These Terms and Conditions govern the supply of the Service under the “Testelium” brand by either of the following companies, each a “Testelium Entity”:
(a) TELECOM SOFTWARE OÜ, a private limited company incorporated in the Republic of Estonia, registry code 14393345, registered address Pae tn 25-47, Tallinn, Harjumaa 11414, Estonia (“Testelium Estonia”); and
(b) TESTELIUM LIMITED, a private company limited by shares incorporated in the Hong Kong Special Administrative Region under the Companies Ordinance (Cap. 622), Company / Business Registration No. 80785866, registered office at No. 5, 17/F, Strand 50, 50 Bonham Strand, Sheung Wan, Hong Kong (“Testelium Hong Kong”).
The Testelium Entities are under common ownership and control, operate the same Platform and supply the same Service on the same commercial terms. The Testelium Entity that has entered into the Agreement with a particular Client is referred to in these Terms as the “Contracting Entity” and, throughout these Terms, as “Testelium”. The Contracting Entity and the Client will individually be referred to as a “Party” and collectively as the “Parties”. Whereas:
1. Article – Terms and Conditions of Testelium (hereinafter – “Terms” or "Agreement")
1.1. The terms contained in the Agreement and these Terms and Conditions beginning with a capital letter are defined and have the meaning as set out in this Article:
1.2. Agreement: the agreement concluded between Testelium and Client, including all associated appendices, to which these Terms and Conditions apply.
1.3. Applicable Law: (i) all applicable laws and regulations, government requests and codes of conduct laid down by competent authorities or industries that apply to providing or receiving the Service and/or End User service in the country where the Service and/or the End User service is delivered; and also (ii) all regulations, guidelines, conditions, policy rules and/or other requirements that are used by Operators in the country where the Service and/or the End User service is delivered.
1.4. Client: The Party with whom Testelium concludes the Agreement.
1.5. End User: a natural person who has a contractual relationship with Testelium and who has consented to the use of their telephone number (MSISDN) for the Testelium service.
1.6. Operator: a (mobile) electronic communications service provider that provides (wireless) voice and data communication and other related services to other Operators and/or for its subscribed end users.
1.7. Platform: the computing environment of Testelium designed to create the connection between an electronic communication network and the system of the Client.
1.8. Service: a service Testelium provides to the Client under the Agreement.
1.9. Traffic: electronic communication and/or data traffic from and to a mobile telephone and/or fixed line, mobile device or online application. Such traffic includes without limitation SMS, MMS, Push, OTT, RCS, voice and/or data.
1.10. Data Protection Laws: means the Data Protection Laws of the country in which Client is established and any Data Protection Laws applicable to Client and/or Testelium in connection with the Agreement.
1.11. Personal Data: means any information relating to an identified or identifiable natural person ("Data Subject") that is transferred by Testelium in its role as controller to Client as part of providing the Service to Client under the Agreement.
1.12. Processing/to Process: means any operation or set of operations which is performed on Personal Data, whether or not by automatic means, including collecting, accessing, storing, using, combining, transferring, disclosing or deleting of Personal Data.
1.13. Technical and Organizational Measures: means measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of Processing.
1.14. Personal Data Breach: means a breach of security leading to the accident or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
1.15. Contracting Entity: the Testelium Entity that is a party to the Agreement with the Client. The Contracting Entity is identified in the Client’s order form, in the Client’s account on the Platform and on each invoice issued to the Client. References in these Terms to “Testelium” mean the Contracting Entity, save where a specific Testelium Entity is named.
These are the TERMS AND CONDITIONS of Testelium. “Testelium”, “Testelium Software” and “Testelium.com” are trade names belonging solely to TELECOM SOFTWARE OÜ and used by the other Testelium Entity under licence. Contact email: [email protected]
These TERMS AND CONDITIONS are applicable to all legal acts by or on behalf of Testelium. These general terms are also applicable to all present and future services which Testelium offers and all additions and amendments thereto (the Services). The applicability of general terms used by any party contracting with Testelium (Client) is explicitly rejected.
