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Please read the GENERAL TERMS AND CONDITIONS OF CONTRACT carefully in order to enjoy the « Services » offered by BLUEKNOW, S.L., (hereinafter, « BLUEKNOW ») through the website www.blueknow.com (hereinafter, the « Portal »), before proceeding to acquire its services.
BLUEKNOW, with registered offices at Mestre Joan Corrales 107-109, 08950 in Esplugues de Llobregat with Tax Identification Code B-65225765. The register data is as follows: Articles of Association executed before the notary public of Barcelona, Mr Ariel Sultán Benguigui, on 1 December 2009, under number 3253 of his notary record, whose register data is as follows: Folio: 1, Volume: 41,678, Sheet B392966, Registration No. 1, through its Legal Representative, Mr Lino Bort, with National Identification No. 18994396.F, as stated in the Power of Attorney executed before the notary public of Barcelona, Mr Ariel Sultán Benguigui, dated 24 April 2014, under number 1053 of his notary records, and registered in the Company Register of Barcelona, Volume: 41996, Folio: 0154, Sheet B: 392966, General Section, Registration No. 6 and address for notification purposes and for these T&C of Use at Calle Madame Curie 7, Edificio Beta, 6th Floor, Door 1, 28521 Rivas Vaciamadrid, Madrid (hereinafter, « BLUEKNOW »).
The Client, through its pro-tempore Legal Representative or, in any case, an agent authorised to sign this contract for and on behalf of the entity it represents (hereinafter, the Client), (BLUEKNOW and the Client are collectively referred to as the « Parties » and are referred to individually as the « Party »), sign the following contract (the « Contract »).
Each Party declares that they have the legal capacity to enter into this Contract, which shall be binding and enforceable in accordance with the General Terms and Conditions of Use established herein.
CONTRACT: This document, made up of the T&C described herein, is considered to be the Contract.
BLUEKNOW SERVICES: BLUEKNOW is specialised in the provision of SaaS services (Software as a Service), consisting of the manufacture and commercialisation of automated technology solutions (the « Tool »), for which it owns the intellectual property rights, in the field of digital business to improve the experience of buying or procuring services for users of a website, thus optimising conversion (hereinafter, the « Service »). BLUEKNOW has the knowledge, equipment, materials means and, where appropriate, personal means necessary to provide this type of Service.
SUBSCRIPTION LICENSE: This is the nonexclusive right to use the BLUEKNOW Service(s) for a defined period of time, through a subscription to one or more services, provided that the subscription is valid and consistent with these conditions and the related documentation, and the Client has paid for the service(s) using the agreed method, which will be reflected in a term sheet or the document signed with the affiliate network to which they belong.
CLIENT: Any legal person who has subscribed to the « Services » of a BLUEKNOW solution and who, in order to fulfil these services, has obtained the access codes to the control panel, where the commercial data of their digital business and their web users is hosted. It is the exclusive responsibility of the End Client to ensure compliance on their portal with Regulation (EU) 2016/679 of 27 April 2016 (GDPR), Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights, and Law 34/2002, of 11 July, on Information Society Services and Electronic Commerce.
WEB USER: Any person who browses the End Client’s web portal and who, with prior authorisation, as provided for in Regulation (EU) 2016/679 of 27 April 2016 (GDPR), Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights, and Law 34/2002, of 11 July, on Information Society Services and Electronic Commerce, allows their data to be collected and accessed, in order to fulfil the objectives of this Contract.
REGISTRATION ON THE DASHBOARD: This shall represent the subscription to the use of the Service(s) by the End Client by means of the acceptance of the « Terms and Conditions » that are published on this part of the website, the Client will automatically receive their password by email, which will provide them with access to their « Dashboard ».
SUBSCRIPTION ACCESS CODE: Consisting of the authorised use of the BLUEKNOW « SaaS Services » under a subscription license, which, through a username and a combination of numbers and letters chosen by the Client, allows them to access and use the « Services » through the Dashboard. Service activation date: this is when BLUEKNOW begins to provide the « Services » that the « End Client » has procured. Exceptions are made for clients who access this service via affiliate networks, who will obtain the information from the control panel of the network with which they work.
DASHBOARD OR CONTROL PANEL: This is the interface for managing the different « Services » procured by the Client and is used by them to extract information and the Key Business Indicators.
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: (BLUEKNOW Software) as a service (SaaS) is a computer programme that is activated when the WEB USER visits the « Client’s » website. The BLUEKNOW SaaS does not require any programme to be downloaded, but it does require an initial implementation on the website of the « Client » in order to collect data on the WEB USERS and thus optimise their digital experience.
1. SUBJECT MATTER OF THE CONTRACT
1.1 These T&C of Use regulate the provision of a service by virtue of which BLUEKNOW offers the « Client » a commercial tool (hereinafter, the « Tool »), through which the behaviour of the « Client’s » users is analysed. This is intended to improve the shopping experience of such users, by recovering abandoned shopping carts and recommending relevant products for the user.
1.2 The BLUEKNOW Tool is an instrument reserved for professionals, and the « Client » agrees to use it exclusively in relation to their own professional activity and, in any case, for any related requirements, and as such this Contract is not subject to the regulation of consumer contracts.
1.3 The « End Client » understands and accepts that BLUEKNOW provides a product based on « Software as a Service » or « SaaS », as indicated in the Definitions section above.
1.4 Registration as a « Client » and use of the services provided by this portal, implies full and unreserved acceptance of these T&C of Use, or those that, where appropriate, replace them and are in force at all times in accordance with the provisions of Condition 12, which shall apply without prejudice to the particular or special conditions or agreements that, where appropriate, are established between the Parties.
