Conclusion of the Contract
These terms thus define the technical, commercial and legal terms and conditions that are implied by the User's use of the MAILKITCHEN platform and its services.
ARTICLE 1 – Definitions"E-mail Address": electronic contact information used by a person to send or receive correspondence.
"Campaign": coherent set of advertising actions undertaken over a period seeking to promote a product or service by sending direct Opt in marketing messages using e-mail as the medium.
"Capping": Maximum number of messages sent per E-mail Address for the same campaign.
"User": means the co-contracting party, who is the User of the MAILKITCHEN solution, and is responsible for disseminating the Campaigns.
"Consent": means the explicit agreement given by a Recipient to add their e-mail address to a Mailing List to receive electronic messages or e-mails from the User. The Consent must be obtained by a positive and explicit act of a Recipient such as by clicking on a standard "I agree to receive promotional offers" button, or by checking an unchecked box or by a similar legal mechanism located on the registration or collection page.
"Merge and Purge": Processing consisting of eliminating double or multiple entries within the same Database.
"De-duplication": Processing consisting of matching one or more E-mail Addresses in order to identify and eliminate duplicates as well as the E-mail Addresses already stored in the Database.
"Deliverability": Processing consisting of identifying the E-mail Addresses whose destination address is valid and/or likely to allow effective delivery of the Campaigns.
"Recipients": Individuals connected to the Internet, who have become members of the User's file by giving their consent to receive electronic messages or e- mails from the User.
"Personal Data": information that allows, in any form whatsoever, the direct or indirect identification of the individuals to whom they apply, whether the processing is carried out by a natural or legal person.
"Opt in": opt-in means the personal Data that can be used by the entity that collected it to send to the person who has expressed interest, messages of a promotional or commercial nature.
"Services": means all the services such as making the MAILKITCHEN solution available, the processing of orders placed on the platform, the backup or even the maintenance of the MAILKITCHEN solution.
ARTICLE 2 - Nature & PurposeThe MAILKITCHEN Service is a Service for sending e-mails. MAILKITCHEN allows the User to access a secure interface to make preparations for his Campaigns, and also allows the Mailing List segmentation and management, content storage, planning and monitoring of his Campaign and the analysis of his Campaigns.
ARTICLE 3 - DurationThis contract shall enter into force on its date of signing by the parties. It is concluded for an indefinite period. It may be terminated at any time by either party.
ARTICLE 4 - Registration to the MAILKITCHEN PlatformTo register for the MAILKITCHEN platform, each User must:
- Be an individual or legal entity;
- Be over 18 years of age;
- Have a bank account;
- Complete the registration form with complete and accurate data;
- Follow the cinematic registration on the platform, complete the registration form available online at the URL address https://mailkitchen.com and accept these Terms and Conditions by approving the registration button.
- in the event of a Campaign whose contents could affect the image and reputation of the MAILKITCHEN platform;
- in the event of a Campaign that does not comply with applicable law and regulations and/or the ethical guidelines of the profession;
- in the event of a Campaign that does not comply with applicable law and regulations as well as with the rights of third parties, and particularly with intellectual property rights;
- in the event of a Campaign that contains words or ideas that are racist or defamatory or that would incite any form of discrimination;
- in the event of a Campaign whose content is of a violent, profane or pornographic nature or likely to undermine public order and morality;
- in the event that a Campaign whose content is related to drugs and accessories related thereto;
- in the event of a Campaign that sells alcohol, tobacco, prescription drugs, weapons or munitions and/or related products;
- in the case of an email campaign with a content related to financial or insurance products and services (as well as similar or related products and service );
- in the event of a Campaign that refers to sites such as those listed above;
- in the event of a campaign whose legal form, legal representative and address are not clearly identified.
- in the event of a Campaign that does not comply with the good practices required by MAILKITCHEN concerning the information from consumers with regard to the use of their data.
ARTICLE 5 - MAILKITCHEN's Obligations5.1 - MAILKITCHEN undertakes to make the MAILKITCHEN Solution available to the User, and undertakes to implement all its resources in order to make the Services available under optimal conditions. For its part, the User acknowledges that MAILKITCHEN is acting under this contract to provide services as a simple technical service provider subject to an obligation of means and accepts the legal consequences of this relationship.