By placing an order for one or more Services, by using the Services of Testelium and/or by making payments for Services, the Client acknowledges its acceptance of the applicability of these general terms to the Services and any current and future legal relationship between Client and Testelium.
1A. Article - Contracting Entity
1A.1. Allocation. The Testelium Entity that contracts with a Client is determined by the place of establishment of the Client and by operational convenience, and is confirmed to the Client before the Agreement is concluded. Testelium Hong Kong contracts only with Clients established outside the Hong Kong Special Administrative Region. A Client established in the Hong Kong Special Administrative Region contracts with Testelium Estonia. Testelium may decline to contract through a particular Testelium Entity at its discretion.
1A.2. Same Service, same terms. The Service, the Platform, the technical specifications, the service levels and the price plans published on the Website are identical for both Testelium Entities. The choice of Contracting Entity does not affect the scope or quality of the Service.
1A.3. Separate liability. Each Testelium Entity contracts in its own name and for its own account. Each Testelium Entity is solely responsible for its own obligations under the Agreements to which it is a party. The Testelium Entities are not jointly or severally liable for each other’s obligations, and no Testelium Entity acts as agent, partner or guarantor of the other. Any limitation of liability in these Terms applies to the Contracting Entity individually and is not aggregated across the Testelium Entities.
1A.4. Transfer between Testelium Entities. Testelium may transfer the Agreement, in whole, from one Testelium Entity to the other by giving the Client at least thirty (30) calendar days’ prior written notice, provided that (i) the Service, the price plan and the Client’s accrued rights and any prepaid balance are unaffected, and (ii) the transferee Testelium Entity assumes all obligations of the transferor under the Agreement. From the effective date of the transfer, the transferee becomes the Contracting Entity and Articles 5.2 and 13 apply accordingly. If the Client does not accept the transfer, the Client may terminate the Agreement in accordance with Article 7.1 before the effective date and request a refund of any unused prepaid balance, notwithstanding Article 5.5.
1A.5. Group entities. Each Testelium Entity may perform its obligations under the Agreement through the other Testelium Entity, its affiliates or its subcontractors, and remains fully responsible for their acts and omissions.
2. Article – Delivery of services
2.1. The current description and functionality of the Service can be found on https://Testelium.com
2.2. Testelium is a new SMS Testing System, deliberately designed for better SMS delivery quality testing on real SIMs. Testelium provides test SMS services to mobile operators, SMS hubs, telecommunication service providers, etc., engaged in business relations with Testelium.
2.3. The content and specifications of the Services are determined by what is stated about the Services from time to time on the website of Testelium (testelium.com) or any other website designated by Testelium for the relevant Service from time to time (the Website). Where reasonably possible Testelium will notify the Client in advance and in writing (by email or via the Website or via notification/banner in the Testelium platform users menu) of material changes to the Services.
2.4. Testelium will use its reasonable efforts to safeguard the timely availability and quality of the Services. Testelium however does not warrant the timely, continuous, error‐free availability and quality of the Services.
2.5. A part of the Services is in fact provided by the relevant third-party providers of fixed and mobile telecommunication services. Testelium will use its reasonable efforts to optimize the provision of services by these third parties, but does not accept any responsibility or liability for shortcomings in its Services caused by these third parties. In particular Testelium cannot accept responsibility for the timely and correct handling of sent electronic messages.
2.6. Testelium is entitled to suspend the services temporarily when this is necessary to implement a change to the Services or to conduct preventive or corrective maintenance activities with respect to the Services. Testelium will inform the Client in advance and in writing (by email or via the Website or via notification/banner in the Testelium platform users menu) where reasonably possible in case of activities planned by Testelium and of activities planned by third-party providers of which Testelium is aware, which have a foreseeable material impact on the Services.
3. Article – Obligations of Client
3.1. Client must provide Testelium at the start of and during the use of the Services on request and on its own initiative with all information and all data relevant to enable the provision of the Services. The client vouches for the completeness and correctness of all supplied information. In particular, the Client will keep Testelium up to date of all foreseeable peaks or massive increases in its use of the Services to help prevent overloading the Services and/or the networks and systems of the suppliers of Testelium.
