license agreement

Read our Licese Agreement for the use of MailerBee Platform.

The Reseller

The business entity that intends to sign up as a Reseller which, after a fulfilled payment and confirmation of this and other agreements the business entity, is referred to as You / the Reseller.

The Supplier

…hereafter referred to as the Supplier / we / us.

MailerBee, a brand of the Swedish incorporated company The Supplier, (hereinafter “MailerBee”), and the Reseller, identified with the information provided by completing the relevant information form for Resellers, which, through its Legal Representative or special attorney authorized to enter into this Agreement in the name and on behalf of the party he/she represents (hereinafter the “Reseller”), (each the “Party” and collectively as the “Parties”) accedes to this Agreement (as defined below, in short the “Agreement”). The Reseller is responsible for every action on behalf of itself as well as its customers and shall have its own license agreement with its customer to protect itself in a reciprocal way. Therefor the term “Reseller” as mentioned in this Agreement shall include both the reseller as well as its users, “Customers”, of the Reseller’s access to MailerBee.
The Reseller must rebrand the MailerBee to a brand name chosen by the Reseller, though it must be approved by MailerBee. In this Agreement, MailerBee refers to the MailerBee platform and the Reseller’s rebranded platform as it’s essentially the same platform, but with another brand.

whereas

  • MailerBee is brand of the The Supplier, which is specialized in the digital marketing, digital business development and e-commerce sector, is a company incorporated and duly existing under the laws of Sweden, with registered office in 23431 Lomma, Sweden, filed with Bolagsverket with number 559-022-5974;
  • MailerBee provides to the Reseller an on-line digital platform accessible through the Internet using the modality “Software As A Service” (the “MailerBee Platform”) provided by The Supplier which enables the user to directly manage, in its own, marketing campaigns and on-line communications in general using different digital messaging channels (currently E-mail, in the longer run also SMS, Social Networks);
  • MailerBee has all the full right to exploit and license to any Reseller the non-exclusive and non-transferrable right to use of the platform on the basis of an agreement with The Supplier;
  • The MailerBee Platform is an instrument reserved to professional users and the Reseller undertakes to use it exclusively in connection with its professional business and for purposes related to it.

In consideration of the foregoing recitals, the Parties agree and stipulate the following License Agreement for the non-exclusive and non-transferrable right to use the MailerBee Platform.

License agreement

The recitals and schedules (external links) to the Agreement, and in particular the Terms of use, constitute an integral and substantive part hereof.

Section 1. Definitions.

In connection with this Agreement, set forth below are the meanings of recurring terms and expressions used herein:

Activation Date: means the date notified by MailerBee to the Reseller upon activation of the platform, as a result of an online order (E-commerce).

Agreement: means this document supplemented by the Terms of Use;

Antispam policy: means the policy viewable at the address for Terms of Use (TOU) found here: https://MailerBee.com/license-agreement/terms-of-use/

Credit SMS Table: this is solely on the Reseller to purchase and handle in the MailerBee Platform. MailerBee is not a part of such a transaction and has no responsibility whatsoever in handling, or of the results of such handling, of the Credit SMS purchased and handled by the Reseller.

Custom Domain: the rebranded URL to the MailerBee service that a reseller makes use of.

Expiration date: means the expiration date of the Agreement, also referring to the date after the first one as a result of renewing the reseller subscription, shown in the reseller area which is shown when logging in to the reseller site MailerBee.com;

Intellectual Property: means any intellectual property right governed, from time to time, by laws on patents, the protection of semiconductor chips, copyrights, trade secrets, trademarks and any other intellectual property right whether registered or not, as well as any applications, renewals, extensions, reintroductions and restorations, whether currently in force or implementable in the future, anywhere in the world;

MailerBee API: means the function, instruments and applications for integration with external software programs as established in the documentation viewable after separately agreement between the Reseller and MailerBee.

Privacy policy: means the information viewable at the address: https://MailerBee.com/license-agreement/security-and-privacy

Terms of Use: means the terms of use viewable at the address:
https://MailerBee.com/license-agreement/terms-of-use/

Trial: means the optional free trial period of max 7 (seven) days during which the Reseller may verify the functioning of the MailerBee Platform and during which it may withdraw at any time, without any commitment or cost.

 

Section 2: Conditions of use of the platform.

2.1 – License to use the Platform. MailerBee, in accordance with the terms and conditions hereof, undertakes to provide to the Reseller a limited, non-exclusive and non-transferrable license , for the use of the MailerBee Platform, which directly allows the Reseller to start communications via e-mail or through other messaging channels and to use the analysis functions related to it, through an SAAS (Software – As – A – Service) application made available on the Internet. The Reseller is aware and expressly accepts that the MailerBee Platform is an instrument reserved to professional users, and therefore this Agreement is not subject to the legal framework applicable to agreements with consumers. In any case, the Reseller will benefit from e.g. the Trial during which it may verify the functioning of the MailerBee Platform and during which it may withdraw at any time, without any commitment. In using the MailerBee Platform, the Reseller undertakes to follow the instructions on use defined by MailerBee on the basis of indications deriving in any way from laws, regulations, provisions issued by Authorities or self-governance codes in force in the countries of origin or destination of the messages or in the process of being implement with which MailerBee intends to comply. It is agreed that the processing of the data related to the use of the platform will take place in any case in compliance with the applicable provisions of law, it being agreed that the Reseller takes on the role of Data Controller and MailerBee, availing itself for such purpose of its organizational structure, takes on the role of Personal Data Processor, as better specified in point 2.3 below. Due to the nature and functioning of the MailerBee Platform, the Parties acknowledge that pursuant to and subject to the limits provided under this Agreement, it will be the Reseller who directly and autonomously manages the IT instruments made available by MailerBee and it will be the Reseller, under its own exclusive responsibility, to prepare the messages sent through the MailerBee Platform and to manage, as Data Controller, the data of the recipients of the messages.

