License agreement for the use of the MailUp Platform
Growens S.p.A. with registered office in Milan (MI), Tax Code and VAT Code 01279550196, in the person of its pro tempore legal representative (hereinafter, “MailUp”) and the Client, identified with the information provided by completing the relevant personal information form, 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 “Client”), (each the “Party” and, collectively, the “Parties”), accedes to this Agreement (as defined below, in short the “Agreement”).
- MailUp is a company specialized in the digital marketing and digital communications sector;
- MailUp has developed and designed an on-line digital platform accessible through the Internet using the modality “Software As A Service” which enables the user to directly manage, in its own, marketing campaigns and on-line communications in general using different messaging channels (E-mail, sms)(the “MailUp® Platform”);
- The Customer states to know and have carefully checked the functions of the MailUp Platform and to consider them suitable for their needs;
- The MailUp® Platform is a tool reserved to professional users and the Client 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 Use of the MailUp® Platform.
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 MailUp to the Client upon activation of the MailUp® Platform, as a result of an online order (E-commerce);
“AGCOM Resolutions”: means the Communications Authority’s Resolution No. 42/13/CIR and subsequent additions and amendments viewable at the address: http://www.agcom.it/default.aspx?DocID=11527;
“Agreement”: means this document;
“Antispam policy”: means the policy viewable at the address: https://mailup.com/anti-spam-policy/;
“Database”: means the master records of the recipients of the communications;
“Credit SMS Table”: means the Table viewable at the address http://sms.emailsp.com/;
“Expiration date”: means the expiration date of the Agreement, also referring to the date after the first one as a result of renewing the MailUp® Platform, shown in the customer area, namely the section of MailUp® Platform where the Client can access the details of the purchased service;
“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;
“MailUp® API”: means the function, tools and applications for integration with external software programs as established in the documentation viewable at the address: http://api.mailup.com;
“Order”: means the document accepted each time (online or offline) by the Client, relating to the MailUp® Platform and/or individual services;
“Personal Data”: means the personal information to be understood as any information concerning an identified or identifiable natural person of which processing the Client is the Data Controller, and which is processed by MailUp in performance of the Agreement. More specifically, the data being processed are email addresses, phone numbers, IP addresses, Databases and data generated using the MailUp Platform and transmitted communications;
“Privacy Statement”: means the information viewable at the address: https://mailup.com/privacy-statement/;
“Privacy Regulation” or “GDPR”: means the EU Regulation No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
Trial: means the free trial pre-contractual period established by MailUp and during which the Client may verify the functioning of the MailUp® Platform and withdraw at any time, without any commitment and cost.
Moreover, for the purpose of this Agreement, please refer to the definitions contained in Article 4 of the Privacy Regulation.
2. Conditions of use of the platform
2.1 – License to use the Platform. MailUp, in accordance with the terms and conditions hereof, undertakes to provide to the Client a limited, non-exclusive license, for the use of the MailUp® Platform, which directly allows the Client 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 Client is aware and expressly accepts that the MailUp® Platform is a tool reserved to professional users, and therefore this Agreement is not subject to the legal framework applicable to agreements with consumers. In any case, the Client will benefit from the Trial during which it may verify the functioning of the MailUp® Platform and during which it may withdraw at any time, without any commitment or cost. In using the MailUp® Platform, the Client undertakes to follow the instructions on use defined by MailUp 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 MailUp 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 Client takes on the role of Data Controller or depending on the circumstances of Data Processor and MailUp, availing itself for such purpose of its organizational structure, takes on the role of Personal Data Processor or depending on the circumstances of Sub-Data Processor, as better specified in point 2.3 below. Due to the nature and functioning of the MailUp® Platform, the Parties acknowledge that pursuant to and subject to the limits provided under this Agreement, it will be the Client who directly and autonomously manages the IT tools made available by MailUp and it will be the Client, under its own exclusive responsibility, to prepare the messages sent through the MailUp® Platform and to manage, as Data Controller or depending on the circumstances of Data Processor, the data of the recipients of the messages.
2.3 – Ownership of Personal Data and appointment of the Personal Data Processor. The Personal Data shall remain the Client’s exclusive property and MailUp undertakes not to use such data other than for the purposes contemplated hereby. For the purposes of this Agreement, the categories of Personal Data to be processed are determined exclusively by the Client as the sole party responsible for the use of the Platform and the maintenance of the Database. It is understood that it is the sole responsibility of the Client to create their own backup copies of the Database and the Personal Data uploaded to the MailUp Platform, in addition to what is established by the services offered by MailUp, in order to avoid the loss, in whole or in part, of the same, and that MailUp will not be liable for any damages or losses suffered or incurred by the Client or third parties, if the damages would have been avoided by using the aforementioned measures recommended by MailUp. It is the sole responsibility of the Client to assess in advance whether the security measures implemented by MailUp are suitable for the processing of such data. In the event that the Client deems it necessary to adopt and/or implement specific security measures for the processing of such data, the Client will promptly inform MailUp. In this case, MailUp will evaluate the Client’s request and draft an appropriate estimate to that effect. In this respect, the Client is aware of and agrees that: (i) MailUp processes specific categories of Personal Data as defined under Article 9 of the GDPR, whenever this is necessary in order to fulfil its obligations under the Agreement; (ii) the processing of specific data by MailUp may entail additional costs for the infrastructure of MailUp which may be subject to separate listing; (iii) MailUp will never be liable for any damage or loss suffered by the Client as a result of the uploading of specific data to the Platform not previously agreed upon. In particular, by entering into this Agreement and in accordance with article 28 of the Data Protection Regulation, having considered MailUp as a suitable and reliable individual, the Client hereby appoints MailUp as the Data Processor or depending on the circumstances as Sub-Data Processor.
By entering into this Agreement and effective as of the date hereof, MailUp hereby accepts such appointment and confirms to have the in-depth knowledge of any related obligations, representing to hold the ability, expertise and skills as required to take on such role.