3.2. Testelium has no obligation to check the completeness and correctness of the information provided by the Client. If Testelium provides any advice on this, then this is done voluntarily and with the explicit exclusion of any liability for such advice.
3.3. For using the Services Client will receive one or more sets of username/password combinations (the Log-in Data). With respect to the Log-in Data the following specific conditions apply:
a) Client is fully responsible for any use and any misuse made with the Log-in Data;
b) Legal acts performed using the Log‐in Data bind Client;
c) The Log‐in Data must be treated by the Client as strictly confidential information and will only be made available by the Client to persons if and when necessary to use the Services.
3.4. If the Client suspects that the confidentiality of the Log-in Data is violated or misuse is being made with the Log‐in Data, then the Client will report this immediately to Testelium. Testelium will subsequently deactivate the Log‐in Data as soon as reasonably possible.
3.5. The Client must report malfunctions in the Services immediately to Testelium. A Client must provide all required cooperation to a possible investigation into a malfunction of the Services. In case a reported malfunction in the Services is not discovered or is caused by Client, Testelium is entitled to charge Client for the reasonable investigation costs.
4. Article – Usage limitations for the Services
4.1. Client will not use the Services in a manner which in any way hinders the Services of Testelium and/or the networks and systems used to deliver the Services used by Testelium or its third-party suppliers. Client shall immediately follow any directions of Testelium intended to prevent or stop such hinder and Testelium is entitled to temporarily suspend the Services to prevent such hinder if the action of Client to prevent it is delayed or if such action of Client cannot reasonably be waited on.
4.2. Client shall when using the Services and when conducting those parts of its business which use the Services or which are connected to the Services not violate: any applicable laws and regulations, the guidelines and requirements of the competent authorities of the jurisdiction of the Contracting Entity (the Republic of Estonia or the Hong Kong Special Administrative Region, as applicable), including, where Testelium Hong Kong is the Contracting Entity, the Unsolicited Electronic Messages Ordinance (Cap. 593) and the requirements of the Office of the Communications Authority; the usage limitations for the relevant Service published from time to time on the Website and/or these TERMS AND CONDITIONS. Further the following acts and behaviors are explicitly forbidden when using the Services and conducting business in the context of the Services:
a) Spamming: the unsolicited sending of large quantities of electronic messages with largely the same content.
b) Violating copyrights of works of third parties or in any other way violating the intellectual property rights of third parties;
c) Deceiving or misleading third parties including Clients of Client;
d) Using texts, logo’s, trademarks or other works of Testelium or its suppliers when conducting its business without express prior written approval for such use;
e) Offering products or services which are prohibited under the law governing the Agreement pursuant to Article 13, under the law of the jurisdiction of the Contracting Entity, and/or under the law of the relevant country in which these are offered.
f) Sending of messages with offensive, discriminatory or otherwise illegal content.
4.3. Client is only entitled to use the Services for its own internal business purposes and is not entitled to resell the Services neither standalone nor in combination with services of itself or to offer them or use them for the benefit of a third party.
4.4. It is not allowed to use the Services under a false name and/or by circumventing security measures imposed for the Services.
4.5. Sanctions and export controls. The Client represents and warrants that neither it, nor any of its owners, directors or officers, nor any party for whose benefit the Services are used, is a person or entity subject to economic sanctions, trade embargoes or export control restrictions imposed by the European Union, the United Nations, the United States or the Hong Kong Special Administrative Region. The Client shall not use the Services in or for the benefit of any territory subject to comprehensive sanctions. Testelium may suspend or terminate the Agreement with immediate effect and without liability if this clause is or may be breached.
