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CONDIZIONI GENERALI DI UTILIZZO
servizi della piattaforma MAILKITCHEN


This is the translation of the French version of the Conditions Générales (link : https://www.mailkitchen.com/fr/conditions-generales). The French version prevails on the English version.
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GENERAL CONDITIONS

The MAILKITCHEN platform makes available to its USERS a service composed of technical means allowing them to broadcast emails on their own databases. The USER wants to use a solution allowing him to disseminate emails on his database while offering him a management facility.
The USER has thus approached MAILKITCHEN in order to use the MAILKITCHEN service. These General Conditions describe the conditions under which the MAILKITCHEN platform offers the USER access to its services.

Conclusion of the contract

The present contract is concluded with the Company ADTHINK MEDIA, located at 79 Rue François Mermet, 69160 TASSIN LA DEMI LUNE - FRANCE, registered with the Register of Commerce and Companies of Lyon (FRANCE) under the number 437733769, which publishes, hosts and puts MAILKITCHEN platform, the General Conditions apply to services (the "Services") offered from the website www.mailkitchen.com.
The creation of a MAILKITCHEN account implies the full and complete acceptance of these General Conditions and Special Conditions.
Any USER using the services of MAILKITCHEN is deemed to adhere in its entirety to these Terms and Conditions simply because of its use.
Any USER therefore declares to have the legal capacity to contract and bind the entity on behalf of which he contracts.
MAILKITCHEN reserves the right to make changes to the Terms and Conditions at any time. MAILKITCHEN will notify THE USER by email or by means of a message on the account of the latter when connecting to the service.
These conditions define the technical, commercial and legal terms and conditions involved in the use of the MAILKITCHEN platform and its services by the USER.

ARTICLE 1 - DEFINITIONS

"Email Address": Electronic contact information used by a person to send or receive correspondence.
"Campaign": A consistent set of advertising actions taken over a period of time to promote a product or service by sending Opt-in direct marketing messages using email as a medium.
"Capping": Maximum number of messages sent per Email Address for the same Campaign.
"User": means the contracting party, USER of the MAILKITCHEN solution, and responsible for the distribution of the Campaigns.
"Consent": means the explicit agreement given by a Recipient to add his or her email address to a File to receive email messages or emails from THE USER. The Consent must be collected by a positive and explicit act of a Recipient such as clicking on a button of type "I agree to receive promotional offers", or ticking an unchecked box or by a similar legal mechanism located on the registration or collection page.
"Deduplication": Treatment that eliminates double or multiple entries within the same database.
"Deduplication": The process of reconciling one or more Email Addresses to identify and delete duplicate email addresses already registered in the Database.
"Deliverability": Treatment consisting in identifying the Email Addresses whose destination address is valid and / or likely to allow the actual delivery of the Campaigns.
"Recipients": People connected to the Internet who have become a member of the USER file by giving their consent to receive e-mail or e-mails from the USER.
"Personal data": data that allow, in any form whatsoever, directly or indirectly, the identification of the natural persons to whom they apply, whether the treatment is carried out by a natural person or a legal person.
"Opt-in": is designated as Opt-in a Personal Data that can be used by the entity that collected it to send to the person who has expressed the wish, promotional or commercial messages.
"Services": refers to all services such as MAILKITCHEN solution delivery, execution of orders placed on the platform, backup, or maintenance of the MAILKITCHEN solution.

ARTICLE 2 - NATURE AND OBJECT

The MAILKITCHEN Service is an Email Routing Service.
MAILKITCHEN allows the USER to access a secure interface to carry out the preparation of his Campaigns, also allows the segmentation of the File, the File management, the storage of the content, the planning, the follow-up of his Campaign and the analysis Campaigns.

ARTICLE 3 - DURATION

This contract comes into force on the date of signature by the parties. It is concluded for an indefinite period. It may be terminated at any time by either party.

ARTICLE 4 - MAILKITCHEN PLATFORM REGISTRATION

To register for the MAILKITCHEN platform, each USER must:
• be a legal or natural person;
• Have a bank account;
• Provide complete and accurate contact information;
• Accept these Terms and Conditions.