The Software is licensed under a subscription license, it is not sold.
1.5 Under this Contract, the « Client » does not acquire any right or license to use the Services, including the BLUEKNOW Services and the environment of the Services, that exceed the scope and/or duration of the acquired Services. Once the subscription time has expired, the right of access and use of the BLUEKNOW Services shall end.
1.6 Failure to accept these T&C of Use makes it impossible to use the Tool and, therefore, to access the Services, unless the Client signs a contract for the provision of services with us, or signs a paper copy of the Terms and Conditions of Use.
2. CONTRACT PERIOD
2.1 The Services (and the use of the Software as a service) are for temporary, non-exclusive and non-transferable use, in accordance with the provisions of these T&C of Use, with the contract period being counted from the time the « Client » accepts these T&C of Use by accessing or registering on the Portal with an access code and paying for the subscription. If there is no contract between the Parties, the period shall be defined by the document called the « Terms Sheet » or another that replaces it, which must be signed by the « Client ». In the event that a contract exists, the period shall be in accordance with the provisions therein.
2.2 These T&C are valid for the acquired Service(s) that accompany it. These T&C can also be referred to for any extension of new services in addition to the Services initially procured, and/or for any renewal of the subscription period.
3. CLIENT OBLIGATIONS
3.1 The Client assumes responsibility for access to the Tool and its correct use in accordance with these T&C, and must verify that their computer equipment is compatible with the requirements of the Service.
3.2 The minimum equipment the Client requires to access the service is as follows:
- Computer with an internet connection.
- Supported web browsers for the Tool.
3.3 To be allowed access to the Tool, the Client must register on the BLUEKNOW Portal, and automatically the system will send them an access code for Client authentication. It is the Client’s exclusive responsibility to safeguard both the identifier and the password or access code in strict and absolute confidentiality, and shall be solely responsible for the consequences that may arise from communicating them to third parties, without prejudice to the right of BLUEKNOW to be compensated for any loss or damage that could be incurred as a consequence of said action.
3.4 The Client agrees to respect the legislation in force during the use of the Services, including but not limited to, respect for the ownership of the Intellectual Property Rights that correspond to BLUEKNOW, being aware that any reproduction, distribution, communication, transformation and/or publication to third parties of content without having the corresponding rights constitutes an infringement of the legislation on intellectual property.
3.6 Specifically, and in order to adapt their Website to the use of the Client’s Cookie derived from the use of the Tool, the Client must implement a system that allows:
- The user to be provided with clear and complete information, in a way that’s direct and visible, in regard to the Client’s use of the Tool and the corresponding cookie on the Website, as well as its purpose, which is available on this website in the « Service Cookies » section (https://www.blueknow.com/cookies-del-servicio/)
- The web user’s consent to be obtained for the use of the Tool by the Client, prior to its use. In the event that such consent is not obtained, the Client should not proceed with the use of the Tool or the subsequent installation of cookies.
- A procedure is to be enabled that is accessible and permanent and that allows Web Users to revoke their consent.
3.7 Additionally, and without prejudice to the foregoing, the Client must obtain the informed consent of the Web Users for the installation of BLUEKNOW’s cookies on their computers that allow the latter to monitor the behaviour of the users through the different Websites operated by the Client, allowing the installation of BLUEKNOW cookies only once such consent has been obtained. To this end, the Client must inform Users clearly, completely, directly and visibly about the use of these cookies on the Website by BLUEKNOW, in order to analyse their behaviour. Likewise, the Client must enable an accessible and permanent procedure that allows Web Users to revoke said consent.
3.8 The « Client » is responsible for complying with the provisions of Regulation (EU) 2016/679 of 27 April 2016 (GDPR), Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights, and Law 34/2002, of 11 July, on Information Society Services and Electronic Commerce regarding the request made to its users for the authorisation to use personal data, as well as the possible use thereof for advertising purposes. Likewise, the « Client » shall inform users about Blueknow’s use of data collected during their browsing, so that Blueknow can provide the acquired Services.
3.9 In the event a WEB USER revokes their consent for the use of BLUEKNOW’s cookie referred to in the previous section, the Client must inform BLUEKNOW of this circumstance immediately.
3.10 Payment to BLUEKNOW of the amount stipulated as the price. In the case of non-payment by the Client of any of the amounts owed to BLUEKNOW in return for the Service, BLUEKNOW reserves the right to temporarily suspend it, after notifying the Client of this circumstance and the moment in which it will proceed with the suspension. After THIRTY (30) days from the suspension of the Service for this reason, and if the Client has not paid the amounts due, BLUEKNOW may suspend the Service definitively, terminating the contract with the Client for reasons attributable to it and reserving the right to take all appropriate legal actions to recover the amounts owed.
3.11 The Client may not make the Tool or materials derived from the Services available to third parties for their use, unless such access is expressly permitted for the specific Services that the Client has acquired. The Client 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 revision of data structure or similar materials produced by the BLUEKNOW Services), nor access or use the Services in order to develop or support, and/or assist a third party to develop or support, products or Services that are competitive with those of BLUEKNOW.
The Client may not perform or disseminate any of the following security tests on the environment of the services or associated infrastructure: network detection, identification of ports and « services », vulnerability scanning, password decryption, remote access test, or penetration test; nor may they license, sell, let or hire, transfer, assign, distribute, host, outsource, allow the use as a timeshare system or service office or otherwise commercially exploit or make available to third parties the BLUEKNOW Services, the Service Environments or the BLUEKNOW materials, except as expressly authorised under the terms of the respective order.
