GENERAL TERMS AND CONDITIONS FOR MASSPHONING CUSTOMERS
LLAMADA AUTOMÁTICA S.L. (hereinafter referred to as, MASSPHONING) with Company Number B87632196 and domiciled at Avenida de Machupichu, 11 B, 4º D, 28043 Madrid, Spain, is the owner of a platform (hereinafter referred to as, the PLATFORM) that manages massive phone calling campaigns scheduled by the CUSTOMER.
1. PURPOSE OF THE AGREEMENT
The PLATFORM is a complex system based on Voice over Internet Protocol (VoIP) through which the CUSTOMER will be able to call thousands of people in a matter of minutes.
For this purpose, the CUSTOMER will schedule a mass calling campaign (hereinafter referred to as, the CAMPAIGN), by selecting (i) a country and a time zone within that country, (ii) the date and time for the campaign to start, (iii) the list of phones to be called and (iv) the audio message to be issued.
When the CAMPAIGN is finished, the CUSTOMER will be able to know the overall result and the result of each individual phone call.
The acceptance of this document means to accept these General Terms and Conditions. Only these conditions are applicable to the contractual relations between the parts and substitute whichever other possible conditions, unless written agreement between MASSPHONING and the CUSTOMER.
Certain services may have different Terms and Conditions or may require the acceptance of additional Terms and Conditions. In case of conflict between this document and the particular Terms and Conditions for a certain service, the second ones will prevail.
2. RIGHTS AND OBLIGATIONS OF MASSPHONING
MASSPHONING will guarantee the technical functioning of the PLATFORM as long as the functioning depends directly on the infrastructure of MASSPHONING. This includes:
– Guarantee the quality of the PLATFORM.
– Guarantee the availability insofar it is within reach of MASSPHONING.
– Provision of technical assistance if errors are attributable to MASSPHONING.
– Provision of the results of the CAMPAIGN.
MASSPHONING grants a non-exclusive use license of the PLATFORM to the CUSTOMER according to the conditions described in this document. The parts agree that the license includes particularly all the upgrades, adaptations and modifications in the PLATFORM developed, produced and implemented by MASSPHONING during the duration of the contract.
The CUSTOMER shall only use the PLATFORM in accordance with the present General Terms and Conditions and its attachments.
3. RIGHTS AND OBLIGATIONS OF THE CUSTOMER
– The CUSTOMER will have to provide correct, true, complete and updated register information including a valid sender phone/caller ID, having to notify MASSPHONING of any non-authorized use of the account or other security breaches related to the CUSTOMER.
– The CUSTOMER will not use the Platform with different purposes than the ones specified in this document and its attachments, unless prior and express authorization of MASSPHONING.
– The CUSTOMER is not allowed to interfere or to try to interfere in the performance of the PLATFORM.
– The CUSTOMER will be responsible of any claims of third parties that may arise as a consequence of its use of the PLATFORM or the CAMPAIGN made through it.
– The CUSTOMER cannot use software, devices or other manual or automatic process for “tracking” or scrapping any page of the site or collect or extract content from the PLATFORM.
– The CUSTOMER cannot modify, adapt, take, reproduce, distribute, traduce, create works or derivative adaptations, show publicly, republish, reuse, sell, commercialize or take advantage of the PLATFORM or of the content of the website unless an express authorization of MASSPHONING.
4. PRICE, INVOICING AND PAYMENT METHODS
4.1 Selection of the Pricing Plan and creation of the Customer Account
Prior to using the platform, the user will have to choose a Pricing Plan that consists of two parts: an optional Recurrent Monthly Fee and a Price per Phone Record (phone number). For more detailed information on the different Pricing Plans please go to www.massphoning.com.
After selecting a Pricing Plan, the CUSTOMER will have to fill up a form in order to create their customer account. If the Recurrent Monthly Fee is applicable the CUSTOMER will be asked to register a valid debit/credit card or select the corresponding payment method offered by the PLATFORM.
4.2 Recurrent Fee
If the Recurrent Monthly Fee is applicable, our services will be monthly invoiced.