In particular, MailUp undertakes to process the Personal Data in compliance with the instructions and provisions set forth under the deed of appointment annexed as Annex A to this Agreement.
2.4 – Requirements for sending communications through the MailUp® Platform. The Client expressly states to be aware that the essential requirement to use the MailUp® Platform for sending messages in an automated fashion is the existence of a suitable legal basis for processing that permits the receipt of the messages by the recipients in accordance with the data protection law in force from time to time. MailUp may at any time, in case of breach of the terms under the present Clause (e.g. through a report addressed to the MailUp abuse desk or when certain control thresholds on specific indicators, such as “rate of spam reports (feedback loop)” and “hard bounce rate” are exceeded), suspend the use of the MailUp® Platform by the Client; in this case the Client undertakes to provide MailUp with relevant explanations and anything deemed appropriate by MailUp to verify the sending of messages in accordance with the data protection laws in force from time to time. The existence of an appropriate legal basis for the processing of personal data concerns both the recipients of the messages sent via e-mail and the recipients of sms messages. The Client expressly agrees to implement appropriate security measures that the lists uploaded to the MailUp® Platform, also managed through an API, do not contain unauthorized registrations. For example, the insertion of a CAPTCHA (Completely Automated Public Turing test to tell Computers and Humans Apart) confirmation system, to check that the user is not a computer, is considered an adequate safety measure. Where the Client fails to adopt suitable and adequate security measures for this purpose, MailUp may, at its sole discretion, disable the API on the registration form on the Client’s MailUp® Platform, until the risk of further non-conforming registration is eliminated. This constitutes an essential obligation imposed upon the Client. In the event of failure to fulfill, even just once, this essential obligation, MailUp 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 Client declares that it is aware that MailUp specifically prohibits:
- 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;
- 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 Client does not gather the consent directly and/or the consent gathered does not refer to specific data processing;
- 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;
- 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 Italian law; (h) material that incites violence or hate; (i) materia 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 Italian 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 MailUp’s absolute discretion.
In all such cases, MailUp reserves the right to reduce the mailing speed until the risk of further violations has been excluded, or to immediately and definitively block access to and use of the MailUp® 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.
MailUp, at any time, even in advance and starting in the free trial period, will be entitled to suspend the mailings through the MailUp® Platform and ask the Client to provide documentation proving compliance with the provisions of this Clause 2.4. The Client 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 Client refuses to provide the documentation requested pursuant the above terms, or such documentation is missing, inadequate or incomplete, for any reason whatsoever, MailUp reserves the absolute right to reduce the mailing speed until the risk of further violations has been excluded, or to definitively block access to the MailUp Platform® and to declare the automatic termination by law of the Agreement due to breach in accordance with art. 8.7 below. In such case, MailUp will have no liability whatsoever, and will not be under any obligation to pay any indemnity and/or compensation for the service not used; MailUp, in such case, will be entitled to charge to the Client the greater amount between EUR 1,000.00 (one thousand/00 Euro) and 10% of the fee due for the entire Agreement, without prejudice to the right to compensation for any greater damages of any nature whatsoever, directly or indirectly caused as a result of the use of addresses lacking the requisites provided under the applicable legal framework in force and this Agreement.
The Client undertakes to include in each message of a promotional, commercial nature and / or for which the legal basis used is the consent, sent through the MailUp® 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 Client within 3 (three) days after the request. MailUp reserves the right to verify the actual compliance with this deadline by which the Client must cancel the requesting party from the mailing lists loaded onto the database of the MailUp® Platform.
The Client further declares that it is aware of and accepts that the gathering of consent from the recipients of the messages or the identification of an appropriate legal basis for the processing is a duty that rests exclusively with the Client. Similarly, the Client is solely responsible for informing the recipients that for the mailing of communications, it may avail itself of supports provided by third parties, such as the MailUp® Platform. Moreover, the Client is solely responsible for informing recipients, prior to using the MailUp® 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 of the MailUp® Platform.
MailUp is therefore released and will be fully indemnified and held harmless by the Client from and against any liability deriving from the methods used by the Client to enter the data in the databases made available to the latter for the use of the MailUp® 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 Client all instruments that may be useful to prevent the mailing of unwanted messages, MailUp will automatically exclude from mailing lists entered onto the MailUp® Platform email addresses which are inexistent and/or wrong, recipients who have expressed their desire not to receive communications from the Client 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 Client represents to aware that all correspondence between the Client and MailUp, including its collaborators, may be registered and stored/filed. In this regard, the Client authorizes MailUp to: a) forward to anti-spam operators or ISPs any communication or correspondence between the Client and the Abuse Desk service, identifiable through the email email@example.com or firstname.lastname@example.org. only following an explicit request by these subjects; b) to disclose to the Client’s recipients – should they request it following a report to the Abuse Desk service – the Client’s identification information. In this respect, by signing of this Agreement, the Client shall fully release MailUp.
2.5 – Information on the sender (“about us”). The Client undertakes to include, in the text of every email sent, in a clearly visible manner, a section entitled “about us”. Such section must contain the following information:
- 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;
- contact information consisting of at least a valid telephone number or an electronic contact form, as well as an e-mail address, and
- 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.
Client acknowledges that MailUp expressly prohibits the use of temporary, or “disposable”, e-mail accounts, or other anonymization systems that do not permit the sender to be identified. Client therefore agrees to only use e-mail accounts that clearly permit identification. Client also acknowledges that in the event of a breach of this provision, MailUp reserves the unquestionable right to suspend the service and terminate this Agreement pursuant to Article 8.7.