3.12 The implementation of the BLUEKNOW Services is subject to and governed by the technical specifications of the Client’s website that are provided by the latter.
In the event that the Client does not provide BLUEKNOW with the technical specifications defined at the time the Services are acquired, BLUEKNOW shall not be responsible for the partial or total inability to implement the Services due to technological incompatibility and shall not refund the cost of the implementation as a result of not having complied with this point.
3.13 The Client agrees to keep the BLUEKNOW Tool active while they are subscribed, so that they cannot justify the non-payment of the subscription as a result of not obtaining success or results as a consequence of the Tool’s inactivity. If this happens, BLUEKNOW can detect said inactivity in the Tool itself, and would proceed to reliably communicate that the Tool is not working due to the Client’s actions so that the Client can proceed to reactivate it as soon as possible. If, within 7 days of notifying this situation, the Client does not activate the Tool, the contract shall be terminated due to the Client’s breach of their obligations and BLUEKNOW shall have the right to demand payment of all unpaid invoices, and may also request compensation for damages, which shall be valued based on the average revenue obtained by BLUEKNOW from the Client during the last year of the contract.
4. BLUEKNOW’S OBLIGATIONS
4.1 Provide the Services described in the Subject Matter of the T&C of Use in force at any given time.
4.2 Compliance with all obligations arising from the conditions contained in these T&C 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 Client acknowledges and accepts that the Services do not provide any identification of or protection against viruses. For this reason, it is highly recommended that you install an antivirus system that is capable of identifying and destroying infected files on your computer. In any case, BLUEKNOW shall not be responsible for any consequences resulting from the downloading of an infected file.
4.4 BLUEKNOW guarantees the access and availability of the Tool, except for specific maintenance reasons, unforeseeable circumstances or force majeure, or reasons that depend on third parties and/or that are beyond BLUEKNOW’s control. Notwithstanding the foregoing, all or part of the Services may be temporarily interrupted due to repairs, updates and maintenance tasks.
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 shall not process the information obtained through the Tool for any purpose other than to provide the Services to the « End Client ».
4.7 BLUEKNOW agrees to activate the Services for the Clients, provided that all commercial terms agreed on between the Client and BLUEKNOW are fulfilled.
5. WARRANTIES AND LIABILITIES
5.1 BLUEKNOW guarantees that it is the owner of all the intellectual and industrial and/or commercial property rights, which entitle it to license the Software and it shall hold the Client harmless in the event that any claim is filed or action is initiated by third parties for infringement of said intellectual property rights, up to the limit of the total sum of the amounts received by BLUEKNOW from the Client under this contract, in the month prior to the date of the claim initiated by the third parties. The Client acknowledges that they are aware of this limitation of liability.
5.2 BLUEKNOW will make the Software available to the Client as is, without any other implicit or implied guarantee, or guarantee of fitness for particular purpose, or the absence of defects or errors, neither in relation to its ability to be integrated into a specific system, nor in relation to the accuracy of the information contained therein, except that expressly included in this Contract, with BLUEKNOW assuming no responsibility for indirect damages, such as loss of information, emergent or punitive damages and/or for loss of profit, revenue or goodwill, loss of data and/or use, as result of the use of the Software by the Client. However, in the event that BLUEKNOW could be held liable for the use of the Software as a service by the Client, BLUEKNOW shall only be liable for the total sum of the amounts received from the Client under this Contract, in the month prior to the month in which the damages proven by the Client had occurred. The Client acknowledges that they are aware of this limitation of liability.
5.3 BLUEKNOW shall provide all the technological mechanisms at its disposal that are necessary to reasonably provide the Services under the appropriate conditions of continuity.
5.4 Notwithstanding the foregoing, the Client excludes BLUEKNOW from liability for damages caused to the « End Client » due to causes not attributable to it or beyond its control, in particular:
- Direct, indirect, special, unforeseen, derived, exemplary or punitive damages, including but limited to, those arising from the interruption of the Service offered through the Software, delays, errors, malfunctions or due to the loss of data or the presence of inaccurate or damaged data in the Software in the event of data deviation or collapse of the service provider’s system, when this has occurred in exceptional circumstances, which BLUEKNOW could not reasonably have had an influence on.
- As a consequence of third-party interference in the communication and transmission systems that the Client uses.
- Due to malfunction or interruption of the Services due to fraud, fault, error or any type of act attributable to the Client or third parties, without any negligence on the part of BLUEKNOW.
- Those arising from situations of force majeure.
5.5 The Client agrees to immediately inform BLUEKNOW of any incident that it detects in the Services by sending an email to email@example.com. If the Client does not report the detected incident to the email specified in the previous paragraph with the indicated immediacy, BLUEKNOW shall not be responsible for any damages or loss that the Client experiences due to said incident.
5.6 For the programmes, data, instructions, procedures or any other element necessary for the provision of the Services that were provided by the Client, the latter declares and guarantees that:
- They are the owner of all licenses and/or has the necessary express authorisation from the owner that allows them to be used through the acquired service, without BLUEKNOW infringing on any third party right.
- The use of any of said elements by BLUEKNOW for the provision of the Services does not violate any contractual relationship that the Client has with third parties.
5.7 The Client guarantees that they are the holder of all the necessary rights to the content and information that may be incorporated into the Software under this Contract and shall hold BLUEKNOW harmless in the event that any claim is made or action is initiated by third parties for infringement of said rights.