4.3 Pay per Campaign
Once logged into their account, the CUSTOMER can pre-estimate the cost of the CAMPAIGN, without having to upload the list of phones, by means of a “Cost Calculator” tool.
To schedule a CAMPAIGN, the CUSTOMER has to fill a “New Campaign” form specifying:
– The country and a time zone within that country.
– The date and time for the campaign to start.
– The list of phones to be called.
– The audio message to be issued.
The PLATFORM will automatically calculate the cost of the CAMPAIGN by selecting valid formatted phone records from the list uploaded by the CUSTOMER and according to the Price per Phone Record of the Pricing Plan. The cost of the CAMPAIGN must then be prepaid for the campaign to be effectively scheduled.
The CAMPAIGN will start automatically on the date selected by the CUSTOMER after the payment to MASSPHONING has been successfully made.
Invoices will be automatically generated including the legal applicable VAT in the amount indicated unless VAT is not applicable.
The invoiced quantities paid by the CUSTOMER in no case will be reimbursed in cash by MASSPHONING.
5. RIGHT TO WITHDRAWAL (ONLY FOR “CONSUMERS”)
Note that this section of our terms and conditions is only applicable to “Consumers” as it is defined in Article 3 of Legislative Royal Decree 1/2007 of the General Law for the protection of consumers and users (“natural or legal persons acting in a sphere that falls outside entrepreneurial or professional activity”).
If you are a Consumer located within the European Union, you have the right (ending 14 working days following the day of the conclusion of the contract) to withdraw from the contract by email to email@example.com and using the withdrawal form as set out in Annex I.
In this case we will refund the price paid for the services that have not still been performed by MASSPHONING.
However, in the cases that services have been fully performed by MASSPHONING, the Customer will lose his right of withdrawal.
6. OWNERSHIP OF THE CONTENTS / TRADEMARKS
The CUSTOMER expressly states that any Trademark, slogan, commercial name, creativity, text or content (Hereinafter referred to as, the Contents) that the CUSTOMER incorporates to the message to be issued in the CAMPAIGN, effectively belongs to the CUSTOMER or is authorized by the legal owners or licensees of the Contents and do not infringe intellectual property rights or industrial rights of third parties, specifically the right to honour and image of third parties, or other rights property of third parties.
MASSPHONING undertakes not to use the Contents for any purpose other than for which it is authorized.
The CUSTOMER guarantees MASSPHONING that he has all the faculties and authorizations needed for licensing the Contents.
The CUSTOMER recognizes having been informed that MASSPHONING:
– Refuses any kind of responsibility about the Contents in relation to third parties.
– Is entitled to terminate this agreement and/or abort any CAMPAIGN if the Contents infringe any industrial or intellectual property rights or any law. This shall be without prejudice to the legal actions that can be enacted against the CUSTOMER for the caused damages.
In order to comply with the services provided through its PLATFORM, MASSPHONING will contract third-party services without which the PLATFORM could not work.
MASSPHONING will try to guarantee, to the extent of its ability, an optimum level of quality of the CAMPAIGNS.
The continuity of the services provided through the PLATFORM may be altered by maintenance works on the network and the infrastructures.
In case that MASSPHONING and/or third parties hired by MASSPHONING perform maintenance works on its services that impede and/or interfere the normal operation of the PLATFORM, MASSPHONING will inform the CUSTOMER about it as soon as MASSPHONING becomes aware thereof.
Nevertheless, MASSPHONING will not be liable for an interruption of the services provided by the PLATFORM caused by an interruption of the third-party services or maintenance works.
In the same way, MASSPHONING will not be liable for the absence of data in the surveys caused by (i) a failure in the coverage in the area of the call or (ii) when the users do not answer the call.
Moreover, MASSPHONING shall not be liable under any circumstances for any special, consequential or incidental damages arising out of or in any way connected to this agreement or the PLATFORM, including but not limited to damages for lost profits, loss of use, lost data, phone bills, communication lines bills, loss of privacy, damages to third party even if providers has been advised of the possibility of such damages.
In this respect, MASSPHONING has no obligation to monitor the content of the messages issued by the CUSTOMER. However, MASSPHONING may proceed to inform the competent public authorities of illicit activities or information that it becomes aware in relation to the CAMPAIGNS.
