Terms and Conditions of Use and Sale as at 1 st January 2009

Transcription

1 Terms and Conditions of Use and Sale as at 1 st January 2009 The present standard terms and conditions of use and sale, also called the Contract, are concluded between the following parties: - with capital of 638,000, whose registered office is located at, Paris, entered in the Paris commercial register under number , called MESSAGE BUSINESS SAS. has developed a range of services called MESSAGE BUSINESS addressed to organisations (entrepreneurs, craftsmen, SMEs, institutions and associations) aimed at facilitating the management of their contacts and their marketing or electronic communication operations. - The Client and/or his representative acting on his behalf, having accepted s commercial offer and/or having signed and returned an order form to and/or having made his purchase via the MESSAGE BUSINESS site, called the Client. - and the Client hereinafter known collectively as the Parties or individually as a Party. ARTICLE 1 ACCEPTANCE OF THE STANDARD TERMS AND CONDITIONS OF USE AND SALE The Client may access MESSAGE BUSINESS after having, in particular, fully completed a registration form with genuine, accurate and truthful information. Acceptance by the Client of a commercial offer issued by and/or by an order form signed by the Client or his representative acting on his behalf and/or the purchase via the MESSAGE BUSINESS site implies unreserved acceptance by the Client of the following standard terms and conditions of use and sale. The present standard terms and conditions shall have precedence over any standard terms and conditions of purchase of the Client. ARTICLE 2 DEFINITIONS 2.1 MESSAGE BUSINESS online service : Refers to all the functions of the hosted application solution accessible either by the Client on a self-service basis or on the basis of delegated authority to use the service on behalf of the Client via the web address. 2.2 MESSAGE BUSINESS ing Server solution : Refers to the SMTP server service specialising in bulk ing usable by the Client and supervised by MESSAGE BUSINESS SAS. 2.3 User accounts associated with the Client : Refers to all the users with their individual identifiers and passwords for accessing MESSAGE BUSINESS and conducting Operations on behalf of the Client. 2.4 Information originating from the Client : Refers to all information provided by the Client and that he handles in MESSAGE BUSINESS to conduct his operations. This information includes in particular the database of names of the Client s contacts or the contents of the Operations. 1

2 2.5 Contact database : Refers to the database that brings together in MESSAGE BUSINESS the data associated with the Client s contacts and associated with the Client via the user accounts. 2.6 Operations : Refers to all actions taken and managed by the Client from MESSAGE BUSINESS. 2.7 Library of models of operations : Refers to the models of operations made available to the Client so that he may use them in part or in total for his Operations solely in the context of his use of the MESSAGE BUSINESS online service. ARTICLE 3 SUBJECT provides the Client with a range of services that allow him to run marketing and communication campaigns with his contacts via MESSAGE BUSINESS, the MESSAGE BUSINESS online service and/or the MESSAGE BUSINESS ing Server solution. ARTICLE 4 DESCRIPTION OF THE SERVICES The Contract grants to the Client the use of the MESSAGE BUSINESS online service and in particular: - secure access to the online application - access to usage data of the user account(s) associated with the Client - import and export of the contact database - sharing the contact database with user accounts associated with the Client - the creation and issue of new operations - access to the library of models of operations - management of operations - compilation of statistical data associated with the operations. Use of the MESSAGE BUSINESS online service corresponds to usage not exceeding the following consumption restrictions: - 20 hits per server per second - 10 Mb volume per day. In the event of this consumption level being exceeded, shall make a specific offer to the Client so as to ensure continuation of service as required. Where relevant, the present Contract grants the Client the right to use the MESSAGE BUSINESS ing Server solution and in particular provides an SMTP server optimally configured to incorporate proven techniques (Reverse DNS, Domain Keys) and to manage returns (bounces). In the event of the maximum consumption level being exceeded regarding the monthly volume of data exchanged purchased by the Client, will make a specific offer to the Client so as to ensure continuation of service as required. ARTICLE 5 INTELLECTUAL PROPERTY The MESSAGE BUSINESS online service and the MESSAGE BUSINESS ing Server solution are the property of, which holds the intellectual property and brand rights in them. grants to the Client, solely in the context of his communication and marketing campaigns with his contacts, a non-exclusive, non-transferable and non-assignable user licence in the MESSAGE BUSINESS online service and/or in the MESSAGE BUSINESS ing Server solution for the duration, the conditions of which are detailed in Article 6 of the present document. The MESSAGE BUSINESS online service and/or the MESSAGE BUSINESS ing Server solution may be used by the Client and his associated user accounts and/or his representative acting on his behalf, with the exclusion of his subsidiaries and or parent company. The Client shall refrain from misappropriating the concept or any other elements of MESSAGE BUSINESS, the MESSAGE BUSINESS online service or the MESSAGE BUSINESS ing Server solution for his own ends or those of a third party. The Client shall refrain from using the library of models of operations provided to him outside the context of his use of the MESSAGE BUSINESS online service and/or beyond the duration of this Contract. 2

