.1.5 The rights granted by the Provider to the Customer through these Terms and Conditions of Service do not give the Customer any exclusivity in the use of the Platform, and the Provider may agree to provide the same type of services to third parties, without, however, interfering with the services provided to the Customer.
3.1.6 The Customer may not transfer any right of access or use of the Platform to third parties without the express authorisation of the Provider.
3.1.7 Furthermore, this agreement covers the use of an electronic communications system for sending bulk messages, known as Short Message Service – SMS, which may vary according to the needs of the contracting party.
3.1.8 The Customer guarantees that the content of the messages sent by it or by the company to which the right is transferred, are reliable and secure, do not violate any rights related to the Protection of personal data, trademarks, patents, copyrights, trade secrets, or any other rights related to the object of this agreement and are not in conflict with any other general regulations.
3.1.9 Therefore, SMARKIO is not liable for any dispute arising from the messages that are sent and, directly or indirectly, related to their contents, and accepts no liability that may arise from the fact that they are sent, even if they are related to the Alfa Sender, which should be set by the customer or by the company to which the right is transferred and shall be its sole responsibility.
3.1.10 SMARKIO may not, under any circumstances, be held liable, even if jointly, or incur any debts, to any person or entity, as a result of the fact that such communications are sent, transferring the risk of sending them, specifically, the risk associated with their content, entirely to the customer.
3.2 Scope of the Service Provision
3.2.1 All processing of personal data as part of the provision of the Services by the Provider is performed by the Customer while using the Platform, or by the Provider in accordance with the Customer’s specific instructions.
3.2.2 The Provider does not process any personal data provided, disclosed, or otherwise transmitted by the Customer or by the company to which the right is transferred, or the data collected as part of the Service provision, for any purpose other than those indicated in these Terms and Conditions of Service or authorised by the Customer’s instructions.
3.3 Changes to the Platform
3.3.1 The Parties acknowledge that the Platform may undergo changes to its features and qualities at the Provider’s sole discretion, and the Customer accepts these possible changes, unless otherwise provided in these Terms and Conditions of Service.
3.3.2 The Provider does not intend to make substantial changes to the Platform that may jeopardise the purposes for which it was created, as set forth in these Terms and Conditions of Service.
3.3.3 In the event of significant changes to the Platform, except for those merely aimed at updating or improving it, the Customer shall be notified by electronic means.
3.4.1 The Customer agrees to use the Platform with the functionalities available at the time when the Services are subscribed.
3.4.2 The Client declares that the acquisition of the Services described herein does not depend:
a) On any possible or future delivery or availability of services other than those included in the Terms and Conditions of Services or in the Platform, or on any functionality of the Platform other than the ones described in these Terms and Conditions of Service;
b) On any possible or future delivery or availability of services and functionalities communicated orally or publicly by the Provider.
3.4.3 By using the Platform, the Customer will be able to carry out various data processing operations, namely storage, access, modification, transmission and other data analysis functionalities.
3.5 Access via Customer Account
3.5.1 In order to allow access to the Platform, the Provider shall assign a Customer Account to the Customer, which may contain more than one set of access data, including username and password.
3.5.2 The security of the Customer Account, including all access data, such as the corresponding usernames and passwords, is the Customer’s responsibility.
3.6 Service Level, Maintenance and Support
3.6.1 The Provider includes, as part of the services provided to the Customer based on a monthly subscription of Services, the basic technical Platform support, which includes the following activities:
a) Monitoring the activity and operation of the Platform;
b) Recovering the Platform in case of failure;
c) Correcting technical problems affecting the Platform, namely, errors or “bugs,” according to the criticality of the problem;
d) Evolutionary maintenance, which consists of the Platform’s constant improvement;
e) Ensuring the activity and operation of interfaces with external systems developed by the Provider and as part of the Provider’s technical performance, without prejudice to the provisions of the following paragraph.
3.6.2 The customer hereby expressly authorises SMARKIO to manipulate the customer’s instance, provided that this manipulation is made at its request, to fill any gap or need to create customisations, chats or similar items; this can be considered as a support activity.
