THESE GENERAL TERMS OF SERVICE (the « Terms ») are a legal and binding agreement between RocketMail, a Luxembourg corporation («RocketMail » or « We » or « Service Provider ») and you, or if you represent an employer or client, than the employer or client (« You » or « Client »), governing your use of RocketMail’s https://www.rocketmail.lu/ website and/or the emailing services and all other related services that RocketMail provides (collectively the « Services ») through the Website or its online software denominated as Rocketmail’s APP.
Rocketmail reserves all rights to change or update these Terms at any moment and at its sole discretion, by posting on the Website or by providing any other notice, and your rights under these Terms will be subject to the most current version posted on the Website at the time of use, and for any major change we will notify you at least 30 days before its entry into effect.
PLEASE CAREFULLY READ THESE CONDITIONS. BY SUBSCRIBING TO THE SERVICES OR BY ACCESSING OR USING THE WEBSITE, THE APPS, YOU AGREE THAT YOU HAVE READ AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THE AGREEMENT BEING THE FOLLOWING DOCUMENTS, LISTED BY ORDER OF PRIORITY:
- Specific Terms (defined below in article 1), if any;
- These Terms;
- Anti-Spam Policy ;
Article 1. Definitions
Each capitalized term in the present Terms or in any document that is part of these Terms shall have the meaning given below unless otherwise expressly stated.
« Customer Care Services » means any consulting services, development if any, configuration and settings assistance provided by Service Provider in order to allow Client to access and use the Emailing Service, including « SMTP-IN » protocol for email transfers. Client Account Services include Consulting Services, On-boarding and training services, as well as all related services.
« Data » means Client’s electronic data, whether or not personal data, which are collected, managed, processed and/or shared by Client and Service Provider, through the Emailing Service access and use rights.
« Emailing Service » or « Services » means the RocketMail externalized application solution that is hosted on the servers and/or cloud that Service Provider designates and that Client may execute remotely. The Emailing Service offers various features, including, but not limited to, management of emailing campaigns with real-time monitoring of sent email deliverability, newsletter creation and sending, or sending and managing transactional emails. Service Provider expressly reserves the right, at any time during the term of the Agreement, to adapt, arrange and/or modify any of the components granting access and use rights to the Emailing Service and the associated documentation, provided that the maintenance and support commitments are complied with for these operations. Similarly, RocketMail may, at any time, discontinue providing a platform deemed undesirable and/or obsolete and migrate services to a new infrastructure; in which case, RocketMail will endeavor to inform You as early as possible and invite You to migrate your account to the new infrastructure.
« Intellectual Property Right » means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, and any application or right to apply for registration, internet domain names, logos, designs, slogans, and general intangibles of a similar nature, computer software programs and source codes or applications, tangible or intangible proprietary information, know-how, proprietary processes, formulas, algorithms, or any other intellectual property right, whether registered or unregistered, and whether first created before or after the effective date of the Agreement.
« Specific Terms » means all specific terms and conditions mutually agreed with the Client stating in particular the financial terms and compliance requirements.
« Website » means the web pages associated with the technological features of the Emailing Service described in the Emailing Service Documentation that can be accessed by and configured for and/or by Client, especially the “Admin” interface.
Article 2. Support and Service Levels
2.1 We shall use reasonable efforts, in accordance with customary state of the art principles, to ensure that emails sent by You are properly routed to their recipients’ electronic mailboxes. To this end, We shall provide You with an online automatic monitoring service, enabling You to update and modify your mailing lists and emailing campaigns in real time. You may also subscribe to additional recommended services in order to improve the Emailing Service. Such additional services shall be provided only after your prior acceptance and shall be invoiced accordingly.
2.2 Support and Service Levels
You shall be responsible for appointing an administrator (the « Administrator ») within your company, who shall be in charge of collecting information from and providing assistance to your users.
We shall provide second level support for the Emailing Service (« Support »), consisting of (i) responding to the Administrator’s requests for information and assistance in connection with use of the Emailing Service, and/or (ii) resolving anomalies arising from use of the Emailing Service that the Administrator has not been able to fix despite its best first level support efforts.
A Support ticket is to be made by sending a request, including as much detail as possible relating to the request for support, it being agreed that only the Administrator may contact/access the Support service.