5.2 - MAILKITCHEN is only bound, with respect to the commitments contained herein, to an obligation of means concerning access to MAILKITCHEN, the deliverability of the e-mails and its operation.
5.3 - The parties expressly agree that MAILKITCHEN can not be held liable for the Damages or interruptions of the services related to:
- a behavior or to practices that are contrary to the legal provisions by the User as part of his business;
- any use by the User that is abnormal, fraudulent or contrary to MAILKITCHEN's legal provisions;
- any abnormal or fraudulent use by the User or third parties requiring discontinuation of the service for safety reasons;
- an event of force majeure or a decision of the authorities;
- an interruption of the electricity supply or transmission lines due to public or private operators;
- a malfunction of the MAILKITCHEN equipment or solution or access to the User's Internet network or to the improper use of the MAILKITCHEN solution by the User;
- a fraudulent intrusion or maintaining of a third party in the system, or to illegal data mining, despite the implementation of security means in accordance with current data of the technique, and MAILKITCHEN shall only bear an obligation of means in terms of the known security techniques;
- the nature and content of information and Data Collected, transferred, created and/or provided by the User; more generally, MAILKITCHEN can in no way be held liable by reason of the data, information, results or analyses coming from a third party, transmitted or received through the use of the MAILKITCHEN platform made available to the User;
- a delay in the delivery of the information and data;
- the operation of the Internet or telephone networks or cable access to the internet not implemented by MAILKITCHEN.
5.4 - In any case, MAILKITCHEN cannot be held liable for consequential damages to the User such as loss of market, commercial loss, loss of profit, loss of brand image or any action for allegedly unfair competition.
5.5 - In any event, if MAILKITCHEN's liability should be engaged in any way whatsoever under this contract, the parties agree that the amounts to be paid by MAILKITCHEN to the User under its liability could not in any case exceed the total amount paid by the User to MAILKITCHEN during the last twelve (12) months.
Article 6 - USER's Obligations6.1 - The User is responsible for the supply and implementation of the equipment (hardware and software) necessary to access the MAILKITCHEN platform via the Internet.
6.2 - The User acknowledges having full and exclusive responsibility for his username and password. He alone shall bear the consequences that may result from its use by others who were aware of these because of the latter.
Any connection and/or Campaign carried out using the User accounts associated with the User shall be deemed to have also been carried out by the User, under his own liability. The User is informed that it is his responsibility to perform the backups of the information that comes from him and that the User handles on MAILKITCHEN.
In case of loss of his password, the User agrees to so inform MAILKITCHEN by e-mail as soon as possible.
6.3 - The User acknowledges that the software used by the MAILKITCHEN platform belongs to a particularly complex technique subject to unexpected technical, IT and telephone difficulties, and that despite the multitude of tests or experiments intended to overcome any possible failure of the platform, a failure is never inevitable; MAILKITCHEN can not be held liable for any interruptions of the website or of the MAILKITCHEN platform that may be caused by maintenance or update operations to the platform. The User therefore agrees to bear the risks of imperfection or unavailability of the platform.
6.4 - The User undertakes to comply with the legal requirements in force such as those resulting from the Data Protection Act, but also from the Postal and Electronic Communications Code, the Consumer Code, the regulations concerning direct marketing, the protection of personal data and the Law of June 21, 2004 for confidence in the digital economy. In general, the User agrees to comply with the legal provisions in force and to make every effort to have them be enforced. It is up to the User to make the appropriate statements concerning the processing of personal data, particularly with the National IT and Freedoms Commission and/or with other competent authorities. As such, MAILKITCHEN invites the User to periodically review the following information websites: the CNIL www.cnil.fr, the SNCD (National Union for Direct Communications www.sncd.org) and the FEVAD (Federation of Companies Selling at A Distance www.fevad.com). More specifically, the User is invited to be in compliance with this Charter: http://www.cpa-france.org/CPA_CharteEmails.html
6.5 - The User guarantees that the E-mail Addresses that could be requested in the context of the Campaigns meet the following requirements of fair collection:
- obtaining the consent of the people to be prospected,
- in a specifically free and informed manner,
- without limitation concerning the product and services sector and the type of offer.