5.8 The Client shall be liable to BLUEKNOW for the inaccuracy, error or lack of veracity of said statements. The Client shall be responsible for verifying all data that originates from the exploitation of the Services. Consequently, BLUEKNOW shall not be responsible for the inadequacy of the data, resulting from the service provided, in regard to the Client’s needs or expectations. BLUEKNOW shall not assume any responsibility for the business decisions that the Client has made based on the use of the Services and data that originates from the exploitation thereof.
5.9 The Client shall refrain from carrying out any conduct in the use of the Services that infringes the intellectual, industrial or commercial property rights of BLUEKNOW or third parties, or that constitutes a misappropriation of the trade or industrial secrets of BLUEKNOW or third parties, that violate the honour, personal or family privacy or the image of third parties, or that is unlawful or violates morality and shall, in any case, hold BLUEKNOW harmless against any legal claim, judicial or extrajudicial, that is presented against it as a consequence of said use. The Client shall pay all damages and costs, including all reasonable attorneys’ fees, even if their intervention and costs are not mandatory, that are imposed on BLUEKNOW by a final judgment or ruling issued by a competent court, or agreed on in a settlement agreement, attributable to said claim.
5.10 In the case of non-observance of the obligations set forth in these T&C, as well as any other obligations arising from the applicable legislation regarding data protection and information society services, the Client assumes full responsibility, holding BLUEKNOW fully harmless, as a consequence of any damage or loss, including any type of administrative sanctions imposed by the corresponding authorities, as well as damages for judicial or extrajudicial proceedings against BLUEKNOW, included in all cases the fees associated with lawyers, attorneys and any other professionals.
5.11 BLUEKNOW reserves the right to temporarily suspend the Services offered through the Software for maintenance needs, after notifying the Client, or when a competent body, in the exercise of its functions, orders the suspension of the provision thereof.
6. FORCE MAJEURE
6.1 Either Party cannot be held responsible for a delay, defect or error in the execution of their contractual obligations when they are due to or caused by a cause of 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 correct execution of their obligations. ”FORCE MAJEURE means any occurrences beyond the reasonable control of the Parties such as acts of war, flood, fire, explosion, lockout, strike, civil disturbance, blockade, embargo by government action, legislative reforms, internet outages, problems occurring during internet communication, failure of suppliers of the service offered by BLUEKNOW, power failure, earthquakes and other natural disasters, demand or request made by any government or any subdivision or representative thereof, or any other cause that is beyond the control of the Parties, without the lack of funds constituting a cause of Force Majeure”.
7. ECONOMIC CONDITIONS
7.1 The price that the Client must pay for the Services and/or implementation is that which the Client has accepted at the time of entering into contract (both directly or through a partner or affiliate network). The prices do not include Value Added Tax (VAT) or any other tax that, if applicable, would replace it. The obligatory taxes shall be reflected in the invoice(s) corresponding to each Service. The reference to the Value Added Tax shall be construed as a reference to the Canary Islands General Indirect Tax (IGIC) and/or the Service Tax in the cities of Ceuta and Melilla, in those territories in which these types of taxation apply, or to any other types of taxation that would replace the previous ones.
7.2 The payment conditions shall be determined as stipulated in the « economic conditions sheet », agreed upon at the time of entering into contract (both directly or through a Partner). When the contract is entered into through affiliate networks, the price shall be that which is agreed on and stipulated on the affiliate platform on which the Client is operating.
8. INTELLECTUAL AND INDUSTRIAL PROPERTY
8.1 BLUEKNOW owns all the exploitation rights for the products and computer programmes that support the Services, as well as those related to the Tool and the Portal, and any documentation relating thereto. BLUEKNOW is a registered trademark. The BLUEKNOW Website, Blog and Tool are the property of BLUEKNOW. Unauthorised copying and dissemination in violation of the intellectual property rights is prohibited.
8.2 As a provision linked to the correct implementation of the Services, BLUEKNOW provides the Client with a right to use said programmes, although strictly limited to the correct execution of the Contract in accordance with the circumstances expressed in the T&C of Use in force at any given time.
8.3 The Client may not, directly or indirectly, decrypt, electronically scan, decompile or derive the source code of any intellectual and/or industrial property owned by BLUEKNOW to which they have access as a result of this Contract, or reverse engineer the design and function of said intellectual and/or industrial property. Likewise, the Client is obliged to quickly and effectively report 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 Client may have knowledge.
8.4 Likewise, the Client shall retain all the industrial and/or intellectual property rights that they hold over any information and content that they may store through the Software in the framework of the use of the Service provided by BLUEKNOW. Consequently, by virtue of this Contract, the Client does not transfer ownership to BLUEKNOW or any third party, nor do they grant a license or right of use other than that provided for herein, or of any other type in relation to any information, content or any intellectual or industrial property rights.
8.5 Notwithstanding the foregoing, the Client authorises BLUEKNOW to use the information and content referred to in the preceding paragraph to carry out the obligations set forth in this Contract in favour of the Client. BLUEKNOW is the Data Processor on behalf of the Controller, for as long as the latter maintains their subscription to the BLUEKNOW Services, as established in the T&C of Use in force at any given time on the BLUEKNOW website, and is equipped with the technical capabilities to fulfil this role, and only and exclusively in relation to the processing of the data captured from users’ browsing on the Controller’s digital portals, excluding any responsibility for their content and use by the Client themselves.
8.6 Likewise, the Client authorises BLUEKNOW to make a backup of the information and content that they may store through the Software.