2.2 – The Reseller’s access to the platform. The Reseller will have access to the MailerBee Platform through the reserved area called “Reseller Backend” / “Reseller Account” (hereafter called Console) through authorization and authentication credentials issued to the Reseller, and kept and used by the latter under its own exclusive responsibility. Access to the Console and use of the MailerBee Platform must be in compliance with the provisions set forth in this Agreement and in the Terms of Use. In particular, the Reseller undertakes to keep with the maximum level of confidentiality the alphanumerical codes of access (called “username” and “password”) referred to above and therefore is responsible for the safekeeping of the same: the Reseller will therefore be the sole party liable for any damages caused by the use of logins and passwords by unauthorized third parties. The Reseller in any case undertakes to immediately notify MailerBee of any theft, loss or appropriation in any manner by unauthorized third parties of the access credentials.

2.3 – Properties of the database, messages and formalities to be fulfilled by the Parties. The contents of the messages sent by the Reseller and the database of recipients of communications remain exclusively owned by the Reseller who will have to comply with all obligation provided by the applicable law as Data Controller and MailerBee undertakes to refrain from using the same except as provided for purposes of performing this Agreement. In particular, MailerBee undertakes: not to transfer or make available to third parties the above mentioned databases, whether in whole or in part, temporarily or permanently; not to use the same in any manner whatsoever except for statistical purposes and to improve the MailerBee Platform; not to keep a copy of the same, except the copy that is essential for the functioning of the MailerBee Platform and in accordance with the applicable legal framework. However, in the case of that the Reseller goes out of business or just decides, directly or indirectly, to stop providing the MailerBee service to its Customers and leave its Customers without taking care of their use of the MailerBee service accordingly, MailerBee reserves the right to keep such Customers in the database in order to secure a non-interrupted use for them of the system under a new Custom Domain. MailerBee will process the data necessary for the mailing of message to the Reseller’s recipients solely as data processor. It is agreed that MailerBee, in order to perform the activities necessary for the Reseller’s use of the MailerBee Platform, may avail itself of the organizational structure ordinarily used to perform the data processing operations. It should be noted in this regard that MailerBee may use its own suppliers (“Sub Data Processors”), and its own persons tasked with handling the personal data and data processing, who operate in the context of the operating structure of MailerBee in connection with the data that MailerBee processes on behalf of third parties. Prior hereto MailerBee will ensure that a written agreement with the Sub Data Processor is in place which is sufficient to ensure that the Sub Data Processor treats personal data in accordance with this Agreement and applicable law. In particular, the Reseller accepts that The Supplier is appointed as Sub Data Processor as The Supplier operates the MailerBee Platform and that The Supplier will process personal data on behalf of MailerBee.

In such data processing activities, MailerBee and The Supplier undertakes to takes such measures :

  1. to avail itself, where possible, of IT instruments and/or electronic instruments with CPU allocated inside of the European Economic Area (“EEA”) or in any case in countries where the level of protection is adequate in comparison with the applicable legislation, following approaches/methods that are closely related to the purposes of the services that MailerBee is under a duty to render to the Reseller and in full compliance with the applicable provisions on such matter, also with regard to data security;
  2. to process Reseller’s data in countries where the level of protection is adequate in comparison with the applicable legislation;
  3. to implement the necessary minimum security measures in line with the provisions of the applicable legislation in force;
  4. to observe the general security measures provided under the legal framework referred to above; and
  5. to avail itself, where necessary for purposes of the performance of this Agreement, of persons tasked with handling the personal data and will therefore be required to process the personal data which come to their knowledge in the performance of their activities solely for purposes of performing this Agreement, without any further data processing that is not expressly authorized by the Reseller in its capacity.

The processing of data by MailerBee is governed by the following criteria with which MailerBee undertakes to comply:

  1. MailerBee warrants that it will process the personal data owned by the Reseller solely to fulfill the contractual obligations provided under this Agreement. In particular, MailerBee warrants that it will not disseminate or disclose such data, or make them available, directly or indirectly, to third parties, except in the event that this is necessary to fulfill obligations provided by law or arising under this Agreement.
  2. MailerBee undertakes to provide to the Reseller all information and collaboration necessary to the latter in order to fulfill the obligations regarding security measures according to applicable law.
  3. MailerBee warrants that the personal data and the data processing to be carried out by MailerBee in its capacity will be processed resecting the provisions of the Swedish legislation “Personuppgiftslagen”.
  4. MailerBee will carry out the data processing in accordance with the instructions received from the Reseller and, also through periodic audits agreed in advance with the Data Controller, may oversee the exact compliance with provisions of law and the contractual provisions. In this regard, MailerBee will provide, in writing, to its persons tasked with handling the personal data all instructions and procedures necessary for compliance with the law and this Agreement.
  5. Upon the dissolution of the contractual relationship upon active cancellation made by the Reseller, the Reseller’s personal data and the copies of the same will be definitively eliminated from MailerBee’s IT system(s) (including any hard copy files), subject to any obligations provided by law, in accordance with the provisions of art. 2.7 below.

2.4 – Consent from the recipients of the messages. The Reseller expressly declares that it is aware that the essential requirement for the use of the MailerBee Platform for the automatic mailing of messages is the gathering of consent from the recipients. The gathering of consent concerns both the recipients of the messages sent via e-mail and the recipients of sms messages. The consent must meet the requisites provided under the applicable legal framework in force and, therefore, must be provided in advance, express, free, informed and related to specific data processing. This constitutes an essential obligation imposed upon the Reseller. In the event of failure to fulfill, even just once, this essential obligation, MailerBee reserves the right to reduce the mailing speed until the risk of further violations has been excluded, or to terminate the Agreement in accordance with art. 8.7 below.