6.7 - The User is solely responsible for the contents and operation of his Campaigns, and the products or services that he offers through his Campaigns. The User shall ensure that he holds the necessary rights to the use of the trademarks, logos, designs and creations disseminated via MAILKITCHEN. MAILKITCHEN can not be held liable for the contents or services offered by the User through his campaigns for any reason whatsoever. Such contents or services are neither published nor hosted by MAILKITCHEN. The User guarantees MAILKITCHEN against any and all claims and remedies by writers, producers, designers, filmmakers, publishers, performers and all persons who feel aggrieved by the e-mails sent for any reason whatsoever. In this respect, the User shall indemnify MAILKITCHEN, upon first demand, for any fees, charges and expenses that it may have to incur under the foregoing, including the fees, costs of counsel and expert appraisal, including pursuant to a court decision not yet final.
6.8 - The User undertakes not to transmit any unsolicited e-mail by means of the MAILKITCHEN solution, particularly chain letters or advertising messages, or any content that contains computer viruses or any other code, file or program designed to interrupt, destroy or limit the functionality of any computer, software or hardware or telecommunications tool, without this list being exhaustive.
6.9 - The User undertakes to comply with a respectable business ethics code, to respect the right of the consumer especially by being careful not to provide commercial offers that may mislead the consumer in error, the User guarantees MAILKITCHEN against all claims in this respect.
6.10 - The User undertakes to provide all the care required by professional due diligence to uphold and preserve the commercial reputation of MAILKITCHEN. More specifically, the User agrees not to make any statements or take any actions whatsoever that might damage MAILKITCHEN's image and reputation and undertakes to avoid any risk of confusion for the consumer between MAILKITCHEN and the User and his own services.
6.11 - The User undertakes to indemnify MAILKITCHEN, upon first demand, for all legal costs (lawyers, bailiffs, expert appraisals, without this list being exhaustive), of any conviction, liquidated damages, liability or others, for which he may be liable in respect of any action, proceedings, complaint, demand, expert appraisal, audit, or others committed against MAILKITCHEN that is caused by the User's misunderstanding of any provision of this contract.
ARTICLE 7 - Rights of Use granted to the MAILKITCHEN PlatformThe MAILKITCHEN platform made available to the User must be used under the conditions set out in this contract.
It is recalled that the User only receives a non-exclusive right to use the MAILKITCHEN platform made available to him, which formally excludes the possibility to:
- permanently or temporarily reproduce the MAILKITCHEN platform made available, in whole or part, by any means and in any form, including at the time when the software is loaded, displayed, run or stored;
- translate, adapt, arrange or modify the MAILKITCHEN platform, to export it, or to merge it with other IT applications;
- make a copy of all or any part of the MAILKITCHEN platform;
- amend, particularly by decompiling, altering or adapting, particularly by translating, arranging and generally modifying all or part of the MAILKITCHEN platform.
ARTICLE 8 - Financial ConditionsIn consideration for the various services provided by MAILKITCHEN set by this contract, the parties agree that the User must purchase a subscription payable each month in advance.
The various offers and subscription rates can be reviewed on the MAILKITCHEN platform. The offers and prices are subject to change, and, in any event, the User shall be so notified through messages on the platform.
The User expressly authorizes MAILKITCHEN to charge the credit card or bank account provided for any subscription or option hereunder.
MAILKITCHEN reserves the right at any time to wholly or partially regulate the User's account balance if it is in debit balance. The User is responsible for payment for the orders and the interest on late payments. For failure to make payment when due, regardless of the reasons for such failure, MAILKITCHEN shall charge a late fee at a rate equal to one and a half times the legal interest rate. This penalty shall accrue from the due date. In case of non-compliance with the payment terms, any Campaigns not yet carried out can be terminated by right, without prior notice or compensation. In the latter case, all the corresponding operations shall be invoiced and the amounts remaining due shall be immediately due and the User's account permanently blocked.
