However, BLUEKNOW undertakes to inform the “End Customer” of any other contractual information or technical specification that is available to BLUEKNOW and that the “End Customer” requires, by any means capable of producing a record, at the request of the latter. As a result, “the End Customer” initiates a legal relationship with BLUEKNOW in accordance with the same.
In the case of electronic contracting, both parties waive the conventional signature, which will be replaced by the written justification for the contract taken out, in the terms established in article 5 of Law 7/1998, of 13 April, which regulates the General Conditions of Contracting.
BLUEKNOW, with its registered office in Calle Zamora 46,48 3º-4 CP 08005 Barcelona, Tax Identification Number B-65225765, according to the deed of incorporation drawn up before the Notary Public of Barcelona Mr. Ariel Sultan Benguigui, held on the first day of December two thousand and nine, with Protocol number 3253, whose registration details are: Folio: 1 Volume 41,678, page: B392966 registration number 1, in the person of his or her legal representative Mr. Lino Bort, with DNI 18994396.F, according to the deed of proxy drawn up before the Notary Public of Barcelona, Mr. Ariel Sultan Benguigui, dated 24 April two thousand and fourteen, with Protocol number 1053, and registered in the Barcelona Companies Registry, Volume: 41996, Folio: 0154, page: B: 392966, in the general section, Registration number: 6 and address for the purposes of notifications and for the “T&Cs” of use, in Calle Luis Mitjans, 18, CP 28007 Madrid (hereinafter referred to as “BLUEKNOW“).
The “End Customer”, identified with the data provided by filling in the “Terms and Conditions”, in the person of their pro tempore Legal Representative or, in any case, an authorised representative for the signing of this contract acting on behalf of and to the account of the entity that he or she represents (hereinafter referred to as the “End Customer“), (BLUEKNOW and the “End Customer”, collectively the “Parties” and individually referred to as the “Party“), sign the following contract (“the Contract“).
Each party declares that it has the legal capacity to enter into this agreement, which shall be binding and enforceable in accordance with the general terms and conditions set out therein.
CONTRACT: This document is considered to consist of the “T&Cs” described here.
BLUEKNOW “SERVICES”: That BLUEKNOW specialises in the provision of “Services” falling within its main activity, consisting of a company dedicated to consulting, analysis, development, and marketing of solutions and software “Services” in the digital business environment that, likewise, is a holder of the rights of intellectual property over several software solutions, consisting of a SaaS platform of technological “Services” that, through the optimisation of digital experiences, provides its users’ online businesses with increased sales (hereinafter, the “Service”). BLUEKNOW has the knowledge, equipment, material and, where appropriate, the personnel needed to provide this type of “Services”.
SUBSCRIPTION LICENCE: It is the non-exclusive right to use the “Service”/”Services” of BLUEKNOW for a validity period defined through a subscription to one or more “Services”, provided that the subscription is valid and in a manner consistent with these conditions and related documentation.
END CUSTOMER OR CUSTOMER: It is any entity, that has subscribed to the “Services” of a BLUEKNOW solution, and that for the accomplishment of these “Services”, has obtained the passwords to the control panel, where the commercial data of its digital business and that of its web users are hosted. It is the sole responsibility of the “End Customer” to comply with the LOPD (Law on Protection of Data) and the LSSICE (Law on Information Society Services and Electronic Commerce) in its portal.
WEB USER: It is any person browsing the portal of the “Final Client”, who is permitted by previous authorisation of the latter, as established in the LOPD and the LSSICE, to access and collect data from the latter for commercial use.
DASHBOARD SUBSCRIPTION: Use of the “Service(s)” by the “End Customer” will entail the latter’s subscription to and acceptance of the “T & C” that are published on this part of the web, which automatically means the “End Customer” will receive a password, via email that will allow it to access its Dashboard.
SUBSCRIPTION ACCESS KEY: It consists of the authorised use under a subscription licence of BLUEKNOW’s “SaaS “Services”” which, through a Username and an Access Key, allows the “End Customer” to use and access the “Services” via the Dashboard.
SERVICE ACTIVATION DATE: Is when BLUEKNOW begins to provide the “Services”, agreed with the “End Customer”.
DASHBOARD OR CONTROL PANEL: It is the interface, which allows the different “Services” contracted by the “End Customer” to be managed, allowing the information and Key Business Indicators to be exploited by the “End Customer”.
COOKIES: Any type of file that is downloaded to the local computer of an END USER in order to store data that can be updated and retrieved by BLUEKNOW to optimise the user’s digital experience.
SOFTWARE: this refers to BLUEKNOW Software as a Service (SaaS) that is used by a WEB USER through their browser when they visit the website of the “End Customer”. BLUEKNOW SaaS does not require the downloading of any software, but it does require an initial implementation on the website of the “End Customer” to be able to collect data on WEBSITE USERS and thereby optimise the digital experience.
1. – THE SUBJECT OF THE CONTRACT
1.1 These T&Cs of Use govern the provision of a service under which BLUEKNOW makes a commercial tool (hereinafter the “Tool”) available to the “End Customer”, through which cookies are integrated into the website operated by the “Final Customer” (hereinafter, the “Website”) that allow the monitoring and analysis of the behaviour of its WEBSITE USERS.
