I. INTRODUCTION AND PURPOSE
MEDIASMART MOBILE, S.L. (hereinafter: “MEDIASMART”) is a Spanish limited liability company, duly registered with the Mercantile Registry of Madrid, with Company Tax Identification No.: B-86329638 and with registered office in Madrid (28003), c/ Boix y Morer nº 9 – Piso 1º Puerta 5, which operates – amongst others – in the fields of mobile advertising; and is the owner of an Internet website (hereinafter, the WEBSITE), which hosts an interactive advertising platform (hereinafter, the “BSMART PLATFORM”). In general and without prejudice -as the case may be- to the possibility of access via third-party links and/or from other Internet domains, the WEBSITE and the BSMART PLATFORM are accessible through the URL (Internet address): http://www.mediasmart.com Through the WEBSITE, MEDIASMART makes available to USERS of the BSMART PLATFORM access and use of several functionalities and contents (hereinafter, the “Services”). These terms and conditions aim to establish and regulate general access and use of the WEBSITE, as well as of the BSMART PLATFORM and -as the case may be-, the different contents and services provided by MEDIASMART or by third parties from and/or through the WEBSITE.
Both access and general usage of the BSMART PLATFORM confer the condition of REGISTERED USER (hereinafter, the “USER”), and necessarily imply full acceptance without reservations of each and every provision included in these terms and conditions. USERS are specifically notified, and accept, that these conditions may undergo modifications in the future at MEDIASMART’s sole discretion and without any obligation to give prior notice. As a consequence, USERS shall be exclusively responsible for verifying the terms and conditions in effect each time he or she intends to use the BSMART PLATFORM.
Usage of specific services provided to USERS through the WEBSITE and/or the BSMART PLATFORM may be subject to particular conditions (hereinafter, the “Particular Conditions”) which, according to each case, may substitute, complete and/or modify these general terms and conditions
II. ACCESS LEVELS AND USER REGISTRATION
In general, access to the public (open) areas of the WEBSITE will be free. Nevertheless, MEDIASMART conditions access to the BSMART PLATFORM following completion of the corresponding USER registration form.
Furthermore, MEDIASMART may make available to USERS certain Services whose use may require the completion of additional registrations and/or payments. In this cases, such registration shall be carried out in the way specifically described in the service itself or under the particular conditions that may regulate it. The condition of USER of the BSMART PLATFORM requires and presupposes age of majority according to the law in the USERS’ local jurisdiction. The USER declares to MEDIASMART that, in any event, they are at least eighteen (18) years old at the time of registering on the WEBSITE and/or the BSMART PLATFORM.
USER guarantees the truth of the declaration above, as well as of the registration data provided to MEDIASMART and he or she is responsible for keeping it fully up to date while their condition as USER is in effect. In any event, the USER shall be exclusively responsible for any false or inaccurate declarations made and for any damage caused to MEDIASMART and/or to third parties by the information provided. MEDIASMART reserves the right to refuse registration in the BSMART PLATFORM. This refusal shall not give any right to compensation.
Once the registration process is satisfactorily completed, MEDIASMART shall enter the USER in its database of registered users. An account shall be generated with his or her email address and associated password for each USER
III. USER OBLIGATIONS
USER’s obligations, without prejudice to those that may arise from the different stipulations of this document, shall be as follows: Pay the corresponding economic compensation agreed for use of the BSMART PLATFORM, and strictly respect the terms of its license for use, as laid down under section V of these terms and conditions.
The USER shall be obliged to guarantee the truth and accuracy of the registration data entered into MEDIASMART’s information systems and to update such data if necessary. In any event, the USER shall be exclusively responsible for false or inexact declarations made for any damage caused to MEDIASMART or third parties by the information provided. The USER shall be obliged to scrupulously comply with national regulations in force as regards Data Protection in entering data on third-party employees, collaborators and/or clients in the BSMART PLATFORM, expressly undertaking to compile and document any authorizations that may be necessary regarding the affected parties, prior to entering any of their personal data in the BSMART PLATFORM. Carefully safeguard the “USER” and access password provided by MEDIASMART to the USER, preventing access by unauthorized third parties thereto and therefore ensuring their confidentiality.