The Reseller declares that it is aware that MailerBee specifically prohibits:

  1. the use and/or purchase and/or the lease of mailing lists from external suppliers, even in the event that consent has been gathered by third parties, and it is also prohibited to send to recipients compiled from public lists, public registers or lists published on the internet;
  2. the use of mailing lists gathered through co-registration and/or date-sharing activities (such as, merely by way of example and without any limitation, “passive co-registration”, “list broking”, “list rental”, “affiliate email marketing”) and any other similar situation in which the Reseller does not gather the consent directly and/or the consent gathered does not refer to specific data processing;
  3. the use of applications/functions such as SMTP+, SMTP Relay, Fast Email, Instant SMTP, WebService/API to send massive messages with commercial/marketing/promotional contents provided by third parties or DEM, EDM, direct emailing, direct email marketing;
  4. the mailing of material falling under any of the following categories: (a) obscene material or material that promotes pedophilia; (b) offensive material or material with immoral purposes; (c) material with purposes contrary to the public order; (d) material that harms third party rights; (e) material protected by copyright (for example, books and/or publications or parts of them); (f) material held illegally (for example, pirated software, unauthorized copies, etc.); (g) information or databases which do not comply with the current legal framework of the country of receipt and/or origin of the messages, or messages which do not comply with applicable law; (h) material that incites violence or hate; (i) material that sells or promotes services or goods that are illegal in the country of reception and/or origin of the messages, or messages that in any case do not comply with applicable law; (j) materials that introduce viruses, trojans or other damaging or illegal software; (k) messages that pertain to services or products such as escort and dating services; pornography or other sexually explicit contents; pharmaceutical products, work from home, make money on online, and lead generation opportunities; online trading, day trading tips, or stock market-related content; gambling services or products; multi-level marketing; affiliate marketing; credit repair and get out of debt opportunities; cortgages and loans; nutritional, herbal, and vitamin supplements; adult novelty items or references; (l) material considered “dubious” in MailerBee’s absolute discretion.

In all such cases, MailerBee reserves the right reserves to reduce the mailing speed or stop campaigns from being sent until the risk of further violations has been excluded, or to immediately and definitively block access to and use of the MailerBee Platform and/or to declare the automatic termination of the Agreement by law due to breach in accordance with art. 8.7 of this Agreement.

The Reseller undertakes to comply with the provisions set forth on the prohibition on mailing of communications that are unsolicited and unwanted by the recipients (otherwise referred to as the mailing of “spam” and to engage in “spamming”) in point “VI Spam and limitations” of the document Terms of Use and Antispam Policy.

In the event that the Reseller were responsible/liable for the use of the Service for unlawful purposes and/or for the mailing of unsolicited or unauthorized advertising (“spamming”) as described above, causing damage to the reputation of the Provider and/or to the operations of its Service, such as the registration of one or more mailing or second level domain IPs linked to the Service on a Relay Block List or international Blacklist (including but not limited to such blacklists as URIBL, SURBL, SORBS, SPAMCOP, SPAMHAUS, and others), or a blacklisting or relay block listing with any Internet Service Provider (including but not limited to such ISPs as Google, Microsoft, Yahoo!, AOL, Godaddy, Register, Aruba, Fastweb, Alice and others), the User shall be considered the sole and exclusive party responsible and liable for the breaches committed, and shall indemnify and hold harmless the Provider from and against any liability whatsoever in such regard, and the Provider reserves the right to take action in the advisable forums to obtain compensation for damages, whether suffered by the Provider itself or third parties, caused by such conduct.

MailerBee, at any time, even in advance and starting in the free trial period, will be entitled to suspend the mailings through the MailerBee Platform and ask the Reseller to provide documentation proving the existence and suitability of the recipients’ consent, in accordance with the foregoing terms, to the receipt of communications sent using the MailerBee Platform. The Reseller will have 10 (ten) calendar days of starting from the receipt of the communication sent by the abuse prevention service/office, in order to provide what is requested above. In the event that the Reseller refuses to provide the documentation requested pursuant the above terms, or such documentation is missing, inadequate or incomplete, for any reason whatsoever, MailerBee reserves the absolute right to reduce the mailing speed, or stop it, until the risk of further violations has been excluded, or to definitively block access to the Console and/or to declare the automatic termination by law of the Agreement due to breach in accordance with art. 8.7 below.

The Reseller undertakes to include in every message sent through the MailerBee Platform a functioning link that enables the recipient to have access to all information necessary to freely unsubscribe and therefore not receive any further emails. The above-mentioned link for cancellation must be clear, recognizable and legible. The cancellation must be automatic, take place through a maximum of two clicks and not require the insertion of a password or the mailing of an email. Any requests to unsubscribe must be processed by the Reseller within 3 (three) days after the request. MailerBee reserves the right to verify the actual compliance with this deadline by which the Reseller must cancel the requesting party from the mailing lists loaded onto the database of the MailerBee Platform.

The Reseller further declares that it is aware of and accepts that the gathering of consent from the recipients of the messages is a duty that rests exclusively with the Reseller. In gathering such consent, the Reseller must inform the recipients that for the mailing of communications, it may avail itself of supports provided by third parties, such as the MailerBee Platform. Moreover, the Reseller is solely responsible for informing recipients, prior to using the MailerBee Platform, that – with regard to email communications – statistical tracing systems may be used which allow for the detection of the opening of a message and click made on links (hypertext links contained in the email), identifying them by quantities and dates (in accordance with the specific techniques indicated in the Security and Privacy Policy).

