General Terms and Conditions of Wireless Services B.V.

This document contains the General Terms and Conditions of Wireless Services B.V., which has its registered office and business address at Newtonlaan 115 in Utrecht. These General Terms and Conditions apply to each offer from and agreement with Wireless Services B.V.

Article 1:Definitions

The following definitions apply in these Terms and Conditions:

1.Provider: Wireless Services B.V., established at Newtonlaan 115 in Utrecht and registered in the commercial register of the Chamber of Commerce under number: 30152075;

2.Account: the Client's account, which will be made accessible via the Provider's website;

3.Customer: the natural person acting in the performance of their profession or business or the legal entity that has concluded an Agreement with the Provider;

4.Service(s): the specific service(s) agreed by the Provider with the Customer, described in the Offer or Agreement(s). These include, but are not limited to, sending, receiving and forwarding messages via SMS, WhatsApp or other message services;

5.Intellectual Rights: all intellectual property rights and associated rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and related rights, as well as rights to know-how;

6.Offer: offer from the Provider by email or post to supply a Service or Services. The offer describes in any event what is included in the Service and the payment due by the Customer on acceptance of the offer;

7.Agreement: the arrangements between the Provider and the Customer, including but not limited to those arising from the Offer(s), on the basis of which the Service is provided;

8.Party/Parties: the Customer and the Provider individually and jointly;

9.Personal Data: data that can be traced directly or indirectly to a person;

10.In Writing: 'written' refers not only to written paper, but also includes email, communication via the Account and communication by fax, provided that the integrity of the message and the identity of the recipient can be adequately verified;

11.SLA: a Service Level Agreement as will be agreed or has been agreed between the Customer and the Provider for the purpose of the Service, and in which specific levels of service provision have been elaborated;

12.Works: the works developed by the Provider, such as websites, applications, layouts, data files, software, documentation, reports, analyses, texts, audio-visual material, logos and corporate identities.


Article 2:Offers and proposals

1.Offers may be sent by the Provider to the Customer by email, and the Customer may agree to offers from the Provider by email.

2.All Offers and other proposals made by the Provider are non-binding and remain valid until 30 days after the date stated on the Offer. Other proposals remain valid until 30 days after the date when the relevant proposal was made.

3.Notwithstanding the provisions of Section 6:225(2) of the Dutch Civil Code, the Provider is not bound by a derogating acceptance by a potential Customer of an offer made by the Provider.

4.Any delivery times made known by the Provider or any other performance terms on the part of the Provider are indicative only. Exceeding the aforementioned delivery times or terms does not entitle the Customer or potential Customer to compensation or termination.

5.Any prices made known by the Provider are exclusive of VAT and other government levies unless otherwise specified.

6.The Provider is not bound by an Offer if it should be clear to the Customer within reason that the Offer, or part thereof, contains a clear mistake or writing error.


Article 3:Agreements and order of precedence

1.Agreements between the Provider and the Customer become effective only when the Customer agrees to an Offer, Agreement or other proposal from the Provider.

2.Agreements become effective for the duration as defined in the Agreement, associated Offer or other proposal from the Provider. Where the duration has not been defined, the Agreement is concluded for an indefinite period of time, unless the nature of the Agreement suggests otherwise.

3.Unless otherwise agreed, fixed-term Agreements are automatically renewed for 12 calendar months each time, unless either Party cancels the Agreement In Writing at least three calendar months before the Agreement expires.

4.An Agreement can be amended In Writing only if both Parties agree to this.

5.Each Party is entitled to cancel the Agreement with immediate effect, without observance of any cancellation period, a notice of default or court intervention, if and as soon as:

a.the other Party is declared bankrupt;

b.that other Party has been granted a suspension of payments;

c.either Party has been dissolved or wound up.

6.If the Customer fails to comply with any obligation to which he/she is subject under the Agreement or these General Terms and Conditions, the Provider has the right to suspend or terminate its performance of all the Agreements it has concluded with the relevant Customer, without any notice of default or legal intervention being required, and without prejudice to the Provider's right to compensation for damage or loss, loss of profit and interest.

7.In the event of a conflict between the provisions in the documents below, the following order of precedence applies:

a.the Processor's Agreement;

b.the SLA;

c.the Agreement;

d.these General Terms and Conditions.


Article 4:Account

1.If the Customer needs to have an Account in order to use the Services, the Provider will issue a user name and password to the Customer. These give the Customer access to the Account, so that the Customer can manage the services within the parameters set by the Provider.

2.The Customer is prohibited from making available to third parties any user names and passwords made available by the Provider unless the Provider has given permission to do so. The Customer is responsible for protecting and storing passwords and user names, and will notify the Provider forthwith in the event that user names and/or passwords are lost. The Provider is not liable for the consequences of the loss of user names and passwords by the Customer.

