These General Conditions govern the use of the service "PSMAILER" (hereinafter "PsMailer"). The use of the PsMailer service attributes the conditions of use and implies full and unreserved conformity from the user pursuant to each and every one of the general and/or particular conditions in respect to the published version at the time of user access, accepting this contract of license usage.
1. MAIN OBLIGATIONS AND GUARANTEES
. .1.1. PsMailer ensures:
.. 1.1.1. that it will provide the services specified in the contract.
.. 1.1.2. that it will use the diligence and capacity reasonably required for the implementation of Services, as well as in the collection and compilation of any data, which the Services are based on, or which is promised within the Services.
1.1. The Customer agrees:
.. 1.2.1. to use all means reasonably available to them to ensure that any information provided to PsMailer is complete, current, and in the agreed format
..1.2.2. that the file is registered in the General Data Protection Registry and its use is for advertising, market research, marketing or similar purposes.
..1.2.3. that the data has been obtained with the consent of those affected, and such consent includes the use of this data for marketing purposes.
..1.2.4. that the information is accurate and updated, meaning that there is coincidence with the data supplied by the affected.
..1.2.5. that until the date of delivery or provision of Data, those concerned have not exercised their right to cancel, rectify or oppose the processing.
..1.3. that each party will use all means reasonably available to them to fulfil their obligations under this contract in accordance with any timetable for delivery of the Services agreed in writing between the parties.
..1.4. that each party warrants that it has enough legal and acting capacity to enter into this Agreement.
..1.5. that the warranties expressly provided in this Agreement are the only warranties that each party provides the other with respect to the subject matter. Any other warranty, representation or equivalent term or effect that may be implied by law is excluded in so far as the law permits it.
..2.1. This Agreement shall enter into force on the Commencement Date, and without prejudice of the clauses of this Agreement relating to the termination thereof, will continue during the Initial Term.
Unless either party expresses a contrary intention within the Minimum Notice period, the Contract shall be automatically renewed for successive periods, equal to those of the Initial Term.
3. PAYMENTS AND INVOICING
..3.1. The Customer shall pay the amount set out in this Agreement. All amounts specified in this contract do not include VAT or any other applicable tax or duty.
..3.2. PsMailer shall invoice the Customer periodically for each period of use of the application, unless other conditions are stated in the Contract.
..3.3. The Customer must satisfy PsMailer of all invoices within the agreed timeframe.
..3.4. PsMailer reserves the right to amend the licenses or the amount of the service but will always do so with previous notice.
..3.5. In cases of a return of bank receipts the Customer will be responsible for any management expenses incurred.
..3.6. In cases of non-payment of consumed fees, PsMailer will proceed to the relevant legal complaint registering the customer on the RAI and ASNEF lists.
4. NATURE OF THE SERVICES
..4.1. PsMailer Services are not intended to be used as the sole basis for a business decision, but are based on data supplied by third parties, whose accuracy or completeness would not be economically viable to guarantee.
PsMailer Services also include models and techniques based on statistical and probability analysis and on behavioural predictions.
Thus, PsMailer cannot accept any liability, other than those covered under Clause 1.1, due to:
..4.1.1. any inaccuracy, incompleteness or other error in the Services and / or Information arising out of a data supplied to PsMailer by Customers or by a third party;
..4.1.2. any failure of the Services to achieve a particular result for the Client.
5. COMPLIANCE WITH LEGAL OBLIGATIONS
5.1. Each party assumes the obligation, in respect to the provision by PsMailer or use of the Services by the Client, to comply with all legislation applicable to them, including the Data Protection Law (LOPD).
5.2. Each party will allow the other (upon providing reasonable notice and during business hours) to conduct audits to verify that the audited party is meeting its obligations under this Agreement with respect to the use of any software, data or other materials. The party conducting the audit shall:
..5.2.1 observe the proceedings of the other party relating to the protection of confidential customer information on any other party:
..5.2.2. take all reasonable steps to minimize disruption of business activities of the audited party during the conduct of the audit.
..5.3. To protect the integrity of the data used in connection with the Services, the Customer shall:
..5.3.1. comply with the reasonable instructions and standards of PsMailer concerning the security of the information;
..5.3.2. not copy, alter or make unauthorized use of any digital certificate or any other safety device provided by PsMailer
..5.4. Each party will comply with the applicable Data Protection Legislation.
..5.5. The parties shall be governed by the provisions of Article 12 of the Data Protection Law (LOPD) and by this Clause provide that the services specified in this Contract involve any access by PsMailer to personal data of which it is not responsible. Under no circumstances shall such access be considered as being for data communication.
.. 5.6. The Customer warrants:
.. 5.6.1. that he/she is responsible for the file or of the treatment of any data for which PsMailer has access as a result of the provisions of this Agreement.
..5.6.2. if the Customer is not responsible for the file or of the data treatment, they must ensure that this contract is signed on behalf of those responsible for the file or that they have his/her permission to subcontract it to PsMailer, in the understanding that PsMailer will act on the instructions of said Responsible.