MailerBee is therefore released and will be fully indemnified and held harmless by the Reseller from and against any liability deriving from the methods used by the Reseller to enter the data in the databases made available to the latter for the use of the MailerBee Platform, as well as the methods of gathering consent for the use of such instruments. In order to ensure high quality in the mailing of messages and to offer to the Reseller all instruments that may be useful to prevent the mailing of unwanted messages, MailerBee will automatically exclude from mailing lists entered onto the MailerBee Platform email addresses which are inexistent and/or wrong, recipients who have expressed their desire not to receive communications from the Reseller and other recipients to whom any contacts for commercial purposes do not appear to comply with the spam prevention criteria and are potentially harmful to its commercial image, also taking into account best practices recognized by operators in the sector.

The Reseller represents to The Customer declares that he/she is aware that all correspondence between the Customer Reseller and MailerBee, including its collaborators employees, can may be registered and stored/filed recorded and archived. MailerBee reserves the right to publish or forward to third parties (such as, for example, ISP or DNSBL) any communication or correspondence between the Customer Reseller and the Abuse Desk service, identifiable with through the email abuse@MailerBee.com or [COMPANY_EMAIL_ABUSE], as well as to disclose to the Customer’s Reseller’s recipients – should they request it following a report to the Abuse Desk service – the Customer’s Reseller’s identification information. In this respect, by signing of this Agreement, the Customer Reseller shall fully release MailerBee.

2.5 – Information on the sender (“about us”). The Reseller undertakes to include, in every email sent, in a clearly visible manner, a section entitled “about us”, in the text or in the form of a direct link. Such section must contain the following information:

  1. name (last name and first name) and residential address of the sender if an individual; in the case of companies, entities or associations, in addition to the name (for example the company name) and address of the registered office, also the legal form, an indication of the relevant register, companies register or other equivalent commercial/association register/guild with the relevant registration number;
  2. contact information consisting of at least a valid telephone number or an electronic contact form, as well as an e-mail address, and
  3. if available, the identification number must be provided for purposes of VAT, the VAT code for EU purposes, VAT identification number or other equivalent tax identification number.

2.6 – Additional functions and Application programming interface. The MailerBee Platform makes available to the Reseller functions, instruments and applications for integration with external software programs (“API” or “Application Programming Interface”) as established in the documentation “MailerBee API”. Through the API, the Reseller has the possibility of creating personalized integrations between the MailerBee Platform and third party applications in order to facilitate automatic data updating functions. The Reseller is the only party responsible for the use of the API and undertakes to use them with adequate instruments and in accordance with the provisions of this Agreement. The use through the MailerBee Platform of functions made available by third parties may be subject to acceptance of contractual conditions imposed by such third parties.

2.7 – Procedure for cancelling the Reseller’s data. Upon the expiry of 10 (ten) days from the Expiration date or termination of the Agreement for any reason, MailerBee will be entitled to cancel the data filed/stored on behalf of the Reseller in the MailerBee Platform, including any remaining receivables as specified in article 7.1. Such data may be viewed and downloaded freely by the Reseller by the above deadline by using the normal functions of the MailerBee Platform. In the event of block on access to the Console due to administrative irregularities (see art. 4.2) the Reseller may gain access solely after removing the cause that gave rise to the block. Without prejudice to such right of cancellation, longer preservation timeframes may be imposed on account of requirements other than those indicated herein, and in particular in the event of investigations by the public authorities or entities in charge of conducting controls.

2.8 – Reseller assistance. On a merely ancillary basis and in connection with the use of the MailerBee Platform, MailerBee undertakes to provide to the Reseller technical assistance in the event of communications sent by the latter in connection with the proper functioning of the MailerBee Platform, in accordance with the provisions of 5 Warranty on the minimum functioning level.

Section 3. Ownership and Trademarks; Third party licensees.

3.1 – Ownership of the Platform MailerBee. The Supplier is the sole and exclusive owner of all rights and interests related to the MailerBee Platform and any Intellectual Property related to the same, including developments that may derive from the same. MailerBee is a brand owned by The Supplier. The website, the MailerBee Platform and the information contained therein, with the sole exception of what is mentioned in article 2.3, are owned by The Supplier. The unauthorized copying and dissemination of the same in breach of the Intellectual Property rights are prohibited. Custom Domains indicating any association with the MailerBee brand is strictly prohibited.

3.2 – Wording and logo “Powered by MailerBee”. Depending on the paid plan chosen, the Reseller acknowledges and accepts the fact that MailerBee at its sole discretion may insert in every message sent by the Reseller wording and/or a logo concerning the MailerBee Platform, containing a link to one of the MailerBee sites.

3.3 – Use under sub-license. Any sublicensing is strictly prohibited.

Section 4. Economic terms and term of the agreement.

4.1 – Date of effect, term and cancellation of the Agreement. The Agreement is for a fixed term of three months depending upon the minimum term and user fee selected by the Reseller (by way of example and without any limitation, 3, 6, 12, 24, 36 months). The term starts to run on the Date of activation or renewal of the Console. At the Expiration date the Agreement shall be deemed automatically renewed for the same term (for example, 3, 6, 12, 24, 36 months, etc.) in the absence of cancellation which the Parties may exercise until the Expiration date of the Agreement by Registered Letter with return receipt, fax or using the special function made available in the reserved area. In the event of cancellation submitted beyond the above-mentioned essential deadline, such cancellation will not be effective and the Reseller will have to pay the entire fee for the subsequent period, even if it does not use the service, in consideration of the availability of the MailerBee Platform. It is agreed that if the Reseller intends to send the cancellation prior to the conclusion of the pre-selected period, it will be required to pay the usage fee for the entire period. During the Trial, the Reseller may exercise its right to withdraw from the MailerBee Platform Agreement freely, without any direct costs related to MailerBee and at any time. MailerBee reserves the right not to commence the planned mailing from the Reseller of communications and/or marketing campaigns through the MailerBee Platform, newsletters or other messaging channels, in the event that such mailing, while starting during the term of the Agreement, continues beyond its expiry.