2.6 – Additional functions and Application programming interface. The MailUp® Platform makes available to the Client functions, tools and applications for integration with external software programs (“API” or “Application programming interface”) as established in the documentation “MailUp® API”. Through the API, the Client has the possibility of creating personalized integrations between the MailUp® Platform and third party applications in order to facilitate automatic data updating functions. The Client is the only party responsible for the use of the API and undertakes to use them with adequate tools and in accordance with the provisions of this Agreement. The use through the MailUp® 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 Client’s data. Upon the expiry of 10 (ten) days from the Expiration date or termination of the Agreement for any reason, MailUp will be entitled to cancel the data filed/stored on behalf of the Client in the MailUp® Platform, including any remaining receivables as specified in article 7.1. Such data may be viewed and downloaded freely by the Client by the above deadline by using the normal functions of the MailUp® Platform. In the event of block on access to the MailUp® Platform due to administrative irregularities (see art. 4.2) the Client 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 Judicial Police or Entities in charge of conducting controls.
2.8 – Client assistance. On a merely ancillary basis and in connection with the use of the MailUp® Platform, MailUp undertakes to provide to the Client technical assistance in the event of communications sent by the latter in connection with the proper functioning of the MailUp® Platform, in accordance with the provisions of 5 Warranty on the minimum functioning level.
3. Ownership and Trademarks; Third party licensees
3.1 – Ownership of the Platform MailUp®. MailUp is the sole and exclusive owner of all rights and interests related to the MailUp® Platform and any Intellectual Property related to the same, including developments that may derive from the same. MailUp® is a registered trademark. The website, the MailUp® Platform and the information contained therein, with the sole exception of what is mentioned in article 2.3, are owned by MailUp. The unauthorized copying and dissemination of the same in breach of the Intellectual Property rights are prohibited.
3.2 – Wording and logo “Powered by MailUp®”. Depending on the paid plan chosen, the Client acknowledges and accepts the fact that MailUp may insert in every message sent by the Client wording and/or a logo concerning the MailUp® Platform, containing a link to one of the MailUp® sites.
The Client’s appointment of MailUp as external Personal Data Processor under art. 2.3 is extended to the data processing that will be carried out in connection with the contractual agreements in place with Client’s own sub-licensee customers, and such sub-licensees are required to appoint the Client as the Data Processor or to identify appropriate organizational modalities aimed at ensuring the security of the personal data. The Client undertakes in any case to indemnify and hold harmless MailUp from and against any prejudice that the latter may suffer as the result of conduct, infringements or breaches by the sub-licensees, since the MailUp Platforms activated from the resellers’ panel fall under the provisions of this Agreement.
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 depending upon the minimum term and user fee selected by the Client (by way of example and without any limitation, 12, 24, 36 months). The term starts to run on the Activation date or renewal of the MailUp® Platform. At the Expiration date the Agreement shall be deemed automatically renewed for the same term (for example, 12, 24, 36 months, etc.) in the absence of cancellation which the Parties may exercise until the Expiration date of the Agreement, for the Client, by Registered Letter with return receipt, fax or Certified E-mail (Certified E-mail to the address email@example.com – valid only if the sender also uses a certified address), or using the special function made available in the reserved area and, for MailUp, by Registered Letter, Fax message, Certified E-Mail message (PEC to the address firstname.lastname@example.org – valid only if the sender also uses a certified address), or e-mail to the address indicated in the Client’s personal data for the receipt of administrative communications. In the event of cancellation submitted beyond the above-mentioned essential deadline, such cancellation will not be effective and the Client 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 MailUp® Platform. It is agreed that if the Client 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 Client may freely exercise its right to withdraw from the MailUp® Platform Agreement freely, without any costs and at any time. MailUp reserves the right not to commence the planned mailing from the Client of communications and/or marketing campaigns through the MailUp® 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.
Any ancillary services to the MailUp Platform for which use the Client is required to pay a one-time non-periodic access fee (such as for training and design concepts) will have a term set forth under the pertaining Order, or the shorter period remaining from the date the Order was submitted until the Expiration Date of the Agreement or termination in the events of early termination. If the Client does not use these ancillary services within the term indicated above, it will still be required to pay the entire amount and will not be entitled to any refund.
4.2 – Fee, invoicing and payments. In order to make available the MailUp® 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 MailUp® Platform, the Client undertakes to pay a periodic fee and/or one-time fee in the timeframe and in accordance with the methods indicated in the Order if the purchase is perfected remotely through the E-commerce site, subject to use of the possible Trial period. In the event of payment in a currency other than Euro (€), the amount invoiced to the Client will be calculated based on the official exchange rate on the day before the date of issuance of each invoice. The foregoing is subject to the provisions of arts. 7.1 and 7.2 below. The payment may be made by wire transfer, PayPal or credit card, subject to successful payment. In the event that the Client fails to make payment of the fee, agreed as set forth above, MailUp may, in its absolute discretion and at any time, deactivate the mailing function, upon communication on the MailUp® Platform, of all MailUp platforms opened in the Client’s name. If the Client still has failed to pay the agreed sum upon the expiry of 10 (ten) calendar days, MailUp will be authorized to block the Client’s access to the MailUp® Platform and/or to declare this agreement terminated in accordance with art. 8.7 below and subsequently eliminate all data present on the same, without prejudice to MailUp’s right to demand, in any case, payment of the entire fee under this Agreement. Payment of all of the sums due to MailUp under this Agreement may not be delayed or suspended for any reason whatsoever, even in presence of pending complains/claims, it being agreed – under an exemption from art. 1460 of the Italian Civil Code – that the Client 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 or PayPal, 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 MailUp® Platform and the options already activated for a period of the same duration, subject to cancellation which may be effected by the Client 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 MailUp® Platform and to the Client’s Administrative Contacts selected for the receipt of administrative information. Upon the expiry of an additional 10 (ten) calendar days without payment by the Client, MailUp may block the access on the MailUp® Platform 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 Client’s data, without prejudice to MailUp’s right to the collection and/or definitive withholding of the fees for the entire contractual term. The Parties agree that in the event of delay in the payment of the above-mentioned fee, default interest shall accrue pursuant to Legislative Decree No. 231 of 9 October 2002 as subsequently amended. For all activities requested by the Client to MailUp by way of derogation of this Agreement and to which MailUp – at its sole discretion – consents, the Client shall agree to pay MailUp the amount of EUR 100.00 (one hundred euro) to cover the administrative costs.