Immediately notify MEDIASMART of any indication of the existence of a breach of security in the WEBSITE and/or the BSMART PLATFORM, of inappropriate or prohibited uses of the services provided therefrom, or of security failures of any kind. Make proper use of the contents, information and services provided from or through the WEBSITE, in accordance with the law, good faith and generally accepted customs, expressly undertaking to:
Abstain from carrying out practices or uses of the services with illicit or fraudulent purposes, damaging to the rights or interests of MEDIASMART or of third parties, in breach of the regulations set forth herein or under the Particular Conditions that, as the case may be, regulate any of the services provided from or through the WEBSITE. Abstain from carrying out any kind of action that could disable, overload or damage systems, equipment or services of the BSMART PLATFORM or directly or indirectly accessible through the WEBSITE.
Respect the intellectual and industrial property rights of MEDIASMART and of third parties regarding the contents, information and services provided from or through the WEBSITE and/or the BSMART PLATFORM, generally refraining from copying, distributing, reproducing or communicating them in any way to third parties, without express authorization in writing from MEDIASMART or from the holders of such rights.
IV. INTELLECTUAL AND INDUSTRIAL PROPERTY AND TERMS OF THE LICENCE FOR USE OF THE BSMART PLATFORM
All the software and contents of the WEBSITE, including: the BSMART PLATFORM, html code, texts, animations, images etc. in addition to the trademarks, trade names and/or distinctive marks displayed are property of MEDIASMART or of third parties and are protected by national and international intellectual and industrial property laws. Any use of them outside of the WEBSITE, including the reproduction, modification, distribution, transmission, republication, arrangement or representation of any part thereof, is strictly forbidden without express written consent from MEDIASMART. TERMS OF THE LICENCE FOR USE OF THE BSMART PLATFORM This section establishes the terms and conditions of the license for use of the BSMART PLATFORM.
By accepting the terms and conditions of the license for use, the licensee declares his or her full acceptance without reservations of such terms and conditions, and that he or she has full legal capacity to enter into contracts and subject to any legal incapacity, and that the data provided through the corresponding form is exact and correspond to reality, they being, otherwise, responsible for any possible damage for which MEDIASMART may be responsible to third parties. This agreement grants the USER a NON-EXCLUSIVE LICENCE FOR USE of the MEDIASMART BSMART PLATFORM.
It is prohibited to lease or resell this license for use. The USER licensee shall not lease or hire the BSMART PLATFORM to any third party unless specifically authorized in written Agreement by MEDIASMART to do so. In particular, the licensee USER may not: Rent, sell, lease, assign, grant sublicenses or transfer to third parties the rights granted by virtue of this license section. Transform, including the translation, or carry out modifications or derived works from the BSMART PLATFORM.
This license for use will be automatically terminated if the licensee does not comply with the conditions laid down. This license for use does not include such other services as: (a) corrective maintenance as regards problems not caused by software or code provided by MEDIASMART, or by MEDIASMART’s software or code but which has been manipulated or modified by personnel not belonging to MEDIASMART; (b) corrective maintenance for problems not caused by hardware provided by MEDIASMART; (c) corrective maintenance for problems caused by the incorrect or inadequate use of the BSMART PLATFORM; (d) installation, updating or repair of third-party software, including operating systems.