MAILKITCHEN reserves the right to refuse the creation of the account or to delete it after the fact and in a discretionary way, in particular but without limitation in one of the following cases:
• in the case of a Campaign whose content could undermine the image and reputation of the MAILKITCHEN platform;
• in the case of a Campaign that does not comply with the applicable legislation and / or ethical recommendations of the profession;
• in the case of a Campaign not complying with the law and the regulations in force as well as the rights of third parties and in particular the rights of the intellectual property;
• in the case of a campaign containing racist or defamatory remarks or ideas or inciting any form of discrimination;
• in the case of a campaign with violent, blasphemous or pornographic content or of a nature to undermine public order and morality;
• in the case of a Campaign with content related to drugs and related accessories;
• in the case of a Campaign to sell alcohol, tobacco, prescription drugs, weapons or ammunition and / or related products;
• in the case of a campaign with content related to financial products, insurance products, and similar products;
• in the case of a Campaign referring to sites such as those listed above;
• in the case of a Campaign whose legal form, legal representative and address are not clearly identified.
• in the case of a Campaign that does not respect the good practices imposed by MAILKITCHEN concerning the information to consumers regarding the use made of their data.
In addition, at any time, MAILKITCHEN reserves the right to verify the identity of the USER or the accuracy of the information communicated by him during his registration. In the event of an incomplete, erroneous or misleading declaration, the account may be closed automatically and without prior notice and the USER AGREES to guarantee MAILKITCHEN of all the consequences that may result from such a declaration.
Once his account is validated, the USER has at his disposal a dedicated interface allowing him to manage all the features offered by the platform. In any event, MAILKITCHEN has sole discretion to judge the suitability of a USER with the requirements set out in these Terms and Conditions.

ARTICLE 5 - MAILKITCHEN'S OBLIGATIONS

5.1 - MAILKITCHEN undertakes to make the MAILKITCHEN Solution available to the USER, and undertakes to use all its means to make the services available under conditions optimal.
For its part, the USER acknowledges that MAILKITCHEN intervenes under this contract of provision as a simple technical provider subject to a simple obligation of means and admits the legal consequences related to this relationship.

Technical Responsibility

5.2 - MAILKITCHEN is obliged, with regard to the commitments contained herein, only an obligation of means concerning the access to MAILKITCHEN, the deliverability of the emails and its operation .

5.3 - The parties expressly agree that MAILKITCHEN can not be held liable for damages or interruptions of related services:
• behavior or practices contrary to legal provisions by the USER in the course of his activity;
• an abnormal, fraudulent or contrary use of the MAILKITCHEN legal provisions by the USER;
• abnormal or fraudulent use by the USER or third parties who need to stop the service for security reasons;
• a case of force majeure or a decision of the authorities;
• an interruption in the supply of electricity or transmission lines due to public or private operators;
• a malfunction of MAILKITCHEN equipment or solution or access to the USER's Internet network or improper use of the MAILKITCHEN solution by the USER;
• the fraudulent intrusion or retention of a third party in the system, or the unlawful extraction of data, despite the implementation of the security measures in accordance with the current data of the technique, MAILKITCHEN only supporting one obligation in terms of known security techniques;
• the nature and content of the information and Data Collected, transferred, created and / or communicated by the USER; more generally, MAILKITCHEN can not in any case be responsible for data, information, results or analyzes from a third party, transmitted or received through the use of the MAILKITCHEN platform made available to the USER;
• a delay in the routing of information and data;
• the functioning of the internet network or the telephone or cable networks of Internet access not implemented by MAILKITCHEN.

Commercial Responsibility

5.4 - In any case, MAILKITCHEN can not be held liable for consequential damages of the USER such as the loss of market, the commercial prejudice, the loss of profit, the loss of the branding or any allegedly unfair competitive action.

5.5 - In any event, should MAILKITCHEN be held liable in any way under this contract, the parties agree that the amount of money to be paid by MAILKITCHEN to L USER under its responsibility could in no case exceed the total amount paid by the USER to MAILKITCHEN during the last 3 (three) months.

ARTICLE 6 - OBLIGATIONS OF THE USER

6.1 - The USER is responsible for the supply and implementation of the equipment (hardware and software) needed to access the MAILKITCHEN platform via the Internet.

6.2 - The USER acknowledges being the sole and exclusive owner of his username and password. He alone will bear the consequences that may result from the use by third parties who would have known of them because of the latter.
Any connection and / or Campaign carried out using the USER accounts associated with the USER will be deemed to have been made by the USER, under his full responsibility.
The USER is informed that it is his responsibility to perform backups of information from his source and that the USER manipulates on MAILKITCHEN.
In case of loss of his password, the USER agrees to inform MAILKITCHEN by email as soon as possible.

