TERMS AND CONDITIONS OF TESTELIUM

  1. APPLICABILITY
    1. These are the TERMS AND CONDITIONS of Testelium
    2. “Testelium”, “Testelium Software” and “Testelium.com” are trade names solely belong to: TELECOM SOFTWARE OÜ
      Pae tn 25-47 Tallinn Harjumaa 11414, Estonia
      contact email: contact@testelium.com
    3. These TERMS AND CONDITIONS are applicable to all legal acts by or on behalf of Testelium. These general terms are also applicable on 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 (Customer) is explicitly rejected.
    4. By placing an order for one or more Services, by using the Services of Testelium and/or by making payments for Services, Customer acknowledges its acceptance of the applicability of these general terms to the Services and any current and future legal relationship between Customer and Testelium.
  2. DELIVERY OF SERVICES
    1. 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, and telecommunication services providers etc., engaged in business relations with Testelium.
    2. 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 Customer in advance and in writing (by email or via the Website) of material changes to the Services.
    3. 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.
    4. 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 optimise 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.
    5. 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 Customer 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. OBLIGATIONS OF CUSTOMER
    1. Customer 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. Customer vouches for the completeness and correctness of all supplied information. 3.2. In particular Customer 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.
    2. Testelium has no obligation to check completeness and correctness of the information provided by Customer. If Testelium provides any advise on this, then this is done voluntarily and with the explicit exclusion of any liability for such advice.
    3. For using the Services Customer 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:
    4. Customer is fully responsible for any use and any misuse made with the Log-­‐in Data;
    5. Legal acts performed using the Log-­‐in Data bind Customer;
    6. The Log-­‐in Data must be treated by Customer as strictly confidential information and will only be made available by Customer to persons if and when necessary to use the Services.
    7. If Customer suspects that the confidentiality of the Log-­‐in Data is violated or misuse is being made with the Log-­‐in Data, then Customer will report this immediately to Testelium. Testelium will subsequently deactivate the Log-­‐in Data as soon as reasonably possible.
    8. Customer must report malfunctions in the Services immediately to Testelium. Customer must provide all required co-­‐operation 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 Customer, Testelium is entitled to charge Customer for the reasonable investigation costs.
  4. PRICES AND PAYMENT FOR THE SERVICES
    1. The prices applicable from time to time to the Services are set out on the Website and are (unless explicitly otherwise noted or agreed in writing) valid until publication of a change of the prices on the Website. Price increases are announced at least one month in advance, unless it concerns passing on the price increases of a third party supplier of Testelium which were notified to Testelium less than a month in advance.
    2. All prices are excluding applicable VAT and other applicable taxes and government charges and are in Euro, unless explicitly set out otherwise.
    3. Testelium is not bound by prices on the Website or any other publication of Testelium if Customer could reasonably have understood that the relevant prices or pricing structure contained an apparent error or misprint.
    4. Unless otherwise set out on the Website, all payments to Testelium must be made within 14 days after invoice date in the manner indicated by Testelium in the currency indicated on the invoice.
    5. Objections of Customer against the amount of the invoice do not create the right to suspend payment of the invoice unless Testelium acknowledges the objections. Customer is not allowed to set of or deduct any alleged counterclaims on Testelium from sent invoices.
    6. Subscription, license, connection or similar fixed, usage independent charges for the Services are, unless explicitly noted or agreed otherwise, due in advance. For periodic charges of this nature these are due per usage period (month/quarter/year) in advance unless explicitly otherwise indicated on the Website.
    7. Customer must buy credits for the use of the Services in advance. If Customer does not have a positive credit balance, it is not entitled to use the Services. Procured credits remain valid for one year.
    8. Usage dependant charges are due monthly in arrears on the basis of registered use.
    9. For determining the amounts due and the used and procured credits the data registered in the systems of Testelium and of the telecommunication providers which actually provided the relevant Services are deciding.
    10. Testelium will in case Customer objects against the usage dependant charges or debited credits conduct an investigation into this in a reasonable and transparent manner and report the results to Customer. Customer explicitly does not have the right to suspend payment of any invoice on the basis of any such objection.
    11. If Customer is in default of payment with respect to any amount due to Testelium, then interest will accrue on the outstanding amount against the Estonian legal interest rate for business transactions. If Customer remains in default of payment after it has been sent a formal notice, then Testelium can engage a third party to collect the payment, in which case Customer will also be due to pay the related collection costs and legal costs, with a minimum of 750 EUR.