3.6.3 Support activities expressly exclude:
a) Monitoring other systems external to the Platform, with which it is integrated;
b) Correcting or supporting external systems, either technically or in terms of confidentiality, integrity, availability, and authenticity.
3.6.4 When a technical problem is found in the Platform, either independently by the Provider or reported to it by the Customer, it shall be classified according to its criticality as follows:
a) Level 1 “Fatal:” the Platform, or part of it, is inoperative, preventing it from fulfilling the purpose for which it was created.
b) Level 2 “Error:” A non-critical or non-essential functionality of the Platform is not operational, or is malfunctioning.
c) Level 3 “Inconvenience:” when a problem is partially affecting one of the Platform’s functionalities, and there is a way of getting around the problem.
d) Level 4 “Functionality Request:” when there is a functionality that the Customer would like to have implemented in the Platform, without any urgency.
3.6.5 The following table defines the SLA (Service Level Agreements) for response and problem solving by the Provider according to its criticality rating:
(dias úteis 9h-18h)
(dias úteis 9h-18h)
(dias úteis 9h-18h)
(dias úteis 9h-18h)
a) The times listed here are in running hours (not just business hours) from the moment the problem is reported by the customer.
b) Only support for problems of type 1 – Fatal and 2 – Error outside working hours is provided. Working hours correspond to working days from 9 am to 6 pm, excluding public holidays in Portugal.
3.6.6 Any technical problems affecting the Platform or related to support services shall be reported at the support platform (Service Desk) – https://support.smark.io or via the dedicated e-mail address email@example.com.
3.6.7 The Provider shall reply to the Customer’s message about technical problems within 24 hours, depending on how critical the problem is.
3.6.8 The technical support service is available on weekdays, between 9:30 a.m. and 6:00 p.m.
3.6.9 The Provider monitors the Platform 24 hours a day, through an alert system based on e-mail and SMS messages to the Operations Support team.
3.6.10 In the case of Level 1 “Fatal” problems, the Provider ensures technical support also on weekends and public holidays, via the contacts (telephone and e-mail) indicated in the List of Subscribed Service for that purpose.
3.6.11 Climbing model:
|Nível de Escalada||Contacto||Cargo||Telemóvel|
|1||Service Desk||+351 910 511 firstname.lastname@example.org|
|2||Pedro Borges||Head of Product||–1||–1|
1 Contactos serão fornecidos aos clientes.
3.6.12 Contact Procedure:
|Canal de contacto|
|Dia Útil (9:30 às 18:00 WET)||Telefone/Service Desk|
|Dia Útil (18:00 às 9:30 WET)||Telefone|
|Feriados e fins de semana||Telefone|
3.7 Hosting and Storage Services Provided by Third Parties
3.7.1 In order to provide Platform access and its services, the Provider turns to services provided by third parties, in particular, to the online hosting and availability of the Platform ensured by the Hosting Services hired by the Provider.
3.7.2 This Hosting Service is used to store the information generated by the use of the Platform, and the personal data in the Customer’s databases, for the purposes of the Service provision.
3.7.3 This Hosting Service is based solely on servers located in the European Union and guarantees a high level of technical and organisational security, proven by the certifications obtained in this area.
3.7.4 The Client agrees that the terms and conditions of the Hosting Service provider, particularly in what regards the confidentiality, integrity and availability of the Platform, shall apply.
3.7.5 With regard to liability for acts and omissions arising from the Hosting Services, the provisions of Clause 12.2.3 shall apply.
4. Customer Obligations
4.1 Duty of Cooperation
4.1.1 The Customer has the duty to cooperate with the Provider, as a condition and in order to enable the provision of the Services; specifically, the Customer shall:
a) Give the Provider, upon request, all the necessary or relevant, true, and valid information, for a correct provision of the Services;
b) Follow the instructions given by the Provider with regard to the integration of its databases with the Platform and the Provider’s database;
c) Follow the instructions given by the Provider with regard to placing Cookies on the Customer’s Website, as set forth in Clause 7.
d) Ensure that all its Representatives comply with the applicable legal and contractual requirements.
