TELECOM SOFTWARE OÜ (or Testelium), Pae tn 25-47 Tallinn Harjumaa 11414, Estonia, rand Company (or 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.
These are the TERMS AND CONDITIONS of Testelium “Testelium”, “Testelium Software” and “Testelium.com” are trade names solely belong to: TELECOM SOFTWARE OÜ 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.
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) 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) 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.
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 serviced
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 of the Estonian Authorities, 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 Estonian law and/or the relevant country in which these are offered.
f)Sensing 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.
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. Currency of the Agreement is EUR.
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.
5.6. All prices are excluding applicable VAT and other applicable taxes and government charges and are in Euro 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.
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 7, 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.
6.4.In case of violation of clauses 2 and/or 3 of Article 7 the Client is obligated to pay Testelium 10 000 (ten thousand) EUR for each case of such violation.
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:
7.3. If Client is declared bankrupt is granted a moratorium of payment or if bankruptcy or a moratorium of payment for Client is requested;
7.4. If the Client is dissolved or liquidated or its business activities are stopped in whole or for a substantial part;
7.5. If the Client breaches its obligations under the agreement for the delivery of the Services to which these general terms are applicable.
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.
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. Party responsible for violation of the Article 10 “Privacy and confidentiality” of the Terms shall pay the other Party penalty of 5000 EUR for each case of such violation.
10. Article – Data Processing
Article 17(2) of the Data Protection Directive 95/46/EC (the "Directive") as well as Article 28(3) of the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”) places certain obligations upon Testelium acting as a Controller to ensure that any processor it engages and/or party to whom it transfers information provides sufficient guarantees in respect of the technical security measures 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.
c) 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.
d) 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.
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. However, given the nature of the services, the Client will not be able to disclose the names of its Sub-processors. 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
Any transfer of Personal Data outside the European Economic Area ("EEA") requires appropriate safeguards, and conditions that include enforceable Data Subject rights and ensure effective legal remedies for data subjects are available. Client shall ensure that no transfer of Personal Data outside of the EEA takes place without express prior written authorization of Testelium. Testelium may in its sole discretion authorize or decline such a request and impose additional terms including provisions relating to security and confidentiality of the Personal Data and including appropriate safeguards, and conditions that enforceable Data subject rights and effective legal remedies for data subjects are available. Such terms to be agreed by the Client shall comply with article 46 of the EU General Data Protection Regulation.
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:
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, keyw,ords 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.
13. Article – Applicable law
13.1. These general terms and all legal relations between Testelium and Client shall be governed by the laws of Estonia.
13.2. Any dispute between Testelium and Client with respect to the Services, these general terms and any agreement to which these general terms are applicable shall exclusively be submitted to the courts of Tallinn, Estonia.
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.
14.2. Testelium is entitled to transfer its rights and obligations under each agreement to which these general terms are applicable to a third party which is taking over the relevant part of the business of Testelium, by giving written notice of such transfer to Client.
TELECOM SOFTWARE OÜ