6.3 - The USER acknowledges that the software used by the MAILKITCHEN platform is part of a particularly complex technical field subject to technical, computer and telephone risks, and that despite the multitude of tests or experiments to mitigate any possible failure of the platform, a failure is never inevitable; MAILKITCHEN can not be held responsible for any interruptions of the MAILKITCHEN website or platform caused by maintenance operations or updates of the platform.
The USER therefore accepts to bear risks of imperfection or unavailability of the platform.

6.4 - The USER undertakes to respect the framework of the legal provisions in force as well as to make every effort to enforce them.
It is the responsibility of the USER to make appropriate declarations regarding the processing of personal data with other competent authorities.

6.5 - The USER guarantees that the Email Addresses that can be requested as part of the Campaigns meet the following loyalty requirements:
• gathering the consent of people to be prospected,
• Specifically free and enlightened,
• without limitation of product sector and services and type of offer.

6.6 - The USER also guarantees that the prospected persons were, at the latest at the time of the collection of their Email Address, put in a position to easily oppose the use of their Email address for the purpose of commercial prospecting and informed of the possibility of effectively exercising their right of access, rectification, correction and deletion of data concerning them.

6.7 - The USER is solely responsible for the content, and the operation of his Campaigns, products or services that he offers as part of his Campaigns.
The USER must ensure that he has the necessary rights to use the trademarks, logos, designs and creations distributed via MAILKITCHEN.
MAILKITCHEN can not be held responsible for the content or services offered by the USER through his Campaigns for any reason whatsoever. These contents or services are neither edited nor hosted by MAILKITCHEN.
The USER guarantees MAILKITCHEN against any claim or recourse by authors, producers, designers, directors, editors, performers and all persons who consider themselves aggrieved by e-mails sent for any reason whatsoever.
As such, the USER will indemnify MAILKITCHEN at first request for any costs, charges and costs that the latter would have to bear in respect of the foregoing, including fees, consulting fees, expertise, including under a court decision not yet final.

6.8 - The USER undertakes not to transmit via the MAILKITCHEN solution any unsolicited electronic mail, including mail strings or commercial messages, nor any content including computer viruses or any other code, file or program designed to interrupt, destroy or limit the functionality of any software, computer or telecommunication tool, without this enumeration being exhaustive.

6.9 - The USER agrees to abide by a respectable commercial ethics, to respect the law of the consumption in particular by taking care not to propose commercial offers likely to induce the consumer, the USER guarantees MAILKITCHEN against any recourse to this title.

6.10 - THE USER undertakes to provide all the care required by the professional diligence to uphold and preserve the commercial reputation of MAILKITCHEN.
More specifically, THE USER undertakes not to engage in any statements or actions likely to damage the image and reputation of MAILKITCHEN 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 compensate MAILKITCHEN, on first request, for any legal costs (lawyers, bailiffs, appraisals, without this list being exhaustive), any conviction , damages and interests, liability or other liability for any action, procedure, complaint, request, expertise, audit, or other action against MAILKITCHEN resulting from a misunderstanding by the USER of a provision of this contract.

ARTICLE 7 - USE RIGHTS GRANTED ON THE MAILKITCHEN PLATFORM

The MAILKITCHEN platform made available to the USER must imperatively be used in the Conditions defined by this contract. It is reminded that the USER has only a non-exclusive right to use the MAILKITCHEN platform made available to him, which excludes, formally the possibility of:
• reproduce permanently or temporarily the MAILKITCHEN platform made available, in whole or in part, by any means and in any form, including during the loading, display, execution or storage of the software ;
• translate, adapt, arrange or modify the MAILKITCHEN platform, export it, merge it with other IT applications;
• make any copy of all or part of the MAILKITCHEN platform;
• modify, in particular by decompiling, altering, adapting, notably by translating, arranging and more generally modifying all or part of the MAILKITCHEN platform.

The provision of the MAILKITCHEN platform can not be considered as an assignment within the meaning of the Intellectual Property Code of any intellectual property right to the benefit of the USER, and confers on the USER no rights of intellectual property on the MAILKITCHEN platform, which remains the entire and exclusive property of ADTHINK MEDIA.
As such, MAILKITCHEN expressly reserves the exclusive right to intervene on the MAILKITCHEN platform to enable it to be used in accordance with its purpose.
The USER is therefore strictly prohibited from intervening or directly or indirectly involving a third party on the MAILKITCHEN platform.

ARTICLE 8 - PROTECTION OF PERSONAL DATA

8.1 - As a service provider operating the MAILKITCHEN Service, leading as such a subcontracting activity within the meaning of the European General Regulation on Data Protection (GDPR / RGPD) as well as that the Data Protection Act of January 6, 1978 amended, the company ADTHINK MEDIA as SERVICE PROVIDER undertakes to implement Service MAILKITCHEN in accordance with the applicable regulations and in the context of the contractual instructions.

