These terms were last updated: 13th March 2023
These terms and conditions apply to our Clients or data controllers.
THIS POLICY ONLY APPLIES TO THE DATA YOU SHARE WITH US WHERE YOU, OR OTHER THIRD PARTIES, ARE THE DATA CONTROLLER AND WE ARE THE DATA PROCESSOR.
1. About these terms
Púca (Púca Technologies Limited) is a software company based in Dublin, Ireland, that provides a messaging platform, SMS gateway and app development services.
These terms and conditions apply to any Client using Púca’s platform and services.
The Client (Data Controller) refers to the person, the firm or the company ordering or buying goods or services from Púca (Data Processor).
“The Agreement” or “This Agreement” refers to the Púca General terms on this page which apply to the commercial terms agreed with the customer.
2. Pricing and payment
All prices are exclusive of VAT and similar taxes. All such taxes will be levied at the time of invoice.
Unless otherwise agreed, all charges are payable in advance and Client cannot use the Púca service until Client’s payment has been received.
Unless stated otherwise, software agreements are for a minimum 1 year term which will auto renew for the same term. An invoice will be issued and payable for the new agreement term unless cancelled up to 2 weeks prior to the renewal date indicated in the Agreement. Note that autorenewal does not apply to agency campaigns which are usually of a shorter duration.
Púca shall state the payment terms on all proposals and invoices issued to Client.
The standard payment term is 30 days. In some cases such as message bundle top-ups the payment term on the invoice or proposal is “Immediate”, in which case the invoice shall be considered overdue if payment has not been received by Púca within 7 days.
Client shall pay any applicable transaction or currency exchange fees levied by the Client’s bank, Client’s payment partner, or any intermediate banks or financial institutions that are incurred when making a payment to Púca.
All invoices from Púca to the Client must be paid within the period specified on the invoice and the period is deemed to start on the date shown on the invoice unless otherwise agreed. Failure to pay any amount when due shall constitute a breach of these terms. An invoice number shall be included in the invoice that must be quoted in the payment transfer details when payment is made.
Púca may charge daily interest at a rate of two percentage points above the ECB Base Rate on all overdue invoices relating in whole or part to a negative currency balance on Client’s account, starting on the date the invoice became overdue and ending on the date that the overdue payment is received. Where the overdue invoice only consists in part of a negative currency balance on Client’s account, Púca shall only charge interest on the total negative amount and not on any prepayment part.
In all cases Client must inform Púca within 7 days from the invoice date of any discrepancies or errors on an invoice. If the Client does not, Púca will assume that the Client accepts all information noted on Púca’s invoice. This period does not affect the payment term.
Púca reserves the right to remove credit facilities at any time.
3. SMS Services
Púca prices per SMS message and service charges are subject to prices charged by the mobile operators. In the case of a rise in messaging or service prices on the part of the mobile operators, Púca reserves the right to pass on the additional cost to the Client 30 days after communicating the forthcoming change in an SMS price change notice. For the avoidance of doubt, this provision overrides any prices quoted in the rate card.
Where applicable, any bundles or messages pre-purchased prior to pricing changes will be restated according to the applicable new Rates (based on the new rate for the original purchase quantity).
Please note that for inbound Freetext messages the Client also pays a percentage of unhandled messages on the shared Freetext short code according to the proportion of traffic relating to the client. Any such charges shall be invoiced in arrears or deducted from the Freetext bundle as applicable.
Message charges shall be deducted from the Client’s credit balance or added to their account (for post-pay Clients) immediately upon message submission to the mobile operator regardless of delivery status.
Pricing and coverage changes will be advised to the Client by email and shall be considered as communicated to the Client at the time the email is recorded as sent by Púca. Púca shall not be liable for any indirect, incidental, special or consequential damages arising from pricing and coverage changes, including (without limitation) loss of profits, revenue, or interrupted communications, even if Client has not received the pricing and coverage changes communication.
In the event that a Network Operator or regulator elects or is required itself to handle a user complaint or other complaint in respect of the Client’s Service and charges any refund amount or other charge to Púca, then Púca shall be entitled to charge the same amount to the Client.
Unless otherwise agreed, Pre-paid message bundles will expire automatically after 12 months unless the agreement renews immediately after the agreement term.