8.7 By accepting the T&C of Use in force at any given time on the BLUEKNOW website, the Client authorises BLUEKNOW to use their brand, logo and/or trade name, in its promotional presentations and on the BLUEKNOW portal, free of charge, with the purpose of making their status as a BLUEKNOW Client known.
9. PERSONAL DATA PROTECTION
9.1 The Parties state that, in accordance with the provisions of Regulation (EU) 2016/679 of 27 April 2016 (GDPR), and Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights, relating to the protection of natural persons with regard to the processing of personal data and on the free movement of such data, they comply with all the provisions of the GDPR regulations and the Spanish Data Protection Act (LOPDGDD) for the processing of personal data under their responsibility, and manifestly with the principles described in Article 5 of the GPDR, by which it is processed in a lawful, fair and transparent manner in relation to the data subject and the personal data is adequate, relevant and limited to what is necessary in relation to the purposes for which it is processed.
The signatories of this agreement authorise the Parties to incorporate their personal data included therein, together with the data obtained while it is in force, into the file created under their responsibility, order to manage this contractual relationship, as the Data Processors.
9.2 During the provision of the Services, BLUEKNOW accesses and processes basic personal data of users under the guidelines of the Data Controller and in compliance with the GDPR.
9.3 The Client guarantees that under no circumstances shall they communicate sensitive personal data under their responsibility to BLUEKNOW.
9.4 The Client understands that in order to acquire the BLUEKNOW Services, they must give their consent for any transfer, processing or storage of data in the server provider located in Europe, for any transfer, processing or storage of data to the provider of Cloud Hosting services. The breach of Regulation (EU) 2016/679 of 27 April 2016 (GDPR), and Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights (LOPDGDD) by the End Client shall be their exclusive responsibility. This consent is essential for the provision of the BLUEKNOW Services.
9.5 The processing of personal data that could be accessed by the Parties as a result of this Agreement is the exclusive property of each Party, this ownership also extending to all developments, evaluations, segmentations or similar processes that, in relation to it, could be performed by the Party that accesses it, in accordance with the services agreed on in this Agreement or in future Contracts, both Parties stating that the data is confidential for all purposes, subject, therefore, to the strictest professional secrecy, even after the validity of this Agreement has expired.
In their capacity as Data Processor, the processing « Party » is obliged to comply with the provisions of Regulation (EU) 2016/679 of 27 April 2016 (GDPR), and Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights and, in particular, specifically commits to:
Use the personal data object of processing, or that which is collected for its inclusion, only for the purpose that is subject to this order. In no case may the data be used for their own purposes.
Process the data according to the instructions of the Data Controller.
If the Data Processor considers that any of the instructions violates the GDPR or any other data protection provision of the European Union or its member states, the Processer shall immediately inform the Controller.
Keep, in writing, a record of all categories of processing activities carried out on behalf of each Controller, containing:
The name and contact details of the Data Processor(s) and of each Data Controller on whose behalf the Data Processor acts and, where appropriate, the representative of the Controller or Processor and the Data Protection Officer.
The processing categories carried out on behalf of each Data Controller.
Where appropriate, transfers of personal data to a third country or international organisation, including the identification of that third country or international organisation and, where appropriate, of the transfers indicated in article 49(2) of the GPDR, the documentation that demonstrates sufficient guarantees.
An overview of the technical and organisational security measures relating to:
- Pseudonymisation and encryption of personal data.
- The ability to guarantee the permanent confidentiality, integrity, availability and resilience of processing systems and services.
- The ability to restore availability and access personal data quickly, in the event of a physical or technical incident.
- The process of the regular verification, evaluation and assessment of the effectiveness of the technical and organisational measures to guarantee the security of processing.
Not disclose data to third parties, except with the express authorisation of the Data Controller, in the legally admissible cases.
The Processer may disclose data to other data processors who process data on behalf of the same Controller, in accordance with the Controller’s instructions. In this case, the Controller shall identify, in advance and in writing, the entity to which the data must be disclosed, the data to be disclosed and the security measures to apply to proceed with the disclosure.
If the Processor must transfer personal data to a third country or to an international organisation, under the law of the European Union or the member states that is applicable, they shall inform the Controller of such legal requirement in advance, unless the law prohibits it for important reasons of public interest.
The Data Processor is not authorised to outsource any of the services under this Contract and that involves the processing of personal data, except for the ancillary services necessary for the normal operation of the Processor’s services. If any data processing must be outsourced, this fact must be communicated previously and in writing to the Data Controller, 15 days in advance, indicating the processing that is intended to be outsourced and clear and unequivocally identifying the subcontractor company and its contact details. The outsourcing may be carried out if the Controller does not express their objection within the set time limit. The subcontractor, who will also have the status of Data Processor, is also obliged to comply with the obligations established in this document for the Data Processor and the instructions issued by the Controller. It is the responsibility of the initial Processor to regulate the new relationship, so that the new Processor is subject to the same conditions (instructions, obligations, security measures, etc.) and with the same formal requirements regarding the proper processing of personal data and the guarantee of the rights of the data subjects. In the event of noncompliance by the outsourced Data Processor, the initial Processor shall remain fully responsible before the Controller in regard to compliance with the following obligations:
- Maintain the duty of secrecy regarding personal data to which it has had access under this order, even after its termination.
- Guarantee that the persons authorised to process personal data expressly agree in writing to respect confidentiality and to comply with the corresponding security measures, which they must be informed of accordingly.
- Keep the supporting documentation at the disposal of the Controller that certifies compliance with the obligation established in the preceding paragraph.
