General terms and conditions Mister Mail BV

General terms and conditions of Mister Mail services.
Version 3.4. June 2015

In these general terms and conditions and in the Contract to which these general terms and conditions apply, the following meaning is given to the following terms:

1. Definitions.
• Mister Mail: Mister Mail BV, registered in Maastricht at Geusseltweg 31C, 6225 XS Maastricht, The Netherlands.
• Contracting Party: The party with whom Mister Mail has concluded a Contract to which these general terms and conditions apply;
• Contract: The document in which are laid down the arrangements between Mister Mail and the Contracting Party for the services to be supplied by Mister Mail as described therein.
• Services: The activities to be performed by Mister Mail, including Listhosting Services and Electronic Direct Marketing


2 Applicability of General Terms and Conditions

2.1 The General Terms and Conditions are applicable to every Contract between Mister Mail and the Contracting Party.

2.2 The Contracting Party’s General Terms and Conditions are expressly rejected by Mister Mail.


3 Content of e-mail messages and intellectual property

3.1 Where an e-mail message of the Contracting Party is subject to copyright, this right remains with the Contracting Party.

3.2 Mister Mail shall not censor the content of any e-mail message originating from the Contracting Party.

3.3 Where the e-mail file is subject to intellectual property rights, such as copyright and/or data bank rights, these rights remain with the Contracting Party.

3.4 Contracting Party shall have the opportunity to inspect its e-mail file online and to make alterations to it, always in consultation with the Contracting Party.

3.5 Mister Mail shall not make any data from the Contracting Party’s e-mail file available to third parties and/or employ these data for its own use other than as described in the Contract, unless it is required to make them available on the grounds of a statutory obligation or a court judgment.
3.6 When the Contracting Party supplies e-mail addresses to Mister Mail, Mister Mail shall ensure that these addresses are speedily implemented and integrated, where necessary, in the e-mail file which it already manages on behalf of the Contracting Party.

3.7 The Contracting Party may use Mister Mail’s logo only after prior consultation with Mister Mail, followed by written permission for this use from Mister Mail.


4 Rights and obligations of the parties

4.1 Mister Mail is not entitled to use the Contracting Party’s e-mail file for sending commercial announcements, business or domestic messages or any other message without the Contracting Party’s express prior written consent. Nor is Mister Mail permitted to copy, sell, distribute all or part of the e-mail file in any manner or make it available to third parties in any form.

4.2 Mister Mail shall not add any announcement of any kind or in any form to the Contracting Party’s e-mail messages.

4.3 Mister Mail shall make every effort to make the agreed services available. Mister Mail shall make every effort to provide the maximum availability and to safeguard access to commercially sensitive information originating from or intended for the Contracting Party.

4.4 Mister Mail is entitled to make changes in the services provided by Mister Mail. The Contracting Party is entitled to cancel the Contract if it does not wish to agree to these changes.

4.5 Mister Mail is entitled to place its systems permanently or temporarily out of use and/or to restrict their use where this is required for the reasonably necessary maintenance of these systems. Mister Mail shall give advance notice that it is limiting its systems and/or placing them out of use, subject to a reasonable period of notice.

4.6 The Contracting Party is itself responsible for providing sound hardware and software, peripherals and connections to secure the connection to the internet.

4.7 E-mails, newsletters and/or e-zines which are distributed through the Services are sent to subscribers who have voluntarily subscribed. In its relationship with Mister Mail the Contracting Party shall in no way make use of links to subscriber files which have not been created on a voluntary basis.

4.7.1. Emails are only sent to receivers who have given their consent to receive these emails according to section 7, paragraph 2, number 3 UWG (Act Against Unfair Competition) – (opt in) – or have a business relationship with the advertiser, and the conditions according to article 13 section 2 of the European Parliament and Council Directive 2002/58/EU on Privacy and Electronic Communication are met. The consent to receive advertisements through email has to be given separately. The receiver must either click/mark a box or otherwise give a comparatively clear declaration of consent to receive advertisements via email. This declaration may not be part of other declarations (such as agreeing to terms and conditions). The receivers must give their consent actively through a conscious act. Pre clicked/pre marked boxes may not be used.