4. Mobile App and Web Services
App and web services will have a separate Maintenance and Service Level Agreement which will outline your service level agreement.
Confidential information shall mean all information disclosed by the Client or Púca, whether commercial, financial, technical or otherwise, including without limitation all secret or confidential information in whatever form, together with all analyses, compilations, data, studies, diagrams, tables or other documents.
The Client and Púca undertake that they shall at all times during and subsequent to the period of the Agreement, hold any Confidential Information received from the other party or in its possession which relates to the other in strict confidence and secrecy and shall not use, disclose, publish or otherwise make available to any third party any such information save as is strictly necessary for the proper performance of its obligations under the Agreement.
The obligations pursuant to the Agreement shall not apply to any Confidential Information that:
- is in the possession of the Recipient prior to receipt from the Disclosing Party;
- is or becomes publicly known, otherwise than as a consequence of a breach of the Agreement;
- is developed independently by the Recipient without access to the Confidential Information;
- is disclosed by the Recipient to satisfy the legal demand by a competent Court of Law or government body, provided however that in these circumstances the Recipient shall advise the Disclosing Party prior to disclosure so that the Disclosing Party has an opportunity to defend, limit or protect against such production or disclosure, and provided further that the Recipient will disclose only that portion of Confidential Information which is legally required to be disclosed and the Recipient will exercise its reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to any Confidential Information so required to be disclosed;
- is disclosed to a third party pursuant to written authorisation from the Disclosing Party;
- consists solely of generalised ideas, concepts, know-how or techniques relating to computer hardware or software; or
- is received from a third party without similar restrictions and without breach of the Agreement.
The obligations of the Client and Púca as to confidentiality shall continue in force notwithstanding the termination or expiration of the Agreement.
6. Intellectual Property
Intellectual Property means all intellectual property rights including (without limitation) patents, trademarks, service marks, rights (whether registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, database rights and copyright.
The Client acknowledges that, the goodwill and all Intellectual Property rights in and associated with Púca’s Intellectual Property shall at all times remain the exclusive property of Púca. If any rights in Púca’s Intellectual Property at any time accrue to the Client by operation of law or otherwise, the Client shall at its own expense immediately on demand do all acts and things and execute all documents as Púca shall reasonably deem necessary to vest the rights absolutely in Púca.
The parties shall immediately notify the other of any circumstances coming to their attention which may constitute an infringement of the Client’s Intellectual Property (in relation to Púca) or Púca’s Intellectual Property (in relation to the Client) or any suspected passing off by any unauthorised person.
Each party will retain ownership of its Intellectual Property (including its logo, brand, Marks, trademark or other similar representation) and the use of such intellectual property on any advertising, marketing, or other material relating to or connected with the Agreement shall be subject to the prior written approval of the owner (such approval not to be unreasonably withheld).
Notwithstanding the foregoing, the Client consents to its name and logo being used by Púca for the purpose of providing a list of clients on their website and in promotional material as also referenced in clause 16.
7. Limitation of Liability
Púca’s liability under the Agreement shall be limited to the total amount received by Púca, under the terms of the Agreement.
8. Delivery and additional requirements
Any date or time quoted for delivery is to be treated as an estimate only. Delivery may be postponed or delayed due to conditions beyond Púca’s reasonable control, and in no event shall Púca be liable for any damages or penalties for delay in delivery
All work carried out in addition to that specified in the relevant proposal, quotation or order, whether experimentally or otherwise, is subject to additional charges. Any additional costs will be presented to the client for approval prior to the work being carried out.
9. Cancelled Orders
If the service is deemed by Púca to be controversial or 18+ we reserve the right not to provide the service
No order which has been accepted by Púca may be cancelled by the Client except with the agreement in writing from Púca and the Client shall indemnify Púca in full against all loss (including loss of profit), costs (including the cost of development, labour and materials used), charges and expenses incurred by Púca as a result of the cancellation.
Without limiting its rights under this condition in any way, Púca reserves the right to charge the client a cancellation fee of minimum 50% of the price of the goods or services should the Client cancel the order without prior agreement of the company.
Once the Client begins using the product or service provided by Púca, then this will be regarded as fulfilment of the order by Púca .