In accordance with the provisions of the RGPD / GDPR and the recommendations of the National Commission for Informatics and Liberties, supervisory authority on which the SERVICE PROVIDER depends, an annex 1 attached to this contract provides the Parties with the necessary clarifications in this area.

8.2 - As a user of the MAILKITCHEN Service for his own account and holder of the e-mail addresses used, the USER acts as a Processing Manager in accordance with the provisions of the RGPD / GDPR being in to determine the purposes and means in the context of the use of the tools made available to it within the framework of the MAILKITCHEN Service. The USER commits himself to respect the obligations resulting from any legislation applicable to his activity of emailing, in particular with regard to the RGPD and the right of the direct prospection by email, and to bring the proof at first request of ADTHINK MEDIA .

The USER guarantees in particular the conformity of the collection operations, the management and the use of the data in conformity with the purpose, the requirements of transparency and lawfulness, the rights of the persons and the requirements related to the direct prospection by email. The USER is responsible for updating his email database and managing requests for unsubscription submitted by natural persons, as well as compliance with best practices and recommendations relating to the conduct of email campaigns.

ARTICLE 9 - FINANCIAL CONDITIONS

In consideration of the various services provided by MAILKITCHEN fixed by this contract, the parties agree that the USER must subscribe a subscription payable no later than the first day of the beginning of each monthly renewal.
The USER is responsible for the payment of orders and interest for late payment. In the absence of payment at maturity, regardless of the reasons for this failure, MAILKITCHEN will charge a late penalty of a rate equal to one and a half times the rate of legal interest.
This penalty will run from the day of the deadline. In case of non-compliance with payment conditions, Campaigns not yet executed may be terminated automatically, without notice or compensation.
In the latter case, the entirety of the corresponding operations will be invoiced and the sums remaining due will be immediately due and the account of the USER definitively blocked.

Collective procedure of the USER : in case of opening of a collective procedure against the USER, MAILKITCHEN reserves the right to suspend the diffusion of the campaign, either on the day of the last payment, ie on the day of the judgment of commencement of the proceedings; The USER is obliged to pay the invoices before this date.

Penalty clause : in the event of non-payment of an amount due and after a simple formal notice by registered letter with acknowledgment of receipt that has no effect within fifteen days, MAILKITCHEN will have the the right to consider the order as terminated and to claim as an indemnity an increase of the claims of 12% in accordance with the provisions of Articles 1226 et seq. of the Civil Code. If the USER or his Agent holds several orders in progress, and does not honor the invoices corresponding to the first insertions within the time provided, MAILKITCHEN reserves the right to terminate the other orders. In the event of receivership or liquidation, the order will be automatically terminated at the initiative of MAILKITCHEN on the date on which MAILKITCHEN becomes aware of the said procedure or on the date of the declaratory judgment. Invoices issued before this date must be paid.

ARTICLE 10 - INTELLECTUAL PROPERTY RIGHTS

10.1 Intellectual Property Rights - All Rights, Titles and Interests on:
• registered or unregistered trademarks, service marks and logos;
• patents, patent applications and other ideas, inventions and / or patentable improvements;
• manufacturing secrets, confidential information and know-how;
• all divisions, continuations, reissues, renewals and extensions in progress or subsequently deposited, issued or acquired;
• copyrighted or unregistered copyright, including, without limitation, any form, image, audiovisual display, text, software and,
• any other intellectual property rights, commercial rights or other rights associated with the intangible property used, developed, included or exercised in connection with any of the Services identified in this Agreement are the property of MAILKITCHEN or its licensors.

10.2 - Intellectual Property Rights and Marketing - THE USER grants MAILKITCHEN a limited and non-exclusive right to use and reproduce his name, logo, address or any other distinctive sign in order to contribute to the commercial promotion of MAILKITCHEN on all communication media during the term of this contract and beyond.
If MAILKITCHEN so requires, THE USER will reasonably cooperate with MAILKITCHEN by providing comments on the Services and / or MAILKITCHEN so that MAILKITCHEN may use them for marketing and / or advertising purposes, or for any other promotional purposes.