In addition, and by installing a second cookie on the users’ terminals (hereinafter, the “BLUEKNOW Cookie”), the Tool allows BLUEKNOW to obtain information on users’ browsing on the different Websites operated by the “End Customer”, to unify this and to issue an overall report on the behaviour of users (hereinafter, the “Services”).
1.2 The BLUEKNOW Platform is an instrument reserved for professional users and the “End Customer” undertakes to use it exclusively in relation to their own professional activity and in any case for requirements relating to the same, so that this Contract is not subject to the regulation of Consumer Contracts.
1.3 The “End Customer” understands and agrees that BLUEKNOW provides a product on the basis of “Software as a Service” or “SaaS”, as indicated in the section on definitions.
1.4 Subscription or registration as an “End Customer”, and the use of the “Services” provided by this portal implies the full and unreserved acceptance of these T&Cs of Use or those that, if appropriate, replace them and are in force at the time in accordance with the provisions set out in condition 12, which shall apply without prejudice to any special or particular conditions or agreements that may be established between the Parties, if they deem it appropriate. The Software is licensed under a subscription license, not sold.
1.5 Under this Contract, the “End Customer” has not purchased the right or license to use the “Services”, including the BLUEKNOW “Services” and the “Services” Environment, which exceed the scope and/or duration of the contracted “Services”. Once the subscription time has expired, the right of access to and use of BLUEKNOW Services will terminate.
1.6 The lack of acceptance of these T & C of Use, prevents the use of the Tool, and therefore, access to the “Services”.
2.- TERM OF THE CONTRACT
2.1 The “Services” (and the use of the Software as a service) are of non-exclusive and non-transferable temporary use in accordance with these T&Cs of Use, beginning with the acceptance by the “End Customer” of these T&Cs of Use by means of their access and registration in the Portal, with a password and the payment by the “End Customer” of the subscription. In the absence of agreement between the parties, the period will be decided upon by the document entitled “Terms and Conditions” which must be signed by the “End Customer”. If a contract does exist, the provisions therein will be applicable.
2.2 These T&Cs are valid for the contracted “Service(s)” which accompanies/accompany them. These T&Cs can also be referenced for any extension of new Services in addition to the “Services” initially contracted, and/or for any renewal of the subscription period.
2.3 In the event that BLUEKNOW has developed a made-to-measure job, for the implementation of “Services”, the “END CUSTOMER” undertakes to maintain this modification, during a period of 1 year from the acceptance of the extension of the project.
3.-OBLIGATIONS OF THE END CUSTOMER
3.1 The “End Customer” assumes responsibility for accessing the Tool and for its correct use in accordance with these T&Cs, and must verify that its computer equipment is compatible with the requirements of the Service.
3.2 The minimum essential equipment needed by the “End Customer” to access the service is the following: • A computer with an Internet connection. • Web browsers which are compatible with the Tool.
3.3 To allow access to the tool, the “End Customer” needs to be registered in BLUEKNOW’s Portal and then the system will automatically send them a password that will allow the authentication of the “End Customer”. The “End Customer” must keep under their sole responsibility the identifier, the password or the access code in the most strict and absolute confidentiality, and shall be solely responsible for the consequences that may result from the communication thereof to third parties, without prejudice to BLUEKNOW’s right of recovery from any damage that may arise as a result of such action.
3.4 The “End Customer” is committed to respecting the legislation in force during the use of the “Services”, including, without limitation, the respect for the ownership of the Intellectual Property that corresponds to BLUEKNOW, being aware that any reproduction, distribution, communication, transformation and/or disclosure to third parties of any content of the latter, without having the corresponding rights, constitutes a violation of intellectual property legislation.
3.6 Specifically, and in order to adapt its Website to the use of the “End Customer” Cookie, derived from the use of the Tool, the End Customer must implement a system to: i. Provide the user with clear and comprehensive information in a direct and visible way on the use of the Tool -and the corresponding cookie- on the Website by the “End Customer”, as well as its purpose. ii. Obtain the consent of the website user for the use of the same by the “End Customer” prior to its use. In the event that such consent is not obtained, neither should the use of the Tool or the subsequent installation of cookies take place. iii. Enable an accessible and permanent procedure that allows WEBSITE USERS to revoke their consent.
3.7 In addition, and without prejudice to the foregoing, the “End Customer” must obtain the informed consent of WEBSITE USERS for the installation on their terminals of the BLUEKNOW Cookie that enables it to track users’ behaviour on different Websites operated by the “End Customer”, allowing the installation of the BLUEKNOW Cookie only once such consent has been obtained. To do this, the “End Customer” must clearly, fully, directly and visibly inform users about the use on the Website by BLUEKNOW of said cookie, with the goal of analysing their behaviour. In addition, the “End Customer” should enable an accessible and permanent procedure that allows website users to revoke such consent.
3.8 The “End Customer” is responsible for complying with the LOPD and LSSICE provisions regarding requests for authorisation to use the personal data of its web users, as well as the possible use of the same for advertising purposes. It will also inform you about the use by BLUEKNOW of the data collected during its navigation, so that BLUEKNOW can start up the contracted “Services”.