The periodic fee of the MailUp Platform, its options, ancillary services and assistance, as well as the methods of provision of services may be subject to change from the next renewal. In this case, MailUp will inform the Client at least 15 (fifteen) days prior to the renewal date, by notice in the Console or by e-mail to the e-mail address of the Client identified in the registry section of the Administrative Contact Console for the receipt of administrative information, filled in by the Client. The new rates and/or the new methods of providing services will be applied from the date of renewal of the Contract and will be kept unchanged at least for the next contractual term. In the event that the Client does not intend to accept the new fees and/or the new methods of providing the services, he will exercise the right to cancel within the terms and conditions provided, in accordance with Article 4.1; failure to cancel within the terms of this Contract will be considered as unconditional acceptance by the Client, with the consequent lawful application of the new fees and/or the new methods of providing the services from the date of renewal.
Moreover, MailUp reserves the right to vary or discontinue individual services and/or features of the MailUp Platform. In this case, MailUp will inform the Client, with a notice of at least 15 (fifteen) days before the deadline for the Client to exercise its right to terminate the Agreement, by notice in the MailUp® Platform or by e-mail to the e-mail address of the Client identified in the registry section of the Administrative Contact MailUp® Platform for the receipt of administrative information, filled in by the Client. These changes will be applied from the date of renewal of the Contract. In the event that the Client does not intend to accept such changes, he will exercise the right to cancel in accordance with the terms and conditions provided, in accordance with article 4.1; failure to cancel in accordance with the terms of this Contract will be considered as unconditional acceptance by the Client, with the consequent lawful application of the new methods of providing the services and/or functions of the MailUp Platform from the date of renewal.
The Client is aware and accepts that MailUp also reserves the right to change or discontinue individual services and / or functions of the MailUp Platform without any notice to the Client. Consequently, the Client agrees that MailUp does not provide any guarantee regarding the continuity of use and delivery of specific functions of the MailUp® Platform. In any case, MailUp will take all reasonable commercial efforts to inform the Client in advance of any changes that may result in a substantial reduction in the level and overall quality of the MailUp® Platform.
4.3 – MailUp® Platform area. The Client’s use of the Console area is strictly limited to the purposes related to the mailing of newsletters using the MailUp® Platform and the use of the same for mailing communications in other forms (sms and Social Networks) under this Agreement, and therefore the MailUp® Platform area is available solely for loading files related to such function. The Client 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.. MailUp reserves the right to verify, at any time and even without advance notice, that the files saved in the MailUp® Platform area comply with the provisions of this clause. If such files were found to be not related to the mailing of communications through the MailUp 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 (k), MailUp may cancel the same without any obligation to notify the Client. Without prejudice to the provisions under Clause 4.2 above on the changes in the functionality of the MailUp® Platform, the traffic generated by a file uploaded and connected within a message may not, in any case, be greater than that provided in the Order. Once such limit is exceeded, MailUp may, in its absolute discretion, slow down or limit access to the file or eliminate the file from the MailUp® Platform without any obligation to notify the Client. For any further space and/or traffic limitations, please refer to the Order.
5. Warranty of minimum functioning level
5.1 – Availability of the MailUp® Platform. With this Agreement, MailUp undertakes to make available the MailUp® Platform with an availability up-time rate of 99%, 24 hours per day and 365 days per year for each year of the term of the Agreement. The Parties mutually acknowledge that, in any case, MailUp cannot be held responsible for the unavailability of the MailUp® Platform due to facts and circumstances attributable to the Client or to persons for whose conduct the Client is responsible, such as, merely by way of example and without any limitation, the availability of an appropriate internet network at the Client’s premises, problems related to hardware, software, internal networks and the organizational structure of the Client. The definition of the guaranteed minimum functioning level excludes the ordinary maintenance activities notified to the Client with at least 2 (two) calendar days advance notice and extraordinary maintenance notified to the Client with advance notice which may even be less than 4 (four) hours. During holidays and from 00.00 (midnight) until 6:00 AM (GMT+1)and from 12.00 midnight until 6:00 am 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 MailUp shall have no liability whatsoever. If MailUp grants to the Client specific functioning of the MailUp Platform in alpha, beta or similar mode (“Beta”), the use thereof is permitted only for the trial purpose of the Client during the period designated, in MailUp’s sole discretion, by MailUp. The use of Beta is optional and either Party may discontinue its use or provision at any time and for any reason. The Client is aware and accepts that the Beta may be incomplete, not properly functioning or include features that MailUp may, in its sole discretion, never release. It is understood that Beta are excluded from the definition of the minimum level of functionality guaranteed by MailUp under this Clause. MailUp grants to the Client a non-exclusive, revocable, non-sublicensable and non-transferable license to use the Beta for testing purposes only. MailUp does not provide any guarantee, indemnity or support for Beta and, except in cases of intent and gross negligence, any form of liability of MailUp is excluded. MailUp recommends that the Client use all due caution and not rely in any way on the proper functioning or performance of the Beta and / or any accompanying documentation.
5.2 –Client assistance. As an instrument and accessory to ensure the correct use and full functionality of the MailUp® Platform, MailUp undertakes to provide technical assistance following reports on problems related to the proper functioning of the MailUp® Platform in accordance with the specifications detailed in the Order if the purchase is completed remotely through the E-commerce site, or as may be specified on the following web page http://help.mailup.com/display/mailupQuickStart/Getting+technical+support.
5.3 – List of contacts authorized. The technical assistance as well as any other administrative communication, compliance and / or privacy via email, referred to in point 5.2 above, will be provided by MailUp solely for contacts (email addresses) entered in advance by the its registry of the MailUp® Platform. The Client will be solely responsible for keeping such list continuously up to date. MailUp shall not, under any circumstances, be considered liable for (i) failure and/or delayed technical assistance and/or (ii) non-receipt of specific communications due to incorrect and/or negligent completion by the Client of the list of contacts in its records.