4.1.2 No liability, breach or default interest shall be attributed to the Provider if they result from a failure of the Customer to comply with the cooperation obligations and conditions set forth in the preceding clauses or in other clauses of the Terms and Conditions of Service.
4.1.3 Notwithstanding the provisions of the preceding paragraphs, and despite these, the Provider shall make every commercially reasonable effort to comply with the service provision.
4.2 Limits of Use
The Customer, or company to which the right is transferred, undertakes to use the Platform and the Services provided by the Provider within the legal terms and limits and those provided herein.
4.3 Use of Customer Account
4.3.1 All acts and omissions involving the Platform, be it through the use of the Customer Account, or through any access data (login) associated therewith, are the Customer’s responsibility, and are deemed as accepted and authorised by the latter, so the Customer shall ensure the security of the data that allow accessing its Customer Account, in order to avoid unauthorised accesses.
4.3.2 The Customer shall immediately notify the Provider, via the fastest means of communication, when it becomes aware of an unauthorised access to its Customer Account, via any access data (login) associated therewith.
4.4 Invoicing and Payment
4.4.1 The Customer undertakes to remunerate the Provider, as consideration for the provision of the Services, by means of the amounts, payment methods, billing modes, and other terms, set forth in these Terms and Conditions and in the Contract celebrated between the parties.
4.4.2 The Provider reserves the right to change the amounts due for the provision of the Services and shall notify the Customer 90 days prior to such change, giving the Customer the possibility of terminating the agreement for that reason.
4.4.3 The invoices related to the service mentioned in item 1 of the Contract, “Initial Deployment Subscribed Services”, will be issued by the Provider and sent to the Client as follows:
a) the first, with a value of 50%, at the time of award
b) the second, with the value corresponding to the remaining 50%, at the end of the implementation.
4.4.4 When a consulting grant is included in the fee, it will be invoiced as soon as its use is approved, even if for an inferior necessity of the package, and consumed within a maximum period of 3 months.
4.4.5 The minimum unit of consumption is 30 minutes, and the counting is made in multiples of this unit.
4.4.6 After consuming the hours included in the consulting grants, the client may contract a new consulting, valid under the same conditions.
4.4.7 The monthly service invoices, mentioned in item 3 of the contract, will be issued up to the 5th business day of the month to which the services provided refer.
4.4.8 The Customer must pay the invoices within 30 days after their issuance.
4.4.9 All payments must be made in euros, by bank transfer to the following bank account: NEW BANK – IBAN PT50 0007 0000 0028 0967 0972 3 – SWIFT / BIC BESCPTPL.
4.4.10 The service will have a loyalty defined in the contract, renewable automatically for the same period, except in the case of termination by any of the parties, as described in these Terms and Conditions of Service.
4.4.11 Any default in payment entitles the Provider to suspend the Services, in accordance with Clause 5.4, the right to demand the reimbursement of any expenses incurred with the collection of the missing amounts, in accordance with Clause 13.3.5, as well as the right to terminate the agreement, in accordance with Clause 5.3.3 (a).
5. Term, Suspension and Termination
5.1.1 The Agreement has the duration indicated in the respective List of Subscribed Services, being effective from the date indicated therein.
5.1.2 Unless otherwise agreed by the Parties, at the end of the Subscription Period the Agreement is successively and automatically renewed for equal periods.
5.1.3 When there is no Subscription Period defined in the List of Subscribed Services, the Customer has a minimum permanence period under this Contract of 3 months.
5.2 Renewal and termination
5.2.1 Notwithstanding anything to the contrary in these Terms and Conditions of Service, either Party may terminate the Agreement, opposing its automatic renewal as follows:
a) If the effective duration of the agreement is one year or less, the termination shall be communicated with 30 days’ notice.
b) If the effective duration of the agreement is more than one year, the termination shall be communicated with 60 days’ notice.
5.2.2 Failure by the Customer to give prior notice, or the defective performance thereof, shall result in the renewal of the agreement, with all the consequences this entails.