The right to cancel the fees related to the options (such as, for example, “Additional administrator”) must be exercised in accordance with the same methods indicated above (Registered Letter with return receipt or Certified E-mail or through a special function available in the reserved area) always by the relevant deadlines/expiry dates.

4.2 – Fee, invoicing and payments. In order to make available the MailerBee Platform, and for its use, and for the availability and performance of ancillary and instrumental services envisaged under this Agreement and for the use of eventual additional options offered by the MailerBee Platform, the Reseller undertakes to pay a periodic fee and/or one-time fee in the timeframe and in accordance with the methods indicated in the document entitled “Confirmation of the order” or in the “online” order when the purchase is perfected remotely through the E-commerce feature of MailerBee.com. The foregoing is subject to the provisions of arts. 7.1 and 7.2 below. The payment may be made by Stripe, MangoPay or credit card, subject to successful payment. In the event that the Reseller fails to make payment of the fee, agreed as set forth above, MailerBee may, in its absolute discretion and at any time, deactivate any part of the service, upon communication on the Console, of all consoles opened in the Reseller’s name. If the Reseller fails to pay the agreed sum upon the expiry, MailerBee will be authorized to block the Reseller’s access to the Console thereby implicitly declare this agreement terminated in accordance with art. 7.7 below and subsequently eliminate all data present on the same, without prejudice to MailerBee’s right to demand, in any case, payment of the entire fee under this Agreement. Payment of all of the sums due to MailerBee under this Agreement may not be delayed or suspended for any reason whatsoever, even in presence of pending complains/claims, it being agreed that the Reseller may enforce any rights solely through separate proceedings and only after the full fulfillment of its obligation to pay the fee. In the event of payment via credit card, MangoPay or Stripe, a recurring payment method will be activated which will entail, on the date of renewal, an automatic pre-authorized charge of the amount of the fee for the use of the MailerBee Platform and the options already activated for a period of the same duration, subject to cancellation which may be effected by the Reseller by an express notice in accordance with the procedures and timeframes provided under point 4.1. If upon the automatic renewal of the Agreement the pre-authorized charge were unsuccessful for any reason (merely by way of example and without any limitation: expired credit card or inexistence of the necessary funds), this will give rise to an immediate block on the mailing functions and the simultaneous notification of failure to pay on the Console and to the Reseller’s Administrative Contacts selected for the receipt of administrative information. Upon the expiry without payment by the Reseller, the Console and/or declare the automatic termination by law of the agreement in accordance with art. 8.7 of the Agreement and proceed with the subsequent cancellation of the Reseller’s data, without prejudice to MailerBee’s right to the collection and/or definitive withholding of the fees for the entire contractual term. For all activities requested by the Customer Reseller to MailerBee by way of derogation of this Agreement and to which MailerBee – at its sole discretion – consents, the Customer Reseller shall agree to pay MailerBee the amount of EUR 100.00 (one hundred euro) to cover the administrative costs.

4.3 – Console area (the Reseller Account). The Reseller’s use of the Console area is strictly limited to the purposes related to the mailing of newsletters using the MailerBee Platform and the use of the same for mailing communications in other forms (SMS and Social Networks) under this Agreement, and therefore the Console area is available solely for loading files related to such function. The Reseller expressly accepts such principle and therefore undertakes not to use it for different purposes or using different methods. The images and/or documents uploaded will be viewable solely from the messages sent or from the web version of such messages. The space available is free of charge and unlimited. In any case, no single files (images, documents, etc.), whether they be attached directly or viewable from the links inserted within the communication sent using the MailerBee, may be uploaded if its size exceeds 30 MB (twenty megabytes). MailerBee reserves the right to verify, at any time and even without advance notice, that the files saved in the Console area comply with the provisions of this clause. If such files were found to be not related to the mailing of communications through the MailerBee Platform, or their size exceeded the maximum limited permitted or fell under any of the categories listed in art 2.4, point iv, letters (a) through (L), MailerBee may cancel the same without any obligation to notify the Reseller. Traffic generated by a file uploaded onto the Console and connected within a message may not, in any case, exceed the following limit: number of recipients of the message multiplied by the weight of the file multiplied by ten (example: message sent to 1,000 recipients containing a link to a file of 0.5MB, the connected file may generate maximum traffic of 0.5 * 1,000 * 10, and thefore 5,000 MB). Once such limit is exceeded, MailerBee may, in its absolute discretion, slow down, limit or stop access to the file or eliminate the file from the Console without any obligation to notify the Reseller.

Section 5. Warranty of minimum functioning level.

5.1 – Availability of the MailerBee Platform. With this Agreement, MailerBee undertakes to make available the MailerBee Platform with an availability up-time rate of 98% on an annual basis (total number of hours per year is 365 days * 24 hours, with the exception for the below mentioned service maintenance windows). The Parties mutually acknowledge that, in any case, MailerBee cannot be held responsible for the unavailability of the MailerBee Platform due to facts and circumstances attributable to the Reseller, or other Resellers or to persons for whose conduct the Reseller is responsible, such as, merely by way of example and without any limitation, the availability of an appropriate internet network at the Reseller’s premises, problems related to hardware, software, internal networks and the organizational structure of the Reseller. The definition of the guaranteed minimum functioning level excludes the ordinary maintenance activities notified to the Reseller with at least 2 (two) calendar days advance notice and extraordinary maintenance notified to the Reseller with advance notice which may even be less than 4 (four) hours. During holidays and from 12.00 midnight until 6:00 am (CET/CEST) on business days, occasional interruptions in the service may be necessary due to program maintenance operations which will not be taken into consideration in the determination of the guaranteed minimum functioning level, and with respect to which MailerBee shall have no liability whatsoever.