3.The Provider may change the Customer's user name and/or password if such is necessary in terms of the proper functioning of the Provider's Services.


Article 5:Misuse and improper use

1.The Customer guarantees that the Services will not be used for activities that are in contravention of the provisions of Dutch law. The Customer must refrain from any unauthorised use of the Service and will adopt an approach and conduct himself/herself according to what the Provider might expect from a careful user of the Service.

2.The Customer will refrain from storing and/or distributing, or commissioning the distribution of, material in contravention of the provisions of Dutch law, including in any case but not confined to material that:

a.contains libellous, defamatory, insulting, racist, discriminating or hate-inducing information;

b.concerns child pornography or bestiality;

c.infringes third-party rights, including in any case but not confined to copyrights, trademark rights and portrait rights, or is unlawful towards holders in any other sense;

d.violates the privacy of third parties, including in any case but not confined to distributing third-party Personal Data without permission or necessity, or repeatedly harassing third parties by providing them with unwanted communications;

e.contains hyperlinks, torrents or similar information of which the Customer is aware or should be aware that it refers to material that infringes third-party rights;

f.can cause overloading or faults among other Customers of the Provider or other Internet users;

g.contains malicious content, such as viruses or spyware.

3.If the Provider suspects an infringement of the conditions from the previous paragraphs of this article, the Provider may take any reasonable measures to put an end to such infringement. The Provider will notify the Customer of this as soon as possible, and involve him/her in the measures to be taken where possible. However, the Provider will never be liable to pay compensation for any damage as a consequence of such measures.

4.The Provider may disclose the name, address and other identifying data of the Customer to a third party with a legal claim, provided that the correctness of the claim has been established within reason. Furthermore, the Provider is entitled at all times to report any criminal acts discovered.

5.The Provider is not liable for any damage suffered by the Customer as a result of any action taken by the Provider following a report from a third party, even if the report turns out to be incorrect.


Article 6:Resellers

1.The Customer may resell the Provider's Services, whether or not under its own name, only if the Customer has obtained permission In Writing from the Provider for this purpose.

2.If the Customer resells Services, such is done at its own expense and risk. The Customer may not conclude agreements for or on behalf of the Provider, or give the impression that it is entitled to represent the Provider.

3.If the Customer resells Services, the Customer must essentially impose the same obligations on its customers as those imposed by the Provider on the Customer.

4.If the Customer's customers fail to pay or fail to do so in good time, this does not release the Customer from its payment obligations towards the Provider.

5.If the Customer resells Services, the Customer will remain fully liable for all that its customers do and fail to do via the Services.

6.If an Agreement comes to an end due to a failure to perform on the part of the Customer, the Customer will inform its customers that they can approach the Provider for the Services from then on.

7.Unless otherwise agreed, the Provider will be entitled to communicate with any of the Customer's customers, or to make an offer to such customers for the provision of Services.


Article 7:User right, intellectual property and data

1.The Provider or its suppliers or partners are the holders of the Intellectual Rights associated with the Service or parts thereof. The Customer only obtains the user rights granted to it under this Article and/or under the Agreement.

2.The Customer obtains from the Provider a non-transferable user right to make use of the Service for the duration of the Agreement, for the purpose of the Intellectual Rights associated with the Service or parts thereof.

3.Reverse engineering of the Service or any part thereof is not permitted.

4.Where applicable, the Customer is the holder of the Intellectual Rights associated with messages it has drawn up or other information sent via the Service.

5.The Provider obtains from the Customer an unlimited licence to distribute, store, forward or copy all materials distributed by the Customers via the Provider's systems, in any manner deemed appropriate by the Provider, but solely to the extent this is reasonably required for the purpose of the Provider's fulfilment of the Agreement.

6.The Provider may include any trade name, word mark (brand name) or pictorial mark (company logo) in its public customer portfolio.


Article 8:Sending and receiving messages

1.Messages can be sent via the Provider's Services, which include SMS and WhatsApp. Each message to be sent must contain an existing, authorised mobile number which belongs to the Customer or someone who has given permission for the use of his or her mobile number. The Provider is entitled not to deliver messages when there is insufficient sender information.

2.The Customer acknowledges that delivery and receipt of messages depends on telecommunication companies, mobile network operators, Internet service providers, cross-platform instant messaging providers, any other third parties and the validity of the mobile number of recipients.

3.The Provider undertakes to deliver the Customer's messages as quickly as possible, but cannot guarantee a specific maximum delivery time. As regards WhatsApp messages, it is expressly stated that the successful delivery of these messages cannot be guaranteed, as WhatsApp frequently changes its software, which can disrupt the link with the Services.

4.If and where required for the proper performance of the Agreement, the Provider has the right to have certain activities performed by third parties. Any unforeseen additional costs relating to the above will be borne by the Provider, unless otherwise agreed.