5.2.3 The notification regarding the termination of the agreement shall be sent by registered letter to the other Party.
5.3.1 Either Party has the right to terminate the Agreement concluded between them when, due to the seriousness or reiteration of a non-compliance by the other Party, there is no justification to maintain the contractual relationship in question.
5.3.2 The right to termination is exercised by means of a postal notification addressed to the other Party for that purpose, and the receiving Party shall have 30 days to remedy or validly justify such non-compliance.
5.3.3 Pursuant to the preceding paragraphs, the following constitute grounds for terminating the Agreement:
a) Failure by the Customer to comply with its payment obligations, or the defective performance thereof, exceeding the due date of the obligation for 30 days;
b) Using the Platform outside the Terms and Conditions of Service, or outside the scope of the applicable legislation, the limits of good faith or best practices, or for purposes other than the ones for which it is intended.
c) Breach of legal obligations, namely in matters of privacy and Protection of personal data and telecommunications.
d) Changes made by the Provider to the clauses of these Terms and Conditions of Service or key functionalities of the Platform, when they seriously undermine the pursuit of the purposes of the contractual relationship between the Parties.
e) The total unavailability of the Platform for more than 3 consecutive business days.
5.4 Suspension of Services
5.4.1 The Provider reserves the right to suspend the provision of the Services, namely the access to and use of the Platform, when there is any amount of overdue payment, or other amount described in this clause, owed by the Customer, 10 days after a notification by the Provider urging the Customer to make the payment.
5.4.2 The Provider reserves the right to forthwith suspend the provision of the Services, namely the access to and use of the Platform, when there is a violation of these Terms, in particular when unsolicited electronic communications are sent, as provided in Clause 8.3.
5.4.3 The suspension referred to in paragraph 5.4.1. above shall not occur when the payment is challenged by the Customer, in good faith, and when the Customer is reasonably cooperating in resolving the dispute.
5.4.4 In the event of a suspension of Services due to a payment default, the Provider has the right to charge an additional amount for reactivating the suspended Services, as well as to demand default interest for the period between the due date and the full payment.
5.5 Provisions on the Termination of the Agreement
5.5.1 Without prejudice to the fact that certain rights and obligations remain in force, and without prejudice to what is otherwise provided for in this document, all the rights transferred between the Parties shall automatically cease upon the termination of the contractual relationship.
5.5.2 Specifically, and not excluding others, the provisions on intellectual property and confidential information shall remain in force, even after the termination of the agreement.
5.5.3 The Provider has the right of retaining any data or information contained in the Platform, or related to the Service provision, until the Customer pays off all the amounts owed to the Provider.
5.5.4 The Customer has 30 days from the expiration of the Agreement to ask the Provider for access to the Platform to collect data or information, or to request the provision of data or information related to the Service provision, provided that there are no outstanding amounts.
5.5.5 After a period of 30 days from the expiration of the Agreement between the Parties, the obligation of the Provider to retain or provide Customer data or information contained in the Platform, or related to the Service provision, shall be extinguished.
5.5.6 The period referred to in the preceding paragraph may be extended by the Provider in the event of a dispute between the Parties.
5.5.7 The Provider reserves the right to charge the reasonable amounts due for the provision of the data and information recovery service referred to in the preceding paragraphs.
6. Lead Integration Generation Services
6.1 The Platform allows the Customer to integrate Leads in it, using different means, and according to the validation criteria predetermined by the Customer, directly by the Platform and/or in documentation specifically prepared for that purpose.
6.2 The integration of Leads and the validation criteria, as well as their use, in any way and for any purpose, are the sole responsibility of the Customer, which hereby exempts the Provider from any liability, in particular the one mentioned in the following paragraph.
6.3 The Customer is responsible for fulfilling the applicable requirements, namely in what regards collecting and processing personal data (Clause 9) and unsolicited electronic communications (Clause 8), and hereby warrants this fulfilment to the Provider.
6.4 If the Customer subscribes to this service, it shall pay to the Provider, every month, the amount indicated in the List of Subscribed Services for each Lead validated and integrated into the Platform and sent to the Customer.