5.2 –Reseller assistance. On an instrumental and ancillary basis in order to ensure the proper use and full functioning of the MailerBee Platform, MailerBee undertakes to provide technical assistance for problems reported related to the proper functioning of the MailerBee Platform from Monday through Friday during office hours (09:00 am – 6:00 pm CET/CEST), excluding holidays, using one of the procedures set forth below at the Reseller’s option:

[a] EMAIL – Technical assistance via email or by completing the help form available on the console, on the matters related to the functioning of the MailerBee Platform, with acknowledgment of the problem within 8 business hours and intervention, with a request for confirmation from the Reseller, to be given within 24 business hours (the 24 business hours shall start to run from the moment in which the technical support provides the first answer on the acknowledgment of the request). The assistance does not include consultancy services on the composition of messages, the Html code, the structuring and qualitative level of the communication, deliverability problems (deliverability of the messages). The timeframe for the answer is guaranteed from the moment in which all information suitable for the exact identification of the problem has been provided to the technical support.

[b] SUPPORT DESK – Assistance via support desk (activation through the dedicated form in the reserved area) on matters related to the functioning of the MailerBee Platform. The assistance does not include consultancy on the composition of messages, the Html code, the structuring and qualitative level of the communication. Assistance on matters concerning deliverability of messages is not included.

[c] SUPPORT FORUM – Assistance via the Support Forum relies partially on the MailerBee support staff, partially on volunteer help from other resellers. The help given in the support forum shall at all times be considered general hints, not advises. MailerBee assumes no responsibility for any help/hints given in the Support Forum since any registered user can give this help, MailerBee’s support staff or any other reseller.

The support staff will acknowledge the request within 8 business hours. The intervention, with request for feedback from the Reseller, will take place within 16 business hours from the acknowledgment of the request (the 16 business hours shall start to run starting the moment in which the technical support staff provides its initial answer of acknowledgment of the request). The timeframe for providing an answer is guaranteed from the moment in which all information useful for purposes of identifying the issue in its entirety have been provided. The assistance available under this option, is provide upon the opening of a request (Ticket) via email or support desk in accordance with the procedures and timeframes specified above.

The support staff will acknowledge the request within 8 business hours. The intervention, with request for feedback from the Reseller, will take place within 16 business hours from the acknowledgment of the request (the 16 business hours shall start to run starting the moment in which the technical support staff provides its initial answer of acknowledgment of the request). The timeframe for providing an answer is guaranteed from the moment in which all information useful for purposes of identifying the issue in its entirety have been provided. The assistance available under this option, is provide upon the opening of a request (Ticket) via email or support desk, in accordance with the procedures and timeframes specified above.

5.3 – List of contacts authorized to request assistance. The technical assistance via email, referred to in point 5.2 above, will be provided by MailerBee solely for contacts (email addresses) entered in advance by the Reseller on the list of Administrative Contacts selected to receive Technical information in the dedicated section of the MailerBee Platform. The Reseller will be solely responsible for keeping such list continuously up to date. MailerBee shall not, under any circumstances, be considered liable for technical assistance provided following a failure to update, delay in updating or erroneous updating or negligent completion by the Reseller of the list of Administrative Contacts authorized to request assistance.

 

Section 6. Representations, warranties, liabilities and limitations.

6.1. Warranties.

Reseller’s warranties. The Reseller represents and warrants that: (a) it is has the full power and authority to enter into and fully perform this Agreement; (b) it owns or controls all right, title, and interest in and to all Data; (c) it owns or controls all right, title, and interest in and to all Intellectual Property Rights therein, necessary to carry out its obligations hereunder and to grant and assign any rights and licenses granted to MailerBee herein; (d) the Data and the use thereof pursuant to this Agreement shall not violate any law or infringe upon or violate any rights of any Person.

MailerBee’s warranties. MailerBee represents and warrants that: (a) it has taken all necessary corporate action and has the full power and authority to enter into and fully perform this Agreement and grant the license rights set forth herein; and the execution, delivery and performance of this Agreement, and the grant of rights to the Reseller hereunder, do not violate or conflict with the rights of any third party; (b) the MailerBee Platform and the documentation are original to MailerBee and neither the MailerBee Platform and the documentation, nor other services or actions under this Agreement infringe upon, or otherwise violate or misappropriate any copyright, patent, trademark, trade secret, or other intellectual property right(s) held by any third party.

6.2 – Responsibility/liability for information published. In consideration of the nature and characteristics of the MailerBee Platform and its functioning, the Reseller, also in its capacity as party liable for actions taken by its own employees, staff members or support collaborators undertakes to fully indemnify and holder harmless MailerBee in the event that the latter were requested or required, either directly or jointly, either in out-of-court proceedings or in-court proceedings, to pay sums, for example, and without any limitation, as compensation for damages, indemnity, sanctions (administrative, tax or other penalties) in connection with the contents of the communications and the information that is sent or transmitted through the MailerBee Platform, the legitimacy of the same and the conduct engaged in by the Reseller, by its personnel, employees, collaborators or final customers, or, in any case, by any party for whose work the Reseller is liable by law or contract. Civil liability and criminal liability in connection with information published through the service offered by MailerBee shall remain borne exclusively by the Reseller.