3 ARTICLE 6 DURATION AND TERMINATION The Contract is concluded for a period corresponding to the period of commitment indicated either in the MESSAGE BUSINESS SAS commercial offer and/or on the order form signed by the Client and/or, at the time of the purchase by the Client on the site of MESSAGE BUSINESS, whose terms and conditions may be shown under the heading Your Account of the MESSAGE BUSINESS online service. In the event of either of the Parties failing to fulfil any of his/its duties arising from the Contract, it will be terminated as of right if this seems desirable to either party, 15 (fifteen) days after the sending of a recorded letter of formal notice with proof of receipt that has not met with success and which details the unfulfilled duty/duties. ARTICLE 7 PAYMENT TERMS The Contract s payment terms are set out in the commercial offer issued by and/or at the time of the purchase from the MESSAGE BUSINESS site and/or on the order form signed by the Client or his representative acting on his behalf, the amounts of which may be shown under the heading Your Account of the MESSAGE BUSINESS online service. In the event that the commercial conditions applied by s suppliers significantly modifies the commercial balance of the present standard terms and conditions to s disadvantage, MESSAGE BUSINESS SAS shall if necessary be entitled to revise the payment terms offered provided that it informs the Client of this 1 (one) month before the implementation of the new payment terms. Any dispute or any request for information regarding items detailed on the invoice is to be declared/made within a period of 1 (one) month counting from the date of issue of the invoice. Once this period has expired, the Client is deemed to have accepted the items detailed on the invoice and will accept no dispute. In the event of non-payment of the amounts due, any amount due shall bear interest counting from the said due date and until full payment at a rate equal to double the statutory interest rate in force, after formal notice by that has not met with success 10 (ten) days after it has been sent. ARTICLE 8 s duties undertakes to ensure the proper functioning of its MESSAGE BUSINESS online service so as to allow the Client to use it in accordance with the terms and conditions of and as envisaged by the Contract. In the event of the occurrence of a technical fault that affects the functioning of the MESSAGE BUSINESS online service or the MESSAGE BUSINESS ing Server solution such as, in particular, interruption to the telecommunications systems or interruption to the services of its IT service providers or interruption for maintenance purposes or for any other reason whatsoever, shall undertake as necessary to inform the Client of this interruption. cannot be held liable for any total or partial loss of data originating from the Client, for whatever reason, and in particular following improper handling of the MESSAGE BUSINESS online service and/or the MESSAGE BUSINESS ing Server solution by user accounts associated with the Client. The occurrence of the events referred to in the above paragraphs shall not have any impact on the continuation of the Contract and shall not give rise to any claim by the Client, these events being deemed to constitute force majeure. In addition, cannot be held liable for content made public by the Client in the course of his Operations to the extent that is not aware of this. s liability under the present Contract is strictly limited to direct damage/loss actually suffered and proven by the Client, with the exclusion of all classes of indirect damage/loss such as loss of profits, loss of sales or other losses and, in any event shall not exceed the total paid to under the Contract during the 3 (three) months preceding the matter that caused the contractual damage/loss. 3