7.1 Cookie Installation and Integration
7.1.1 As a condition for the provision of the Service, the Customer is required to fulfil the duty of cooperation with the Provider for installing and integrating the Provider’s Cookies into the Customer’s Website.
7.1.2 The Customer is responsible for the acts and omissions related to the duty of cooperation for installing and integrating Cookies, referred to in the preceding paragraph.
7.2 Responsibility for Compliance with Legal Provisions
7.2.2 As part of the preceding paragraph, the Customer is responsible for, and hereby represents and warrants to the Provider, its compliance with the duty of information to the user of the Customer’s Website; specifically, it shall provide information on:
b) The identification of the Customer and its representatives, where applicable;
d) The recipients of the Cookies, including the identification of the Provider, either specifically or included in a category of recipients;
e) The fact that the user’s personal data may travel on the network without security, at the risk of being seen and used by unauthorised third parties.
7.2.3 The Customer is responsible for obtaining the prior consent of the Customer’s Website user to store and access Cookies on the user’s terminal equipment, and hereby represents and warrants this fulfilment to the Provider.
7.2.4 The Provider stores and accesses Cookies on the Customer’s Website user’s terminal, with the consent of the user pursuant to the above, as instructed by the Customer, and for the purposes specified by the latter.
8. Electronic Communications
8.1 Creating and Sending E-mail Messages
8.1.1 The Platform allows the Customer to send electronic messages to addresses entered or integrated by the Customer, operating merely as a message transport service.
8.1.2 The Customer has the possibility to develop and send campaigns via electronic messages according to sending and recipient criteria, and with the aesthetic and content features it outlines. So, the creation, sending, and delivery of electronic messages through the Platform is the sole responsibility of the Customer, which hereby exempts the Provider from any liability.
8.1.3 The Customer shall pay to the Provider, every month, the amount indicated in the List of Subscribed Services for sending one thousand e-mail messages (“Cost per Mille” or “CPM”) through the Platform.
8.2 Creating and Sending Messages to Mobile Phones (SMS)
8.2.1 The Platform allows the Customer to send SMS messages to mobile phone numbers entered or integrated by the Customer, operating merely as a message transport service.
8.2.2 The sending of SMS messages through the Platform is the sole responsibility of the Customer, which hereby exempts the Provider from any liability.
8.2.3 The sending of SMS messages will be charged, within one month after they have been sent, for the amount indicated in the List of Subscribed Services, and added to the monthly usage fee.
8.2.4 Whenever SMS volume packages are contracted with a discounted price and the customer does not consume the total quantity in the forecast period, the Provider will invoice the SMS volume not sent in the last month of the defined period.
8.2.5 The SMS messages not sent and invoiced in the last month of the forecast period according to the previous clause may be sent without extra costs by the Customer in the 3 months following the end of the forecast períod.
8.3 Sending Unsolicited Electronic Communications
8.3.1 The Customer is responsible for fulfilling the applicable legislation in force on the sending of unsolicited electronic communications, namely the Law on the Protection of Personal Data and Telecommunication Privacy, and hereby warrants this fulfilment to the Provider.
8.3.2 As part of the preceding paragraph, the Customer is responsible for, and hereby represents and warrants to the Provider, its compliance with the duty of information to the recipients of unsolicited electronic communications, and for obtaining their prior consent to send them.
8.3.3 The Customer hereby represents and warrants to the Provider that it, or the company to which the right is transferred, shall only send electronic communications to users who have given their prior and valid consent to this purpose.
8.3.4 In the event that the Customer sends unsolicited electronic communications, the Provider may forthwith suspend the provision of services to the Customer and its access to the Platform, in particular when the Provider receives a serious complaint from any user or any third-party provider of electronic message transport services.
8.3.5 The Customer is responsible and undertakes to record the consent referred to in the preceding paragraphs, and shall present it to the Provider upon request and in a timely manner.
9. Protection of Personal Data
9.1 Responsibility of the Provider
9.1.1 The Provider shall process personal data in accordance with the instructions given by the Customer, and as part of the marketing and behavioural analysis purposes communicated to the user, as data subject, and according to the consent given by the user to the Customer required for such purposes.