5. Article – Payment conditions
5.1. Testelium provides Service on a prepaid basis. The client shall deposit an account in Testelium before use.
5.2. The currency of the Agreement is the currency stated on the invoices issued by the Contracting Entity: EUR where Testelium Estonia is the Contracting Entity, and USD where Testelium Hong Kong is the Contracting Entity, unless otherwise agreed in writing. Prices published on the Website in one currency are converted to the other at the rate published by Testelium on the Website or in the Platform at the time of the order.
5.3. Price per 1 (one) test SMS sent corresponds to chosen Price plan https://testelium.com/prices/.
5.4. Billing time zone for all invoices and settlements between the Parties is GMT +0.
5.5. Any payments made to Testelium under this Agreement are not subject to refund, save as provided in Article 1A.4.
5.6. All prices are exclusive of VAT, GST and any other applicable taxes, duties, levies and government charges, which shall be added where applicable and borne by the Client. All amounts are stated in the currency of the Agreement determined under Article 5.2 unless explicitly set out otherwise.
5.7. Unless otherwise set out on the Website, all payments to Testelium must be made within 14 days from the date of the Invoice received in the manner indicated by Testelium in the currency indicated on the invoice.
5.8. Testelium reserves the right to restrict Client’s access to the Service on the day after the invoice due date if the payment is not received. The Parties acknowledge that delays (overdue) in payment may cause additional administrative burdens, which the Client may incur.
5.9. Testelium reserves the right to add the Client to black lists of providers of telecom services and/or report to Testelium’s partners about insolvency of the Client and/or publish and/or order a press release about dishonesty or insolvency of the Client if any payment under the Agreement is overdue for more than 60 (sixty) calendar days.
5.10. All payments by the Client shall be made free and clear of any deduction or withholding. If the Client is required by law to make any deduction or withholding from a payment, the Client shall increase the amount payable so that Testelium receives the amount it would have received had no deduction or withholding been required. The Client shall provide Testelium with the relevant tax receipt or certificate within thirty (30) days of the payment.
6. Article – Service Conditions
6.1. Testelium provides the Client with one (1) individual MSISDN per request. This MSISDN is provided for the performance of a single test for which a single text report will be made available to the Client as part of the Service. Testelium shall provide all information on “as is” and “as available” basis and Testelium shall not have any responsibility in this regard.
6.2. The individual MSISDN provided by Testelium may not be used for any other purpose other than the Service and the testing by the Client of a single connection. It is strictly prohibited to process the MSISDN for any other purpose and/or to provide said MSISDN to any third party or retain the MSISDN for longer than necessary.
The Client shall not directly or indirectly (through any contractors, affiliates, subsidiaries or in any other way) send any promotional SMS to MSISDNs provided by Testelium under this Agreement.
6.3. The Service and the information obtained shall only be used for the Client’s internal business purposes. Under no circumstance is the Client allowed to publish, sell, transfer or otherwise provide the information and the MSISDN obtained when using the Service to any third party.
6.4. Notwithstanding anything to the contrary contained in this Agreement, the Client agrees to indemnify, defend and hold harmless Testelium and its affiliates from and against all liabilities, losses, damages, penalties, fines, costs (including reasonable attorneys' fees) and third-party claims, demands, actions, suits or judgments against them resulting from or arising out of the failure by the Client to comply with this Article 6, the Agreement, the Codes of Conduct and specifically all applicable laws on data protection and privacy, in connection with the exercise of any of its rights or the performance of any of its obligations under this Agreement.
6.5. In case of violation of clauses 6.2 and/or 6.3, the Client shall pay Testelium liquidated damages of EUR 10,000 (or, where Testelium Hong Kong is the Contracting Entity, USD 10,000) for each such violation. The Parties acknowledge and agree that this amount is a genuine pre-estimate of the loss Testelium would suffer as a result of such a violation, having regard to the harm to End User trust, the irreversible loss of the affected MSISDNs from the testing pool, the cost of recruiting replacement End Users, and Testelium’s exposure to Operators and to data protection authorities; and that the amount is proportionate to Testelium’s legitimate interest in the performance of those clauses and is not a penalty. This remedy is without prejudice to Testelium’s right to claim damages exceeding this amount and to terminate the Agreement.