V. EXCLUSION OF WARRANTIES
Access to the WEBSITE and usage of the BSMART PLATFORM does not imply any kind of warranty, which MEDIASMART expressly refuses, regarding the quality, truthfulness, accuracy, lawfulness, current reality or validity, as well as the usefulness or adaptation to the purpose of usage of whoever accesses them. Both access to the BSMART PLATFORM and the use that may be made of the information and contents included therein or which is accessible therefrom is made under the USER’s exclusive responsibility. Under no circumstances and to no extent shall MEDIASMART be liable for either direct or indirect damages, nor for consequential damage or loss of profit, for the resulting damages arising from use of the BSMART PLATFORM, nor for the information and contents of the WEBSITE or accessible from or through it. MEDIASMART offers USERS no warranty, express or implicit, and refuses any liability for the integrity, accuracy, availability, opportunity, security or reliability of the BSMART PLATFORM. MEDIASMART shall not be liable for any damage, loss of data or any other damage as regards the BSMART PLATFORM and/or the information contained or hosted therein. In no way does MEDIASMART guarantee the quality, truthfulness, accuracy, lawfulness, current reality or validity, as well as the usefulness or adaptation to any purpose of the functionalities comprised in the BSMART PLATFORM. MEDIASMART also excludes, to the full extent provided by law, any liability of any kind for the quality, truthfulness, accuracy, lawfulness, current reality, validity or usefulness/adaptation to any purpose regarding the BSMART PLATFORM and/or the contents that make up the WEBSITE. The WEBSITE and/or the BSMART PLATFORM may contain links to pages that, although within the WEBSITE, are under the responsibility of third parties. Furthermore, the WEBSITE may contain links to pages in all cases external thereto. In both cases, MEDIASMART cannot control or supervise such content in any way. MEDIASMART excludes, to the full extent provided by law, any liability of any kind, arising from the existence or possibility to access such contents. Furthermore, MEDIASMART shall not be liable in any case, even indirectly or vicariously, for products or services provided or offered by other persons or entities, or for contents, information, communications, opinions or declarations of any kind originating from or given by third parties and which are accessible through the BSMART PLATFORM. MEDIASMART reserves the right to unilaterally withdraw the license for use of the BSMART PLATFORM from any USER licensee that breaches any of the principles governing these terms and conditions. MEDIASMART does not provide any warranty that the BSMART PLATFORM will meet the USER licensee’s requirements without interruption, securely or free of errors. Security and Privacy: MEDIASMART shall reasonably use the means within its powers to provide security systems that reasonably protect its systems and the data contained therein against deliberate attacks, malicious software, etc. Nevertheless, the USER understands and accepts the aspects involved in providing the services via Internet in view of the open, decentralized and global nature of this communications network. For this reason, MEDIASMART does not guarantee the impregnability of its security systems nor the privacy of the information hosted therein. MEDIASMART excludes, to the full extent provided by law, any liability of any kind for shortcomings in security on the WEBSITE and/or the BSMART PLATFORM, in addition to the consequences that may arise from them. Cookies Usage Notice: The BSMART PLATFORM uses “cookies” for the sole purpose of permitting and providing the USER’s interaction with it. Furthermore, the statistical services – ours or third parties’ -, used by the BSMART PLATFORM and/or WEBSITE use “cookies” for the sole purpose of establishing metrics and patterns of site usage. Access, use and, in general, navigation of the WEBSITE and/or the BSMART PLATFORM necessarily implies consent of the user to the use of “cookies” by MEDIASMART and/or its service providers. USER consents in such cookie usage and will be able to consult every detail in relation to it in our “Cookie Usage Notice”. Interruptions and/or Suspension of the System: Both the BSMART PLATFORM and the WEBSITE shall be generably accessible without interruption on the Internet. However, USERS are notified that MEDIASMART does not guarantee in any way such continuity due to the nature of the medium through which the service is provided. USERS understand and accept the aspects involved in providing services through Internet in view of the open, decentralized, global nature of the network. Accordingly, by way of example, below are some of the situations that may temporarily interrupt the provision of services: Maintenance work on servers and/or data lines Damage to servers and/or data lines Deliberate attacks against the system’s security and integrity Computer viruses or the presence of malicious code in the pages that make up or are accessible from the WEBSITE and/or the BSMART PLATFORM MEDIASMART excludes, to the full extent provided by law, any liability of any kind arising from the temporary interruption in availability of the BSMART PLATFORM and/or the WEBSITE on the Internet. The USER is notified that MEDIASMART may at any time, at its sole discretion and without any obligation to give prior notice, definitively suspend the presence of the WEBSITE and/or the BSMART PLATFORM on Internet and therefore of the services provided from or through it, notwithstanding what may have been stipulated in this respect – as the case may be – under the relevant Particular Conditions. MEDIASMART is exempt from any kind of liability arising from the consequences that could be caused by the definitive suspension in providing such services.