We reserve the right to invoice You for any request for first level assistance that the Administrator should have been able to resolve independently (such as an anomaly due to an incorrect configuration or due to your technical environment).
Support access conditions and service levels commitments are detailed in the Service Level Agreement (SLA).
Article 3. Use of the Emailing Service
You acknowledge that You have read our Operational Policies, and that You subscribe to the Services in full knowledge of all their terms. You shall be responsible for ensuring that your users also comply with all the terms.
You undertake to use the documentation and information solely for Your own needs, on a professional use, or the needs of Your contracting entity.
You shall not interfere with or disrupt operation of the Emailing Service and shall comply with the Operating Policies for access to and use of the Services.
When You use the RocketMail API, You shall be responsible for your usage of the RocketMail platform and shall limit your API calls to a reasonable volume. RocketMail reserves the right, at its sole discretion, to define and update this volume of API calls and to take any necessary action to address any improper use.
As a direct RocketMail subscriber: You subscribe to the Services in your name and on your behalf, and You are not entitled to send via our Services promotional emails for a third-party, nor to assign the use of all or part of the Services to your own Clients, even for free; in this context, one single domain must not include more than two (2) master accounts.
As an indirect RocketMail subscriber: You subscribe to the Services in Your name but on behalf of your own clients with the objective of managing RocketMail for and/or reselling RocketMail to your clients. Specific Terms will be applicable to this usage, including that You must use sub-accounts to separate email traffic of your own clients using the Services (the “End User”) and are responsible for the necessary support for the End Users.
Article 4. Credentials
You shall keep confidential and secure all credentials, User IDs and passwords associated with your account (including the master account and any attached sub-accounts), whether such credentials have been granted by Us or by yourself and to immediately notify Us of any unauthorized use of Your account, or of any theft or loss of credentials allowing access to the account. Each account is personal and can only be accessed and used by You or the users duly authorized by You. You recognize and acknowledge that You may be liable for any unlawful, wrongful or fraudulent use of the account, and You shall indemnify and hold Us harmless against any action or claim arising from such a use.
Article 5. Intellectual Property – Emailing Service Access and Use Rights
5.1 Trademarks and Service Marks. RocketMail and all collateral trade names and marks referenced on the Website, without limitation, are among the registered trademarks of Service Provider, its affiliates and/or licensors. You are not allowed to use any such trademarks without Service Provider’s express written agreement. All Website content, including graphics, logos, page headers, icons, and service names are the property of Service Provider and its affiliates. Other trademarks that appear on the Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Service Provider. Service Provider reserves all rights not expressly granted herein.
5.2 Copyrights. Service Provider and its affiliates are the sole and exclusive copyright holder of the Website. Copyright laws protect all content and design of the Website, including any and all collateral materials relating thereto. You are not allowed to use any such Website content or design without Service Provider’s express written agreement. You may not use copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of our platform. Any activity that infringes terms of the Agreement violates copyright law and will be prosecuted according to the current applicable laws.
5.3 Subject to full payment of all fees when due, Service Provider grants Client a limited, non-exclusive, non-transferable, personal and temporary right to access and use the Emailing Service. This grant of rights shall not be deemed an assignment to Client of any of Service Provider’s intellectual property rights to the Emailing Service or any of its components.
5.4 RocketMail expressly reserves the exclusive right to act in order to adapt, arrange and/or modify any of the components of the Emailing Service and, in particular, to correct any errors within it. All intellectual property rights or other property rights to the results, if any, of all work and services provided by Service Provider in the course of the performance of the Services in particular, as well as to any associated documentation and to all or any part of any copy of the results of such work and services, or the derivatives, enhancements or modifications thereof (collectively « Work Product ») are and shall remain the sole property of Service Provider. To the extent the Work Product is deemed to be owned by the Client, the Client hereby agrees and covenants to assign and transfer and, to the extent any such assignment cannot be made at present, will assign and transfer, to Service Provider and its successors and assigns, all its right, title and interest in all Work Product. It is agreed that such assignment will occur at the time the Work Product is completed, and shall apply worldwide, for the duration of the corresponding rights. At any time or from time to time after the date hereof, the Client agrees to cooperate with Service Provider, and at the request of Service Provider, to execute and deliver documents necessary to consummate this Work Product assignment.