ARTICLE 11 - TERMINATION

Termination for Default

The USER is informed that MAILKITCHEN reserves the right to interrupt at any time its performance, without being entitled to compensation, in case of any type of use prejudicial to MAILKITCHEN and in particular:
• In the case of a behavior or a practice of the USER which would be in contradiction with the present General Conditions, and / or of a nature to prejudice the image of MAILKITCHEN,
• If the Campaigns launched by the USER are not in full compliance with the regulations in force and in particular, if the Campaigns do not include a simple and operational means for the contacts solicited to unsubscribe from the next User Campaigns,
• If the number of complaints coming from the contacts sent by the USER as part of his Campaigns are beyond the norm generally observed,
• If the number of erroneous contacts is above 3% of the total volume of contacts sent by the USER as part of their Campaigns,
• If one of the User-Led Campaigns results in the blacklisting of one or more IP addresses used by MAILKITCHEN to route the USER Campaigns.
MAILKITCHEN may suspend by operation of law and without notice its services in case of any breach by the USER to one of his obligations set out in this contract after a period of 2 working days after the sending of an email mentioning the the breach (s) in question.
In the absence of compensation for the breach within 30 calendar days from the submission of the above-mentioned e-mail, MAILKITCHEN may terminate this contract without any compensation and without legal formality.

Termination for counterparty substitution

MAILKITCHEN may terminate ipso jure and without notice the present contract in the event that the USER (legal person) comes to be controlled, within the meaning of article 355-1 of the law of July 24, 1966, by a shareholder directly competing with MAILKITCHEN at the date of this change of control.

ARTICLE 12 - INCESSIBILITY

ADTHINK MEDIA is the sole owner of the rights to use the MAILKITCHEN platform made available to the USER, who has a right of personal use, punctual, non-transferable and non-exclusive.
In these conditions, it is expressly agreed that this contract can not be transferred to a third party by the USER, except with the prior written consent of ADTHINK MEDIA.
Violation of this provision will result in the immediate closure of the Account without any third party having access to it before the situation is rectified.

ARTICLE 13 - CONFIDENTIALITY

Each party agrees not to divulge, communicate, disclose, communicate or use, directly or indirectly, unless it has been previously authorized in writing by the other party , information, data, information, applications, methods and know-how of a confidential nature as well as any document of any kind that came to its notice in connection with the execution of this contract.
Each party undertakes to enforce this obligation of confidentiality by its employees and employees and any subcontractors.

ARTICLE 14 - DECLARATION OF RECIPROCAL INDEPENDENCE

The parties expressly declare that they are and will remain for the duration of this contract of independent business and professional partners, each assuming the risks of its own exploitation.
In no event shall this Agreement confer to any of the Parties the status of joint venture, partner, agent, agent, servant, employee or director of the other Party. Each of the Parties retains all authority over each of its employees and assumes all liability when using third parties.

ARTICLE 15 - EVIDENCE MODE AND CHARGE

Once the identification of the USER has been verified by means of his username and his password, a count of use of the platform is engaged by MAILKITCHEN.
The USER expressly agrees that the use of his account by himself or by a third party will demonstrate the acceptance of orders and orders placed, regardless of the amount and regardless of the medium used. MAILKITCHEN's registration systems are considered to be proof of the date and duration of use.

Account statistics are updated daily (multiple times) and are subject to change as the Campaigns unfold.
These statistics serve as a basis for the establishment of invoicing and the determination of the price due, only these are valid between the parties in case of dispute over the payment or running of the Campaigns.

The USER acknowledges that he will not be able to require from MAILKITCHEN any other proof of the performance of the services than the records of the operations carried out by the MAILKITCHEN platform, records which will serve as proof of the reality of the operations that took place within the framework of Campaigns recorded on the platform. All elements relating to the use of the account will be kept and archived by MAILKITCHEN.

MAILKITCHEN may avail itself, in particular for evidentiary purposes, of any act, file, recording, monitoring report, statistics on any medium, including computerized support established, received or kept by it.
These forms of evidence constitute a presumption that can only be rebutted in the presence of evidence that MAILKITCHEN's means of registration and storage have actually failed.

MAILKITCHEN may communicate, on simple request or judicial requisition of the competent authorities, any information or in a general way any element brought to its knowledge within the framework of its activity.

ARTICLE 16 - MISCELLANEOUS

16.1 - The invalidity of one of the stipulations of the present contract is not likely to lead in the minds of the parties to the cancellation of the contract itself, unless it is not an essential and decisive clause of their consent and its annulment is likely to call into question the general balance of the convention. In the event of cancellation of one of the contractual stipulations, the parties will endeavor, in any case, to renegotiate an economically equivalent clause.