    12. If Testelium incurs additional costs or has to spent additional time to provide the Services due to a shortcoming of Customer or due to a violation of any legal or contractual obligation by Customer, then Testelium can invoice these additional costs and the additionally spent time at its then current rates, without prejudice to the right of Testelium to claim compensation for suffered damage.
    13. If Testelium has suspended payment because of a presumption as set out in sub clause b above or if Testelium has claimed repayment of already credited payments for the same, the relevant payments will not become payable to Customer until it has been established that the presumption was wrong.
  5. USAGE LIMITATIONS FOR THE SERVICES
    1. Customer 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. Customer 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 action of Customer to prevent it is delayed or if such action of Customer cannot reasonably be waited on.
    2. Customer 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:
    3. Spamming: the unsolicited sending of large quantities of electronic messages with largely the same content.
    4. Violating copyrights of works of third parties or in any other way violating the intellectual property rights of third parties;
    5. Deceiving or misleading third parties including customers of Customer;
    6. 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;
    7. Offering products or services which are prohibited under Estonian law and/or the relevant country in which these are offered.
    8. Sensing of messages with an offensive, discriminatory or otherwise illegal content;
    9. Customer is only entitled to use the Services for its own internal business purposes and is not entitled to resell the Services neither stand alone nor in combination with services of itself or to offer them or use them for the benefit of a third party.
    10. It is not allowed to use the Services under a false name and/or by circumventing security measures imposed for the Services.
  6. TERM AND TERMINATION OF THE SERVICES
    1. Unless explicitly otherwise set out in the description of the relevant Service on the moment it is ordered, Customer 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.
    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:
    3. If Customer is declared bankrupt, is granted a moratorium of payment or if bankruptcy or a moratorium of payment for Customer is requested;
    4. If Customer is dissolved or liquidated or its business activities are stopped in whole or for a substantial part;
    5. If Customer breaches its obligations under the agreement for the delivery of the Services to which these general terms are applicable.
  7. LIMITATION OF LIABILITY
    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.
    2. In case of intent or reckless acts of Testelium with respect to the damage caused, no limitation of liability will be applicable.
    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.
    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 re-­‐performing the relevant Service.
    5. Testelium is not liable for forms of damage like the lost profits, loss or damage to data, missed savings, claims of third parties, government charges, failed transactions and damage due to business interruptions.
    6. Customer shall indemnify and hold Testelium harmless from all claims of third parties which are in any way connected with the use by Customer of the Services and the services provided by Customer to its customers using the Services, and shall compensate Testelium for all related costs including the costs for legal assistance.
    7. Customer 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 Customer 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. PRIVACY AND CONFIDENTIALITY
    1. Both parties are obliged to keep confidential all confidential information which 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.
    2. Testelium and Customer both commit to strictly comply with applicable privacy legislation when providing and using the Services.
    3. Testelium shall treat the personal and other data which Customer 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 unauthorised access.
    4. Testelium shall use personal data which it receives from Customer in the context of supplying the Services (the Data) only for the delivery of the Services, observing the following usage limitations:
    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.
    6. Testelium is entitled to analyse 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.
    7. Customer is responsible to ensure that when using the Services only personal data is entered or processed if and in so far as Customer is legally allowed to do this and has obtained the relevant permissions for this from the relevant persons.
  9. INTELLECTUAL PROPERTY RIGHTS
    1. All intellectual property rights related to all systems, documents and other works to which Customer gets access to in the context of the delivery of the Services, are the exclusive property of Testelium and its licensors. Customer is only grated a temporary, personal, onexclusive 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 Customer by Testelium.
    2. Access numbers, keywords and other codes, numbers and words (the Codes) which in the context of delivering the Services are made available to Customer by Testelium are only licensed for the duration of the delivery of the Services to Customer. After termination of the delivery of the Services to Customer for which Codes were made available to Customer, Customer has no right anymore with respect to such Codes and Testelium is free to re-­‐use these for itself or for another customer of Testelium.
  10. APPLICABLE LAW
    1. These general terms and all legal relations between Testelium and Customer shall be governed by the laws of Estonia.
    2. Any dispute between Testelium and Customer 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.
  11. MISCELLANEOUS
    1. Testelium is at all times entitled to change or supplement these general terms. The changes will become effective after Customer has been informed of the change in writing via email or publication on the Website. Where reasonably possible each change will be announced to Customer.
    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 Customer.