Article 6. Data – Content – Spamming
You undertake to comply with the legislation and regulations applicable to the processing of personal data in the country where they are collected, including, if applicable, European General Data Protection Regulation 2016/679 (GDPR). To this end, You shall be responsible for carrying out all mandatory reporting formalities.
You are hereby advised that, unless an agreement has been signed by the Parties to this end, the Emailing Service shall not be used to process sensitive personal data, especially personal data of a medical nature or pertaining to health conditions.
You shall be solely and wholly liable (i) for any Data, information or content, in particular the content of emails and newsletters sent by You through the Emailing Service, including if such content is provided by a third party, such as an SMTP relay or via the routing of an entire infrastructure (hereinafter collectively referred to as « Content »), and (ii) for the Content’s compliance with the regulations in force, in accordance with article 7 of these present Terms.
You acknowledge and warrant that the Content, whether in whole or in part, shall in no event:
- Infringe, misappropriate or violate any right, especially any intellectual property right, of any third party whatsoever;
- Contain any virus or program designed to cause damage, intercept or misappropriate any system, Data in a fraudulent manner;
- Contain any unlawful, bullying, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature or any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable laws or regulations;
- Contain any person’s social security number, individually identifiable health or health insurance information, complete bank account information or credit card information;
- Be false, misleading or inaccurate; or,
- Be in breach with the Operating Policies.
You undertake not to use the Website and Emailing Service in a manner that may lead to any civil or criminal action whatsoever, and shall indemnify and hold Us harmless from any action on such grounds.
You acknowledge that We have the right, but not the obligation, to monitor the Emailing Service and any Data submitted to the Emailing Service. To comply with legal obligations in this respect, We may take any actions (including removing Content or denying routing of certain Data and emails) We reasonably believe are necessary to prevent unlawful activity in connection with the Emailing Service.
You expressly acknowledge and agree that RocketMail shall not be liable for any loss or destruction of the Content, including the Data, and that You shall be responsible for ensuring that You have proper backups thereof.
You undertake to comply with the commitments set out in the Anti-Spam Policy and, in particular, You acknowledge that You have been informed that in the event of breach of the provisions of this Anti-Spam Policy, in particular if emails are sent to recipients who did not specifically ask to receive such emails or if We receive an unusual number of complaints, We shall be entitled to close the master account or any associated sub-account and/or terminate your plan, in which case You shall not be entitled to claim any refund or compensation.
Some internet service providers (« ISP ») may suspend the routing of emails from certain addresses if they detect or suspect any dishonest or illegal behavior (« blacklisting »). If Your account is blacklisted by an ISP, We shall use reasonable efforts to attempt to reestablish communication with such ISP, and You agree to pay for the additional Services We may be required to perform for this purpose.
Article 7. Compliance with the Law
You (i) shall comply with all laws and regulations in force that are applicable in any country from which You access the Website and/or use the Emailing Service, as well as in any country to which You send emails, including but not limited to applicable export and re-export control laws and regulations, and (ii) shall indemnify and hold Us harmless from any action brought against Us, judgment entered against Us or loss We may sustain due to Your non-compliance with the applicable laws and regulations.
Furthermore, You agree to reimburse Us for any action or formality We may be required to carry out to comply with a legal demand or request from an administrative or judicial authority.
In the event You become aware of a violation by any third party of any provision of these Terms or of any laws or regulations and, in particular, if You become aware of a security breach by a third party or discover a security breach, You shall immediately notify Us by any means, including by sending an email
Article 8. Plans – Financial Terms
We offer various options to our Clients, including free and paid plans, with or without a fixed commitment period. You can find these options and the relevant pricing on our website at: https://www.rocketmail.lu/
The pricing of these plans is available in Euros only.
- Free plans
Free plans are available to anyone and are subject to use restrictions (maximum limits to the number of daily and monthly emails, to the number of API calls…); these use restrictions are set forth on our Website.
- Paid plans without fixed-term commitment (Air Lift & Rocket & Atomizer Plans)
Paid plans without any fixed-term commitment are available to anyone and have a lower use restriction limits than the free subscriptions. Premium features can also be added to these plans, including advanced monitoring, A/B Testing, and access to our bank pictures.