6.3 – Limitation on Liability. MailerBee shall not be liable for any damage, liability or loss resulting from a cause over which such entities do not have direct control, including but not limited to the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorized access or theft.

6.5 – Breaches caused by external events. MailerBee shall not be deemed in any way liable for the malfunctioning of the MailerBee Platform or the impossibility of or difficulty in performing the ancillary services due to the fault of the operators of the telephone and electricity lines and worldwide and national networks and, merely by way of example but without any limitation, following breakdowns, overloads, interruptions, etc.

6.6 – Force majeure events. MailerBee may not be deemed in any way liable for the failure to perform this Agreement caused by factors falling outside its reasonable control or force majeure events or random chance such as, by way of example and without any limitation, uprisings, acts of terrorism and war, strikes, riots, tornadoes, hurricanes, floods, mudslides and landslides.

6.7 – Interruptions due to exceptional events. MailerBee undertakes to maintain the efficiency and functioning condition of the MailerBee Platform; if it were forced to interrupt its use on account of exceptional events or maintenance, it will keep such interruptions or suspensions to a minimum, providing timely updates on the Console to the Reseller. MailerBee shall define the appropriate access procedures and reserves the right to improve them at any time; it will also provide to the Reseller, at the latter’s request, all technical specifications in order to gain access to the MailerBee Platform and correctly use the same in accordance with the provisions of this Agreement.

6.8 – Breach due to third parties. MailerBee will furthermore not be liable for conduct or omissions on the part of third parties that prejudice the functioning of the MailerBee Platform, including, merely by way of example and without limitation, slowdowns or malfunctioning of telephone lines and computers/systems/servers that manage the Reseller’s internet traffic and the MailerBee Platform.

6.9 – Services provided by third parties. If the Reseller uses functions of the MailerBee Platform made available by third parties, including network operators, the following provisions shall apply: MailerBee permits access to such functions provided however that they are subject to terms, conditions and limitations imposed by the relevant suppliers and that under no circumstances will MailerBee be liable for the failure to function or incorrect functioning of the same. If third parties should change, suspend or interrupt the supply of such functions, MailerBee may as a result change, suspend or interrupt access to such services without any obligation to provide notice. Furthermore, MailerBee will be authorized to suspend the use of the MailerBee Platform that is directly dependent upon services offered by such third parties. MailerBee in any case remains entitled, where necessary, to avail itself of different suppliers in order to guarantee the functioning of the MailerBee Platform. In this regard, the Reseller authorizes MailerBee to provide to such third parties all of the information necessary.

6.10 – Mailing of messages. The messages are deemed sent when they are sent from the MailerBee Platform to the destination planned in the Console, including, by way of example and without any limitation: SMTP servers, mobile telecommunications networks or any server of intermediaries or API of third party suppliers of services. The Reseller acknowledges and accepts that the third party suppliers could interrupt the services provided to MailerBee or to MailerBee’s suppliers without notice. In such case, the messages will not be delivered to destination, but this shall in no way be attributable to MailerBee. The delivery receipt of messages is available but not guaranteed: when the services supplier or mobile telecommunications operator provides it, it is indicated in the Console. The Reseller acknowledges that the mailing of communications, due to the intrinsic technological characteristics of the same, should not be used in situations in which the failure to receive a message, whether completely and/or by a certain period of time, is capable of causing damages to the Reseller or to third parties; MailerBee does not guarantee the delivery of communications or the constant usability of the MailerBee Platform and, in the vent of failed and/or delayed delivery or in the absence of a delivery receipt, it shall have no liability whatsoever, whether direct or indirect, towards the Reseller and/or third parties. MailerBee also reserves the right to exclude from the mailing certain recipients or groups of recipients who could compromise the quality of the mailing either individually or in its entirety (For example, Spamtrap).

6.11 – Limitation of liability. Except in cases of willful misconduct or gross negligence, MailerBee’s liability for breach under this Agreement may not, under any circumstances exceed an amount equal to 20% of the fee paid by the Reseller to MailerBee over the period from the date of the last renewal/expiry of the Console, or the Date of activation if no subsequent renewal/expiry took place until the date on which, during the term of the agreement, the damages first occurred, calculating the relevant fee for such period on a proportional basis out of the agreed periodic fee, up to a maximum of 12 months, however usually a month.

Section 7. Credits.

7.1 – Procedures for mailing SMS. MailerBee is not at all involved in the SMS credits transactions so therefor MailerBee is not liable in any way for lost credits etc.

7.2 – Use of Console without mailing emails. A Console which, at the Reseller’s decision in advance, is not used for mailing e-mails, and therefore is used to send SMS, or to analyze email messages, does not entail any fee except for the possible supply of assistance, subject to the provisions of art. 7.1 above. The additional options such as No Logo or Additional Administrators shall be free of charge. The moment in which the Reseller decides to also activate the mailing of emails, with the consequent duty to pay the related additional fee under art. 4.2, must communicate in advance whether it intends to continue to avail itself of the additional options, by paying the relevant fee. Otherwise, all of the options will be deactivated.

Section 8. Ownership of the data related to the Reseller’s use of the platform and terms of use of the platform.

8.1 – Aggregate Data. As established between the Parties, MailerBee holds all rights to the use of statistical information, data and related analyses in aggregate form, deriving from the its Resellers’ use of the MailerBee Platform. Such data in aggregate form do not include personal data and the Reseller expressly authorizes MailerBee to use the same in order to improve the functioning of the MailerBee Platform or for statistical information that may be published in aggregate form.