4.8. E-mail format
The contracting entity- that means the contracting partner of the sender of an advertisement must be clearly recognizable. Every sent email shall contain an easily noticeable ‘about us’; either in the text or through a direct link. The ‘about us’ sectionshall contain the following information:

a. name and address of the sender, for legal entities in addition to name and address the legal form of the entity, authorized representative and the Commercial Registry, Association Registry, Partnership Registry or Cooperative Society Registry they are registered with, as well the appropriate registration number.

b. contact information, at least a valid telephone number or an electronic contact form, as well as email address and

c. if there is a value added tax identification number according to section 27a of the value added tax act or a business identification number according to section 139c of the tax code, this number shall be provided. Further reaching information obligations, for example according to section 5,paragraph 1 of the Telemedia Act (Telemediengesetz –TMG) remain untouched.

d. Each email must contain an option to withdraw permission to send any further emails. Cancellation must be possible for the receiver, without having to know access data (such as login/password). Exceptions may be admissible in single cases as special cases occur in the administration of the offering party. Cancellations must be processed promptly.

e. Neither the sender nor the commercial character of the message may be obscured or concealed in the header or the subject header of the email. Obscuring or concealing is taking place when the header and subject header are composed in such a way that the receiver cannot get any or can get only misleading information about the actual identity of the sender or the commercial nature of the message before the message is opened and read.

f. The sender must remove email addresses from the mailing list after three hardbounces.

g. The customer has to name a contact (name/phone number/e-mail address) for complaints. Response time for complaints must not exceed 24 hours on business days.

h. When using email addresses that the sender or his customers received from third parties, the sender or his customer is obligated to make sure before the advertisement action is taken that only receivers who have given their consent according to these criteria are emailed; a consent that not only refers to mailings sent by a third party but also by the sender himself or the sender’s customer.

i. The retrieval of address data for third parties (such as through co sponsoring) should be transparent to the user. More so, address data retrieved in such a way should only be used for a mailing if:
– the companies for which the address data is generated were named individually, transparently, and categorized by industry, and
– the access to the list of companies was clearly possible and easy for the users, and
– the number of companies or persons for whom the address data was collected is reduced in a way that excludes the forwarding of user data to an unreasonably large circle of third parties and that allows the user to easily comprehend the consequences and the extent of his consent as well to easily control the legal handling of his data. For clarification purposes we would like to point out that the companies for which the address data is generated may not forward this address data to third parties without a special consent from the user to do so.

4.9 In order to prevent unnecessary loading of the server, the Contracting Party must ensure that the e-mail file which it supplies has been cleaned as far as possible of duplicate and/or unreachable addresses.

 

5 Forbidden behaviour

5.1 The Contracting Party guarantees that it will not use the Services in one or all of the following ways:

5.1.1 Actions which are in conflict with any statutory provision, public order or common decency, or which is in any other way unlawful;

5.1.2 Breaching of any right of a third party, including an intellectual property right;

5.1.3 Breaching of any intellectual property right of the Contracting Party;

5.1.4 Breaching of industrial and/or commercial secrets where it is clear that these are not intended for publication;

5.1.5 Any form of unsolicited (bulk) mail, such as spamming and chain letters;

5.1.6 The deliberate distribution of viruses or other harmful, destructive components;

5.1.7 The distribution to minors of content containing nudity of pornographic material.

5.2 If the Contracting Party performs one of the forbidden actions referred to under 5.1 or there is a reasonable suspicion that it is doing so, Mister Mail is entitled to suspend or to terminate its obligations under the Contract.

5.3 If it subsequently appears that the Contract has been wrongly suspended or terminated, Mister Mail shall resume the services without being liable to pay damages or costs to the Contracting Party.

5.4. Neither the sender nor the commercial character of the message may be obscured or concealed in the header or the subject header of the email. Obscuring or concealing is taking place when the header and subject header are composed in such a way that the receiver cannot get any or can get only misleading information about the actual identity of the sender or the commercial nature of the message before the message is opened and read.

5.5. The sender must remove email addresses from the mailing list after three hardbounces.

 

6 Payment

6.1 The Contracting Party shall pay to Mister Mail the remuneration referred to in the Contract for the facilities and services supplied by Mister Mail to the Contracting Party. These amounts shall be augmented with VAT.

6.2 Mister Mail shall charge the sums owing by means of an invoice to the Contracting Party. The payment must be made in the manner stated on the invoice and within 14 days of the invoice date.

6.3 The date of payment shall be the date on which the payment has been received by Mister Mail.

6.4 If the Contracting Party believes that the amount being charged is incorrect, it must make its objections known to Mister Mail in writing before the due date of the invoice, in default of which the account becomes final.

 

7 Guarantee

7.1 If there is reasonable doubt on the grounds of general and particular facts and/or circumstances as to whether the Contracting Party or prospective Contracting Party can meet its payment obligations, Mister Mail is entitled to require a deposit from the Contracting Party or prospective Contracting Party.

 

8 Alteration of conditions and charges

8.1 Mister Mail is entitled to alter these General Terms and Conditions and its charges. Amendments can also be made to an already concluded Contract. Alterations are notified in writing and/or by e-mail. They come into force fourteen (14) days after this notification or at a later date if this is stated in the notification.

8.2 The parties can moreover depart from these conditions by mutual agreement in writing.

8.3 Apart from the above, the alterations also apply to pre-existing Contracts.

8.4 The alterations come into force fourteen (14) days after the notification or at a later date stated in the notification.