For these plans, your subscription shall be due and payable each month in advance from the date of your subscription or the date of your first paid subscription. You may not re-subscribe to the same paid monthly plan within twenty-one (21) days for the same account.
Payment may be made by credit card, direct debit, or e-payment system (paypal.com). You authorize RocketMail to charge the credit card or bank account. You provide to Us for any and all costs and amounts that You owe Us for the Services.
- Paid plans with a fixed-term commitment (Start-up, Booster, Jumbo Jet)
Paid plans with a fixed-term commitment (set to 12,6 or 3 months) are available to anyone after a review by our Compliance Team and have even lower use restriction limits than our online subscribed plans. Other premium features can also be added to the fixed-term commitment plans.
When You subscribe to a paid plan with a minimum fixed-term commitment, the financial conditions that are applicable to You (fees, schedule and payment terms) are set forth on the purchase order and/or the special terms signed by You. Fees for the Emailing Service consist of a fixed fee (« Minimum Annual Fee ») and a variable fee (« Variable Fee »), if any, depending on the volume of emails processed on behalf of Client. Unless otherwise stated, the Minimum Annual Fee is non-cancelable and non-refundable for any reason whatsoever.
- Common provisions for all paid plans
The plan fees do not include the cost of equipment, telecommunications and Internet access enabling use of the Emailing Service, the costs of which shall be borne by You.
Client Account Services fees, if any, are specified on the purchase order and/or the special terms. They do not cover, and You agree to separately reimburse Us for all out-of-pocket expenses incurred by Us in connection with the Client Account Services including: (i) travel expenses, including airfare, car rental and travel time exceeding four hours per week; (ii) accommodation expenses, including the cost of hotels; (iii) meal expenses, including breakfast, lunch, and dinner; (iv) translation and/or interpretation services; and, (v) costs of materials. Client Account Services fees shall be invoiced when the purchase order is signed. They are non-cancelable and non-refundable.
Invoices are either expressed in Euros, are payable without discount and upon receipt (unless otherwise stated on the invoice), preferably by bank transfer to the account number provided on the invoices.
Any delay in payment (i) will allow us to recover and without notice late interest and other amounts as allowed by law and (ii) may immediately, after notice, temporarily suspend access to and use of the Emailing Service and/or terminate your subscription. All amounts payable are quoted excluding taxes. You shall pay any and all taxes imposed by any government on the amounts payable for the Services, or reimburse Us in the event We have paid such amounts, for which You are personally responsible.
RocketMail reserves the right to change the Services fees by notifying You by email with at least a thirty (30) day notice. If You do not accept the new fees as notified to You, You shall cease all use of the Services on or before the last day of the monthly period already paid at the date of the notification and terminate your plan. For fixed term plans, the fees applicable are the ones in force on the date of your order; the new fees will be applicable to You only on the renewal date of your plan.
You agree not to seek RocketMail’s liability and not to dispute payment for the sending of Your emails, even in the event any of them are blocked by a third party and do not reach their recipient as You would have desired (for instance, in the context of an anti-spam policy).
Article 9. Term – Withdrawal – Termination and Deletion of Accounts
- Right of withdrawal
The Services are reserved exclusively for a professional use, and the terms of the EU Directive 2011/83/UE of the European Parliament and of the Council of 8 October 2008 on consumer rights are not applicable.
- Free plans and paid plans without fixed-term commitment
Free and paid plans without commitment are concluded without any fixed-term and are automatically renewed on a monthly basis, subject to the full payment in advance of the monthly fee, if any. You may at any time terminate your free or monthly paid plan. We nevertheless draw your attention on the fact that RocketMail shall not reimburse You the unused fees paid for a started month, even on a prorata basis; it is then Your responsibility to anticipate the termination of Your plan to make it effective at the most convenient time.
- Paid plan with a fixed-term commitment (Custom / Enterprise plans)
When You subscribe to a paid plan with a fixed-term commitment, each of the Parties (You as well as Us) may terminate the plan at the end of each term (anniversary date), by giving prior a three (3) months notice. You will remain responsible to pay all amounts due to Us until the termination effective date. In the absence of such a termination, the plan shall be automatically renewed for the same fixed term, and You shall be invoiced according to the initial schedule payment not including any overage charges.