5.The Customer is obliged to do everything that is reasonably required and desirable to ensure that the contract is performed correctly on a timely basis. In particular, the Customer will ensure that all data, which the Provider states are essential or in respect of which the Customer should reasonably understand that these are required for the purpose of performing the contract, are provided to the Provider in good time.

6.The Customer will supply a SIM card at the Provider's request to enable the Provider to perform the agreed Services.

7.A SIM card supplied by the Customer will be used by the Provider only for the purpose of performing the Service.

8.As regards received messages that are to be forwarded to the Customer, the Provider will endeavour to add the telephone number from which the message was sent and retain the content of the relevant message without any changes.


Article 9:SMS message credit

1.SMS messages sent by the Provider on behalf of the Customer are deducted by the Provider from the SMS message credit bought by the Customer.

2.As the Provider cannot guarantee the delivery of SMS messages due to its dependence on third parties, the Provider will not pay any non-delivered messages back to the Customer.

3.Any SMS message credit bought by the Customer will not be paid back by the Provider. If no one has logged into the Customer's Account for the last 12 months or longer, or if the Agreement has ended, the Customer's SMS message credit will be set at zero without prior notice to the Customer.

4.The Provider will not send any SMS messages when the Customer's message credit has run out.


Article 10:Availability and support

1.The Provider will endeavour to provide the Services as well as possible, but does not give any guarantees in terms of its performance, unless the Customer has taken out an SLA which contains such assurances.

2.The Provider may take its systems, including its website, or parts thereof temporarily out of service where such is necessary for the purpose of the maintenance, adjustment or improvement of its Services. The Provider will endeavour to ensure that, as far as possible, any such period of inactivity only takes place outside office hours, and will undertake to inform the Customer in good time of any scheduled periods of inactivity. However, the Provider is never liable for damages arising from such periods of inactivity.

3.The Provider has the right to adapt its systems, including its website, or parts thereof from time to time in order to improve their functionality and correct errors. If an adjustment results in a considerable change in functionality, the Provider will undertake to inform the Client of this. In the event of adjustments that are relevant to multiple Customers, it is not possible to waive a specific adjustment for the Customer only. The Provider is not liable for any compensation for damages resulting from such an adjustment.

4.In the event of unavailability of the Service due to disruptions, maintenance or other causes, the Provider will endeavour to inform the Customer of the nature and expected duration of the interruption.

5.The Provider will endeavour to keep the software it uses up to date. However, the Provider is dependent on its suppliers in this respect. The Provider may decide not to install certain updates or patches if it believes this will not be beneficial to the correct performance of the Services.

6.Any compensation clause included in an SLA, on the basis of which the Customer can claim compensation if the Provider fails to perform as agreed, is to be regarded as a penalty clause as defined in Book 6 of the Dutch Civil Code (Part 1, Section 9, Paragraph 4).

7.Faults can be reported by sending an email to the email address mentioned on the Provider's website. This can also be done by calling the general telephone number mentioned on the Provider's website.


Article 11:Privacy

1.In some cases, messages are sent without encryption; this depends on the application used and the method used to send the message. The Customer is aware that such messages can be intercepted and viewed.

2.The Provider may comply with a request from an authorised source for wiretapping. The Provider is not liable for any consequences thereof, including any damage suffered by the Customer as a consequence of the aforementioned wiretapping.

3.Sent, received and forwarded messages, as well as any additional data on these messages, are stored by the Provider for a period from three to six months.

4.The Customer gives permission to the Provider to include his or her Personal Data and other data in its customer registration system. The Provider may use this system for administrative and service-based purposes, which includes providing information about new functionalities in the Service.

5.Where Personal Data collected by the Customer are processed in the use and/or performance of the Service and/or the Agreement, the Parties will set out their rights and obligations regarding this processing of Personal Data in further detail in a processor's agreement.


Article 12:Confidentiality

1.The Parties will treat the information they provide each other before, during or after the performance of this Agreement as confidential if such information has been marked as confidential or if the receiving Party is aware or can reasonably assume that the information is intended to be confidential. The Parties will also impose this obligation on their employees as well as on any third parties they have engaged to perform the Agreement.

2.This obligation to observe strict confidentiality applies for the duration of the Agreement and for two years after termination of the Agreement.

3.The Provider is entitled to demonstrate to third parties that it provides Services to the Customer in order to promote its Services.


Article 13:Liability

1.The Provider's liability because of an attributable failure to perform the Agreement is limited to a maximum of the amount the insurer pays to the Provider on that account.

2.If the Insurer of the Provider does not pay anything or only pays a limited amount, the liability of the Provider because of an attributable failure to perform the Agreement will be limited to a maximum of the invoice amount the Customer paid to the Provider in the month preceding the month in which the event causing the damage occurred.