- Guarantee the necessary training on the protection of personal data for the persons authorised to process personal data.
- Assist the Data Controller in responding to the exercise of the rights of:
- Access, rectification, erasure and the right to object.
- Restriction of processing.
- Data portability.
- To not be subject to automated individual decision-making (including profiling).
It is the Controller’s responsibility to facilitate the right to information at the time of data collection. Notification of data security breaches:
The Data Processor shall notify the Data Controller, without undue delay and, in any case, within the maximum period of 48 hours from the moment the breach in the security of the personal data in their control occurs, together with all relevant information for documenting and communicating the incident. This communication shall be done as follows:
Notification shall not be necessary when it is unlikely that said breach of security constitutes a risk to the rights and freedoms of natural persons.
At least the following information shall be provided, if it is available:
Description of the nature of the breach in the security of personal data, including, where possible, the categories and approximate number of affected data subjects, and the categories and approximate number of affected personal data records.
The name and contact details of the Data Protection Officer or other contact point where further information can be obtained.
Description of the possible consequences of the breach in the security of personal data.
Description of the measures adopted or proposed to remedy the breach in the security of personal data, including, if appropriate, the measures adopted to mitigate the possible negative effects.
It is the Data Controller’s responsibility to report breaches in data security to the Data Protection Authority.
The communication shall contain, as a minimum, the following information:
Description of the nature of the breach in the security of personal data, including, where possible, the categories and approximate number of affected data subjects, and the categories and approximate number of affected personal data records.
Name and contact details of the Data Protection Officer or other contact point where further information can be obtained.
Description of the possible consequences of the breach in the security of personal data.
Description of the measures adopted or proposed to remedy the breach in the security of personal data, including, if appropriate, the measures adopted to mitigate the possible negative effects.
If it is not possible to provide the information simultaneously, and to the extent that it is not, the information shall be provided gradually without undue delay.
Provide the Data Controller with support in carrying out the impact assessments related to data protection, where appropriate.
Provide the Data Controller with support in carrying out prior consultations with the supervisory authority, where appropriate.
Make available to the Data Controller all information required to demonstrate compliance with their obligations, as well as to carry out the audits or inspections carried out by the Controller or another auditor authorised by them.
Implement the following security measures:
In any case, mechanisms must be implemented to:
- Guarantee the permanent confidentiality, integrity, availability and resilience of the processing systems and services.
- Restore availability and access to personal data quickly, in the event of a physical or technical incident.
- Verify, evaluate and assess, on a regular basis, the effectiveness of the technical and organisational measures implemented to guarantee the security of processing.
Pseudonymise and encrypt personal data, if applicable.
In the cases where it is mandatory, appoint a Data Protection Officer and communicate their identity and contact details to the Data Controller.
Destination of data once the provision of services is complete:
Return personal data to the Controller and, if applicable, the medium where it is found, upon completion of the provision of services. The return must involve the total erasure of the existing data on the computer systems used by the Processor. However, the Processor may keep a copy, with the data duly blocked, for as long as responsibilities may arise from the implementation of the service.
9.6 The Client authorises the statistical information, derived from the use of their Software by their Web Users, to be used and disclosed, respecting their anonymity and obligations regarding the non-disclosure of the personal data of Web Users as provided for in this clause. For the provision of Services, BLUEKNOW generates an identification code that is linked to the information related to the behaviour of each of the Web Users, and cannot associate said information with an identified or identifiable person.
9.7 BLUEKNOW shall be liable to the End Client for all of these obligations assumed in this clause, even when said non-compliance is attributable, where appropriate, to the staff for whom it is legally responsible.
9.8 BLUEKNOW is not responsible for the End Client’s failure to comply with the obligations derived from Regulation (EU) 2016/679, of 27 April 2016 (GDPR), Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights, and Law 34/2002, of 11 July, on Information Society Services and Electronic Commerce.
9.9 Likewise, BLUEKNOW agrees to adopt the technical and/or organisational and security measures necessary to protect the personal data to which it has access and to prevent its alteration, loss, unauthorised processing or access, in keeping with the Data Protection Act and the supplementary and implementing regulations thereof.
9.10 The Client may exercise their rights of access, rectification, the right to erasure or the right to object by contacting the BLUEKNOW Security Manager at Mestre Joan Corrales 107-109, 08950, Esplugues de Llobregat.
9.11 BLUEKNOW states that in the communications proposed to Clients, they have two options at their disposal: one called Blacklist where the Client can specify a list of users who will not receive communications, and another called Unsubscriptions, where the Web User can make known that they do not wish to receive communications.
9.12 The Client expressly states that they are informed of the fact that in order to use the BLUEKNOW Platform, to send messages in the automated mode by email, it is an essential requirement that the consent of the Web Users be collected for the receipt thereof. Consent must necessarily be obtained in accordance with the provisions of current regulations and therefore must be freely given, specific, informed and unambiguous. This constitutes an essential obligation for the Client. The Client agrees to provide a link in every message sent through the BLUEKNOW Platform that allows the recipient to access all the necessary information to freely unsubscribe and therefore have no more emails sent to them in the future.
9.13 By accepting these Terms & Conditions, you provide your express consent so that BLUEKNOW can send you advertising or promotional communications by email or any other equivalent means of communication, under the terms established by Law 34/2002, on Information Society Services and Electronic Commerce. In the event of not being interested in receiving this type of communication, you can contact BLUEKNOW at the address indicated at the beginning of these Terms & Conditions, or by email to GDPR@blueknow.com, stating your wish to not receive any advertising.