Each Party may also terminate the plan in advance in the event the other Party materially breaches the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of a notice of such breach, sent by certified mail, return receipt requested. Notwithstanding the foregoing, termination may be immediate in the event of the following circumstances: Client’s non-compliance with the Anti-Spam Policy in accordance with provisions of Article 6.3 of these present Terms; in the event of a breach of any laws and regulations ; in the event of a breach or attempted breach of the security of the Website; or, in the event of fraud or attempted fraud in connection with use of the Website or the Emailing Service.
- Temporary Sending Limit
Should your email sending practices not comply with the RocketMail Anti-Spam Policy, We may decide to temporarily suspend your account, which means that your daily and total emails sent will be limited in number and You will need to take the necessary measures to ensure that your practices comply with our Policy and requirements, before RocketMail can lift the temporary sending limit and allow You to send your desired email volumes. A temporary sending limit subsequent to a breach of your contractual obligations means that You will remain liable for the payment of the amounts contractually due during the limitation period despite the limitation on your email sending options and no refund whatsoever will be made.
RocketMail may terminate your Account and the performance of Services at its sole discretion under the following circumstances:
- at any time and for any legitimate reason for a free plan provided reasonable notice is given; or,
- after You have been notified by RocketMail following any breach of laws or regulations or these Terms, including but not limited to: if payment or partial payment of any sum due by You is not received by RocketMail; in the event of a payment incident; when using the Services to send emails that do not comply with the Anti-Spam Policy; in the event of a breach or attempted breach of the Website security; or, in the event of fraud or attempted fraud when using the Website.
- Consequences of the termination
Upon expiration or termination of your account for any reason whatsoever, all amounts still owed by You, including collection fees, if any, shall become due and payable immediately. We will not refund any prepaid fees and will charge You the full amount that We would have been entitled to charge for the remaining term until the end of the initial term.
Article 10. Warranties
RocketMail makes all reasonable efforts to deliver a functional Service and substantially compliant with its documentation and/or SLA, but does not guarantee an error- or “bug”-free service. If You notice a non-compliance issue, You must notify RocketMail as soon as possible and RocketMail undertakes to make every reasonable effort to remedy the non-compliance issue, as this is Your only recourse.
RocketMail also ensures that Support Services will be provided, where appropriate, according to the description given in the Specific Terms signed by You, where applicable, and proper codes of practice, as the Service Provider is only bound by an obligation of means in this instance.
You declare, warrant and agree, in RocketMail’s favor, that: (1) You have the right and authority to subscribe and use the Services, and accept these Terms, and if You accept the Agreement on behalf of a corporation or other entity, to link that company or other entity hereunder; (2) You have the right and executing authority of your obligations under these Terms; and, (3) all Data, information or content that You provide to RocketMail in the context of your access to the Website and use of the Services is accurate and up-to-date.
Furthermore, You acknowledge that RocketMail does not control the transfer of Data via the internet, and cannot be held responsible for delays or delivery problems arising from internet or other outside connection issues.
Article 11. Third Party Claims
11.1 We agree to (i) defend You, at our own expense, and (ii) pay all damages resulting from any claim initiated by a third party and asserted against You on the grounds that the Emailing Service, when used in accordance with the provisions of these Terms, infringes any EU, US, UK or Canadian patent, copyright, trade secret, or other proprietary right, provided that You: (a) promptly notify Us, in writing, and no later than within ten (10) days following receipt of any claim; and (b) allow Us to control and direct the investigation, preparation, and defense. We shall not be responsible for any settlement that We do not approve in writing in advance.
In the event a notice of an infringement claim is received from a third party, We may, in our sole discretion and at our option, (a) procure for You the right to continue to use the Emailing Service, or (b) replace or modify the Emailing Service to make it non-infringing. If We determine that it is not commercially reasonable to perform either of these alternatives, You shall cease to access and use the Emailing Service upon our written request. We shall then refund You any Fees paid in advance, on a prorata basis over the period during which the Emailing Service is not usable.