3.9 In the event of the revocation of consent on the part of a WEB USER regarding the use of the BLUEKNOW Cookie referred to in the previous section, the “End Customer” shall immediately bring such circumstances to the attention of BLUEKNOW.
3.10 Pay BLUEKNOW the amount stipulated in terms of price. In the event of non-payment by the “End Customer” of some of the amounts owed to BLUEKNOW as compensation for the Service, BLUENOW reserves the right to temporarily suspend the same.
After THIRTY (30) days from the suspension of the Service for this reason without the “End Customer” having satisfied the amounts owed, BLUEKNOW will be able to suspend the service definitively, terminating the contract with the “End Customer” for causes attributable to the same and reserving the exercise of all pertinent legal actions for the recovery of amounts owed.
3.11 The “End Customer” may not make the tool or materials derived from the “Services” available to third parties in any way for their use, unless such access is expressly permitted for the specific “Services” that the “End Customer” has acquired. The “End Customer” may not modify, prepare derivative works, disassemble, decompile, reverse engineer, reproduce, distribute, replicate or download any part of the «Services» (the foregoing prohibitions include, but are not limited to the reviewing of data structures or similar materials produced by BLUEKNOW “Services”), or to accessing or using the Services to develop or provide support, and/or to assist a third party in developing or supporting products or “Services”, which compete with those of BLUEKNOW. The “End Customer” may not perform or disseminate any of the following security tests in the “Services” Environment or associated infrastructure: network discovery, identifying ports and “Services”, vulnerability scanning, password decryption, remote access tests, or penetration test; and license, sell, lease and rent, transfer, assign, distribute, host, subcontract, permit its usage as a time-share or office of “Services” or otherwise commercially exploit or make available to third parties the “Services” of BLUEKNOW, the “Service” Environments or BLUEKNOW materials, except as expressly authorised under the terms of the respective order.
3.12 The implementation of BLUEKNOW’s “Services” is subject to and governed by the Technical Specifications of its website, provided by the “End Customer”. In the event the “End Customer” does not provide BLUEKNOW with the Technical Specifications defined at the time of contracting, BLUEKNOW shall not be liable for the partial or total impossibility of starting up due to technological incompatibility and will not refund the start-up cost due to non-compliance with this point.
3.13 The “End Customer” undertakes to keep the BLUEKNOW tool active as long as it is subscribed to it, in such a way that it cannot justify the non-payment of its subscription due to not being successful or not obtaining results as a consequence of the inactivity of the tool. If this happens, BLUEKNOW can detect it in the tool itself, so I would inform you reliably, that the tool is not functioning not because it is at fault, so that you proceed to reactivating it as soon as possible. If in the course of 7 days from the notification of this situation, the “End Customer” does not activate the tool, the contract will be resolved due to its breach by the “Final Customer”, and BLUEKNOW shall have the right to claim for the payment of all invoices pending payment, and also it will be able to apply for compensation for damages, which will be assessed paying attention to the median income obtained by BLUEKNOW from the “End Customer” during the last year of its contract.
4.- OBLIGATIONS OF BLUEKNOW
4.1 Provide the “Services” described in the Subject of the T&Cs of Use in force at any time.
4.2 The fulfilment of all obligations arising from the terms contained in these T&Cs of Use and, especially, those related to confidentiality.
4.3 BLUEKNOW shall use reasonable technical means to provide a secure service environment. Notwithstanding the foregoing, the “End Customer” declares it knows and accepts that the “Services” do not provide any identification or protection against viruses.
For this reason, it is highly recommended that you install an anti-virus system that is able to identify and destroy infected files on your computer. In any case, BLUEKNOW will not be responsible for any consequences derived from downloading an infected file.
4.4 BLUEKNOW guarantees the access and availability of the Tool, except for specific maintenance reasons, fortuitous events, force majeure or causes that depend on third parties and/or those outside the control of BLUEKNOW. Notwithstanding the foregoing, all or part of the “Services” may be interrupted temporarily due to repairs, updates and maintenance.
4.5 BLUEKNOW guarantees that it has adopted all the means at its disposal to prevent access or use of the “Services” by unauthorised third parties.
4.6 BLUEKNOW guarantees that it will not process the information obtained through the Tool, for any other purpose than to provide the “End Customer” with the “Services”.
4.7 BLUEKNOW undertakes to “activate” the “Services” for the “End Customer”, provided that all commercial terms agreed between the “End Customer” and BLUEKNOW are fulfilled.
5. – GUARANTEES AND RESPONSIBILITIES
5.1 BLUEKNOW ensures that it is the owner of all intellectual and industrial property rights that empower it to license the Software and it will indemnify the “End Customer” in the event of any claim or action initiated by third parties for the infringement of the Intellectual Property Rights concerned, up to the limit of the sum total of the amounts received by BLUEKNOW from the “End Customer” under this contract, in the month previous to the date of the claim initiated by third parties. The “End Customer” acknowledges that it is aware of this limitation of liability.