9.1.2 The Provider is responsible for its acts and omissions, and for those of its representatives, in what regards the processing of personal data carried out outside the instructions given by the Customer, namely when used for purposes other than those provided herein, a liability limited to cases of wilful misconduct and serious fault.
9.1.3 As data processor, the Provider shall implement appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction, accidental loss, modification, dissemination or unauthorised access and against any other unlawful forms of processing. Considering the available technical knowledge and the costs arising from its application, the Provider shall ensure an adequate level of security in relation to the risks involved in the processing and the nature of the data to be protected.
9.2 Responsibility of the Customer
9.2.1 For the purposes of the contractual relationship with the Provider provided for herein, and as part of the Service provision, the Customer is responsible for the processing of personal data.
9.2.2 As data controller, the Customer is responsible, and hereby represents and warrants to the Provider, its compliance, or the compliance of the company to which the right is transferred, with the applicable legislation in force on the processing and Protection of personal data, namely the Law on the Protection of Personal Data and subsequent amendments.
9.2.3 As part of the preceding paragraph, the Customer is responsible for, and hereby represents and warrants to the Provider, its compliance with the duty of information to the user of the Customer’s Website, as data subject; specifically, it shall provide information on:
a) The fact that personal data are processed on the Customer’s Website;
b) The identification of the Customer and its representatives, where applicable;
c) The description of the purposes for processing personal data;
d) The recipients of the personal data, including the identification of the Provider, either specifically or included in a category of recipients;
e) The fact that the user’s personal data may travel on the network without security, at the risk of being seen and used by unauthorised third parties.
9.2.4 The Customer is responsible for obtaining the prior consent of the Customer’s Website user, as data subject, to the purposes of personal data processing that require consent as the legal basis for processing, and hereby represents and warrants this fulfilment to the Provider.
9.2.5 The Customer is responsible for sending the relevant notifications and for obtaining the necessary authorisations from the competent Personal Data Protection Control Authority, with regard to the processing of personal data, purposes, and in cases where there is the communication of data to third parties, interconnection of data, and international flows of data, and hereby represents and warrants this fulfilment to the Provider.
9.2.6 Whenever the Customer’s Website user exercises the right to oppose the processing for direct marketing purposes, as well as when he/she exercises the right of rectification, erasure or blocking, the Customer is under obligation to communicate this fact to the Provider, where necessary or relevant to the fulfilment of these rights.
10. General Contractual Warranties
The warranties described in this chapter are general warranties and do not affect or prevail over other specific warranties set forth in other clauses of these Terms and Conditions of Service.
10.1 Provider Warranties
10.1.1 The Provider warrants the operation of the Platform in accordance with the criteria, terms and conditions set forth herein.
10.1.2 The Provider does not warrant that the access to and use of the Platform by the Customer will be uninterrupted or error-free, nor that the Services will comply with the Customer’s requirements.
10.1.3 The Provider does not warrant, and shall not be responsible, for delays, failures in deliveries, or any other failure, loss or damage arising from the transmission of data on the network, including through the Internet, and the Customer acknowledges and accepts that the provision of the Services and the availability of the Platform may be subject to delays and other problems associated with such data communications.
10.1.4 The Provider warrants that it shall maintain all the rights and licences necessary for providing the Services during the term of the agreement with the Customer.
10.2 Customer Guarantees
10.2.1 The Customer warrants to the Provider that it complies and shall comply with these Terms and Conditions of Service and any subsequent changes hereto.
10.2.2 The Customer warrants to the Provider its compliance with all the necessary legal requirements applicable to the relationship between the Parties, the use of the Platform, and the provision of the Services, namely in what regards the privacy and Protection of personal data, unsolicited electronic communications, advertising, unfair commercial practices and competition, among others.
11. Intellectual Property
11.1 These Terms and Conditions of Service, the use of the Platform or the Service provision does not entail the transmission, assignment, transfer, or encumbrance, under any circumstances, of any Intellectual Property Right between the Parties, or between a Third Party and either Party, or both.