THIS ARTICLE 11.1 STATES ROCKETMAIL’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ALLEGATIONS THEREOF BY A THIRD PARTY.
11.2 You shall defend and pay to Us all damages, including damages resulting from any claim initiated by a third party and asserted against Us on the grounds of the use of the Website or the Emailing Service or any breach of these Terms, provided that We (a) promptly notify You, in writing, of such claim; (b) allow You to control and direct the investigation, preparation, defense and settlement of the claim; and, (c) assist and fully cooperate in the defense thereof. You agree to pay any damages or other remedy awarded against Us (or agreed to in a settlement by You) resulting from the claim, including any costs and attorneys’ fees awarded. You shall not be responsible for any settlement You do not approve in writing in advance.
Article 12. Limitation of Liability
The Emailing Service, as well as the Website may include links to other websites or other Internet sources. Insofar as We cannot control these sites and external sources, RocketMail cannot be held responsible for the availability of such external websites or sources, and may not be held liable in any way for the content, advertising, products, services or other materials on or available from such external websites or sources. RocketMail provides links only as a convenience, and such inclusion of any link does not imply that We endorse the linked websites or any part of their content. Such linked websites may impose on You terms and conditions applicable to Client and the website owner and/or fees for use of such website. In addition, RocketMail cannot be held responsible for the behavior or actions of other users, nor for any proven or alleged damage or loss subsequent to or in connection with access to, use of or the fact of having relied upon the content, products or services available on such external sites or sources.
RocketMail will be freed from the performance of Services, following an event of Force Majeure, as defined in article 13 of these Terms.
Furthermore, for maintenance reasons, RocketMail may suspend temporarily access to the Services; in such cases, RocketMail will endeavor to forewarn You and to keep the length of the interruption to a minimum.
In any event, RocketMail (including its third party suppliers, one of its employees or representatives) may not, under any circumstances, be liable for indirect or consequential damages of any kind, including and without limitation, loss of revenue, profits, chance, business interruption, or Data loss, even if the parties were informed of the possibility of such damages.
Moreover, as to any indirect RocketMail subscriber, in no event shall RocketMail be liable for any End User, in particular in the event of temporary or permanent suspension of the Services due to non-respect of the RocketMail Sending Policy by Yourself or the End User.
In all cases, RocketMail’s total liability is limited, all damage combined, to the amount paid by You to RocketMail, if any, for use of the Website and Services during the twelve (12) months preceding the date on which the damage occurred. This limitation does not apply to damage due to bodily injury (including death) or to willful misconduct or gross negligence.
You acknowledge that You have subscribed to the services with knowledge of (i) the risks related to them, and (ii) the level of risk accepted by You. The prices applicable have been agreed upon in consideration of this clause, which is integral to the economic balance of the Agreement.
Article 13. Force Majeure
13.1 RocketMail shall not be responsible for any default or delay due to causes beyond its control including, without limitation, strikes, lock outs, shutdown of internet connections by Internet provider, cyber-attacks on the Website (« Force Majeure »).
13.2 If a Force Majeure event occurs, this Agreement shall be automatically suspended during the time the Force Majeure event continues, and neither Party shall be liable to the other for non-performance or delay in the performance of required obligation(s) due to the Force Majeure event, provided the non-performing Party gives prompt written notice of its inability to perform specified obligation(s) due to the event and uses reasonable efforts to resume its performance of its obligation(s) as soon as possible. It is agreed that the other Party may, during the time the Force Majeure event continues, similarly suspend performance of its obligations until such time as the non-performing Party resumes performance of its obligation(s). The Parties shall meet in order to jointly determine the conditions for resuming performance of the Agreement as soon as possible. If a Force Majeure event continues for more than a period of sixty (60) days, the Agreement may be terminated by either Party, by giving notice by certified mail, return receipt requested, effective immediately, if the impacted obligations are material obligations under the Agreement. Notwithstanding the foregoing, in no event shall a Force Majeure event excuse or delay a Party’s obligation(s) with respect to confidentiality or Intellectual Property Rights.