8.5 If the Contracting Party does not wish to accept an alteration, it is entitled to cancel the Contract in writing with effect from the date on which the new conditions or charges come into force. The cancellation must be made before the new conditions or charges come into force.

 

9 Duration

9.1 The Contract is entered into for an indefinite period and has a minimum duration of one(1) year, calculated from the date of signing the Contract, unless Mister Mail has agreed a different period in writing with the Contracting Party on conditions to be determined at a later date.

9.2 The Contract may be cancelled on or after the expiry of the minimum duration referred to in clause 1 of this article solely on the grounds and in the ways stipulated in these General Terms and Conditions and/or the Contract, unless Mister Mail has agreed otherwise with the Contracting Party in writing.

9.3 The period of notice for the Contracting Party amounts to at least two (2) months or so much longer as is necessary to cancel at the end of the month. The period of notice does not begin earlier than the date on which Mister Mail receives the written notification of the cancellation.

9.4 After the ending of the Contract, the Contracting Party shall return, at Mister Mail’s request, all the facilities and materials made available by Mister Mail, within the period then agreed.

9.5 After the ending of the Contract, the Contracting Party shall cease using the name, the logo and all the other materials originating from Mister Mail, with immediate effect. If and insofar as this is not done, the Contracting Party shall incur, without the intervention of the court, an immediately due and payable penalty of up to € 1.000,00 for each day that it fails to satisfy the requirements of Article 10.4 and 10.5.

 

10 Termination of the Contract by Mister Mail

10.1 Mister Mail is entitled to cancel the Contract with the Contracting Party in writing or by e- mail, subject to a one (1) month period of notice, without having to state any reasons.

10.2 Mister Mail is entitled to cancel the Contract with the Contracting Party in writing or by e- mail with immediate effect, if it appears that:

10.2.1 The information supplied by the Contracting Party differs significantly from the agreed information

10.2.2 The Contracting Party is guilty of any form of improper and/or unlawful use of the Services referred to in Article 5 of these General Terms and Conditions.

10.2.3 The Contracting Party does not pay the sum owing promptly, as stipulated by the Contract.


11 Termination by the Contracting Party

11.1 If the continuity, the security of the e-mail message and/or the one-way transmission are put into question by the quality of the service provided by Mister Mail, the Contracting Party is entitled to dissolve the Contract.

11.2 The Contracting Party is entitled to dissolve the Contract if Mister Mail repeatedly fails to honour its obligations and these shortcomings justify the dissolution of the Contract, irrespective of whether these circumstances lie within or outside the power of Mister Mail.

 

12 Transfer of the Contract

The Contracting Party is not entitled to transfer the rights and obligations under the Contract to a third party without the prior written permission of Mister Mail.

 

13 Use of personal data

The parties shall observe the current personal data protection legislation. The parties indemnify each other against third party claims arising from or relating to the failure of the other party to comply with this legislation.

 

14 Security

14.1 Mister Mail shall make every effort to take adequate organisational and technical measures to safeguard the Contracting Party’s e-mail file.

14.2 The Contracting Party shall exercise confidentiality and due care in the use of secure data, as further defined in the Contract.


15 Liability

15.1 Insofar as there is no departure from the provisions of this article relating to a particular subject in the Contract, the following arrangement in relation to liability arising from any failure to perform an obligation under these General Terms and Conditions of the present Contract between Mister Mail and the Contracting Party shall apply.

15.2 Mister Mail is not liable for any loss suffered by the other Party through any cause whatsoever, unless the liability and the loss arising therefrom arose as a consequence of gross negligence or intention by Mister Mail.

15.3 If and insofar as Mister Mail is nevertheless bound to pay compensation for loss and costs, regardless of the exclusion in Article 17.21, any penalties stipulated for this in the present Contract shall be subtracted from the remuneration due.


16 Force majeure

16.1 In the event of Mister Mail being subject to force majeure, Mister Mail’s obligations shall be suspended. By force majeure is meant: circumstances which prevent Mister Mail from performing its obligation and which are not attributable to Mister Mail. These include interruptions in the internet connections, defects in the telephone and/or cable networks of telecommunication and other infrastructure providers, failure in the electricity supply and other circumstances beyond the control of Mister Mail.


17 Indemnity

17.1 The Contracting Party indemnifies Mister Mail against third party claims arising from or relating to:

17.1.1 The content distributed by Mister Mail on behalf of the Contracting Party by means of the Services;

17.1.2 The use of the agreed services by the Contracting Party;

17.1.3 The contravention by the Contracting Party of these General Terms and Conditions of the Contract;

17.1.4 Infringement of the intellectual property rights of third parties.


18 Applicable law

18.1 These General Terms and Conditions and the present Contract are governed by Dutch law. Any disputes will also be adjudicated under this law.

18.2 Any disputes arising from or related to these General Terms and Conditions of the present Contract shall be heard by the competent court in Maastricht.

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