5.2 BLUEKNOW shall place at the disposal of the “END CUSTOMER” the Software “as is” without any other guarantee, implied or alleged, of its suitability for specific purposes, or of the absence of defects or errors, or in relation to its capacity to integrate in a given system, or in relation to the accuracy of the information contained therein, except those contained expressly in this Contract, with BLUEKNOW not assuming any liability for indirect damages, such as loss of information, consequential, punitive and/or for loss of profit, loss of income, profits or goodwill, loss of data and/or use, due to the use of the Software on the part of the “End Customer”. However, in the event that BLUEKNOW could be held liable for the use of the Software as a service by the “End Customer”, BLUEKNOW will only be liable for up to the total sum of the amounts received from the “End Customer” under this Contract, in the month previous to the one in which the damages proven by the “Final Customer” had occurred. The “End Customer” acknowledges that it is aware of this limitation of liability.
5.3 BLUEKNOW will provide all the technological mechanisms at its disposal that are necessary to reasonably render the “Services” in conditions of continuity.
5.4 Notwithstanding the above, the “End Customer” exempts BLUEKNOW from liability for damages that it causes the “End Customer” for reasons not attributable to it, or beyond its control, in particular: (i) any direct, indirect, special, incidental, consequential, exemplary or punitive damages including, without limitation, those arising from the interruption of the service offered through the Software delays, errors, malfunction or loss of data or the presence of inaccurate data or corrupted software in the event of a deviation of data or collapse of the system service provider when it has happened in exceptional circumstances, which could not have reasonably been influenced by BLUEKNOW; (ii) as a result of interference from third parties in the communication and transmission systems that the “End Customer” uses; or (iii) due to malfunction or interruption of the “Services” by virtue of intent, guilt, error or any type of act attributable to the “End Customer” or to third parties, without any negligence on the part of BLUEKNOW, (iiii) those arising from situations of force majeure.
5.5 The “End Customer” undertakes to immediately inform of any incident that it detects in the “Services” by email to support@Blueknow.com. If the “End Customer” does not report the incidence detected to the email address specified in the previous paragraph, with the specified immediacy, BLUEKNOW will not be responsible for any damages experienced by the “End Customer” due to said incident.
5.6 For the programs, data, instructions, procedures or any other necessary element for the provision of the “Services” that were provided by the “End Customer”, the latter declares and warrants that: A) It is the owner of all licenses and/or has the necessary authorisation which allows its use by the contracted service, without BLUEKNOW infringing any right of any third party. (B) The use of any of these elements that BLUEKNOW intended for the provision of the “Services”, does not breach any contractual relationship that the “End Customer” has with third parties.
5.7 The “End Customer” warrants that it is the holder of all necessary Rights on the contents and the information that it may incorporate into the Software under this Contract and will indemnify BLUEKNOW in the event of any claim or action initiated by third parties for infringement of the rights concerned.
5.8 The “End Customer” will respond to BLUEKNOW for the inaccuracy, error or lack of veracity of said manifestations. The “End Customer” will be responsible for the verification of all data arising from the exploitation of the “Services”. Consequently, BLUEKNOW will not be responsible for the lack of adequacy of the data resulting from the service provided, vis-a-vis the needs or expectations of the “End Customer”. BLUEKNOW will not assume any responsibility for the business decisions that the “End Customer” has taken on the basis of the use of the “Services” and the data arising from the exploitation of the same.
5.9 While using the “Services”, the “End Customer” shall refrain from carrying out any conduct that infringes any Intellectual or Industrial Property rights of BLUEKNOW or of third parties. Likewise, the “End Customer” shall refrain from behaviour that constitutes a misappropriation of a BLUEKNOW or third-party trade or industrial secret, which infringes or violates the honour, the personal or family intimacy or the image of third parties, or that is unlawful or harmful to morality. Also, and in any case, such behaviour will not leave BLUEKNOW open to any judicial or extra-judicial claim being presented against it. The “End Customer” will pay all damages and costs, including reasonable lawyers’ fees, even if their costs and intervention were not mandatory, that are imposed on BLUEKNOW by the final Judgement or Award issued by a Court of competent jurisdiction, or agreed to in a settlement agreement, which are attributable to said claim.
5.10 In the event of non-compliance with obligations laid down in these T&Cs, as well as in any other obligations arising from applicable legislation regarding data protection and the Services of information society, the “End Customer” accepts full responsibility for what it may suffer as a result of its failure to comply with all applicable laws, maintaining BLUEKNOW free from any consequential damage, including any type of administrative sanctions imposed by the appropriate authorities, as well as damages due to judicial or extra-judicial processes against BLUEKNOW, including in all cases, Lawyers’ and other professionals’ fee notes.
5.11 BLUEKNOW reserves the right to temporarily suspend the “Services” offered through the Software due to maintenance needs, after notifying the “End Customer”, or when a competent body, in the exercise of legally attributed functions, orders the suspension of the rendering thereof.
6.1 Neither Party may be held liable for any delay, defect or error in the performance of its contractual obligations when the latter are due to or caused by force majeure. However, the Parties are obliged to notify the other Party, when they become aware that a cause of this nature has occurred and will affect the proper performance of their duties.