9.14 The End Client agrees to hold BLUEKNOW harmless against any type of damage, injury, expense and/or penalty in any order, especially that resulting from any infringement proceedings initiated by the Spanish Data Protection Agency, as a consequence of the breach of the obligations and guarantees assumed in these Terms & Conditions of Use by the Client, as well as the non-observance of the obligations that, in their respective condition as the Data Controller, are required of them in accordance with personal data protection regulations.
BLUEKNOW, in order to comply with the provisions of the GDPR and the LOPDGDD, hereby informs in these Terms & Conditions that it outsources to: ONLINE MARKETING KFT for the provision of the service the generates an impact on users through « Pop-Ups »; AMAZON WEB SERVICES, for the purpose of data storage; and THE ROCKET SCIENCE GROUP LLC D/B/A MAILCHIMP, for the sending of commercial communications. Likewise, BLUEKNOW has formalised and signed a contract under the terms specified in Regulation (EU) 2016/679, of 27 April 2016 (GDPR), Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights.
In addition, we inform you that the servers of THE ROCKET SCIENCE GROUP LLC D/B/A MAILCHIMP are located in the United States, which is why international data transfer occurs, however this company is adhered to the Privacy Shield, meaning it complies with European data protection requirements.
Lastly, we inform you that the servers of ONLINE MARKETING KFT are located in the European Union, and AMAZON WEB SERVICES has their servers in Ireland.
11. CONFIDENTIALITY OF INFORMATION
11.1 In particular, BLUEKNOW is committed to ensuring that all the information or documentation that the Clients give it shall be used only to comply with the provision of the acquired Services and, in any case, BLUEKNOW shall perform the contracted Services, respecting the principles of Good Faith, Diligence and the Duty to Secrecy. Consequently, it cannot provide third parties with the information obtained in the course of providing the Services, nor use it for its own benefit, if this could favour such third parties or when said disclosure could harm the Client in any way.
11.2 BLUEKNOW expressly agrees not to make copies, record, reproduce, manipulate, reveal to third parties, or make available to them the information or documentation that may be received directly or indirectly from the Client or the Distributor.
11.3 All Confidential Information disclosed by a Party (the « Disclosing Party ») to another Party (the « Receiving Party ») within the framework of these T&C of Use, is and shall remain the exclusive property of the Disclosing Party.
11.4 The Parties agree that the development of this Contract is governed in the most absolute confidentiality, respecting the duty of diligence and professional secrecy. Thus, both Parties agree not to disclose any information regarding the negotiations, transactions or any matter that is revealed between the Parties and that is important for the provision of the Service, nor about the activities or Services to be developed.
11.5 « Confidential Information » must be understood as that information that is provided either in writing, verbally or by graphic, electronic or another means, and is disclosed to the Receiving Party within the framework of these T&C of Use and that is confidential and of a significant value for the Disclosing Party, value that could be impaired if such information were disclosed to third parties. To the extent consistent with the provisions of the preceding sentence, « Confidential Information » shall include, without limitation: trade secrets, product information, plans, specifications, designs and rates; application programming interface (API); financial information that is not in the public domain, including forecasts, budgets and data; studies, budgets and advertising and marketing plans; business strategies; credit contracts, conditions and procedures; development and research plans; business plans; plans for the modification or development of new products or for future products, sales forecasts, business projections, business analysis, information regarding the « End Client » or suppliers, software (including all types of documentation and codes), system designs and hardware, architectures and protocols, specifications and manufacturing, logistics and sales processes.
11.6 The Receiving Party shall refrain from disclosing or using the Confidential Information of the Disclosing Party, although:
- The Receiving Party may use the above information to the extent necessary to fulfil its obligations under these T&C of Use, or to the extent that the remaining stipulations of these T&C of Use allow it.
- The Receiving Party may disclose the above information to the extent that it considers it reasonably necessary to comply with a valid order issued by a competent Court or in relation to an arbitration proceeding, or to enforce its rights in connection with the other Party through any judicial or arbitration proceeding, it being understood that in such case the Receiving Party shall notify the Disclosing Party as soon as feasibly possible (and, if possible, prior to the disclosure of the information), and the Receiving Party, at its own expense, shall request the confidential processing of said information and shall collaborate, where appropriate, with the actions that the Disclosing Party has taken to that effect.
- The Receiving Party may disclose the above information to third parties that have contracted with the Receiving Party the provision of some of the Receiving Party’s Services under these T&C of Use, only to the extent that the contractor in question needs to have such information.
11.7 This Condition is not applicable to information that:
- The Receiving Party has been authorised to disclose by the Disclosing Party, provided that such authorisation is provided in writing.
- The Receiving Party can demonstrate that it was in its possession before the date on which the Services were contracted without any obligation of confidentiality
- The Receiving Party develops independently without using Confidential Information,
- The Receiving Party has legitimately received from a third party without being subject to the obligation of confidentiality contained in these T&C of Use vis-à-vis the other party.
- Is in or becomes part of the public domain.
11.8 Likewise, BLUEKNOW shall be liable to the Client for the breach of the obligations assumed under this clause, even when said breach is attributable, where appropriate, to the staff for whom it is legally responsible.
12.1 No partnership or agency: these T&C of Use shall not be construed as constituting a partnership or association between the parties nor does it constitute one party as the agent of the other for any purpose whatsoever.
12.2 Waiver: the delay in the exercise or non-exercise of any right does not imply a waiver of such right.
12.3 Continuing effect: in the event that any of the terms of these T&C of Use is illegal, invalid or no longer applicable, the others terms shall continue in full force and effect.
