Article 1. Applicability
- These general conditions apply to all agreements concluded with Marketing Automation B.V., Chamber of Commerce number 78141249, Address: Rhôneweg 20, 1043AH, Amsterdam, Netherlands, hereafter called: MA.
Article 2. Fees, payment en taxes
- CLIENT shall pay the Subscription Fee by an automatic online banking transaction through Creditcard or SEPA to MA in immediately available funds. The Subscription Fee must be paid each month upfront.
- Payment amounts under an Agreement do not include any taxes, and CLIENT shall pay all taxes applicable to payments between the parties under an Agreement.
- Any amount not paid when due will bear interest from the due date until paid at a rate equal to 1% per month (12.68% annually) or the maximum allowed by Law, whichever is less.
Article 3. Data Protection and privacy
- CLIENT shall implement reasonable safeguards to prevent unauthorized access to, use of, or disclosure of the disclosing party’s Data.
- With regard to all personal data processed by MA in execution of an agreement with CLIENT, CLIENT shall act as a data controller as referred to in the General Data Regulation. MA shall only process personal data on behalf of, and in accordance with the instructions of, CLIENT.
- CLIENT is responsible for ensuring that a legal basis for processing personal data is always available. Notwithstanding the provisions elsewhere in these General Terms and Conditions, any damage suffered by MA as a result of CLIENT’s failure to comply with this obligation, including fines imposed by supervisory authorities, compensation to be paid to data subjects, and reputational damage to MA, shall be borne by CLIENT.
- MA may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service, but only if such information does not identify the data as CLIENT’s or otherwise include CLIENT’s name.
Article 4. Mutual Representations
- By entering into an Agreement, the parties mutually declare that they are authorized to do so.
- Neither party is under any restriction or obligation that the party could reasonably expect might affect the party’s performance of its obligations under an Agreement.
Article 5. MA’s Representations
- MA has not granted and is not obligated to grant any license to a third party that would conflict with the DELIVERABLE.
- The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party.
- MA shall perform its services solely on the basis of a best efforts obligation. MA explicitly does not guarantee any result of its efforts or services.
- To MA ‘s Knowledge, no third party is infringing the Service.
Article 6. CLIENT’s Use of Services.
- CLIENT shall:
- abide by all local and international Laws and regulations applicable to its use of the Service, and
- comply with all regulations, policies and procedures of networks connected to the Service.
- Restricted Uses. CLIENT will not upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service, modify, disassemble, decompile or reverse engineer the Service, probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service, take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service, copy or reproduce the Service, access or use any other clients’ or their users’ data through the Service, maliciously reduce or impair the accessibility of the Service, use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability.
- MA provides all its services on a fair use policy basis. Even if no maximum usage is attached to the service, in practice a maximum of 20% above the average usage of MA’s other clients during a given period applies. If CLIENT exceeds this maximum, MA will inform CLIENT and MA is entitled to charge CLIENT additional costs for services that exceed the maximum.
Article 7. Intellectual Property
- MA will retain all interest in and to the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property rights in connection with the Service, including MA ‘s name, logos. and trademarks reproduced through the Service.
- CLIENT agrees that it does not have, nor will it claim, any right, title or interest in the MA Services or any other MA product or service or software or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided including the content, images, videos, and any like artifacts. CLIENT acknowledges that all information, data and reports received from MA as part of the Service are proprietary to and owned by MA. If instructed to do so by MA, CLIENT will immediately discontinue the use of any such reports or data, and any other material owned by MA.
Article 8. Effect of Termination
- In the event of termination of the agreement, the client shall
- immediately pay to MA all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.
- cease all use of the Service upon the effective date of the termination.
- CLIENT will have 30 days from the date of termination to retrieve any of data that CLIENT wishes to keep.
Article 9. Indemnification and liability
- Each party (as an indemnifying party) shall indemnify the other (as an indemnified party) against all losses arising out of any proceeding brought by either a third party or an indemnified party, and arising out of the indemnifying party’s willful misconduct or gross negligence.
- Before bringing a claim for indemnification, the indemnified party shall notify the indemnifying party of the indemnifiable proceeding, and deliver to the indemnifying party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding. If the indemnified party fails to notify the indemnifying party of the indemnifiable proceeding, the indemnifying will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified party’s failure.
- The parties’ right to indemnification is the exclusive remedy available in connection with the indemnifiable proceedings described in this section.
- In no event will MA be liable for any direct, consequential, indirect, incidental, punitive, special or exemplary damages whatsoever including, without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred or arising out of the Agreement, even if it has been advised of the possibility of such damages. In no event will the liability of MA exceed the amount that will be rewarded by the insurance company of MA cost. With a maximum of 4 month subscription costs.
- Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
Article 10. Warranties
MA services and the results generated there from are provided on an “as is” and “as available” basis, without any warranty of any kind and without any guarantee of continuous or uninterrupted display or distribution of any ma assisted campaign. in the event of interruption of display or distribution of any campaign or ma assisted campaign, MA’s sole obligation will be to restore service as soon as practicable. except as stated herein, ma disclaims all warranties of any kind, whether express or implied including, but not limited to, the implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. ma does not warrant or guarantee any specific conversion rates, response rates, or that any websites, or similar will be free of any bugs, errors, or problems; no advice or information, whether oral or written, obtained by client from ma or its representatives will create any warranty not expressly made herein. some jurisdictions do not allow exclusions of certain warranties, so some of the above exclusions may not apply to CLIENT.
Article 11. Miscellaneous
- MA may amend the terms and conditions of an Agreement at any time by reasonable notice, including without limitation by sending revised terms to CLIENT.
- Neither party may assign an Agreement or any of their rights or obligations under an Agreement without the other party’s written consent.
- The parties shall give all notices and communications between the parties in writing by electronic mail to the party’s address specified in an Agreement, or to the address that a party has notified to be that party’s address for the purposes of this section. Receipt of Notice. A notice given under an Agreement will be effective on the other party’s receipt of it, or if mailed, the earlier of the other party’s receipt of it and the fifth business day after mailing it.
- If any part of an Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
- No General Waivers. A party’s failure or neglect to enforce any of its rights under an Agreement will not be deemed to be a waiver of that or any other of its rights.
- No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
Article 12. Governing Law
- Any Agreement between parties shall be governed by and construed, performed and enforced in accordance with Dutch law.
- In case of dispute the courts of Amsterdam, The Netherlands, shall have exclusive jurisdiction. In case of any dispute between Parties concerning the rights and obligations from any Agreement between parties prefer (but are not obliged) to use mediation by an independent professional third party.
Questions about the Terms and Conditions should be sent to us at [email protected], or to the following address:
Attn: Terms of Service Matter
Marketing Automation B.V.