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Terms (DE) (as of 29th July 2020)

MAILTASTIC IS WILLING TO PROVIDE ITS SERVICES AND ACCESS TO ITS PLATFORM ON THE TERMS OF THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN THE ENTITY NAMED IN THE SIGN UP FORM AND MAILTASTIC. BY CLICKING “I AGREE”, OR OTHERWISE INDICATING AGREEMENT ELECTRONICALLY, THE ENTITY NAMED IN THE SIGN UP FORM WILL BE APPLYING TO USE THE PLATFORM ON THE TERMS OF THIS AGREEMENT.  THE ENTITY NAMED IN THE SIGN UP FORM WILL ENTER THIS AGREEMENT AND WILL BE BOUND BY ITS TERMS IMMEDIATELY ON MAILTASTIC 'S ACCEPTANCE OF THE SIGN UP FORM.


A brief Explanation of the Data Sharing aspects of this Agreement


In order to provide email management and email marketing services, the Customer is required to provide Mailtastic with the business contact information necessary to create personalised email signatures.


This Mailtastic service is offered free of charge.  In return for the provision of the service by Mailtastic, under these Standard Terms, the Customer permits Mailtastic and members of its group to use that business contact information for their marketing purposes, including B2B direct marketing.  Third party marketers may also access this contact information for use in their marketing campaigns.


This permission does not affect the privacy rights of any individuals in the Customer's organisation who make use of personalised email signatures enabled by Mailtastic. 

 

This explanation is subject to the remainder of these Standard Terms, which set out the legal relationship between Mailtastic and the Customer.

1. Interpretation

1.1

The following definitions apply to this Agreement:

Agreement”: the Sign Up Form and these Standard Terms.

Authorised User”: the employee or independent contractor of the Customer who may access and use the Platform and the Services on the Customer’s behalf.

Business Day”: any day which is not a Saturday, Sunday or public holiday in the UK.

Contract Start”: the date of execution of the Sign Up Form by both parties or as otherwise set out in the Sign Up Form.

Customer” means the corporate entity set out in the Sign Up Form.

Customer Content”: any materials and data provided to Mailtastic by the Customer, including the Signature Data.

 “Intellectual Property Rights”: all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.

Mailtastic”: means Mailtastic Ltd, Registered office: 12 Times Court Retreat Road, Richmond, England, TW9 1AF, Company number: 12616407.

Licence”: the licence granted under clause 4.1.

Platform": Mailtastic’s proprietary online software application known as the “Mailtastic Platform”, available at https://app.mailtastic.de/#/login  including any non-customised on-premise software made available to the Customer for installation locally on Customer’s devices.

Services": the services and products provided by Mailtastic under this Agreement. 

Signature Data” means the data provided to Mailtastic by the Customer to create the email signatures and personalise these to its users.

Sign Up Form” means the sign up form to which these Standard Terms are linked, as completed and submitted by the Customer.

 “Standard Terms” means these standard terms and conditions.

Term”: the period from the Contract Start until the termination of this Agreement in accordance with clause 10.

1.2

A “person” includes a natural person, corporate or unincorporated body.

1.3

Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular and references to one gender are references to the other genders.

1.4

The words “include” and “including" (or similar) shall be deemed to have the words "without limitation" after them.

1.5

A reference to "writing” or "written” excludes email.

​2. Services

2.1

Mailtastic shall provide the Services for the Term.

2.2

The Customer shall ensure that its IT systems and settings are compatible for the Services and at a minimum comply with the Mailtastic System Requirements set out at https://mailtastic.com/mailtastic-system-requirements/ which may be updated from time to time.

2.3

Mailtastic may change the Platform or Services, provided that such changes do not materially alter or disrupt the Customer’s enjoyment of the Services.

2.4

Mailtastic is not obligated to host or maintain the Platform after the Term.

2.5

Mailtastic shall have no liability under this Agreement for any breach of this Agreement, if the claim relates to a modification of the Services by the Customer, Customer's use of the Services in a manner contrary to the instructions given by Mailtastic, the Customer Content.

3. Authorised Users

3.1

The Customer’s access to the Platform and the Services shall be limited to the Authorised Users, who will be allocated a username and password by Mailtastic.

3.2

With Mailtastic’s consent, the Customer may change or add the individuals nominated as Authorised Users. In such case, Mailtastic shall issue a username and password to the new individual nominated as an Authorised User and (where applicable) disable the username and password of the individual no longer nominated as an Authorised User.

3.3

The Customer shall, and shall ensure that each Authorised User shall, keep its password confidential. Mailtastic shall not be liable for any losses or damage suffered by the Customer due to the disclosure of any passwords.

3.4

The Customer shall not, and shall ensure that each Authorised Users shall not, use the Services or the Platform in a manner that may violate any applicable law or regulation.