- “It is understood that FORCE MAJEURE refers to any cause beyond the reasonable control of the Parties, such as acts of war, flood, fire, explosion, lockout, strike, civil disturbance, blockade, embargo, governmental action, legislative reforms, cuts in Internet communication lines, failures of internet communications, failure of the providers of the service offered by BLUEKNOW, power failure, earthquakes, and other natural disasters, demands or requests from any Government or from any branch or representative of the latter, or any other cause outside the control of the Parties, without it being understood that the lack of funds constitutes a cause of Force Majeure”.
7.- ECONOMIC CONDITIONS
7.1 The price to be paid by the “End Customer” in compensation for the “”Services” and/or implementation” is that which the “End Customer” accepted at the time of contracting, (both Directly and Indirectly/through the Partner). The prices do not include Value Added Tax (VAT) or any other tax that, if appropriate were to replace the latter. Obligatory taxes will be collected on the invoice(s) corresponding to each “Service”. The reference to Value Added Tax shall be understood to also mean the Canarian Indirect General Tax and/or the Tax on “Services” in the cities of Ceuta and Melilla, in those territories in which such aspects govern taxation, or any other taxes that replace the previous ones.
7.2 The payment terms will be carried out according to what was agreed on in the economic “Terms and Conditions” negotiated at the time of contracting (both directly and indirectly/ through the Partner)
8.-INTELLECTUAL AND INDUSTRIAL PROPERTY
8.1 BLUEKNOW owns all the Rights of exploitation of the products and computer programs that support the “Services”, as well as those related to the Tool and to the Portal, and any documentation relating to the same. BLUEKNOW is a registered trademark. The website, Blog and the BLUEKNOW Platform are the property of BLUEKNOW. Unauthorised replication and distribution is prohibited as it infringes Intellectual Property Rights.
8.2 As a service linked to the correct execution of the “Services”, BLUEKNOW provides the “End Customer” with a right to use such programs, although strictly limited to the correct execution of the Contract in accordance with the circumstances expressed in the T&Cs of Use in force at any time.
8.3 The “End Customer” may not, directly or indirectly, decrypt, electronically scan, decompile or derive source code from any intellectual and/or industrial property owned by BLUEKNOW to which it has access as a result of this Contract, or reverse engineer the design and function of said intellectual and/or industrial property. In addition, the “End Customer” is obliged to inform, quickly and efficiently, of any infringement or well-founded fear of infringement by WEB USERS or third parties of the Software that could affect the legitimate interests of BLUEKNOW of which the “End Customer” may have knowledge.
8.4 In addition, the “End Customer” shall retain all Rights of Industrial and/or Intellectual property rights of those who are holders of information and content that can be stored via the Software in the context of the use of the Service provided by BLUEKNOW. Accordingly, by virtue of this Contract, the “End Customer” does not transfer to BLUEKNOW or any third party, the ownership or license or right of use other than that provided herein, or of any other type in relation to any information, content or any Rights of Intellectual or Industrial Property.
8.5 Notwithstanding the foregoing, the “End Customer” authorises BLUEKNOW to use the information and the content referred to in the previous paragraph for carrying out the obligations laid down in this Contract on behalf of the “End Customer”. BLUEKNOW is responsible for the external processing of the data of the “End Customer”, during the time that the latter maintains its subscription to the BLUEKNOW “Services”, as set forth in the T&Cs of Use at any time, on the BLUEKNOW website and being equipped with the technical capabilities to fill that role, solely and exclusively in relation to the IT management of the “End Customer” databases, excluding responsibility for their content and use by the “End Customer” themselves.
8.6 Also, the “End Customer” authorises BLUEKNOW to make a backup or security copies of the information and contents that can be stored through the Software.
8.7 Through the acceptance of the T&Cs of Use in force at any time on BLUEKNOW’s website, the “End Customer” authorises BLUEKNOW to use its trademark, logo and/or trade name, in its promotional presentations and on the BLUEKNOW Portal free of charge, with the purpose of announcing its status as an “End Customer” of BLUEKNOW.
9. – PROTECTION OF PERSONAL DATA
9.1 The Parties declare in a free, unequivocal, specific and informed manner that they consent to the processing of their personal data that concern them. In this way the parties are aware that by signing this Contract, they consent to their personal data being collected in this contract, as well as those that may be collected in the future in order to comply with the correct execution of this same, which may be incorporated by the other Party into its own data collection file in order to properly manage the contractual relationship and, possibly, for administrative and/or commercial management. In any case, the Parties undertake to ensure that this personal data will not be disclosed in any case to third parties, although, if some kind of transfer of personal data were to be carried out, they would always and in advance undertake to request the express, informed and unequivocal consent of the Party that holds such personal data. Except when necessary to comply with legal obligations or those provided for in the Contract, the latter coming from our contracts.
9.2 During the provision of the “Services”, BLUEKNOW does not access or process personal data which are owned and/or under the responsibility of the “End Customer”.
9.3 The “End Customer” guarantees that it will under no circumstances communicate any personal data under its responsibility to BLUEKNOW.
9.4 The “End Customer”, understands that in order to contract BLUEKNOW “Services”, the “End Customer” must give its consent for any transfer, processing or storage of Data in the Provider of the Cloud Hosting server located in Europe. Any non-compliance with the LOPD or LSSICE will be exclusively the “End Customer’s” responsibility. The giving of consent for this is essential for the provision of BLUEKNOW “Services”.