7. Article – Term and termination of the services
7.1. Unless explicitly otherwise set out in the description of the relevant Service on the moment it is ordered, the Client procures each Service for an unlimited period of time and either party can terminate it at will by giving at least thirty calendar days’ notice.
7.2. Testelium is entitled to terminate the agreement to deliver the Services out of court, in part or in whole, and without limiting Testelium’s other rights:
a) If Client is declared bankrupt is granted a moratorium of payment or if bankruptcy or a moratorium of payment for Client is requested;
b) If the Client is dissolved or liquidated or its business activities are stopped in whole or for a substantial part;
c) If the Client breaches its obligations under the agreement for the delivery of the Services to which these general terms are applicable;
d) If Article 4.5 (Sanctions and export controls) is or may be breached.
8. Article – Limitation of liability
8.1. The liability of Testelium in the context of the delivery of the Services and in the context of any agreement to which these general terms are applicable, on any legal ground, shall be limited as set out in this clause.
8.2. In case of intent or reckless acts of Testelium with respect to the damage caused, no limitation of liability will be applicable.
8.3. Testelium can only be in default with respect to an obligation after being put on formal notice by means of a letter sent by registered mail and after having been granted a reasonable period of time to cure the issue. All delivery terms and dates for Services of Testelium are non-binding estimates.
8.4. In case of an attributable shortcoming of Testelium with respect to the Services, liability for Testelium can only arise if and in so far as Testelium, after being put on formal notice allowing a reasonable cure period, has not cured the shortcoming by repairing the relevant Service or reperforming the relevant Service.
8.5. Client shall report to Testelium all damage it suffers or will foreseeably suffer which is attributable to Testelium as soon as possible and at the latest 30 days after the end of the month in which the Client is or should have been aware thereof and such report shall be in writing and supplemented with proper motivation, failing which the right to claim these damages is considered lapsed.
8.6. Nothing in this Article excludes or limits liability which cannot lawfully be excluded or limited under the law governing the Agreement pursuant to Article 13.
9. Article – Privacy and confidentiality
9.1. Both parties are obliged to keep confidential information that they get access to in the context of delivering the Services. Information is considered confidential this is so indicated by the other party or if this follows from the nature of the information.
9.2. Testelium and Client both commit to strictly comply with applicable privacy legislation when providing and using the Services.
9.3. Testelium shall treat the personal and other data which Client enters on the Website or in any other way supplies to Testelium in the context of using the Services as strictly confidential and protect it against misuse and unauthorized access.
9.4. Testelium shall use personal data that it receives from the Client in the context of supplying the Services (the Data) only for the delivery of the Services, observing the following usage limitations:
9.5. Testelium shall only make such Data available to third parties if and to the extent, this is strictly necessary for the delivery of the Services or on instruction of a competent government authority.
9.6. Testelium is entitled to analyze the Data to enable the enhancement of the quality, reliability and effectiveness of the Services. Such analysis shall be conducted in a strictly anonymous way by which no data traceable to specific persons is gathered.
9.7. Client is responsible to ensure that when using the Services only personal data is entered or processed if and in so far as Client is legally allowed to do this and has obtained the relevant permissions for this from the relevant persons.
9.8. Price of the Service agreed between Testelium and the Client shall be treated as confidential information.
9.9. A Party in breach of this Article 9 (Privacy and confidentiality) shall pay the other Party liquidated damages of EUR 5,000 (or, where Testelium Hong Kong is the Contracting Entity, USD 5,000) for each such breach. The Parties acknowledge that this amount is a genuine pre-estimate of the loss caused by such a breach and is proportionate to each Party’s legitimate interest in the confidentiality of the information exchanged under the Agreement, and is not a penalty.
10. Article – Data Processing
10.0. Applicable data protection regime
(a) Where Testelium Estonia is the Contracting Entity, this Article is given effect under Regulation (EU) 2016/679 (the “GDPR”) and the Estonian Personal Data Protection Act.