4. Licence of the platform

4.1

Mailtastic hereby grants the Customer a licence to use the Platform, in accordance with the terms of this Agreement.

4.2

The Licence is granted for the Term, and is granted subject to the terms and conditions of this Agreement.

4.3

The Licence is revocable, non-exclusive, non-transferable and non-sublicensable.

4.4

The Licence is granted to the Customer only and not to any subsidiary or holding company of the Customer, unless otherwise set out in this Agreement.

4.5

The Customer shall not use the Platform or the Services to:


4.5.1 provide, rent or sell services to third parties; or
4.5.2 build a product or service which competes with the Platform, the Services or Mailtastic;
4.5.3 undertake any activity which may lead to the filtering or blacklisting or other measure being taken by third parties in respect of messages sent by or through the services offered by Mailtastic, or which may otherwise impact use of the Platform or Services by any other customer of Mailtastic.

4.6

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and the Services and shall notify Mailtastic promptly of any such unauthorised access or use.

4.7

If the Customer considers it necessary to decompile (as permitted under section 50B of the Copyright, Design and Patents Act 1988) any part of the Platform in order for the Customer to use the Platform in accordance with this Agreement, Customer must first provide written notice to the Mailtastic before attempting to decompile any part of the Platform. Such written notice shall set out in detail the information necessary to achieve the Customer’s use of the Platform in accordance with this Agreement. Customer must not attempt to decompile any part of the Platform until it has received Company’s written response to such notice.

5. Licence of Customer Content

5.1

The Customer hereby grants Mailtastic a royalty-free revocable, non-exclusive, transferable and sublicensable licence for the Term to use the Customer Content to the extent necessary to provide the Platform and the Services.

5.2

Mailtastic shall not back up (or restore if it is damaged) the Customer Content. Therefore, Customer undertakes to back up (and restore if it is damaged) the Customer Content as often as would be considered reasonably prudent to limit the risk of any data loss and agrees to take sensible precautions to minimise such loss.

5.3

The Customer warrants that the Customer Content will:

 
5.3.1 be free from viruses, unlawful, defamatory, racist, inflammatory, obscene and other objectionable material; and
5.3.2 not contain or include any malicious code or virus.

6. Proprietary Rights

6.1

Mailtastic and/or its licensors own all Intellectual Property Rights in the Platform and the Services. Mailtastic does not grant the Customer any Intellectual Property Rights in respect of the Platform or the Services or any related content or materials unless expressly provided in this Agreement.

6.2

So far as Mailtastic is aware, Mailtastic warrants that the Customer’s use of the Platform, or the Services in accordance with this Agreement will not infringe the Intellectual Property Rights of any third party.

6.3

The Customer and/or its licensors own all Intellectual Property Rights in the Customer Content. The Customer does not grant Mailtastic any Intellectual Property Rights in respect of the Customer Content or any related content or materials unless expressly provided in this Agreement.

6.4

The Customer warrants that Mailtastic’s use of the Customer Content in accordance with this Agreement will not infringe the Intellectual Property Rights of any third party.

7. Confidentiality

7.1

In this clause 7 “Confidential Information” means any information that is clearly labelled or identified as confidential or ought to reasonably be treated as being confidential including information related to the Services and the Platform. Confidential Information excludes any information which:


7.1.1 is or becomes publicly known other than through a breach of this Agreement or other obligation of confidentiality;
7.1.2 was in the receiving party’s lawful possession before the disclosure;
7.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
7.1.4 is independently developed by the receiving party and that independent development can be shown by written evidence; or
7.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

7.2

Each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party unless that third party is subject to an equivalent duty of confidentiality. Neither party shall use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

7.3

Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, agents or independent contractors in breach of the terms of this Agreement.

7.4

This clause 7 shall survive termination of this Agreement for a period of 5 years.

8. Limitation of Liability

8.1 

This clause 8 sets out Mailtastic's entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:


8.1.1 arising under or in connection with this Agreement;
8.1.2 in respect of any of Customer’s input to or use of the Platform, or the Services or any part of them; and
8.1.3 in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

8.2

Except as expressly and specifically provided in this Agreement the Customer assumes sole responsibility for its use of the Platform and the Services for the results of, or conclusions drawn from, such use.

8.3

The Platform and the Services are provided "as is" to the fullest extent permissible pursuant to applicable law. Mailtastic disclaims all warranties and conditions express or implied, including, but not limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the Platform, and the Services, their use and the results of such use. Mailtastic specifically disclaims any warranty:


8.3.1 that the Platform or the Services or their availability shall be uninterrupted or error-free;
8.3.2 that defects shall be corrected;
8.3.3 that use of the Platform or the Services will be compatible with all third party email, authentication, encryption, automation or other technnologies;
8.3.4 that there are no viruses or other harmful components;
8.3.5 that the security methods employed shall be sufficient; or
8.3.6 regarding results, correctness, accuracy, or reliability. 