9.5 With respect to the data that BLUEKNOW has access as a result of the provision of the contracted Service, they are the exclusive property of the “End Customer” and are provided on a voluntary basis by the latter, and will only be used for the purpose of the provision of the contracted “Services”. BLUEKNOW undertakes not to apply them or use them for purposes other than those agreed and not to communicate them to others even for conservation purposes, except when necessary for the fulfilment of the purpose of this contract. The “End Customer” accepts and provides express consent for its data to be transferred to third parties in the context of the provision of the contracted “Service(s)” and solely for carrying out the purposes for which they were collected. The giving of consent for this is essential for the provision of BLUEKNOW “Services”.
9.6 The “End Customer” is hereby authorised, to incorporate WEB USERS’ data, provided as a result of the provision of or the contracted “Services”, in an automated processing file, which the latter is responsible for, in order to comply with the provision of the contracted services. The giving of consent for this is essential for the provision of BLUEKNOW “Services”.
9.7 BLUEKNOW undertakes to return in their entirety the aforementioned files, automated or not, of personal data to which it would have had access when required by the “End Customer” and/or to destroy the media and/or documents where these data are contained at the end of the provision of the “Services” contracted by them.
9.8 BLUEKNOW also undertakes that the processing of personal data to which it has access by reason of the provision of the “Services” covered by this Contract and of all information generally provided by “End Customer”, is maintained in the strictest Professional secrecy and absolute confidentiality regarding the data of the same, as well as diligently to fulfil the duty of guard and custody imposed on them by the LOPD and LSSICE.
9.9 At the same time, BLUEKNOW undertakes to take the appropriate technical and/or organisational and security measures necessary to protect data of a personal nature to which it has access and to prevent their alteration, loss, treatment or unauthorised access in accordance with the LOPD, and its complementary norms of development.
9.10 The “End Customer” authorises BLUEKNOW to use and disclose the statistical information arising out of the use of the Software by WEB USERS, while respecting the anonymity of the latter and the obligations regarding the non-disclosure of the personal data of the WEB USERS as set forth in this clause. For the provision of the “Services”, BLUEKNOW generates an identification code that is linked to the information relating to the behaviour of each of the WEB USERS, not being able to associate such information to an identified or identifiable person.
9.11 BLUEKNOW shall be liable to the “End Customer” for all these obligations assumed in this clause, even when such breach is attributable, if applicable, to the working staff for which it shall answer legally.
9.12 BLUEKNOW is not responsible for the failure of the “End Customer” to comply with the obligations arising from the LOPD, LSSICE or the regulations that are developed from the latter.
9.13 The “End Customer” may exercise its right of access, cancellation, rectification or opposition by contacting the BLUEKNOW Security Officer at Calle Zamora 46-48 3º 4º, 08005 Barcelona, or at the following email: firstname.lastname@example.org.
9.14 BLUEKNOW states that regarding communications, two options are available to the “End Customer”: a so-called Blacklist where the “End Customer” can specify a list of users that are not going to receive communications and another named Unsubscriptions, where the web user can make it known that they do not want to receive communications.
9.15 The “End Customer”, expressly declares to be aware that “it is an essential requirement to use the BLUEKNOW Platform to send messages in the automated mode by email to seek consent for the receipt thereof by the “Web Users””. Consent must necessarily be obtained in accordance with the provisions of current legislation and therefore must be prior, express, free, informed and refer to specific processes. This is an essential obligation in charge of the “End Customer”. The “End Customer” undertakes to provide that in each message sent through the BLUEKNOW Platform there is an enabled link that allows the recipient to have all the information necessary to be able to freely unsubscribe and, therefore, not to be sent any more emails in the future.
9.16 On its “website”, BLUEKNOW offers the option of receiving Newsletters, so the “End Customer” by accepting these T&Cs, accepts the receipt of the same, for which we need their email address. We use these data exclusively for the sending of Newsletters and do not pass it on to third parties. Acceptance of the storage of these data, email address and its use to send the Newsletter can be withdrawn at any time through the following link email@example.com, which appears in the Newsletter.
9.17 Acceptance of these T&Cs implies the giving of express consent to BLUEKNOW to send you advertising or promotional communications by email or other equivalent means of communication, in the terms established by Law 34/2002, on the Information Society and Electronic Commerce Services. In the event of not being interested in receiving this kind of communications, you may firstname.lastname@example.org at the address given at the beginning of these T&Cs, or e-mail email@example.com, expressing your desire not to receive any advertising.
9.18 The “End Customer” undertakes to keep BLUEKNOW safe from any kind of damage, loss, expense and/or penalty in any order, especially those resulting from any sanctions proceedings initiated by the Spanish Data Protection Agency, as a consequence of non-compliance with the obligations and guarantees assumed in these T&Cs of Use by the “End Customer”, as well as due to the non-observance of obligations, for which, regarding their status as being Responsible for the File, they are liable, in accordance with regulations on the Protection of Personal Data.