13. TERMINATION OF THE CONTRACTUAL RELATIONSHIP
13.1 Either Party may terminate the Contract unilaterally, provided that it notifies the other Party in a reliable way of its intention to end the Contract at least 30 days in advance; in the event that this notification does not occur, and the interested party terminates the Contract, the other Party may request compensation for damages. Unless there is a service provision contract between the Parties, or a period of time has been agreed on in the terms sheet signed by the Parties, in which case such stipulations shall apply.
The compensation for failure to provide prior notice in regard to the termination of the Contract shall be the payment of a monthly fee that will be calculated by obtaining the average amount of the last three invoices paid to BLUEKNOW, increased by 30%.
13.2 In addition to the legally established causes, the causes for termination of the Contract may also be the failure by any of the Parties to comply with the obligations under these T&C. The denouncing party must communicate said circumstance to the non-complying party, which must remedy its non-compliance within twenty (20) calendar days from the date on which the notice is submitted by any means by the complying Party. The latter may terminate this Contract and demand compensation from the non-complying Party for the damages and losses derived from said non-compliance, taking account of the limits laid down in the fifth condition of the T&C of Use within a reasonable period. Failure to pay the amount is considered a serious breach and therefore the service or subscription will be suspended.
13.3 In any event of termination, rescission, cancellation or finalisation of the contract for any legal reason or for those stipulated in these T&C, the Client shall not be entitled to receive a refund of the amount paid, nor to be prorated for the amount paid against the time that has elapsed between the use of the Service and the termination thereof.
13.4 At the end of the Contract, the Client shall continue to be liable for any debt acquired at the end of this Contract, whose payment date is before or after the termination of the agreement.
13.5 In the event that any of the parties fails to fulfil any of their essential obligations, if the non-complying Party does not remedy their non-compliance by any means within twenty (20) calendar days after notice is given by the complying Party, the latter may terminate this Contract and demand compensation from the non-complying Party for the damages and losses derived from said non-compliance, taking account of the limits laid down in the fifth condition of the T&C of Use.
13.6 BLUEKNOW may temporarily suspend the Client’s password, account and access to or use of the Services if the Client or their WEB USERS violate any provision within the ‘Conditions’, ‘Client Obligations’, ‘Responsibility’, ‘Economic Conditions’, ‘Industrial/Intellectual Property’, ‘Data Protection’, ‘Confidentiality’ and ‘General’ sections, regarding the use of the Services under this Contract or if, in BLUEKNOW’s reasonable judgment, the Services or any component thereof are about to suffer a significant threat to security or functionality. BLUEKNOW shall notify the Client in advance of such suspension in BLUEKNOW’s reasonable discretion, based on the nature of the circumstances giving rise to the suspension. BLUEKNOW shall use reasonable efforts to re-establish the affected Services promptly after BLUEKNOW determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. However, during any suspension period, BLUEKNOW will make available to the « End Client » their Content and Applications as existing in the Services Environment on the date of the suspension. BLUEKNOW may terminate the Services under an order if any of the above foregoing causes of suspension is not cured within 30 days after BLUEKNOW’s initial notice thereof. Any suspension or termination by BLUEKNOW under this paragraph shall not excuse the Client from the obligation to make payment(s) under this Agreement.
13.7 Once the contractual relationship has ended, the Client must remove the BLUEKNOW code that allows the Tool to remain active. In the event that the Client, one month after the termination of the Contract, has not deleted the code from their system, BLUEKNOW shall proceed to issue monthly invoices for traffic processing, for an amount of €200 + VAT, until said code is eliminated by the Client.
13.8 The total liability that, where appropriate, could be incurred by BLUEKNOW under the provision of the Services shall be limited to the total sum of the amounts received by BLUEKNOW in accordance with Condition 5, within 30 days prior to the breach giving rise to such liability.
14.1 BLUEKNOW reserves the following powers:
- To make modifications and updates to the Services at any time, as well as their contents, configuration, availability and presentation of information.
- To alter the T&C of Use, which must be accepted by the Client or the Distributor or BLUEKNOW’s affiliate networks, BLUEKNOW being obliged to make these T&C known to its Clients.
- To temporarily suspend the Services to carry out maintenance work, updates or improvements, in accordance with the provisions of Condition 4.4.
15. APPLICABLE LAW AND JURISDICTION
15.1 The following conditions of these Terms & Conditions shall remain in force at the expiration or termination of this Agreement: ‘Definitions’, ‘Rates and Payments’, ‘Blueknow Property Rights’, ‘Client Property Rights’, ‘Confidentiality’, ‘Advertising’, ‘Compensation’, ‘Disclaimer’, ‘Limitations of Liability’, ‘Termination and Suspension’.
15.2 These Terms & Conditions of Use shall be governed by Spanish legislation, which shall be applicable for all matters not covered by this Contract concerning the interpretation, validity and execution thereof.
15.3 The following regulations or legal texts shall be applied for all matters not regulated by these General Terms:
- Law 7/1998 of 13 April, on General Contractual Conditions.
- Royal Decree 1906/1999 of 17 November, regulating telephone or electronic contracts.
- Regulation (EU) 2016/679, of the European Parliament and 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.
- Law 34/2002, of 11 July, on Information Society Services and Electronic Commerce.
- Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights.
15.4 The Parties expressly waive the jurisdiction that may correspond to them and expressly submit to the Courts and Tribunals of Madrid Capital to resolve any controversy that may arise in the interpretation or execution of these Terms & Conditions of Use.