6. Representations, warranties, liabilities and limitations
6.1 – Warranties.
Client’s warranties. The Client represents and warrants:(i) that all information provided by the Client to MailUp are complete, accurate and updated, including the data entered in the dedicated menu “Management”, and, in particular, in the section Administrative Contacts, available within the MailUp® Platform;(ii) that it is entitled to authorize, and does authorize MailUp to exercise all rights necessary to thoroughly perform this Agreement. Nothing set forth in this article shall serve to limit or exclude liability of either of the Parties for willful misconduct or gross negligence.
MailUp’s warranties. MailUp represents and warrants that: (i) It has taken all necessary corporate action and has the full power and authority and all necessary rights to enter into and perform according to the terms of 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 Client hereunder, do not violate or conflict with the rights of any third party; (ii) the MailUp® Platform and the documentation are original to MailUp and neither the MailUp® 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 MailUp® Platform and its functioning, the Client, also in its capacity as party liable for actions taken by its own employees, staff members or support collaborators under arts. 1228 and/or 2049 of the Italian Civil Code, undertakes to fully indemnify and holder harmless MailUp 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 MailUp® Platform, the legitimacy of the same and the conduct engaged in by the Client, by its personnel, employees, collaborators or final customers, or, in any case, by any party for whose work the Client is liable by law or contract. Civil liability and criminal liability in connection with information published through the service offered by MailUp shall remain borne exclusively by the Client.
6.3 – Liability for the Client’s breaches. The Client undertakes to indemnify and hold harmless MailUp from and against all damages, losses, liabilities, costs, charges and expenses, including any legal fees and expenses, that may be incurred or suffered by MailUp or for which the latter received a payment request, that would not have been incurred or suffered or requested if (i) the Client had fulfill the obligations undertaken upon entering into this Agreement and (ii) the representations and warranties provided by the Client by entering into this Agreement had been truthful, accurate, complete and not misleading. The Client further undertakes to fully indemnify and hold harmless MailUp from and against all damages, losses, liabilities, costs, charges and expenses, including legal fees and expenses that may be incurred or suffered by MailUp or for which the latter received a payment request, in any case related to the mailing of information contained in the Client’s messages, also in the event of damages claims raised by third parties for any reason whatsoever.
6.4 – Responsibility for using the platform. The Client acknowledges and recognizes that the use of the MailUp® Platform will take place in accordance with this Agreement, fully autonomously, and that consequently the Client will be exclusively and directly responsible for the same. MailUp and its employees and/or collaborators assume no liability whatsoever in connection with the Client’s use of the MailUp® Platform and for such purpose the Client irrevocably undertakes, expressly releasing third party beneficiaries from the duty to declare their desire to benefit from the same, to fully indemnify and hold harmless MailUp and its employees and collaborators from and against any damages or prejudice, whether contractual or tortious, that may derive, directly or indirectly, from the methods of using the MailUp® Platform and the Client’s performance of this Agreement. Such provisions remain valid and effective even after the cessation of the effects of this Agreement, regardless of the reason, including the expiry of term, termination or withdrawal.
6.5 – Breaches caused by external events. MailUp shall not be deemed in any way liable for the malfunctioning of the MailUp® 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. MailUp 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, health emergencies and pandemics, strikes, riots, tornadoes, hurricanes, floods, mudslides and landslides.
6.7 – Interruptions due to exceptional events. MailUp undertakes to maintain the efficiency and functioning condition of the MailUp® 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 MailUp® Platform to the Client. MailUp shall define the appropriate access procedures and reserves the right to improve them at any time; it will also provide to the Client, at the latter’s request, all technical specifications in order to gain access to the MailUp® Platform and correctly use the same in accordance with the provisions of this Agreement.
6.8 – Breach due to third parties. MailUp will furthermore not be liable for conduct or omissions on the part of third parties that prejudice the functioning of the MailUp® Platform, including, merely by way of example and without limitation, slowdowns or malfunctioning of telephone lines and computers/systems/servers that manage the Client’s internet traffic and the MailUp® Platform.
6.9 – Services provided by third parties. If the Client uses functions of the MailUp® Platform made available by third parties, including network operators, the following provisions shall apply: MailUp 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 MailUp 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, MailUp may as a result change, suspend or interrupt access to such services without any obligation to provide notice. Furthermore, MailUp will be authorized to suspend the use of the MailUp® Platform that is directly dependent upon services offered by such third parties. MailUp in any case remains entitled, where necessary, to avail itself of different suppliers in order to guarantee the functioning of the MailUp® Platform. In this regard, the Client authorizes MailUp 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 MailUp® Platform to the destination planned in the MailUp® Platform, 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 Client acknowledges and accepts that the third party suppliers could interrupt the services provided to MailUp or to MailUp’s suppliers without notice. In such case, the messages will not be delivered to destination, but this shall in no way be attributable to MailUp. 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 MailUp® Platform. The Client 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 Client or to third parties; MailUp does not guarantee the delivery of communications or the constant usability of the MailUp® 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 Client and/or third parties. MailUp 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, MailUp’s liability for breach under this Agreement may not, under any circumstances exceed an amount equal to 20% of the fee paid by the Client to MailUp over the period from the date of the last renewal/expiry of the MailUp® Platform, 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.