9.19 The “End Customer” will access the Dashboard or Control Panel through the use of a username and password. It is their responsibility to keep said username and password safe, thus preventing its misuse and the access of third parties or unauthorised persons. BLUEKNOW is not responsible for the misuse of passwords that the End Customer can carry out as a user.
In order to comply with Article 21 of the LOPD, in these T&Cs, BLUEKNOW provides the names of the subcontractors it uses: ONLINE MARKETING KFT for the provision of the service that generates impact on users through Pop-Ups; AMAZON WEB SERVICES, Inc., with the purpose of data storage; and THE ROCKET SCIENCE GROUP LLC D/B/A MAILCHIMP, for the sending of commercial communications.
BLUEKNOW also has formalised and signed a contract on the terms set forth in Article 12 of the LOPD and 20, 21 and 22 of the LOPD, with those service providers.
In addition, we inform you that the servers of AMAZON WEB SERVICES, Inc. and THE ROCKET SCIENCE GROUP LLC D/B/A MAILCHIMP are located in the United States, by which there is an international transfer of data, however, both companies adhere to Privacy Shield, so that they comply with European requirements in the field of data protection.
Finally, we inform you that the servers of ONLINE MARKETING KFT are located in the European Union.
11. – THE CONFIDENTIALITY OF INFORMATION
11.1 In particular BLUEKNOW undertakes to ensure that all the information or documentation that the “End Customer” provides it with, will only be used to serve and comply with the provision of contracted “Services” and in any case BLUEKNOW will carry out the contracted “Services” in accordance with the principles of Good Faith, Diligence and Duty of Secrecy. As a result, it may not provide third parties with information, or use information for its own benefit that has been obtained in the exercise of the provision of the “Services”, whenever that may favour these third parties or when said disclosure may in any way prejudice the “End Customer”.
11.2 BLUEKNOW expressly agrees not to make copies, record, reproduce, manipulate, disclose to third parties, or put at the disposal of the latter the information or documentation that it may receive directly or indirectly from the “End Customer” or the Partner.
11.3 All Confidential Information disclosed by a Party (the “Disclosing Party”) to another Party (the “Recipient Party”), in the context of these T&Cs of Use, is and will remain the exclusive property of the Disclosing Party.
11.4 The Parties undertake to ensure that the development of this contract is governed in the most absolute confidentiality, respecting the duty of care and professional secrecy. As well, both Parties undertake not to disclose any information relating to these T&Cs, whether relating to negotiations, transactions, or any subject of the Parties, nor the content here signed, nor about the activities or “Services” that will be developed.
11.5 “Confidential Information” shall mean the information provided, whether in writing, verbally or in graphic, electronic or other format, disclosed to the Recipient Party within the framework of these T&Cs of Use and which is confidential and of a significant value for the Disclosing Party, a value that could be impaired if such information were disclosed to third parties. To the extent that it is consistent with the provisions in the preceding sentence, “Confidential Information” shall include, without limitation: trade secrets, product information, plans, specifications, designs and rates; Applications Program Interface (API); financial information that is not in the public domain, including forecasts, budgets and data; studies, plans and budgets for advertising and marketing; business strategies; contracts, credit conditions and procedures; research and development; business plans; plans for the modification or development of new products or for future products, forecasts, business projections, business analysis, information regarding an “End Customer” or “End Customers”, or suppliers, software (including all types of documents and codes), system designs and hardware architectures and protocols, specifications and manufacturing processes, logistics, and sales.
11.6 The Recipient Party shall refrain from disclosing, or using the Disclosing Party’s Confidential Information, while: (a) the Recipient Party may use the foregoing information to the extent necessary to fulfil its obligations under these T&Cs of Use or to the extent that the remaining provisions of these T&Cs of Use so allow; (b) the Recipient Party may disclose the foregoing information to the extent that it deems it reasonably necessary to comply with a valid resolution issued by a competent Court or in connection with an arbitration proceeding or to demand that the other Party complies with the rights of Recipient Party through any judicial or arbitration proceeding, provided that in such a case the Recipient Party notifies the Disclosing Party as soon as practicable (and, if possible, before effecting any disclosure), and the Recipient Party, at its own expense, shall request the confidential treatment of said information and shall collaborate, as appropriate, with the actions that the Disclosing Party has taken for that purpose; and (c) the Recipient Party may disclose prior information to third parties who have contracted with the Recipient Party the provision of some of the “Services” of the Recipient Party under the present T&Cs of Use, only to the extent that the contractor in question needs to know about it.
11.7 This condition does not apply to information that: (a) the Recipient Party has been authorised to disclose by the Disclosing Party, provided that such authorisation is in writing; (b) the Recipient Party can demonstrate that it was in its possession before the date of contracting the “Services” without any confidentiality obligation; (c) the Recipient Party is developing independently without using Confidential Information; (d) the Recipient Party has legitimately received from a third party without being bound by any confidentiality obligation with respect to the other part of these T&Cs of Use; or (e), that it is or becomes part of the public domain without any breach of these T&Cs of Use.
11.8 Likewise, BLUEKNOW shall also be liable to the “End Customer” for failing to comply with the obligations assumed under this clause, even if such non-compliance is attributable, where appropriate, to the working staff for which it shall answer legally.