16.2 - Subcontracting - It is expressly agreed between the parties that MAILKITCHEN may at any time, in a completely discretionary manner, subcontract all or part of its services covered by this Contract. In such a case, MAILKITCHEN will ensure that its contractual relationship with the said service provider (s) will guarantee compliance with the obligations arising from this contract, of which MAILKITCHEN will remain the sole guarantor.

16.3 - Partnerships - The MAILKITCHEN platform will be able to propose to the USER different partnerships through partners selected by MAILKITCHEN, these partners could notably aim at the statistical analysis related to the USER activity on the platform to optimize deliverability and customer knowledge. Therefore the USER accepts the communication by MAILKITCHEN to any partner the data necessary for the performance of these missions.

16.4 - Assignment - This Agreement shall in no circumstances be subject to assignment, in whole or in part, for value or free of charge, by either Party without the express prior consent of the other Party. However, it is freely transferable by MAILKITCHEN subject to the absence of substantial modification of the terms of the contract and after having previously informed the User, to any ADTHINK MEDIA Group company and / or to any company which, within the framework the restructuring of its capital or its activities, would replace its rights and obligations and in particular in the event of a transfer resulting from a merger, a partial contribution of assets or an asset transfer.

ARTICLE 17 - APPLICABLE LAW AND COMPETENT JURISDICTION

This contract is subject to French law.

In the event of a dispute, the parties will make every effort to find an amicable solution. In the absence of an amicable agreement between the parties mentioned, the courts of the place of the registered office of MAILKITCHEN will be competent without any exception.

Any dispute related to the interpretation, performance or validity of this contract will be subject to the exclusive jurisdiction of the competent court within the jurisdiction of the LYON Court of Appeal (69 - FRANCE), notwithstanding the plurality of defendants or call in guarantee.

ARTICLE 18 - HOME ELECTION

The parties elect domicile at their registered office, except where expressly stated in the Special Conditions.
All notifications relating to this contract, to be valid must have been made by registered letter with acknowledgment of receipt to the address of domicile.

APPENDICES GDPR

Preamble

The USER has contracted to use the MAILKITCHEN platform provided by the company ADTHINK MEDIA, a service composed of technical means that allow him to broadcast emails on his own databases while having a ease of management.

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (RGPD / GDPR) introduces a new requirement for the formalization of subcontracting contracts in Article 28 as recalled in the guide thematic of the CNIL under the subcontracting which served as a reference in the drafting of this contractual amendment.

The data protection supervisory authority under the RGPD / GDPR on which the MAILKITCHEN platform depends, the National Commission for Informatics and Liberties (CNIL) specifies in a Subcontracting Guide that the service providers performing a subcontracting service within the meaning of the GDPR must bring the contractual formalization in line with the GDPR into line with a contractual amendment.

In this regulatory context and in view of their existing contractual relations, the Parties have formalized this GDPR Annex to the Services Contract. As a service provider operating the MAILKITCHEN platform, the ADTHINK MEDIA Company, as such, carries out a sub-contracting activity within the meaning of the European General Regulation on Data Protection (GDPR / RGPD) as well as the Data Protection Act of the January 6, 1978 amended, ADTHINK MEDIA undertakes to implement the MAILKITCHEN platform in accordance with the applicable regulations and within the framework of the contractual instructions.

As a user of the MAILKITCHEN platform for its own account and holder of the email addresses used, the USER acts as a controller in accordance with the provisions of the RGPD / GDPR being able to determine the purposes and means in the framework of the use of the tools put at its disposal within the framework of the MAILKITCHEN platform. The USER commits himself to respect the obligations resulting from any legislation applicable to his activity of emailing, in particular with regard to the RGPD / GDPR and the right of the direct prospection by email, and to bring the proof at first request of ADTHINK MEDIA .

The USER guarantees in particular the conformity of the collection operations, the management and the use of the data in conformity with the purpose, the requirements of transparency and lawfulness, the rights of the persons and the requirements related to the direct prospection by email. The USER is responsible for updating his email database and managing requests for unsubscription submitted by natural persons, as well as compliance with best practices and recommendations relating to the conduct of email campaigns.

THIS EXPOSE, THE UNDERSIGNED PARTIES HAVE AGREED AS FOLLOWS:

ARTICLE 1: DEFINITIONS

These definitions are derived from the terms of the GDPR:

- "controller" , the legal entity having the status of USER in this Agreement which, alone or jointly with others, determines the purposes and means of the processing within framework of the use of the Platform; the status of Treatment Manager is understood within the meaning of the GDPR.