User's Court-ordered insolvency proceedings: in the event that insolvency proceedings are opened against the User, MAILKITCHEN reserves the right to suspend the broadcasting of the campaign, either on the day of last payment or on the date of the judgment opening the proceedings; the User is obliged to make payment on the invoices before this date.
Penalty clause: in case of non-payment of an amount due and after simple formal notice by registered mail with return receipt has no effect within fifteen days, MAILKITCHEN shall have the right to deem the order canceled and to claim as compensation a 12% increase in receivables in accordance with the provisions of Articles 1226 and following of the Civil Code. If the User or his Authorized Agent holds several pending orders, and does not honor the corresponding invoices upon first insertion, within the deadline provided, MAILKITCHEN reserves the right to terminate the other orders. In case of Court-ordered bankruptcy or liquidation, the order shall be automatically terminated at MAILKITCHEN's initiative on the date on which MAILKITCHEN shall be aware of such proceedings or the date of the establishing judgment. The invoices issued before such date must be paid.
ARTICLE 9 - Intellectual Property Rights9.1 - Intellectual Property Rights - All the rights, titles and interest in:
1. the registered or unregistered trademarks, service marks and logos;
2. the patents, patent applications and other patentable ideas, inventions and/or improvements;
3. the trade secrets, confidential information and know-how;
4. all divisions, continuations, reissuances, renewals and extensions during or subsequently filed, issued or acquired;
5. the registered or unregistered copyrights, including, in particular, any form, image, audiovisual display, text, software and,
6. all other intellectual property rights, trade rights or other rights related to the intangible property used, developed, included or exercised in connection with one of the Services referred to in this Contract are the property of MAILKITCHEN or its licensors.
9.2 - Intellectual Property Rights and Marketing - THE USER grants to MAILKITCHEN a limited, non-exclusive license to use and reproduce his name, logo, address or any other distinguishing mark in order to contribute to the commercial promotion of MAILKITCHEN on all communications media during the term of this contract and beyond. If MAILKITCHEN so requires, THE USER shall reasonably cooperate with MAILKITCHEN by providing feedback on the Services and/or MAILKITCHEN so that MAILKITCHEN can use these for marketing and/or advertising purposes, or for any other promotional use.
ARTICLE 10 - TerminationTermination for Default
The User is informed that MAILKITCHEN reserves the right to interrupt its service at any time, without entitlement to compensation, in the event that MAILKITCHEN is used in any prejudicial manner, and particularly:
- If the Campaigns launched by the User are not in full compliance with the regulations in force, and, especially if the Campaigns do not include a simple and operational means for the contacts sought to unsubscribe from the User's future Campaigns,
- If the number of complaints from the contacts sent by the User as part of its Campaigns are found to be outside of the generally-recognized norm,
- If the number of false contacts is found to be above 3% of the total volume of contacts sent by the User as part of his Campaigns,
- If any of the Campaigns conducted by the User causes one or more IP addresses used by MAILKITCHEN to route the User's Campaigns to be classified on the black list,
Termination for Substitution of Co-contractor
MAILKITCHEN may terminate this contract by right without notice in the event that the User (legal person) comes to be controlled, within the meaning of Article 355-1 of the Act of July 24, 1966, by a shareholder exercising a business activity that directly competes with that conducted by MAILKITCHEN on the date of such change of control.
ARTICLE 11 - Non-AssignabilityADTHINK MEDIA is the sole holder of the exploitation rights for the MAILKITCHEN platform made available to the User, who has a one-time, non-assignable and non-exclusive right of personal use. Under these conditions, it is expressly agreed that this contract may not be assigned to a third party by the User without the prior written consent of ADTHINK MEDIA. Violation of this provision shall result in the immediate closure of the Account without that any of the third parties can access it before regularization of the situation.
ARTICLE 12 - ConfidentialityEach party agrees not to disclose, nor communicate, nor allow to be disclosed, nor allow to be communicated, nor to be used directly or indirectly, the information, data, information, applications, methods and know-how of a confidential nature as well as any document of any kind whatsoever, which it has learned of during the performance of this contract unless it has been so authorized in advance and in writing by the other party. Each party agrees to have its employees and collaborators and any sub-contractors comply with this obligation of confidentiality.