4 ARTICLE 9 THE CLIENT S LIABILITY The Client is solely liable for the content and functioning of his Operations, in particular for any modifications to them. The Client must ensure that he has the necessary rights to use the brands, logos, drawings and designs published via the MESSAGE BUSINESS online service and/or by the MESSAGE BUSINESS ing Server solution. The Client shall indemnify against any claims made or any action initiated in this regard against the latter. Any link made and/or Operation conducted by using the user accounts associated with the Client shall be deemed to have been made/conducted by the Client on his sole responsibility. The Client is aware that it is his duty, to the extent that he deems necessary, to perform backups of the data at source and which the Client processes in the MESSAGE BUSINESS online service and/or the MESSAGE BUSINESS ing Server solution. The Client undertakes not to infringe third party rights and not to use the MESSAGE BUSINESS online service and/or the MESSAGE BUSINESS ing Server solution to publish services, content or facilities of an offensive nature and contrary to the protection of minors and more generally contrary to public order. The Client is aware of the regulations concerning direct marketing, personal data protection and the Act dated 21 st June 2004 on confidence in digital commerce. In general, the Client undertakes to observe the legislative framework in force as well as to do his utmost to ensure its observance. It is the Client s duty to make the appropriate declarations concerning the processing of name data, in particular to the Commission Nationale Informatique et Liberté (CNIL, National Commission on Information Technology and Liberty) and/or to other authorities with jurisdiction. The Client is aware that may find it necessary to exclude from its Operations any contacts included in the rejection lists managed by and produced in part on the basis of the Operations of all the Clients of the MESSAGE BUSINESS online service and/or the MESSAGE BUSINESS ing Server solution. The Client is aware that reserves the right to interrupt its service at any time without creating any entitlement to compensation in the event of any kind of use harmful to and in particular: - If the Operations conducted by the Client have not fully complied with the rules in force and in particular if the Operations did not include a simple and practical means for the requested contacts to have their subscriptions withdrawn from the Client s next operations. - If the number of complaints originating from the contacts addressed by the Client in the course of its Operations was found to be above the level normally encountered. - If the number of incorrect contacts was above 0.3% of the total of contacts addressed by the Client in the course of its Operations. - If one of the Operations conducted by the Client results in the blacklisting of one or more IP addresses used by for routing the Client s Operations. - If the use of the MESSAGE BUSINESS online service and/or of the content of the operations and/or of the advertising conducted by the Client appeared to be unlawful or not to comply with the terms of the present document and/or to be of such a nature as to damage the image of the MESSAGE BUSINESS online service or. - If the use of the MESSAGE BUSINESS ing Server is not exclusively reserved for Operations to win customer loyalty and/or for service Operations addressed to contacts whose consent has already been archived in advance and updated by the Client and/or which include as attachments documents other than those corresponding exclusively to the following formats: Text (.txt), Adobe pdf (.pdf), Microsoft PowerPoint (.ppt or.pps) any other formats for documents attached to Operations being strictly forbidden for reasons of security. ARTICLE 10 LIMIT OF JOINT LIABILITY The Client expressly acknowledges that owes him only a best endeavours duty regarding the implementation of MESSAGE BUSINESS, the MESSAGE BUSINESS online service and/or the MESSAGE BUSINESS ing Server solution. The Client acknowledges in particular that cannot be held liable for the correct receipt of all its Operations to the extent that is not in control of the Client s contact database or the content of the Operations or the technical receipt environment of the end addressees and where the conditions of acceptance of the Operations may be modified at any time by the providers of services and/or access to the telecommunications networks and this may occur without being informed of it. 4

5 The Client acknowledges that he is aware that the correct functioning of the telecommunications networks does not depend at all on and that the latter cannot guarantee either the times or quality of transmission. The Client and also acknowledge that, because of the complex nature of the telecommunications and Service networks, they may be liable to contain undetected or unknown faults. The present Contract is concluded between the parties with full awareness of the possible occurrence of such faults. In a general spirit of collaboration, the Client undertakes to advise in writing of the occurrence of the faults mentioned above as soon as he becomes aware of them so as to allow to subsequently correct them as required. ARTICLE 11 CONFIDENTIALITY shall consider as strictly confidential any name information which it might acquire originating from the Client. Except with the prior consent of the Client, during the Contract period and after its termination, shall refrain from any disclosure or marketing to third parties of the information originating from the Client. reserves the right to cooperate in accordance with the law with the authorities carrying out checks on any illegal activities conducted via MESSAGE BUSINESS. ARTICLE 12 GENERAL PROVISIONS 12.1 ADVERTISING: Unless previously notified otherwise by the Client and during the period of the Contract and 6 months after its termination, may use the Client s name, brands and logos in the context of commercial references given by in its communications. The Client grants to the right to send the MESSAGE BUSINESS online service or all its other communication tools to the Client s website from its website USE OF THE CLIENT S NAME DATA: informs the Client that he will be the subject of automatic processing of name data. The Client has a right of access to and correction of his data at any time. Unless otherwise advised by the Client, may use the data relating to the Client to make him offers suited to his needs either directly or via partners MODIFICATION OF THE PRESENT DOCUMENT: reserve the right to modify or supplement its standard terms and conditions of use and sale at any time. shall inform the Client of the modifications made. Thereafter, the Client s consent shall be deemed to be given if the Client continues to use MESSAGE BUSINESS, the MESSAGE BUSINESS online service and/or the MESSAGE BUSINESS ing Server solution METHOD AND BURDEN OF PROOF: Since the services provided by are exclusively information technology-related, the Parties acknowledge that the Client cannot demand that gives him any proof of the performance of its services other than the records of the operations conducted by the MESSAGE BUSINESS online service and/or the MESSAGE BUSINESS ing Server solution unless the Client can prove otherwise APPLICABLE LAW AND DISPUTE RESOLUTION: The present Contract is governed by French law. In the event of a dispute between the Parties regarding the interpretation or fulfilment of the present Contract or its limits, the Parties must make their best efforts to resolve it so as to find an amicable solution DISPUTES: Any disputes regarding the conclusion, fulfilment, interpretation and/or breach of the present Contract shall come under the jurisdiction of the courts of Paris, France VALIDITY If one or more terms of the present document are considered invalid by an authority with jurisdiction, the other terms shall retain their scope and effect. 5