8.2 – Advertising. The Reseller authorizes MailerBee’s use of its name and logo in presentations, marketing materials, client lists, financial reports. Except as otherwise provided under arts. 3.1 and 3.2 of this Agreement, the Reseller’s use of the logo, trade name or any other distinctive mark related to the MailerBee Platform, will have to be requested in advance by the Reseller in writing and authorized in writing by MailerBee.

8.3 – Free trial. MailerBee may offer periods of free trial of the MailerBee Platform to new Resellers. Such trial period shall be aimed solely for testing the functioning, with limited mailings to test addresses of the Reseller itself. One Reseller will not be permitted to activate more than 2 (two) trial Consoles. No cost is due for the free trial. The free trial Console will be automatically cancelled after 2 (two) months from the expiry. Once the free trial period is completed, if the Reseller expressly confirms its desire to use the MailerBee Platform, it will be required to pay the upfront periodic fee on the basis of the contractual form that it has chosen. Access to the MailerBee Platform may be suspended until the moment in which the payment has been effectively received. If additional ancillary services in addition to the MailerBee Platform are purchased by the Reseller, the related costs and fees will also be charged.

8.4 – Assignment of the Agreement. MailerBee will be entitled to assign or transfer to third parties the rights and obligations arising under this Agreement; the Reseller, in gathering consent to the processing of personal data, undertakes to adequately notify such possibility to its own customers. The Reseller will be entitled to assign and, in any case, transfer the rights and obligations arising under this Agreement, with MailerBee’s prior written consent, by completing the specific document available on the Console and mailing the same, duly signed, to MailerBee. In any case MailerBee declares in advance that it does not release the transferor Reseller from its obligations and that it retains the right to action against it if the transferee fails to fulfill the obligations undertaken. If the Reseller fails to fulfill the obligations provided under this art. 7.4, MailerBee may, in its absolute discretion:

(i) automatically terminate the Agreement by law without returning anything whatsoever to the Reseller for any services not used in accordance with art. 8.2;

(ii) demand payment of the sum of $ 100.00 for administrative expenses in connection with the termination process.

8.5 – Procedures for the processing of the Reseller’s data. To the extent necessary, without prejudice to the fact that under the applicable legal framework, personal data is any information related exclusively to the natural person, the Reseller acknowledges that MailerBee will perform the processing of the data (including the data related to its own delegates and persons designated by it to manage the relationship with MailerBee), under the applicable legal framework because, inter alia, the processing of such data is necessary to perform the Agreement to which the Reseller is party, solely and exclusively for the supply of the services referred to in this Agreement.

8.6 – Validity of amendments and/or supplements. MailerBee may unilaterally amend the Terms of Use and License agreement for the use of the MailerBee Platform. All amendments will be effective from the moment in which the new version of such Terms of Use is accepted on line by the Reseller and the subsequent use of the MailerBee Platform is to be deemed an acceptance by the Reseller of the same amendments and/or supplements. In the event that the Reseller does not intend to accept the amendments and/or supplements referred to above, the latter must notify MailerBee, which reserves the right to terminate the Agreement.

8.7 – Termination for breach. This Agreement may be terminated for breach by simple written notice which may be sent by email and/or certified email in the event of breach of the essential obligations provided under articles 2.4 – Recipients’ consent to messages, 4.2 – Fee, invoicing an payments, 8.4 – Assignment of the agreement and if the Reseller is put into liquidation or admitted to insolvency proceedings. The cessation of the Agreement, in the situations referred to above, shall be effective upon Reseller’s receipt of the termination notice. MailerBee shall in any case retain the right to demand payment of the agreed fee for the entire period and/or to withhold it in its entirety, even if such services have not been completely used.

8.8 – Validity of contractual clauses. The clauses of this Agreement shall be deemed in force and accepted by the Reseller in their entirety, even in the event of gratuitous and/or temporary use of the functions provided on any basis by MailerBee.

8.9 – Tax costs. Any tax cost deriving from the performance of this Agreement, including taxes for advertising activities, shall be borne by the Reseller.

8-10 Governing Law; Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State. Each party hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of California, San Francisco County, or (b) the United States District Court for the Northern District of California, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby or thereby. Each of Reseller and MailerBee agrees to commence any such action, suit or proceeding either in the United States District Court for the Northern District of California or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Superior Court of the State of California, San Francisco County. Each of Reseller and MailerBee further agrees that service of any process, summons, notice or documents by U.S. registered mail to such party’s respective address set forth above shall be effective service of process for any action, suit or proceeding in California with respect to any maters to which it has submitted to jurisdiction in this Section 8.10. Each of Reseller and MailerBee irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby and thereby in (i) the Supreme Court of the State of California, San Francisco County, or (ii) the United States District Court for the Northern District of California, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

8.11 – Final clauses. This Agreement, including all of its schedules which constitute an integral part hereof, abrogates and supersedes all previous agreements, understandings and negotiations, whether written or oral, between the Parties and concerning the subject matter of this Agreement.

The headings contained in this Agreement or in any Exhibit or Schedule hereto, or linked document, as applicable, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

The fact that either of the Parties does not enforce in a timely manner its rights arising under one or more clauses hereof may not be deemed a general and tacit waiver of the rights and duties provided under the clause, nor may it preclude such Party from later demanding the exact and rigorous performance of each and every contractual clause.

The Parties hereby agree that: (a) words in electronic form shall be deemed to be “writing” for the purposes of all applicable legislation where “writing” is required; and (b) electronic evidence shall be admissible in any court or other quasi-judicial proceedings between the Parties.

If one or more of the clauses of this Agreement is declared null and void or unenforceable by the competent court of law, the remaining clauses of this Agreement shall continue to be valid and effective between the Parties, unless such clause constituted a determinant reason for the conclusion of this Agreement.

GDPR – General data protection regulation , valid with EU from 25 May 2018