7.1 – Procedures for mailing and receive SMS messages. Notwithstanding the payment of the periodic fee pursuant to article 4.2 above, and without prejudice to what may be indicated in the Order and/or under Clause 7.2 below, in order to send SMS messages, the Client must first purchase a ” recharge” expressed in “credits”, in predefined and non-divisible quantities, or, in the case of receiving SMS messages, the Client shall pay the annual subscription fee in advance and/or what may be indicated in the Order. Once the credits purchased in advance have been used, it is not possible to carry out additional mailings for that specific type of messages except by purchasing an additional credits package. The credits purchased, in the case of a MailUp® Platform that is not used for the mailing of e-mails, as specified in art. 7.2 below, have the specific term indicated in the Order. Once expired, any remaining unused credits will be cancelled and the relevant amount will be withheld definitively by MailUp, without any reimbursement or restitution being due; simultaneously, all of the data registered within the MailUp® Platform that is not used for the mailing of emails, including (without limitations) telephone numbers, mailing statistics, messages and settings, including the keywords issued to the Client for the mailing of SMS to recipients in countries with specific regulatory restrictions (for example, the USA), will be cancelled without any possibility of restoration. The Client is entitled to extend, by the additional term indicated in the Order the remaining credits by purchasing at any time a new package of credits. In the case of MailUp® Platform that entail the payment of a periodic fee for the mailing of e-mails and for the other related options and functions, used also for the sending of SMS, the term of duration of any remaining unused credits is determined by the duration of the MailUp® Platform itself. Therefore, the cancellation of the data contained in the MailUp® Platform due to expiry, cancellation or termination of the agreement for any reason will give rise to the contemporaneous cancellation, in accordance with the procedures provided under art. 2.7, of the remaining unused credits and all of the data related to the same, including the above-mentioned keywords. In the event of a purchase of credits that is split into more than one delivery, as per the Order , and the Client’s failure to honor the agreed purchase plan and/or a delay in the pre-established payments exceeding 30 (thirty) calendar days, MailUp reserves the right to invoice the total amount of the credits ordered and not yet purchased together in a single invoice and to charge as a penalty the difference between the unitary price per credit stated in the price list corresponding to the minimum credit package actually bought by the Client multiplied by the total number of credits ordered, less the total amount of credits ordered, without prejudice to the right of MailUp, in its sole discretion and at any time, to disable the sending function of all MailUp® Platforms in the name of the Client and, after 10 (ten) calendar days have elapsed without the Client having paid the amount due and invoiced, MailUp will be entitled to block the Client’s access to the MailUp® Platform and/or declare the automatic termination of the agreement pursuant to Clause 8.7 of this Agreement. MailUp shall from time to time charge to the Client a variable number of credits for each message sent, depending upon the country of destination. The Client acknowledges and accepts that the determination of the number of credits charged per message sent will be made taking into consideration, from time to time, the cost of sending the message and, in general, the costs related to the telephone and/or telematic service at the moment of the mailing. For purposes and on the assumption of the foregoing, MailUp publishes a periodically updated Credit SMS Table which sets forth the number of credits charged per country, providing notice in the Client’s MailUp® Platform of any change in such table. The Client undertakes to review such table prior to each mailing of SMS, regardless of whether a notice of changes has been sent to the MailUp® Platform, in any case hereby declares that it accepts the provisions of the same. The Client acknowledges and accepts that the values set forth in the above-mentioned table are determined by assuming, in each individual distribution list related to the Client, an allocation among the individual telephone operators that is reasonably in line with the market share held by each. If a single distribution list were to show an allocation among the single telephone operators that is not in line with their respective market shares, the amount of the credits charged for the SMS sent to the users present in such list may be proportionately increased to take into account the higher cost related to the telephone service. MailUp may be charge to the Client, from time to time, a variable number of credits for each message received, depending upon the country of sending and/or destination. The Client acknowledges and accepts that the determination of the number of credits charged per message received will be made taking into consideration, from time to time, the cost of received the message and, in general, the costs related to the telephone and/or telematics service at the moment of the mailing applicable in each country. The Client declares that it is aware of the fact that the higher cost charged to MailUp in connection with the telephone service will be apparent only after the Client’s received of SMS. The Client therefore accepts that MailUp may charge to the Client the greater amount due only once the higher cost incurred becomes known.
In the event of negative credits or, in other words, when the cost of the mailing of a message exceeded the total available credits, the Client will be charged with immediate effect the cost of a package of credits – from among those available on the price list – that is sufficient to cancel such negative balance. Such charge will have to be paid immediately using one of the payment methods available, at MailUp’s discretion (credit cards, PayPal, wire transfer). For the mailing of SMS using an alphanumerical textual sender of eleven characters, also referred to as an “Alias”, the Client undertakes to comply with the provisions of AGCOM Resolutions and the relevant Code of Conduct which MailUp also adopts in its capacity as member enrolled in the ROC (Registro degli operatori di comunicazione or Register of Communications Operators). This will require the Client’s registration with AGCOM of the personal detail form corresponding to the requested Alias user by completing the relevant document made available on the MailUp® Platform. Under no circumstances, including early cancellation, previously purchased credits may be reimbursed or sold/transferred. SMS messages addressed to telephone numbers with special rates or premiums or to non-geographical numbers (for example, without any limitation, numbers which begin with the prefix 144/166/892/894/895/899) will not be sent.
Where MailUp assigns, upon the Client’s request, a number for sending and/or receiving SMS messages, the Client declares that he/she is aware that the assigned number is, and shall remain, the property of MailUp or of its third-party supplier.
7.2 – Use of MailUp® Platform without mailing emails. The MailUp® Platform which, at the Client’s decision in advance, is not used for mailing e-mails and which is therefore used to send SMS, or to analyze email messages, is subject to the payment of any fee indicated in the Order. The moment in which the Client decides to also activate the mailing of emails, it shall pay the pertaining additional fee under art. 4.2.
8.1 – Aggregate Data. As established between the Parties, MailUp holds all rights to the use of statistical information, data and related analyses in aggregate form, deriving from the its Clients’ use of the MailUp® Platform. Such data in aggregate form do not include personal data and the Client expressly authorizes MailUp to use the same in order to improve the functioning of the MailUp® Platform or for statistical information that may be published in aggregate form.
8.2 – Advertising. The Client authorizes MailUp’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 Client’s use of the logo, trade name or any other distinctive mark related to the MailUp® Platform, will have to be requested in advance by the Client in writing and authorized in writing by MailUp.