PsMailer and those responsible for the file will also be able to sign a contract in accordance to Article 12 of the LOPD (Data Protection Act), according to the model provided by PsMailer for the sole purpose of meeting the current legislation on data protection.
In the event that the said contract is not signed for any reason, the Customer shall be deemed to act on behalf of the File Responsible (manager) or as having permission to subcontract it to PsMailer, o the understanding that PsMailer will act following the instructions of said Responsible.
..5.6.3. that the processing of personal data commissioned to PsMailer under this Agreement is legitimate and complies with all provisions of the current legislation on data protection.
..5.7. PsMailer as Manager of the data treatment and in accordance with the provisions of Article 12 of the Data Protection Act (LOPD) is required to fulfil the following obligations:
..5.7.1. treat the personal data to which it has access to on behalf of the Responsible of the file or of the treatment, in accordance with the instructions issued by those Responsible.
..5.7.2. to allocate personal data for the exclusive use specified in the Contract.
..5.7.3. to not apply or use personal data for purposes other than those stated in the Contract.
..5.7.4. to implement medium level safety measures in the treatment of data that are accessible as a result of compliance with this agreement between the corresponding parties, in accordance with the regulations approved by the Royal Decree 1720/2007, 21December , or by any legislation that could complement and / or replace it.
..5.7.5. once the service is complete, to proceed with the returning or destruction of all personal data which has been processed as a result of providing the service, as well as the return of any type of media or documents in which such data was contained.
There shall be no destruction when there is a legal provision requiring their preservation, in which case its return should be proceeded with, and those responsible for the data will guarantee said preservation. In any case, the requirement established in this paragraph is without prejudice to the obligation to conserve the data, appropriately locked, for as long as any liability may arise from the established contractual relationship under Article 22.2 of Royal Decree 1720/2007 of 21 December.
.. 6.1. Regarding Confidential Information received, each of the parties:
.. 6.1.1. will keep the Confidential Information strictly confidential and will not disclose any of it to anyone, except as permitted or required by the fulfilment of the obligations of the recipient of that information, under this contract;
.. 6.1.2. will adopt appropriate measures to prevent unauthorized access to Confidential Information.
7. USE OF INFORMATION/SERVICES
.. 7.1. The Customer agrees to:
.. 7.1.1. use the Services and / or the Information for the Permitted Purpose only.
.. 7.1.2. not sell, assign, sublicense, distribute, commercially exploit or make available by any other means, or use for the benefit of others, any of the Services or Information;
.. 7.1.3. not make (or allow others to do so) adaptations, alterations, modifications, reverse engineering, decompiling or otherwise interfere with the information in any other way.
8. INTELLECTUAL PROPERTY RIGHTS
..8.1. The Customer (or its relevant licensors) will retain all Intellectual Property Rights of the Customer Data.
..8.2. PsMailer (or its relevant licensors) shall retain all Intellectual Property Rights for the Services, Information and Derived Product .
..8.3. The Customer grants PsMailer a perpetual, free, non-exclusive and non-transferable license to use (and make a copy of) the Customer Data provided to PsMailer, for the sole purpose of being able to enforce this Agreement and / or that PsMailer can meet with any requirement made to it in accordance with the law.
9.1. Either party may terminate this agreement immediately by providing written notice to the other party in the following circumstances:
..9.1.1. if the other party commits a material breach of any of its obligations under this Agreement which cannot be remedied; or
..9.1.2. if the other party commits a material breach of any of its obligations under this Agreement that is not remedied within 1 month of receiving notification from the non-breaching party, stating the offense requiring rectification and making it clear that if the infringement is not remedied it will lead to proceedings for termination.
..9.1.3. if the other party has made the decision to terminate the contract or if there is an application for termination before any court (unless the termination is because of a voluntary corporate restructuring), or any party makes the decision to terminate it or it is judicially terminated, or if there is knowledge of the cancellation of the registration on the Mercantile Registry, or if it is subject of an application for judicial administration in any court, or if there is knowledge of the request for the appointment of an Insolvency Administrator or intent to make such a request, or it is the subject of a voluntary or necessary bankruptcy under the Insolvency Law or there is negotiating of an anticipated proposal of agreement under Article 5.3 of the Insolvency Law or it is terminated or declared bankrupt, or has a designated judicial administration or auditor of the whole or part of its assets, or it enters into an arrangement with creditors or can not regularly meet any obligations due within the meaning of Article 2.2. of the Insolvency Law, or fails to act in trade or makes the decision to do so or suffers any situation of equivalent effect.
..9.2. The termination of this Agreement (or any element thereof) shall not affect any rights, obligations or liabilities of the other party that have accrued prior to the termination or of those intended to persist thereafter. The right of the Client to use the Licensed Materials and / or Information will cease upon termination of this Agreement (unless that aforementioned right is perpetual).