VI. VOLUNTARY UNSUBSCRIPTION, EXCLUSION AND RESPONSIBILITIES
Any USER may request his or her subscription cancelation, at any time, as a USER of the WEBSITE. MEDIASMART shall have a term of 30 days to study such USER’S situation regarding all the services they were subscribed to in order to, as the case may be, issue an invoice for any usage that, upon receiving the request for subscription cancelation, was pending payment.
Should there exist no amount pending settlement and/or collection, the subscription cancelation shall be made effective immediately. Otherwise, the subscription cancelation shall be subordinate to the effective collection of such amounts by MEDIASMART.
The USER is responsible for proper use of the WEBSITE, of the BSMART PLATFORM and of the services contracted from or through it. Any contrary use of the services by the USER shall imply immediate exclusion from the WEBSITE and from the BSMART PLATFORM with loss of their condition as registered USER thereof, with no right to any compensation and without prejudice to the corresponding legal action that MEDIASMART may bring. The falsehood of personal and/or professional data provided by the USER during the registration process in the WEBSITE, the BSMART PLATFORM or in any of the services provided from or through them may imply immediate exclusion from the WEBSITE and from the BSMART PLATFORM with loss of condition as registered USER thereof, with no right to any compensation and without prejudice to the corresponding legal action that MEDIASMART or third parties may bring.
Any type of action by USERS that could endanger or damage systems, equipment or services accessible directly or indirectly through the BSMART PLATFORM and/or WEBSITE, may imply their immediate exclusion therefrom, with loss of their condition as registered USER, with no right to any compensation and without prejudice to the relevant legal action that MEDIASMART may commence.
Any type of action by USERS that breaches these terms and conditions, the Particular Conditions that could regulate specific Services, the Law or generally accepted good practices, may imply their immediate exclusion from the WEBSITE and/or the BSMART PLATFORM with loss – as the case may be -, of their condition as registered USER thereof, with no right to any compensation and without prejudice to the corresponding legal action that MEDIASMART may commence.
USERS shall be solely responsible for any claim, in-court or out-of-court legal action, brought both by third parties against the USER and against MEDIASMART, based on usage of the BSMART PLATFORM and/or of the services contrary to law, morality, good faith and generally accepted good practices.
For the purposes of notice servicing, MEDIASMART designates as its contact address the one set forth as its own under the heading of these terms and conditions. The email provided by the USER during the registration process on the WEBSITE shall be the one used by MEDIASMART for the purpose of notice servicing to the USER. The USER is required to properly update the data for serving notice referenced in this clause.
All notices that MEDIASMART serves to the USER shall be considered as validly made if they have been carried out using the data and in the manner described above. MEDIASMART accepts no liability for any damage that may be caused by USERS’ non-compliance with their obligation to keep their contact data updated.
VIII. SEVERABILITY AND ENTIRE AGREEMENT
Should any stipulation contained under these terms and conditions be declared null and void, this shall not affect the validity and effectiveness of the other clauses. These terms and conditions of the services provided by MEDIASMART through the WEBSITE make up the entire agreement between the parties, considering them to be of a higher rank than any previous written or verbal agreement, understanding, statement, representation, negotiation or covenant regarding this matter.
IX. GOVERNING LAW AND JURISDICTION
These terms and conditions shall be governed and construed in every regard in accordance with the Laws of the Kingdom of Spain.
Both MEDIASMART and the USER undertake to endeavor to solve any disagreements that could arise in their commercial relationships in an amicable manner. To settle any litigious matter that could arise in their commercial relationships, both parties agree to submit to the jurisdiction of the Courts and Tribunals of the city of Madrid (Spain), except -as the case may be-, mandatory legal submission to a party’s jurisdiction.