8.4

All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

8.5

Nothing in this Agreement excludes the liability of Mailtastic:


8.5.1 for death or personal injury caused by Mailtastic’s negligence;
8.5.2 for fraud or fraudulent misrepresentation; or
8.5.3 any statutory liability not capable of limitation.

8.6

Subject to clause 8.5, Mailtastic shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement.

8.7

Subject to clause 8.5, Mailtastic’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to £1,000 .

9. Data Protection

9.1 

If the Customer provides any Personal Data (including as part of the Signature Data) to Mailtastic, the Customer shall ensure that it is entitled to do so and that Mailtastic may lawfully process that Personal Data as envisaged under this Agreement and may transmit that personal data outside of the European Economic Area (EEA). The Customer will ensure that all necessary and appropriate consents and notices are in place to enable lawful processing of such Personal Data by Mailtastic.

9.2

In this clause 9, the terms: “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”; “Process” and “Processing” have the meanings ascribed to them in the GDPR; “GDPR” means the European General Data Protection Regulation (2016/679); “Sub-Processor” means any entity or person (excluding an employee of Mailtastic) appointed by or on behalf of Mailtastic to process Personal Data to provide the Services.

9.3

The Parties acknowledge that, for the purposes of the GDPR, where Mailtastic is providing the Services to the Customer, Customer is the Controller and Mailtastic is the Processor.

9.4

Notwithstanding anything in this Agreement, the Customer authorises Mailtastic and its group companies (“Cognism Group”) to use Personal Data contained in the Signature Data for its own purposes as an independent controller. Mailtastic and its group companies may use the Signature Data for marketing purposes and as part of their commercial services. The Signature Data will form part of Cognism Group’s proprietary database and may be used to contact Data Subjects on their business telephone, through electronic mail or conduct online advertising campaigns. Customer herby grants to the Cognism Group a royalty-free irrevocable, non-exclusive, transferable and sublicensable licence to the Signature Data.

9.5

The Customer hereby instructs Mailtastic to process Personal Data as reasonably necessary for undertaking the Services. The details of the processing are as set out in Annex 1.

9.6

Mailtastic shall, in relation to any Personal Data processed to provide the Services:


9.6.1 only process such Personal Data on Customer’s documented instructions including in respect to transfers of such Personal Data to a country outside of the EEA, unless processing is required by applicable laws;
9.6.2 take reasonable steps to ensure the reliability of its employees who have access to such Personal Data, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
9.6.3 take all measures required pursuant to Article 32 of the GDPR;
9.6.4 taking into account the nature of the Processing and the information available to Mailtastic, shall assist Customer by implementing appropriate technical and organisational measures, insofar as this is reasonably possible, for the fulfilment of the Customer’s obligations: (i) to respond to requests to exercise Data Subject rights under the GDPR; and (ii) pursuant to Articles 32 to 36 of the GDPR;
9.6.5 at the written direction of the Customer, delete or return such Personal Data to Customer at the end of the Term unless Mailtastic is required by law to retain it;
9.6.6 make available to the Customer information strictly necessary to demonstrate Mailtastic’s compliance with the obligations set out in this Clause 9.5, including to allow for and contribute to reasonable audits (at the Customer’s sole cost), conducted by the Customer or an auditor designated by the Customer; and
9.6.7 inform the Customer if, in its opinion, the Customer’s instruction infringes this GDPR. 

9.7

Customer hereby grants a general authorisation to Mailtastic to engage Sub-processors. A list of Mailtastic's Subprocessors is available at https://mailtastic.com/free-de-subprocessors/, which may be updated from time to time. Mailtastic shall inform the Customer of any intended changes concerning the addition or replacement of Sub-processors.

9.8

With respect to each Sub-processor, Mailtastic shall ensure that the arrangement between Mailtastic and Sub-processor, is governed by a contract including:


9.8.1 terms which offer at least the same level of protection for Personal Data as those set out in clause 9.5; and
9.8.2 terms which meet the requirements of Article 28(3) of the GDPR. 

9.9

Customer shall be solely responsible for compliance with the EU Privacy and Electronic Communications Directive 2002/58/EC (as amended, replaced, or superseded from time to time) including national laws implementing such EC Directive, and the UK Privacy and Electronic Communications (EC Directive) Regulations 2003. The Customer warrants, represents and undertakes that it has obtained all necessary and appropriate consents and notices are in place to enable Mailtastic to provide the Services to Customer in compliance with these laws.

9.10

Customer shall indemnify Mailtastic against all liabilities, costs, expenses, damages and losses suffered or incurred (including reasonable legal fees) arising out of a breach by Customer of clause 9.