MASSPHONING reserves the right to cooperate in conformity to the law, with the authorities that may carry out verifications related to the CAMPAIGNS.
However, MASSPHONING reserves the right to eliminate and/or suspend CAMPAIGNS at its discretion without prior notice and for any reason, including, between others, receiving complaints or objections from third parties or from the authorities in relation with the CAMPAIGNS.
The following contents are prohibited in the PLATFORM:
– Illegal Activity: content constituting, promoting or facilitating illegal activities or containing obscene or slanderous sounds or voices is prohibited.
– Tobacco: content promoting tobacco or tobacco-related products is prohibited.
– Drugs and Paraphernalia: content promoting or facilitating the sale or consumption of illegal or recreational drugs or drug paraphernalia is prohibited.
– Firearms: content promoting firearms, ammunition or explosives is prohibited.
– Adult Content: the following contents are prohibited:
i. Sexually suggestive sounds, voices, activities or situations.
ii. Prostitution (direct or implied request)
iii. Adult friend finders or dating sites with pornography.
– Violence: content depicting or promoting violence or assault, including, without limitation, sexual assault and the harming or killing humans or animals, is prohibited.
– Hateful Speech and Harassment: content that is insulting, harassing, bullying, threatening, demeaning or that otherwise promotes violence against an individual, organization or particular group is prohibited. This includes, without limitation, individuals or groups identified by their race, sex, creed, age, color, national origin, religious affiliation, marital status, gender identity, language, sexual orientation or handicap.
– Imitation Goods: content for the sale of imitation or counterfeit goods is prohibited.
MASSPHONING cannot be considered, in any way, as a representative of the CUSTOMER and cannot act or commit itself in its name.
8. INTELLECTUAL AND INDUSTRIAL PROPERTY
The works, illustrations and images reproduced in the PLATFORM and in the website of MASSPHONING are subject to copyright and intellectual property rights globally applicable, trademarks, patents, commercial secrets and other property rights as appropriate.
MASSPHONING grants the CUSTOMER the personal, non-transferable and non-exclusive right to use the PLATFORM for the achievement of the purpose of this agreement.
The CUSTOMER is not authorized to (i) rent, provide, subcontract or transfer the PLATFORM to third parties, (ii) to use the PLATFORM for developing another software, (iii) to activate and use functions of the PLATFORM without license for it, (iv) award a sub-licence for the use and/or exploitation of the PLATFORM to third parties or provide access to it. The infringement of any of those rights may constitute a violation of the General Conditions, as well as a criminal offence punished by Law according to the article 270 and following of the Penal Code.
The CUSTOMER will inform MASSPHONING if he gets aware of the access and/or non-authorized use of the PLATFORM by third parties.
Other non-authorized uses of the PLATFORM will constitute a violation of the Intellectual Property and will be properly punished, unless prior permission of MASSPHONING.
The parties take on the obligation to keep confidential the information to which they have access for the implementation of this contractual relation or others of similar nature that have to be treated as it.
It is excluded from the category of confidential information, all the information disclosed by the CUSTOMER, the one revealed according to the law, a judicial order or an act by the competent authority.
This duty shall remain in force indefinitely.
10. PROTECTION OF PERSONAL DATA
MASSPHONING complies with the requirements established in the Organic Law 15/1999 of 13th of December, on Data Protection (LOPD) and its regulations, as well as with the provisions of the Law 34/2002 of 11th July, on Information Society Services and e-commerce.
The CUSTOMER guarantees that the personal data provided are correct and is responsible for notifying any modification to MASSPHONING. The CUSTOMER will in any case respond for the truthfulness of the data provided including the Sender Phone (Caller ID). MASSPHONING reserves the right to exclude from the registered services any CUSTOMER that has provided false data, notwithstanding any other actions applicable under the Law.
In particular, during the registering process the CUSTOMER will not:
– Provide false personal information (including a false user name) or creating an account for another person, without his or her permission;
– Use a user name that is the name of another person with the intention of impersonating that person;
– Use a user name or an account in the PLATFORM which are subject to rights of a third party without due authorization.