ARTICLE 13 - Reciprocal Declaration of IndependenceThe parties expressly state that they are and shall remain business partners and independent professionals throughout the term of this contract, each bearing the risks of his own operations.
In no event does this Contract grant to either party the status of joint venture, partner, representative, agent, servant, employee or director of the other Party. Each Party retains all hierarchical power over each of its employees and assumes full responsibility when it calls upon third parties.
Article 14 - Method and Burden of ProofOnce the User's identity is verified by means of his username and password, a calculation of the use of the platform is performed by MAILKITCHEN. The User expressly agrees that the use of his account by him or by a third party shall be proof of acceptance of the orders placed, regardless of their amount and regardless of the medium used. MAILKITCHEN's recording systems are considered as proof of the date and duration of the use.
The account statistics are updated daily and are changed according to the conduct of the Campaigns. These statistics serve as the basis for establishing the billing and determining the prices due and only these shall prevail between the parties in case of dispute related to the payment or the conduct of the Campaigns.
The User acknowledges that he may not require other evidence from MAILKITCHEN of the provision of the services besides the records of the operations carried out by the MAILKITCHEN platform, which records shall be proof of the reality of the operations being carried out in respect of the Campaigns recorded on the platform. All the elements relating to the use of the account shall be preserved and archived by MAILKITCHEN. MAILKITCHEN may avail itself, particularly for evidentiary purposes, of any act, file, record, follow-up report, or statistics on all media whose IT medium is established, received or kept by it. These methods of proof constitute a presumption that can only be reversed in the presence of items establishing that MAILKITCHEN's means of recording and storing were actually defective.
MAILKITCHEN can communicate, upon simple request or Court-ordered request by the authorities with jurisdiction, any information or, in general, any item brought to its attention in the course of its business.
ARTICLE 15 - Miscellaneous Provisions15.1 - The invalidity of any one provision of this contract is not liable to result, in the minds of the parties, in the cancellation of the contract itself, unless it is an essential and determining clause of their consent and that its cancellation is likely to jeopardize the overall balance of the agreement. In case of cancellation of one of the contractual provisions, the parties shall endeavor, in any event, to renegotiate an economically equivalent clause. 15.2 - Subcontracting - It is expressly agreed between the parties that MAILKITCHEN may, at any time, in an entirely discretionary manner, subcontract all or part of its services under this Agreement. In such a case, MAILKITCHEN shall ensure that its contractual relationship with the said provider(s) ensures compliance with the obligations arising under this contract, for which MAILKITCHEN shall remain the sole guarantor. 15.3 - Partnerships - The MAILKITCHEN platform may propose various partnerships to the User with partners selected by MAILKITCHEN, the selected partners should aim to statistical analysis related to User activity on the platform to optimize deliverability and customer knowledge. Therefore User accepts transmission by MAILKITCHEN to any partner the required data to perform this objective.
Article 16 - Applicable Law and JurisdictionThis contract is subject to French law.
Language of this Agreement - MAILKITCHEN may provide You with a translation of the French version of this Agreement. This translation is provided for Your convenience only. In the event of any conflict between the French language version and the translation version of these Terms and Conditions and to the extent permissible by applicable law, the French language version takes precedence over any translation version.
In case of dispute, the parties shall endeavor in priority to do everything possible to find an amicable resolution. For lack of an amicable agreement between the parties hereto, the courts of the place of MAILKITCHEN's corporate headquarters shall have sole jurisdiction without exception.
Any dispute related to the interpretation, performance or validity of this contract shall be subject to the exclusive jurisdiction of the competent court within the jurisdiction of the Court of Appeal of Lyon (69), notwithstanding multiple defendants or application for the joinder of a guarantor as party.
ARTICLE 17 - Election of DomicileThe parties elect domicile at their corporate headquarters except as otherwise specified in the Special Conditions.
All notifications relating to this contract, in order to be valid, must be made by registered letter with acknowledgment of receipt to the address of domicile.