10. Terms and Termination

10.1

This Agreement shall commence on the Contract Start and subsist until its termination in accordance with this clause 10.10. 

10.2

Either party may terminate this Agreement at any time, on written notice to the other.

10.3

Any termination is without prejudice to either party’s accrued rights or remedies.

10.4

On termination of this Agreement for any reason:


10.4.1 all licences granted under this Agreement shall immediately terminate;
10.4.2 Customer may no longer use the Platform, the Services or any output therefrom;
10.4.3 Mailtastic does not have to store any Customer-related content (including signatures and banners) and may delete these immediately at Mailtastic's sole discretion;
10.4.4 the Customer shall immediately uninstall and destroy or return to the Mailtastic (at the Company’s option) all copies the Platform (or any part thereof) then in its possession, custody or control.

10.5

The accrued rights and remedies of the parties, and clauses 1, 6, 7, 8, 10.3, 12, 14, 15, 17, 18 and 19, shall survive termination of this Agreement for any reason.

11. Force Majeure

Mailtastic shall not be in breach of this Agreement nor liable for any failure or delay to perform its obligations under this Agreement, if that failure or delay is a result of a Force Majeure Event (whether or not reasonably foreseeable at the time of entering into this Agreement) making it impractical for Mailtastic to perform its obligations. Force Majeure Event means an event beyond the reasonable control of Mailtastic including but not limited to strikes; lock-outs, or other industrial disputes (whether involving the workforce of or any other party); internet outages; communications outages; failure of a utility service or transport network; act of God; war; riot; civil commotion; malicious damage; compliance with any law or governmental order or World Health Organisation rule, decision, regulation, guidance, recommendation, or direction; accident; breakdown of plant or machinery; fire; flood; storm; disease; epidemic; pandemic; or default of suppliers or subcontractors.

12. Promotion

12.1

Mailtastic may refer to the Customer (including use of Customer’s Logos, Trade Marks and other branding) as its customer on its websites, in its marketing materials and in negotiations with third party’s, unless notified otherwise by the Customer.

12.2

In any email signatures delivered by use of the Services or the Platform, Mailtastic may include its branding and refer to such email signatures as being 'powered by' Mailtastic or otherwise promote itself as the supplier of such email signatures,

13. Waiver

A waiver of any right under this Agreement is only effective if it is in writing.

14. Severance

If any provision (or part of a provision) of this Agreement is found to be invalid, unenforceable or illegal, the other provisions (or parts of any provisions) shall remain in force.

15. Entire Agreement

This Agreement constitutes the whole agreement between the parties and supersedes any previous agreement between them.

16. Assignment

The Customer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without the prior written consent of Mailtastic.

17. Third Party Rights

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

18. Notices and Changes

18.1

Any notice required to be given under this Agreement shall be in writing and shall be delivered by email, by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Sign Up Form.

18.2

A notice delivered by hand shall be deemed to have been received when delivered (or if delivered outside business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received 2 Business Days after posting. A notice provided by email shall be deemed to have been received at the time of transmission.

18.3

Mailtastic may revise and amend the Annexes to this Agreement by notice from time to time to reflect changes in the options available in relation to the Services and changes in relevant laws and regulatory requirements.

18.4

Subject to clause 18.3, Mailtastic may change the terms of the Agreement on 14 days’ notice to the Customer. Customer may object to the change in writing within the 14 day notice period.

19. Governing Law and Jurisdiction

This Agreement shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English Courts.

Annex: Details of Processing for Mailtastic service

The subject matter of the processing is the creation of professional email signatures, as further set out in this Agreement.


The duration of the processing will be the duration of the Term as further set out in the Agreement.


The obligations and rights of the Customer are set out in the Agreement

Cell

The categories of Data Subject to whom Personal Data relates:

Customer’s employees (Email senders)

Email recipients

Mailtastic WITHOUT rerouting WITHOUT recipient based campaigns feature

The types of Client Personal Data to be Processed:

IP address, Full name, Role, Email address, Business postal address, Social media profile URL, User ID, Staff-photo

IP address

Mailtastic WITHOUT rerouting WITH
recipient based campaigns feature​​

The types of Client Personal Data to be Processed:

IP address, Full name, Role, Email address, Business postal address, Social media profile URL, User ID, Staff-photo

IP address, Domain or full Email address. Recipient’s Domain/Email address is stored as Banner URL parameters; confirmation and time stamp of recipient’s access of email signature images

Mailtastic WITH rerouting

The types of Client Personal Data to be Processed:

IP address, Full name, Role, Email address, Business postal address, Social media profile URL, User ID, Staff-photo, Email content

Email address, IP address, Email content in case of conversation (processed in our backend)

PLUS

Domain or full Email address. Recipient’s Domain/Email address is stored as Banner URL parameters; confirmation and time stamp of recipient’s access of email signature images