10. Clients Obligations
Client agrees that any equipment provided by Púca must be returned in good order, and if damaged will be subject to a replacement fee.
The Client ensures that its customers will at all times comply with the provision and obligations imposed by the Data Protection Act 1988 and the Data Protection (Amendment) Act, 2003, ePrivacy Regulations 2011 (S.I. 336 of 2011), Consumer Protection Act 2007, the Directive 95/46/EC (“General Data Protection Regulation” or “GDPR”) and any statutory modification or re-enactment thereof for the time being in force or any regulations made pursuant thereto (the ‘Data Protection Obligations’), including the storing and processing of personal data and all personal data acquired by it. The Client agrees to indemnify Púca in respect of any loss, damage, liability, costs or expenses incurred by Púca by reason of the unauthorised storing, processing of disclosure of personal data or any breach of the Client’s Data Protection obligations.
The Client acknowledges and warrants that the service shall be used to send only Information expressly requested by Mobile Subscribers and that users or Subscribers shall be given the possibility to withdraw their consent at any time. The Client must have a mechanism in place that records this withdrawal of consent and ensures that no messages are sent to that person thereafter.
The Client acknowledges and warrants that the service shall not be used:
- to transmit any material which is offensive, unlawful, defamatory, obscene, menacing, or in breach of copyright, confidence, privacy or any other rights;
- to cause annoyance, inconvenience or needless anxiety;
- other than in accordance with the local regulation and use policies and rules of any relevant Operator or Regulatory Body;
Client is advised that Network Operators and other telecommunications providers may suspend Púca’s access to the telecommunications networks in case the information were not compliant with the provisions in this Section; therefore, in case the Information were found to be offensive or unacceptable by third parties, in particular Regulatory Bodies or Operators in any jurisdiction, Púca would be entitled, without owing any indemnity to Client, to suspend or terminate the service.
The Client shall indemnify and keep indemnified Púca (including Púca’s officers, directors, shareholders, employees, agents, and contractors) at all times from and against all claims, proceedings, demands, damages, liabilities and costs incurred, including legal fees and expenses, resulting from, in connection with or arising out of any breach of any terms of the Agreement by Client and for any reason fraudulent, negligent, or otherwise of the failure of the Client to comply with all applicable laws, regulations and advertising standards. The Client shall provide all assistance reasonably required by Púca to enable Púca to resist any action, claim or proceeding brought against Púca as a consequence of any breach by Client, and to enforce the rights granted to Púca by Client in the Agreement. Without prejudice to the generality of the foregoing, the Client will be liable for any increased costs or expenses and for any loss of profit, business, contracts, revenues, or anticipated savings incurred by Púca due to breach of the Agreement by the Client.
The Client shall authorise Púca to process the data in any manner that may reasonably be required in order for Púca to carry out the processing in compliance with these terms.
The Client shall refrain from providing instructions which are not in accordance with applicable laws and, in the event that such instructions are given, Púca is entitled to resist carrying out such instructions.
For further Information about your regulatory obligations please see:
11. Púca’s obligations as Data Processor
To respect the privacy and security of any personal data of the client and to comply with any Data Protection (DP) legislation and rules such as (but not limited to) the General Data Protection Regulation 2016/679 and the Data Protection Act 2018
Púca will treat the personal data and any other information provided by the Data Controller as confidential and will ensure that access to the personal data is limited only to authorised persons who require access to it for the purposes defined in the Agreement.
Púca will not disclose any personal data to a third party in any circumstances other than at the specific written request of the Client, unless such disclosure is necessary in order to deliver the messaging Services, or is required by applicable legislation.
Púca undertakes to implement the appropriate organisational and technological measures in such a manner that meet the requirements of applicable law, in particular relevant data protection legislation, in order to ensure the protection of the rights of the Data Subjects.
Púca will ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. In this context, Púca will ensure that all such authorised persons have undergone the required training to discharge the obligation to uphold confidentiality as required by applicable laws.