Article14. Confidentiality – Personal data
14.2 Each Party undertakes to treat as confidential, and to not reproduce or disclose, other than for the sole purposes of performing the Agreement, the information and documents disclosed by a Party (“Disclosing Party”) to the other (“Receiving Party”) during the performance of this Agreement or prior to its signature, and which, (i) because of their technical, commercial or financial content should be kept confidential or because they contain elements that have not publicly disclosed and/or are purely personal to the relevant Party, (ii) or have been identified in writing, at the time of disclosure, as confidential and/or proprietary (collectively “Confidential Information”). Confidential Information shall include, but is not limited to, the provisions of this Agreement (but not its existence), commercial secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, bug reports, analysis and performance information, electronic documents, and other technical, commercial, marketing and financial information, as well as any plans and Data.
The Receiving Party shall use the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information that the Receiving Party uses to protect and keep confidential its own Confidential Information of a similar nature, but in no event less than reasonable care. However, Service Provider may disclose Client’s Confidential Information to its own third party providers solely to the extent necessary to provide products or services under the Agreement, provided that Service Provider has a confidentiality agreement in place with such third party provider that protects such Confidential Information in a manner no less protective than the Agreement.
Both Parties acknowledge that any breach of its obligations with respect to Confidential Information may cause the other party irreparable injury for which there are inadequate remedies at law, and that the Disclosing Party shall be entitled to seek equitable relief in addition to all other remedies available to it. Client shall not disclose to a third party the results of any performance tests conducted on the Emailing Service, without the prior written consent of Service Provider.
Confidential Information shall not include information that: (i) is or becomes publicly available through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on the Receiving Party’s disclosure, and the Receiving Party was not aware that the information was the Confidential Information of the Disclosing Party; or, (iv) is independently developed by the Receiving Party without breaching this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party as needed to comply with a court order, subpoena, or other government demand (provided that the Receiving Party first notifies the Disclosing Party and gives the Disclosing Party the opportunity to challenge such court order, subpoena, or government demand).
14.3 Notwithstanding the provisions of Section 15.1, the Parties agree that commercial references of one Party, such as the Parties’ names, trademarks, domain names and other distinctive signs, shall not be treated as Confidential Information by the other Party, provided no changes are made thereto that might adversely affect the first Party. In particular, each Party shall be entitled to mention the other Party’s name, use its logo or brand, and provide an objective description of the nature of the services that are the subject of the Agreement in its lists of references, Client testimonials, and in proposals and case studies made to prospects and clients, interviews with third parties, communications to its staff, internal management forecasts, annual reports to shareholders, and in cases where required by legal, statutory or accounting provisions.
Article 15. Miscellaneous
15.1 Transfer of the Agreement – Change of Control
For the avoidance of doubt, it is hereby reiterated that Client has a personal, temporary, non-transferable and non-exclusive right to access and use the Emailing Service.
Under these conditions, it is expressly agreed that Client shall not transfer the Agreement or any right derived from the access and use of the Emailing Service to a third party, whether by a contribution, assignment, concession, merger, demerger, loan or otherwise, including without consideration, or within the group to which Client belongs, without Service Provider’s prior written agreement.
Service Provider reserves the right to use subcontractor(s) of its choice to provide the services in connection with the Services, and shall remain liable to Client for the performance thereof in accordance with the present Terms and subject to the reservations stipulated in the Agreement.
15.3 Entire Agreement
These Terms, including the Operational Policies along with any purchase order and/or special conditions, constitute the entirety of the commitments between You and us. It establishes all of the Parties’ rights and obligations and supersedes all prior oral or written commitments that directly or indirectly concern the subject matter of the agreement between us. This Agreement binding us may only be modified by a written amendment which is signed and designated as such by both Parties (You and us).
If any one of the provisions of the Agreement is deemed void under any legal principle, law or regulation, or is invalidated by a court decision, it shall be severed from the Agreement, but the other provisions of the Agreement shall remain in full force and effect.
Unless otherwise specified in the Agreement, a Party’s forbearance in not requiring the enforcement of any clause of the Agreement shall not under any circumstances be deemed a waiver of such Party’s rights under such clause.
15.6 Governing Law – Jurisdiction
These Terms are subject to Luxembourg law. Failing amicable settlement, any difficulties related to their interpretation or validation, and any dispute between us will be the exclusive jurisdiction of the Luxembourg courts, notwithstanding multiple defendants or third party claim.