(b) Where Testelium Hong Kong is the Contracting Entity, this Article is given effect under the Personal Data (Privacy) Ordinance (Cap. 486) of Hong Kong (the “PDPO”) and its Data Protection Principles.
(c) In either case, where the Personal Data relates to End Users located in the European Economic Area or the United Kingdom, or where the processing otherwise falls within the territorial scope of Article 3 GDPR or of the UK GDPR, the standards of the GDPR apply to that Personal Data in addition to the regime identified above, and this Article applies in full to that processing.
(d) Each Testelium Entity acts as a controller in respect of the Personal Data it makes available to the Client under the Agreement. The Client acts as a separate and independent controller in respect of that Personal Data. Nothing in the Agreement makes the Parties joint controllers within the meaning of Article 26 GDPR.
10.0.1. The obligations in this Article reflect the requirement on a controller to ensure that any party to whom it transfers Personal Data provides sufficient guarantees in respect of the technical and organizational measures governing the processing to be carried out.
1) Obligations of the Client
a) Compliance
i) Client shall, in its use of the Service, Process Personal Data in accordance with the requirements of Data Protection Laws.
ii) Client shall process Personal Data exclusively for the execution of the Service.
iii) Client shall maintain accurate and complete records of the use of the Service under the Agreement during the term and as required under the Data Protection Laws. Upon reasonable written notice, the Client shall provide information as requested and where required by Testelium, any Operator, regulator or other competent authority.
iv) If Client is required to process Personal Data under mandatory law, Client shall inform Testelium hereof in writing before processing unless the law prohibits providing such information.
b) Technical and Organizational Measures
i) Taking into account the state of the art, the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, Client shall implement appropriate Technical and Organizational Measures (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data) to ensure a level of security appropriate to the risk.
ii) Client shall test, assess and evaluate the effectiveness of Technical and Organizational Measures for ensuring the security of the Processing on an ongoing basis. Client shall continuously enhance and improve Technical and Organizational Measures.
c) Personnel requirements
Client ensures that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
d) Confidentiality
Client agrees that it shall maintain the Personal Data in strict confidence. In particular, Client agrees that it shall not disclose any Personal Data supplied by Testelium, to any third party without Testelium’s prior consent, except as foreseen and required for the performance of the Service under the Agreement or as required under mandatory law.
e) Data Subject rights
Where Testelium so instructs, Client shall correct, transfer, delete or block Personal Data if Testelium receives a request from a Data Subject to exercise the Data Subject's right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”).
Client shall promptly notify Testelium if Client receives a Data Subject Request. Taking into account the nature of the Processing, Client shall assist Testelium, for the fulfilment of Testelium’s obligation to respond to a Data Subject Request under Data Protection Laws. Client shall assist Testelium in responding to such Data Subject Request without undue delay. Where Testelium Hong Kong is the Contracting Entity, the same obligation applies to a data access request or a data correction request under sections 18 and 22 of the PDPO, and the Client shall provide its assistance in time for Testelium to respond within the 40-day period prescribed by the PDPO.
f) Compliance, information and audit
Upon Testelium’s written request, and subject to the confidentiality obligations set forth in Part I, the Client shall make available to Testelium, a copy of the Client’s then most recent third-party certifications and information regarding the IT architecture and security, as applicable and as reasonably requested.
Testelium has the right to audit the procedures regarding the data processing at the Client. The client will cooperate with such audit upon a reasonable prior written notice. Before the commencement of any such audit, the Parties shall mutually agree upon the scope, timing, and duration of the audit.
2) Sub-Processors
Client shall be responsible for its Sub-processors to the same extent Client would be responsible if performing the services of each Sub-processor directly under the terms of the Agreement. Upon request, the Client shall provide all information requested concerning such Sub-processors and the terms agreed between the Client and Sub-processors with regard to the Processing of Personal Data. Client guarantees that the Sub-processors shall only receive Personal Data for the execution of the Service and will fully comply with the terms of this Part II. Client remains fully liable and responsible for the Sub-processors it engages.