12. – GENERAL
12.1 No company or agency: These T&Cs of Use shall not be construed as constituting a company or association between the parties or constitute either party as the agent of the other party for any purpose.
12.2 Waiver: the delay in the exercise or non-exercise of any right does not constitute a waiver of such right.
12.3 Validity of the conditions: In the event any of the terms of these T&Cs of Use are illegal, invalid or no longer applicable, the rest of the conditions will remain effective.
13. – TERMINATION OF THE CONTRACTUAL RELATIONSHIP
13.1 There may be causes for terminating the contract other than those which are legally established, non-compliance by any of the parties of the obligations arising from these T&Cs, at BLUEKNOW’s discretion and when it so provides, having to communicate this circumstance to the “End Customer” and/or WEB USER, if the defaulting party does not remedy its non-compliance within twenty (20) calendar days from the request by any means made by the complying party, the latter may terminate this contract and require damages from the defaulting party derived from such non-compliance, taking into account the limits established in the fifth condition of the T&Cs of Use within a reasonable time. Failure to pay the price is considered a serious breach and will therefore cause the user license or subscription to expire.
13.2 In any case resolution, termination, rescission, cancellation or termination of the contract for any legal reason or because of those which are set forth in these T&Cs, the “End Customer” will not have the right to the return of the amount paid, nor that the amount paid be assessed in proportion to the time that has elapsed between the use of the Service and the termination thereof.
13.3 At the end of the contract the “End Customer” shall remain responsible for any debt acquired at the end of this Contract, whose payment date is earlier or later than the termination date of the agreement.
13.4 In the event that any party fails to fulfil any of its essential obligations, if the defaulting party fails to remedy its non-compliance within a period of twenty (20) calendar days from the request by any means made by the complying party, the latter may terminate this contract and demand from the defaulting party the damages derived from such breach, in compliance with the limits established in the fifth condition of the T&Cs of Use.
13.5 BLUEKNOW may temporarily suspend Your password, account and access to the “Services” and the use of the same, if the “End Customer” or its WEB USERS violate any provision contained in the conditions, obligations of the “End Customer”, Liability, economic conditions, Industrial/Intellectual Property, data protection, confidentiality and general conditions with respect to the use of the “Services”, which are the subject of this Contract or if, in BLUEKNOW’s reasonable judgement, the “Services” or any of its components were going to suffer a significant threat to their security or functionality. BLUEKNOW will notify you in advance of such suspension at BLUEKNOW’s reasonable discretion depending on the nature of the circumstances giving rise to the suspension. BLUEKNOW will use reasonable efforts to restore the affected “Services” without delay once BLUEKNOW determines, at its reasonable discretion, that the situation that gave rise to the suspension has been remedied. However, during any period of suspension, BLUEKNOW will make available to the “End Customer” its content and its Applications as they exist in the “Services” Environment on the date of the suspension. BLUEKNOW may terminate the “Services” by virtue of an order if any of the above causes of suspension were not remedied within 30 days after the notification sent by BLUEKNOW to that effect. Any suspension or termination by BLUEKNOW under this paragraph shall not relieve the “End Customer” from the obligation to make payments under this Contract.
13.6 Any full liability that may correspond to BLUEKNOW under the provision of the Services shall be limited to the total sum of the amounts received by BLUEKNOW under condition 6, within one month prior to the breach that gives rise to such liability.
14. – AMENDMENTS
14.1 BLUEKNOW reserves the following powers:
- A) To make, at any time, modifications and updates to the “Services”, their contents, configuration, availability and presentation of information. B) To alter the T&Cs of Use, which must be accepted by the “End Customer” or the “Partner” of BLUEKNOW, with the obligation on the part of the Partner, to make these T&Cs known to its Customers. C) To temporarily suspend the “Services” to carry out maintenance, upgrades or improvements, in accordance with the provisions of condition 4.4.
15. – APPLICABLE LAW AND JURISDICTION
15.1 The following conditions of these T&Cs, shall remain in full force and effect upon the expiration or termination of this Contract: “Definitions”, “Fees and Payments”, “BLUEKNOW Property Rights”, “’End Customer’ Property Rights”, “Confidentiality”, “Advertising”, “Compensation”, “Waiver of Liability, Limitations of Liability”, “Termination, Suspension and Expiration”.
15.2 These T&Cs of Use will be governed by the Spanish Legislation, which will be applicable to what is not provided in the same in matters of interpretation, validity, and execution.
15.3 The following norms or legal texts shall apply to everything not regulated in these T&Cs of Use:
- Law 7/1998 of 13 April on the General Conditions of Contracting
- Royal Decree 1906/1999 of 17 November which regulates Telephone and Electronic Contracting.
- Law 15/1999 of 13 December on the Protection of Personal Data and Decree 1720/2007, of 21 December, approving the Development Regulation of Law 15/1999 of 13 December on the protection of personal data.
- Law 34/2002 of 11 July on Information Society Services and Electronic Commerce.
15.4 The parties expressly waive the jurisdiction that may correspond to them and expressly submit to the Courts and Tribunals of the city of Madrid to settle any dispute that may arise in the interpretation or execution of these T&Cs of Use.