8.3 –Trial. MailUp may offer periods of free trial of the MailUp® Platform to new Clients. Such trial period shall be aimed solely for testing the functioning, with limited mailings to test addresses of the Client itself. One Client will not be permitted to activate more than 2 (two) trial MailUp Platforms. No cost is due for the free trial.
8.4 – Assignment of the Agreement. MailUp will be entitled to assign or transfer to third parties the rights and obligations arising under this Agreement; the Client, in gathering consent to the processing of personal data, undertakes to adequately notify such possibility to its own customers. The Client will be entitled to assign and, in any case, transfer the rights and obligations arising under this Agreement, with MailUp’s prior written consent, by completing the specific document available on the MailUp® Platform and mailing the same, duly signed, to MailUp. In any case, in accordance with the provisions of article 1408 of the Italian Civil Code, MailUp declares in advance that it does not release the transferor Client from its obligations and that it retains the right to action against it if the transferee fails to fulfill the obligations undertaken. If the Client fails to fulfill the obligations provided under this art. 8.4, MailUp may, in its absolute discretion:
(i) automatically terminate the Agreement by law without returning anything whatsoever to the Client for any services not used in accordance with art. 8.7;
(ii) demand payment of the sum of EUR 100.00 (one hundred euro) for administrative expenses in connection with the termination process.
8.5 – Procedures for the processing of the Client’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 Client acknowledges that MailUp 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 MailUp), under the applicable legal framework and pursuant to art 13 of Privacy Regulation, without the need to gather express consent from the Client to carry out the services under this Agreement because, inter alia, the processing of such data is necessary to perform the Agreement to which the Client is party, solely and exclusively for the supply of the services referred to in this Agreement.
8.6 – Validity of amendments and/or supplements. MailUp may unilaterally amend the Agreement. All amendments will be effective from the moment in which the new version is communicated by email to the Client’s Administrative Contact and the subsequent use of the MailUp® Platform is to be deemed an acceptance by the Client of the same amendments and/or supplements pursuant to article 1327 of the Italian Civil Code. In the event that the Client does not intend to accept the changes and/or amendments referred to above, the Client must notify MailUp by PEC or registered mail within 10 (ten) days from the receipt of the aforementioned email; in this case MailUp reserves the right to terminate the Agreement and to demand payment of the fee for the period for which the Client has used the MailUp Platform and/or to withhold the amount due for the fee corresponding to the period in which the Client has used the MailUp Platform.
8.7 – Express termination clause. This Agreement shall be deemed automatically terminated pursuant to article 1456 of the Italian Civil Code, 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 – Requirements for the sending of communications through the Mailup® Platform, 4.2 – Fee, invoicing an payments, 8.4 – Assignment of the agreement, 9.1 – 231 Organizational Model and if the Client is put into liquidation or admitted to insolvency proceedings. The cessation of the Agreement, in the situations referred to above, will take place automatically by law upon the Client’s receipt of the communication through which MailUp declares its intention to avail itself of the express termination clause. MailUp in any case shall 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 Client in their entirety, even in the event of gratuitous and/or temporary use of the functions provided on any basis by MailUp.
8.9 – Tax costs. Any tax cost deriving from the performance of this Agreement shall be borne by the Client.
8.10 – Governing law and jurisdiction. This Agreement is governed by and shall be interpreted in accordance with Italian law, and the Parties expressly agree that the Court of Cremona shall have exclusive jurisdiction over any dispute concerning the validity, effectiveness, interpretation and performance of this Agreement.
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 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.
9. Organization, Management and Control Model
9.1 – Model 231. The Client acknowledges that MailUp has adopted its own code of conduct (“Code of Ethics“) as well as an organization, management and control model (“Model 231“) in accordance with the principles and guidelines laid down by the Italian Legislative Decree No. 231/2001 (“Decree 231“). The adoption of Model 231 aims to prevent offenses from being committed pursuant to the above Decree and to avoid the respective sanctions being applied. Copy of the Code of Ethics and Model 231, the content of which the Client declares to be aware, is available on the MailUp website. Failure to comply with the provisions contained within the Code of Ethics, Model 231 or Decree 231 shall constitute a serious breach of contract and shall give MailUp the right to rescind the contract with immediate effect in accordance with Article 8.7 of this Agreement, without prejudice to the right to compensation for damages.
10. ANNEX A - Data Processing Agreement (DPA)
Growens S.p.A., with registered office in Milan (MI), Tax ID and VAT no. 01279550196, in the person of its acting Legal Representative (“MailUp” or the “Processor”) and the Client, in the person of its acting Legal Representative (the “Controller” or “Client”) have entered into a license agreement for the use of “Software As A Service” for the delivery of marketing transnational communications and for Processor Services involving the processing of personal data (hereinafter, as periodically amended or updated, simply the “Agreement”).
This Data Processing Agreement (including its annexes, “Data Processing Agreement”) contains the provisions of Article 28 GDPR as interpreted by the European Data Protection Board in Opinion 14/2019.
The Data Processing Agreement is entered into between MailUp and the Client and supplements the Agreement. The Data Processing Agreement will be effective and supersede any other previously applicable agreement between the parties relating to the same subject matter (including any amendment or addendum to the processing of data relating to the Processor Services), from the Date of Effect and for the entire Period.
If you are entering into this Data Processing Agreement on behalf of the Client, you guarantee that: (a) you have full legal authority to bind the Client to this Data Processing Agreement; and (b) you agree on behalf of the Client, to this Data Processing Agreement. If you do not have the legal authority to bind the Client, please do not sign this Data Processing Agreement and pass it on to the competent representative.
The Data Processing Agreement reflects the agreements of the parties on the processing of Client Personal Data as governed by European and Domestic Legislation.
2.1 All capitalized terms in the Data Processing Agreement shall have the following meanings:
“Supervisory Authority” refers to a “supervisory authority” as defined in the GDPR.
“MailUp” refers to the Growens S.p.A. that is party to the Agreement.
“Subsidiary” refers to a legal entity belonging to a corporate group, which directly or indirectly controls has control or is controlled by another party.