3) International data transfers
3.1. The Testelium Entities operate a global End User node community and process Personal Data in the Republic of Estonia, in the Hong Kong Special Administrative Region and in other jurisdictions in which their infrastructure or their sub-processors are located.
3.2. Where Personal Data originating in the European Economic Area or the United Kingdom is transferred by a Testelium Entity to a country that is not the subject of an adequacy decision (which includes the Hong Kong Special Administrative Region), the transfer is made on the basis of the Standard Contractual Clauses set out in Commission Implementing Decision (EU) 2021/914, Module One (controller to controller), together with the UK International Data Transfer Addendum where the transfer is subject to the UK GDPR. Those clauses are incorporated into the Agreement by reference and are entered into between the Contracting Entity, as data exporter, and the Client, as data importer, upon conclusion of the Agreement. The Annexes to those clauses are populated by section 9) (Description of Processing) of this Article, by Article 6 (Service Conditions) and by the technical and organizational measures notified to the Client by Testelium.
3.3. Transfers of Personal Data between the Testelium Entities are made under an intra-group data transfer agreement incorporating the Standard Contractual Clauses referred to in clause 3.2.
3.4. The Client shall not transfer Personal Data received under the Agreement to any country outside the European Economic Area, or to any sub-processor or other third party in such a country, without the prior written authorization of Testelium. Testelium may in its sole discretion authorize or decline such a request and may impose additional terms relating to the security and confidentiality of the Personal Data and to the availability of enforceable data subject rights and effective legal remedies. Any such terms shall comply with Article 46 GDPR.
3.5. Where Testelium Hong Kong is the Contracting Entity, the Client acknowledges that section 33 of the PDPO (restriction on transfer of personal data outside Hong Kong) is not currently in operation, and undertakes to comply with it should it be brought into operation during the term of the Agreement, and in any event to observe the recommended model clauses issued by the Privacy Commissioner for Personal Data.
4) Breach notification
In respect of a Personal Data Breach, Client shall:
Client will promptly investigate a Personal Data Breach and take reasonable measures to identify its root cause(s) and prevent a recurrence. As information is collected or otherwise becomes available, unless prohibited by law, Client will provide Testelium with a description of the Personal Data Breach, the type of data that was the subject of the Personal Data Breach, and other information Testelium may reasonably request. The Parties agree to coordinate in good faith on developing the content of any related public statements or any required notices for the affected Data Subjects and/or the relevant data protection authorities.
5) Indemnification
Client shall indemnify and hold harmless Testelium from and against all claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgments, costs and expenses (including without limitation legal fees and costs) including claims by Data Subjects and/or penalties or fines imposed by a competent authority incurred by Testelium or for which Testelium might become liable, which arise out of, relate to or result from any act or failure by Client to comply with the obligations under this Part II and/or Data Protection Laws.
6) Storage, retention and deletion of Personal Data
Client shall process Personal Data, in accordance with applicable law, regulations, including but not limited to national telecom legislation and Data Protection Laws. The data, including Personal Data, provided by Testelium as part of the Service shall be retained for no longer than is necessary for receiving and/or using the Services under the Agreement. Upon request Client will certify that all data received from Testelium in using the Service has been deleted by the Client and any Sub-processor or other service provider to whom the data was transferred.
7) Term and termination
This Part II shall continue in full force and effect for so long as the Client is processing Personal Data under the Agreement. The Client's confidentiality obligations shall survive the termination of this Part II for a period of two (2) years. In case Client is in material breach of any provision of this Part II, Testelium has the right to terminate the Agreement for cause, in whole or in part, without notice.
8) Miscellaneous
In case of any conflict, the provisions of this Part II shall take precedence over the provisions of Part I and the Agreement. Where individual provisions of this Part II are invalid or unenforceable, the validity and enforceability of the other provisions of this Part II shall not be affected.