11.2 By granting the Customer the right to use the Platform, the Provider does not assign any licence of Intellectual Property Rights thereon.
11.3 All Intellectual Property Rights on the Platform and its Services belong to the Provider and its licensors, if any. The Provider reserves all Intellectual Property Rights.
11.4 The Provider declares that the provision of the Services does not infringe any third-party Intellectual Property Right.
11.5 The Customer undertakes not to violate, directly or via third party, any Intellectual Property Right of the Provider or third party, both within and outside the scope of the Service provision and use of the Platform.
11.6 The Customer undertakes not to reproduce, copy, rent, sell, distribute, or create derivative works, directly or via third parties, of the Platform or Services, in whole or in part, by any means, and for any purpose, except as permitted by law or when expressly authorised in writing by the Provider.
11.7 The Customer grants the Provider the necessary authorisations and licences on any intellectual property rights, or other rights, of the Customer or of a third party it represents, as part of the Service provision and limited thereto.
11.8 The Customer represents and warrants to the Provider that it has the necessary rights to comply with the provisions of the preceding paragraph, exempting the Provider from any responsibility as part thereof.
12.1 In the context of the contractual relationship between the Parties, they have, or may have, access to the Confidential Information of the other Party, and both shall:
a) Refrain from accessing or using Confidential Information other than when strictly necessary to perform their obligations under and in accordance with these Terms and Conditions of Service;
b) Refrain from using any Confidential Information, directly or indirectly, in a way that is detrimental to the other Party or in order to obtain any competitive advantage over the other Party;
c) Keep all Confidential Information in strict confidence and refrain from disseminating or allowing access to it, except to its Representatives, who shall:
i) Have access to Confidential Information only to the extent necessary;
ii) Be informed of the confidential nature of that information; and
iii) Be bound by a confidentiality agreement and use restriction obligations to the same extent as in this Agreement.
12.2 Both Parties shall ensure that their respective Representatives comply with their confidentiality obligations and shall be liable for any breach of confidentiality obligations on their part and on the part of their Representatives.
12.3 Neither Party shall be liable for the loss, destruction, modification, or disclosure of Confidential Information when resulting from the performance of a third party.
12.4 This clause on confidentiality shall remain valid even after termination of the contract, for any reason.
13. Liability and Indemnity
13.1 Liability of the Parties
13.1.1 Each Party is responsible for the acts and omissions of its Representatives when these violate the applicable legal provisions or result in breach of contract, in particular, in a non-compliance with the provisions of these Terms and Conditions of Service.
13.2 Responsibility of the Provider
13.2.1 The Provider limits its liability by limiting the indemnity to the value of monthly subscribed services, corresponding to the period of unavailability, in the following cases:
a) When the Services are inaccessible, unavailable, invalid, incorrect or incomplete and therefore cause serious direct damage to the Customer;
b) When intentional or grossly negligent acts or omissions are committed by the Provider, or its Representatives, causing serious direct damage to the Customer;
13.2.2 The Provider shall not be liable, and the Customer undertakes to refrain from demanding compensation from the Provider:
a) For any acts and omissions by third parties;
b) For reasons of force majeure that render the Services inaccessible, unavailable, invalid, incorrect, incomplete, or harmful;
c) For any indirect damage caused to the Customer by the Service provision;
d) For the inappropriate use of the Platform by the Customer, namely, contrary to these Terms and Conditions of Service.
13.2.3 In any case, the overall Responsibility of the Provider, translated into a duty to indemnify the Customer, shall always be limited to a ceiling equivalent to the amount actually paid by the Client in the last 6 months of the actual duration of the agreement.
13.3 Responsibility of the Customer
13.3.1 Notwithstanding any other provision in these Terms and Conditions of Service, the Customer is responsible for the use of the Platform and the Services, and for the results obtained through such use, including the performance of the Provider based on instructions given by the Customer, hereby exempting the Provider from any liability as part of this.