- "subcontractor" , the legal entity, in this case ADTHINK MEDIA, holder of the MailKitchen brand, having the status of service provider in this Contract which as a sub-contractor -Treaty processing of personal data on behalf of the Data Controller, the status of Subcontractor being understood within the meaning of the GDPR.

- "personal data" , any information relating to an identified or identifiable natural person (hereinafter referred to as "data subject"); is deemed to be an "identifiable natural person" a natural person who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, an identification number, location data, an online identifier, or to one or more specific elements specific to its physical, physiological, genetic, psychic, economic, cultural or social identity; the concept of Personal Data is understood in the sense of the GDPR.

- "processing" , any transaction or set of transactions carried out using automated processes and applied to data or sets of personal data under the control of the Responsible for processing the GDPR, such as collection, registration, organization, structuring, preservation, adaptation or modification, extraction, consultation, use, communication by transmission, dissemination or any other form of making available, reconciliation or interconnection, limitation, erasure or destruction; the concept of Treatment is understood in the sense of the GDPR.

ARTICLE 2: OBJECT OF SUBCONTRACTING

The treatment that is the subject of the outsourcing service is described in the attached Sheet 1 to specify the service (s) concerned, the nature of the operations carried out, the purpose (s), the data to be personal data, the categories of data subjects, the necessary information made available to the SUBCONTRACTOR.

ARTICLE 3: GENERAL OBLIGATION OF THE SUBCONTRACTOR

The SUBCONTRACTOR commits himself as a provider to:

- Treat the data only for the one or more purpose (s) that are / are the subject of the contractual subcontracting;
- Process the data in accordance with the documented contractual instructions of the controller in the annex of this contract.
- Immediately inform the USER in case of processing instructions given by the latter that may constitute a violation of the European Data Protection Regulation or any other provision of Union law or the law of the Member States relating to the Data protection ;
- Inform the USER before processing, insofar as, as a subcontractor, he would be obliged to transfer data to a third country or to an international organization, according to the law of the Union or the law of the Member State to which it is subject, of that legal obligation, unless the right in question prohibits such information on important grounds of public interest;
- Guarantee the confidentiality of the personal data processed within the framework of this Contract;
- Ensure that persons authorized to process personal data under this Agreement undertake to respect confidentiality and receive the necessary training in the protection of personal data;
- Take into account, with respect to its tools, products, applications or services, the principles of data protection from the design stage and the protection of data by default.

ARTICLE 4: GENERAL OBLIGATION OF THE USER

The USER agrees to:
- Provide the SUBCONTRACTOR with the data necessary for the operation of the platform;
- Document in writing any instructions regarding data processing;
- Ensure, in advance and throughout the duration of processing, compliance with the obligations provided for in the European Data Protection Regulation by the PROVIDER;
- Supervise the processing, including conducting audits and inspections with the SERVICE PROVIDER.

ARTICLE 5: SUBSEQUENT SUBCONTRACTING

In order to meet the requirements of Article 28 of the GDPR governing the use of subsequent providers by the MAIN CONTRACTOR, the Parties wish to retain the following option:
The SUBCONTRACTOR may use another service provider (hereinafter "the subsequent SERVICE PROVIDER") to carry out specific processing activities. In this case, he informs the USER in writing of any proposed change concerning the addition or replacement of other service providers.
This information must clearly indicate the outsourced processing activities, the identity and contact details of the subsequent SERVICE PROVIDER and the dates of the subcontract. The USER has a minimum period of 30 days from the date of receipt of this information to present his objections. This subcontracting can only be carried out if the USER has not objected during the agreed period.
The subsequent SERVICE PROVIDER is bound to respect the obligations of this contract for the account and according to the USER's contractual instructions. It is the responsibility of the SUBCONTRACTOR to ensure that the subsequent SERVICE PROVIDER provides the same sufficient guarantees for the implementation of appropriate technical and organizational measures to ensure that the processing meets the requirements of the European Data Protection Regulation. If the subsequent SERVICE PROVIDER does not fulfill its data protection obligations, the SUBCONTRACTOR remains fully liable to the controller of the other provider's performance of its obligations.

ARTICLE 6: INFORMATION OF PEOPLE AND EXERCISE OF RIGHTS

It is the responsibility of the USER to provide the information to those involved in the processing operations at the time of data collection.
As far as possible, the SUBCONTRACTOR shall assist the USER in fulfilling his obligation to respond to requests for the exercise of the rights of data subjects: right of access, rectification, erasure and cancellation. opposition, right to limitation of treatment, right to portability of data, right not to be the subject of an individual automated decision (including profiling).
When the persons concerned exercise any requests for the exercise of their rights with the SUBCONTRACTOR, the latter must address these requests as soon as they are received.