When accepting the present Terms and Conditions, the CUSTOMER expressly consents to the automatic treatment of the personal data supplied with the only purpose of offering our call services.
The CUSTOMER is informed and consents to the inclusion of his data in a database property of MASSPHONING, which has been duly registered at the General Register of the Spanish Data Protection Agency.
MASSPHONING does not request specially protected data from the CUSTOMER, in accordance with articles 7 and 8 of the LOPD, and data relating to race or ethnic origin, religious beliefs, criminal record, physical or mental health or sexual orientation.
Furthermore, we inform you that the personal data provided by the CUSTOMER will be used for sending newsletters and commercial or promotional communications related with MASSPHONING services, by letter, telephone, e-mail, SMS/MMS or via other means of electronic communications in accordance with what is established in the LOPD, in the Law 34/2002 of 11th July, on Information Society Services and electronic services, and in Law 32/2003 of 3th November on General Telecommunications.
At any time the CUSTOMER can exercise his/her right to access, rectify, oppose and cancel the personal data in possession of MASSPHONING, through a written application to MASSPHONING, S.L., Avenida de Machupichu, 11 B, 4º D, 28043 Madrid, Spain or by e-mail to firstname.lastname@example.org, typing in: “Data Protection” on the Subject Line, and providing proof of identity in accordance with the applicable laws.
MASSPHONING will be the Data Processor of any user data provided by the CUSTOMER. MASSPHONING commits, pursuant to Article 12.2 LOPD, to treat the data provided according to the instructions of the CUSTOMER, for the strict provisioning of the contracted services and not to use the personal data for a different purpose.
We guarantee that all your personal data will be transmitted using technology that complies with the highest security standards. Moreover, we inform that the hosting service of the data and the content achieved in the Platform is located within the territory of the European Union and are treated in a country that offers an adequate level of protection. The acceptance of this document means the express and irrevocable consent to MASSPHONING for the outsourcing of the hosting services in compliance with article 21 of the Royal Decree 1720/2007 of 21 December, approving a development regulation of the LOPD.
11. UNDER AGE USERS
Our services are targeted to people over fourteen years old.
12. COOKIES AND IP ADDRESSES
However, the CUSTOMER can disable and/or delete cookies following the instructions of its website browser.
When selecting options related to the cookies, CUSTOMER should remember that these archives make Internet navigation easier (for example, recalling site preferences and language settings).
More information about how cookies work can be obtained at www.youronlinechoices.com
13. LINKS TO WEB PAGES
The website can contain links to the websites of other companies and third parties entities.
The information contained on this web page is that in force as of the date of their last update. MASSPHONING reserves the right to update, modify or eliminate the information contained in its website.
MASSPHONING can translate these General Conditions, or any other operational rule, policy or process that can be published in the Website. The English version will prevail in the case of a conflict.
16. GOVERNING LAW AND JURISDICTION
The General Terms and Conditions set out are subject to Spanish Law.
In case of dispute about interpretation, implementation or validity of these General Terms and Conditions or any of its attachments, Madrid State Court will be competent.
In case you have hired the services of MASSPHONING as a Consumer (as defined in Article 3 of Legislative Royal Decree 1/2007 of the General Law for the protection of consumers and users), any disputes about interpretation, implementation or validity of these General Terms and Conditions or any of its attachments, will be solved by the Court corresponding to the Consumer´s domicile.
ANNEX I (ONLY FOR CONSUMERS)
“MODEL WITHDRAWAL FORM”
(Complete and return this form only if you wish to withdraw from the contract)
To LLAMADA AUTOMÁTICA S.L. (MASSPHONING), domiciled at Avenida de Machupichu, 11 B, 4º D, 28043 Madrid, Spain, with Company Number B87632196, with fax number +34 902 877 717 and e-mail address email@example.com:
I/We hereby give notice that I/We withdraw from my/our contract for the provision of the following service [_________]
Name of consumer(s): [________________]
Address of consumer(s): [________________]
Signature of consumer(s) (only if this form is notified on paper), [____________]