9) Description of Processing
a) Nature and Purpose of Processing
Client will process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Agreement, and as further instructed by Testelium in its use of the Services.
b) Categories of Data Subjects
Testelium may submit data to Client in using the Service, the content of which is determined and controlled by Testelium in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
End Users who have a contractual relation with Testelium and who have consented to the use of their telephone number (MSISDN) for the Testelium service
c) Type of Personal Data. Testelium may provide Personal Data, the extent of which is determined and controlled by Testelium in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
Telephone number of a mobile phone (MSISDN)
d) Purposes of Processing
The Personal Data is processed for the following purposes:
11. Article – Reserved
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12. Article – Intellectual property rights
12.1. All intellectual property rights related to all systems, documents, and other works to which the Client gets access in the context of the delivery of the Services, are the exclusive property of Testelium and its licensors. The Client is only granted a temporary, personal, non-exclusive and non-transferable license to use with respect to these works to the extent such use is necessary for the use of the Services. This license ends immediately after the termination of the delivery of the Services to the Client by Testelium.
12.2. Access numbers, keywords and other codes, numbers and words (the Codes) which in the context of delivering the Services are made available to the Client by Testelium are only licensed for the duration of the delivery of the Services to the Client. After termination of the delivery of the Services to Client for which Codes were made available to Client, Client has no right anymore with respect to such Codes and Testelium is free to reuse these for itself or for another Client of Testelium.
12.3. The trade names and marks “Testelium”, “Testelium Software” and “Testelium.com”, the Platform and all related intellectual property rights are and remain the exclusive property of TELECOM SOFTWARE OÜ. Testelium Hong Kong uses them under a licence granted by TELECOM SOFTWARE OÜ. Nothing in the Agreement transfers any ownership of those rights to any Testelium Entity other than TELECOM SOFTWARE OÜ, or to the Client.
13. Article – Applicable law and dispute resolution
13.1. Where Testelium Estonia is the Contracting Entity, these general terms and all legal relations between Testelium and the Client shall be governed by the laws of the Republic of Estonia, excluding its conflict of law rules. Any dispute arising out of or in connection with the Services, these general terms or any agreement to which these general terms are applicable shall be submitted exclusively to Harju County Court (Harju Maakohus), Tallinn, Estonia.
13.2. Where Testelium Hong Kong is the Contracting Entity, these general terms and all legal relations between Testelium and the Client shall be governed by the laws of the Hong Kong Special Administrative Region, excluding its conflict of law rules. Any dispute arising out of or in connection with the Services, these general terms or any agreement to which these general terms are applicable, including any question regarding their existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The seat of the arbitration shall be Hong Kong. The tribunal shall consist of one arbitrator. The language of the arbitration shall be English.
13.3. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
13.4. Nothing in this Article prevents Testelium from applying to any court of competent jurisdiction for interim or injunctive relief, or from bringing proceedings to recover undisputed sums due from the Client in the courts of the Client’s place of establishment.
14. Article – Miscellaneous
14.1. Testelium is at all times entitled to change or supplement these general terms. The changes will become effective after the Client has been informed of the change in writing via email or publication on the Website. Where reasonably possible each change will be announced to Client i.e. via notification/banner in the Testelium platform users menu.
14.2. Testelium is entitled to transfer its rights and obligations under each agreement to which these general terms are applicable (i) to the other Testelium Entity in accordance with Article 1A.4, or (ii) to a third party which is taking over the relevant part of the business of Testelium, in each case by giving written notice of such transfer to Client. The Client may not assign or transfer the Agreement, in whole or in part, without the prior written consent of Testelium.
14.3. If any provision of these general terms is held invalid or unenforceable, that provision shall be replaced by a valid and enforceable provision that comes as close as possible to the intention of the original, and the remaining provisions shall continue in full force and effect.
Contracting entities
TELECOM SOFTWARE OÜ – Pae tn 25-47, Tallinn, Harjumaa 11414, Estonia, Registry code 14393345
TESTELIUM LIMITED – No. 5, 17/F, Strand 50, 50 Bonham Strand, Sheung Wan, Hong Kong, Company / Business Registration No. 80785866