ARTICLE 7: NOTIFICATION OF PERSONAL DATA VIOLATIONS

The SUBCONTRACTOR shall notify the controller of any personal data breach within 72 hours of becoming aware of it by using any means of contact to fulfill this contractual obligation. This notification shall be accompanied by all relevant documentation to enable the USER, if necessary, to notify this breach to the competent supervisory authority.

In the event of the occurrence of an event that may fall within the scope of this article, with the agreement of the USER, the SUBCONTRACTOR shall notify the competent supervisory authority (the CNIL), in the name and for the data controller's account, the personal data breaches as soon as possible and, if possible, no later than 72 hours after becoming aware of them, unless the breach in question is not likely to create a risk for the rights and freedoms of natural persons.

The information of the USER as well as the notification of the violation will have to rely on the mode of operation and the contents presented in Sheet 3 hereof.
Insofar as it would not be possible to provide the information at the same time as the occurrence of the event, the information can be communicated in a staggered manner without undue delay.

Upon agreement of the USER, the SUBCONTRACTOR will communicate, in the name and on behalf of the latter, the personal data breach to the person concerned as soon as possible, when this violation is likely to lead to a high risk for the rights and freedoms of a natural person. For this purpose, the SUBCONTRACTOR will have to rely on the modus operandi and the content presented in Sheet 4 hereof.

ARTICLE 8: SUBCONTRACTOR ASSISTANCE WITH RESPECT FOR THE USER'S OBLIGATIONS

The SUBCONTRACTOR assists the USER, where appropriate, in carrying out impact assessments relating to data protection.
The SUBCONTRACTOR assists the USER in carrying out the prior consultation of the supervisory authority.

ARTICLE 9: SAFETY MEASURES

The SUBCONTRACTOR undertakes to implement security measures in order to fulfill its obligation under the GDPR.
In order to inform the USER about the level of measures adopted, the SUBCONTRACTOR will communicate on the date of the signing of this document a description based on the contents of Sheet 2 herein.

ARTICLE 10: OUT OF DATA AT THE END OF THE CONTRACT

At the end of the outsourcing contract that led to the data processing, the SUBCONTRACTOR will commit according to the choice that will be retained between the Parties to adopt one of the following measures:
- destruction of all personal data or;
- Return of all personal data to the responsible USER or;
- Return of personal data to the eventual intervener designated by the USER.

The return must be accompanied by the destruction of all existing copies in the SUBCONTRACTOR's information systems. Once the data is destroyed, the SUBCONTRACTOR will have to justify in writing the destruction.
In order to describe the measures adopted, the Parties will in due course draw up a description based on a document established by mutual agreement and having a contractual value of annex to the contract.

Termination or non-renewal of the Contract, for any reason whatsoever, or its expiration will result in particular the restitution of all elements, in particular of a technical, organizational or documentary order, allowing the USER to continue his activities in continuity of service logic

However, the USER will formally authorize the SUBCONTRACTOR to possibly retain the elements that will be demonstrated by the SUBCONTRACTOR as necessary as proof until the extinction of all its obligations.

ARTICLE 11: DELEGATE TO DATA PROTECTION

The SUBCONTRACTOR shall inform the controller of the name and contact details of his data protection officer, if he has appointed one in accordance with Article 37 of the European Data Protection Regulation.

ARTICLE 12: REGISTER OF CATEGORIES OF TREATMENT ACTIVITIES

To the extent that he is required to comply with this obligation under the provisions of the GDPR and any recommendations of the Supervisory Authority, the SUBCONTRACTOR shall keep a written record of all categories of processing performed on behalf of the USER including:
- the name and contact details of the controller on whose behalf he is acting, the potential service providers and, where appropriate, the data protection officer;
- the categories of treatment carried out on behalf of the controller;
- where appropriate, transfers of personal data to a third country or to an international organization, including the identification of that third country or international organization and, in the case of transfers referred to in Article 49, second subparagraph of the European Data Protection Regulation, documents proving the existence of appropriate safeguards.

To the extent possible, a general description of the technical and organizational security measures adopted as required.

ARTICLE 13: DOCUMENTATION

The SUBCONTRACTOR shall make available to the USER the necessary documentation to demonstrate compliance with all its obligations and to allow audits, including inspections, to be carried out by the controller or another auditor he has mandated, and contribute to these audits.

Account Gratis