13.3.2 The Provider has the right of recourse against the Customer to be returned all the amounts spent in fines, penalties and other sanctions, arising from any case or proceedings, whether judicial or administrative, including legal and administrative costs and lawyer’s fees, namely the ones generated or prompted by the Customer’s Website user, the data subject, the Personal Data Protection Control Authority, or any other public authority, provided that they are charged to the Provider and arise from facts concerning:
a) Any breach, by the Customer, of the applicable law including, but not limited to, a breach of the legislation on Cookies, privacy and Protection of personal data, unsolicited electronic communications, telecommunications, advertising, intellectual property, unfair commercial practices and competition;
b) The Provider’s compliance with instructions given by the Customer that result in violations of the laws referred to in the preceding paragraph;
c) The Customer’s failure to comply with these Terms and Conditions of Service.
13.3.3 Examples of violations of the applicable legislation, pursuant to Clauses 7 and 8, as expressed in subparagraphs a) and b) of the preceding paragraph, include:
a) Failure to provide the minimum mandatory information to the users;
b) Failure to obtain prior consent for sending unsolicited electronic messages.
13.3.4 The Provider has the right of recourse against the Customer to be returned all the amounts spent in indemnities and legal costs arising from the violation of third-party intellectual property rights, particularly as a result of the lack of the necessary authorisations or licences from the Customer, or from the company to which the right is transferred, or from third parties represented by the Customer.
13.3.5 In the event of a default in payments owed by the Customer to the Provider:
a) The Provider reserves the right to suspend the Services, pursuant to Clause 4.4;
b) The Customer undertakes to pay interest, at the applicable statutory rate in force, for the period between the due date and the full payment, and also undertakes to pay all the expenses incurred by the Provider as a result of turning to the courts, namely legal costs and lawyer’s fees.
13.3.6 The Customer is responsible for the direct and indirect damages caused to the Provider when sending electronic messages through the Platform:
a) Which are unsolicited electronic messages;
b) Damage the quality and/or reputation of the IP addresses of the Provider or third-party provider of electronic message transport services;
c) Leads to substantiated complaints from the recipients regarding the content, form or basis of the communications.
13.3.7 The Customer is responsible for the acts and omissions committed directly by it or by its Representatives in the Platform, pursuant to Clauses 3.3. and 2.5.
13.3.8 In the event of a non-compliance with the provisions of this Clause, the Provider shall notify the Customer of the fact, so the latter can justify or remedy the situation within 8 days of receipt of the notification; however, the Provider may terminate the agreement under the Termination Clause, without any liability or duty to indemnify the Customer for any damages or expenses.
The Customer assigns the necessary authorisations and licences to the Provider in order to grant it the right to use the Customer’s name and logo in the Provider’s customer list and in any physical, digital or electronic medium owned by the Provider.
15. Assignment of the contractual position
In the event of a transfer, transformation, modification or termination of the Provider commercial company, The Provider has the right to assign its contractual position to a third party, with the prior consent of the Assignor, in writing, with reasonable justification.
16.1 The expression “written notification or communication” refers solely to postal delivery to the addresses indicated by the Parties, excluding any other means.
16.2 The expression “electronic notification or communication” refers specifically, excluding any other means, to e-mail messages send to the e-mail addresses indicated by the Parties.
17. Applicable Law and Jurisdiction
17.1 Integration and validity
17.1.1 Should any clause of these Terms and Conditions of Service be deemed invalid by the competent court, and in relation to the applicable law, it shall be deemed void, only within its scope and extent, while the remaining clauses shall remain valid and in force.
17.1.2 If any invalid or unlawful clause can be deemed valid and lawful if part of it is removed or deleted, it shall be deemed as amended as part of thereof, in order to give the necessary effect to the private will of the Parties.
17.2 Applicable Law
The law applicable to these Terms and Conditions of Service, the relationship between the Parties, their rights and obligations, and any dispute arising between the Parties, shall be Portuguese Law, and the enforcement of the law of any other country is expressly excluded.
Any lawsuit, injunction or civil, administrative or criminal proceedings, arising from or related to these Terms and Conditions of Service, as well as any dispute between the Parties, shall be settled by the Portuguese courts of the district of Porto, with express waiver of any other court.
Updated at: March 1st, 2021