3.Except for the cases referred to in the preceding paragraphs, the Provider will not be liable to pay any compensation whatsoever, regardless of the grounds on which a claim for compensation may be based. The Provider is explicitly not liable for any consequential losses, loss of profit, lost savings, the corruption or loss of business and other data, and any loss due to business stagnation.

4.The Provider will never be liable for any damage caused by force majeure (see Article 14).

5.Any right to claim compensation will be subject at all times to the condition that the Customer notifies the Provider of the damage or loss In Writing within 14 days after it has arisen.

6.The Customer indemnifies the Provider against any claims by third parties associated with the use of the Services by the Customer or by third parties whose behaviours can be attributed to the Customer.

7.The exclusions and limitations of liability referred to in these General Terms and Conditions cease to apply if and to the extent that the damage or loss is a consequence of an intentional act or wilful recklessness on the part of the Provider.


Article 14:Force majeure

1.In the event of force majeure, which includes in any case disruptions to or breakdowns in the Internet or the telecommunications infrastructure, power failures, network attacks (such as SYN flood, DoS or DDoS attacks), power failures and cases where the Provider's own suppliers make it impossible for the Provider to deliver – regardless of the reason – as a result of which the Provider cannot reasonably be expected to comply with the Agreement, the Provider will be entitled to suspend the performance of the Agreement or to terminate the Agreement if the situation of force majeure has exceeded a ninety-day period, all this without any obligation to pay compensation.


Article 15:Payments

1.The Customer must make a payment or payments to the Provider for the provision of the Services.

2.The aforementioned payment or payments are further specified in the Offer and/or Agreement.

3.Invoices are sent electronically. The Customer agrees to this invoicing method.

4.An invoice must be paid within 14 calendar days, calculated from the invoice date.

5.If the Agreement is a continuing performance contract, the Provider may change the applied rates at any time once three months have lapsed since the start date of the Agreement. The Provider will notify the Customer of any rate changes at least two months in advance.

6.Once the payment term mentioned in Paragraph 5 has lapsed, the Customer will be in default by operation of law, without notice of default being required.

7.If an amount owed by the Customer is not paid within the payment term, the outstanding amount will be subject to the statutory commercial interest rate, without any further notice of default by the Provider being required.

8.In the event that the Customer fails to pay in time, it must pay in full both judicial and extra-judicial collection costs, including costs charged by lawyers, bailiffs and debt-collection agencies, in addition to the amount owed and the accrued interest on that amount.

9.The claim will be immediately due and payable in the event that the Customer is declared bankrupt or applies for a suspension of payments, or if the Customer’s assets are attached, the Customer dies, or if the Customer's business is wound up or dissolved.

10.The Provider will be entitled at all times, before starting or continuing to perform the Agreement, to demand from the Customer that a financial guarantee is provided which gives adequate assurance that it can and will comply with its payment obligations.

11.The Provider may offset any amounts the Customer owes to it. The Customer may never offset any amounts charged by the Provider.

12.Under no circumstance can the Customer suspend the payment of invoices.

13.If the Customer buys several Services and fails to pay for one Service within the payment term, the claims regarding the other Services bought will be immediately due and payable. The Provider may also suspend the other Services or terminate the Agreement, without the Customer being entitled to compensation for any damage that occurs as a result.


Article 16:Amendments to the General Terms and Conditions

1.The Provider reserves the right to amend or supplement these General Terms and Conditions.

2.Amendments also apply with respect to Agreements already concluded, subject to a term of 30 days following the announcement of the amendment by electronic notification to the Customer.

3.In the event the Customer does not wish to accept an amendment to the General Terms and Conditions, it may terminate the Agreement In Writing up to the date on which the amendment takes effect.

4.Amendments of minor importance and amendments due to a change in the law can be implemented at any time. In case of such amendments, the Provider is not obliged to announce them in advance. Such amendments do not entitle the Customer to cancel the Agreement as described in the previous clause of this article either.


Article 17:Other provisions

1.The Agreement is governed by Dutch law.

2.Changes to management or legal form will not affect the Agreement.

3.The version of any communication, administration and log files concerning, for example, the message credit bought and the number of sent messages, received or stored by the Provider, is considered authentic and compelling evidence, barring evidence to the contrary to be provided by the Customer.

4.In case a provision from the Agreement and/or the General Terms and Conditions turns out to be null and void, this will not affect the validity of the Agreement/General Terms and Conditions as a whole. The Parties will agree on one or more replacement provisions, which will reflect as far as possible under the law the purport of the original Agreement/General Terms and Conditions.

5.To the extent that the rules of mandatory law do not prescribe otherwise, all disputes that may arise from the Agreement will be referred for adjudication to the competent court in the Netherlands in the district where the Provider has its offices.