The Client consents to Púca engaging third party sub-processors provided that:
- The subprocessor is located in the EEA
- If the subprocessor is not in the EEA (e.g. for reasons that the messages are being delivered a country outside of the EEA) please refer to the below*
- Púca maintains an up-to-date list of its main sub-processors
- Púca imposes data protection terms on any sub-processor it appoints that require it to protect personal data to the standard required by Applicable Data Protection Law; and
- Púca remains liable for any breach of this Addendum that is caused by an act, error or omission of its sub-processor.
- Púca will inform the Client of any intended changes concerning the addition or replacement of other processors before such changes are effected.
The Client may object to Púca’s appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is in writing and based on reasonable grounds relating to data protection. Any objections should be raised promptly (and in any event no later than fourteen (14) days following Púca’s notification of the intended changes). In such an event, the parties shall discuss commercially reasonably alternative solutions in good faith. If the parties cannot reach resolution, Púca will either not appoint or replace the sub-processor or, if this is not possible, Client may suspend or terminate the Agreement (without prejudice to any fees incurred by Client prior to suspension or termination).
*Only where the Client has expressly requested a service to non-EEA countries, the Client acknowledges that for messages that are received from or delivered to outside of the EEA the provision of the Services under the Agreement may require the processing of Personal Data by sub-processors in non-EEA countries. Púca shall in advance of any such transfer ensure that a mechanism to achieve adequacy in respect of that processing is in place, such as (a) the requirement for Púca to execute or procure that the third party execute on behalf of Client the standard contractual clauses approved by the EU authorities under the Applicable Data Protection Law; (b) the requirement for the third party to be certified under the Privacy Shield framework; or (c) the existence of any other specifically approved safeguard for data transfers (as recognised under the Applicable Data Protection Law) and/or a European Commission finding of adequacy.
Protecting Client data
Taking into account the state of the art, the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Púca will implement appropriate technical and organisational measures to protect Client data, (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorized disclosure of, or access to such data.
Púca will notify the Client as soon as possible once becoming aware of a personal data breach.
Púca will cooperate with the Client in implementing any appropriate action concerning the breach, including corrective actions, unless such action is contrary to applicable law.
In the event that Púca receives a complaint, notice or communication which relates directly or indirectly to the processing of the data or other connected activities or which relates directly or indirectly to the compliance of Púca, the Client or other involved parties with relevant laws and relevant data protection legislation, Púca will bring this complaint, notice or communication to the attention of the Client.
Púca will assist the Client to delete or return all the personal data to the Client after the end of the provision of services relating to processing, and delete existing copies available unless the instruction of the Client conflicts with applicable legislation on the continued retention and storage of such data.
12. Right of Audit
The Client may make a written request, or request in the course of an audit, a copy of all data and data-related activity logs in connection with Púca’s processing of Client‘s data and such information shall be provided by Púca without unreasonable delay.
13. Data Subject Rights
Púca will assist a qualified Client whenever reasonably required, in so far as possible, to fulfil the Client‘s obligation to respond to requests for exercising the Data Subject’s rights as provided by relevant legislation.
Such a request may be submitted to firstname.lastname@example.org
Púca will assist the Client in ensuring compliance with its legal obligations as provided by applicable legislation, in particular data protection legislation, concerning the security of processing, the notification requirements to relevant authorities, the requirement to communicate personal data breaches to the data subject, the requirement to carry out data protection impact assessments and the requirement to consult with relevant authorities concerning high-risk processing prior to carrying out such processing. In discharging this obligation, Púca may have regard to the nature of the processing and the information available to it.
Púca will make all the information necessary to demonstrate compliance with the obligations by applicable law, in particular applicable data protection legislation.
The Data Subject is hereby entitled to enforce the terms and conditions of this Agreement as a third party beneficiary.
Each party shall indemnify the other against all costs, expense, including legal expenses, damages, loss, including loss of business or loss of profits, liabilities, demands, claims, actions or proceedings which a party may incur arising out of any breach of the Agreement for which the other party may be liable.
15. Governing Law
These terms shall be governed by and construed in accordance with Irish law and each party hereby submits to the non-exclusive jurisdiction of the Irish courts.
16. Marketing Consent.
In consideration of us making our service available to you, by default you give us permission to use your company name and logo on our website and sales materials. No press release or blog will be published without your prior permission.
If you would like to receive a copy of these terms by email, please ask your account manager.