“Date of Effect” refers to the date on which the MailUp signed or the parties have otherwise agreed to the effectiveness of the Contract or Data Processing Agreement.
“Client Personal Data” refers to the personal data processed by MailUp on behalf of the Client in the provision of the Processor Services.
“Security Documentation” refers to any security certification or documentation that MailUp makes available in relation to the Processor Services as referred to in Appendix 2.
“Period” refers to the period from the Date of Effect until the termination of the provision of the Processor Services by MailUp pursuant to the Agreement.
“MailUp Entity” refers to Growens S.p.A. and/or any other Subsidiary of Growens S.p.A.
“GDPR” refers to Regulation (EU) 2016/679 of the European Parliament and of the Council dated 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, repealing Directive 95/46/EC.
“Incident” refers to a breach of MailUp security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Client Personal Data on systems managed or otherwise controlled by MailUp.
“Notification E-mail Address” refers to the e-mail address entered by the Client in the privacy contact details section, as governed by art. 5.3 of the Contract.
“Additional Instructions” refers to the additional instructions which reflect the parties’ agreement on the additional conditions governing the processing of certain data in relation to certain Processor Services.
“European and Domestic Legislation” refers to the GDPR and the EU Member State legislation applicable to the processing of Client Personal Data.
“Transfer Mechanisms” refers to a binding decision issued by the European Commission allowing the transfer of personal data from the EEA to a third country whose domestic law provides an adequate level of personal data protection. Where such binding decision is not available or effective, this definition refers to the EU Standard Contract Clauses approved as needed by the European Commission for the transfer of personal data, as well as the Binding Corporate Rules (BCRs).
“Security Measures” has the meaning set out in Section 7.1.1. (Security Measures on MailUp systems);
“EEA” refers to the European Economic Area.
“Processor Services” refers to the services optioned in the Agreement and described collectively in Appendix 1.
“Subprocessors” refers to the third parties authorised under this Data Processing Agreement to process Client Personal Data in order to provide part of the Processor’s Services and/or any related technical support.
2.2 The terms “Personal Data”, “Data Subject”, “Processor”, “Controller” and “Processing” have the meanings indicated in the GDPR.
2.3 The terms “include” and “included” are illustrative and are not the only examples of a particular concept.
2.4 Any reference to a law, regulation, statute or other legislative act is a reference to these as amended or reformulated as required.
2.5 If this Data Processing Agreement is translated into another language and there is any discrepancy between the English text and the translated text, the English text shall prevail.
This Data Processing Agreement shall be effective for the entire Period and until the Processor deletes all Client Personal Data.
4. Scope of Application
4.1 Application of Processor Services. This Data Processing Agreement applies only to the services for which the parties agreed to enable, and therefore to the services specified in the Agreement.
4.2 Application of Additional Instructions. During the Period, the Controller may provide MailUp with Additional Instructions, which MailUp may not refuse without just cause if such Additional Instructions are necessary to permit compliance of the Controller with any European or domestic legislation. In all other cases, MailUp has the faculty to negotiate the content of the Additional Instructions with the Controller and will be under no obligation to implement them until an agreement is reached. Once both Parties have confirmed the Additional Instructions, these shall be considered integral part of this Data Processing Agreement.
4.3 Costs due to the application of Additional Instructions. The Additional Instructions and/or supplements, amendments or reductions thereto shall not lead to any additional costs to MailUp; if this is not the case, the Controller acknowledges and accepts that all costs directly or indirectly due to the adjustment by MailUp to the Additional Instructions, shall be at the exclusive expense of the Controller.
5. Data processing
5.1 Roles, responsibilities and instructions.
5.1.1 The parties acknowledge and agree that: (a) Appendix 1 describes the subject matter and details of the processing of Client Personal Data; (b) MailUp acts as Processor of Client Personal Data under European and Domestic Legislation; (c) Client acts as Controller or Processor, as applicable, of Client Personal Data under European and Domestic Legislation; and (d) each party shall comply with the obligations applicable to it under European and Domestic Legislation with respect to Client Personal Data.
5.1.2 Authorization by the third Controller. If the Client acts as Processor on behalf of a Subsidiary of the Client or other Controller, Client assures MailUp that the instructions and actions of the former in relation to Client Personal Data, including the appointment of MailUp, have been authorized by the respective Controller.
5.2 Controller Instructions. By entering into this Data Processing Agreement, the Controller appoints MailUp to process Client Personal Data: (a) only in accordance with applicable law: (b) only to supply the Processor’s Services and any related technical services; (c) as further specified/indicated by Client through its use of the Processor’s Services (including changes to the settings and/or functionality of the Processor’s Services) and any related technical support; (d) as documented by Contract, including this Data Processing Agreement; (e) in order to guarantee security levels adequate to the risk, to conduct automatic screening of predefined control lists, using automatic systems capable of detecting contacts acquired or maintained in contrast to the best practices of the sector, applying automatic unsubscription in the event of abuse; and (f) as further documented in any written instructions provided by the Controller to MailUp as further instructions for the purposes of this Data Processing Agreement.
5.3 MailUp compliance with the instructions. MailUp shall comply with the instructions given in Section 5.2 (Controller Instructions) unless the European or National Legislation to which it is subject requires MailUp to conduct different or further processing of Client Personal Data (e.g. transfer of Personal Data to a third country or international organization), in which case MailUp shall promptly inform Client at the Notification E-mail Address (unless such legislation prohibits MailUp from doing so on significant grounds of public interest).
6. Erasure and export of data.
6.1 Erasure and export for the Period.
6.1.1 Processor Services with export functionality. If the Processor Services include the possibility for the Controller to export Client Personal Data autonomously and in interoperable format, MailUp shall ensure, insofar as possible, that this operation is guaranteed for the entire Period and in any case in compliance with any further provisions contained in the Agreement.
6.1.2 Processor Services with erasure functionality. If the Processor Services include the possibility for the Client to independently erase Client Personal Data, MailUp shall ensure, insofar as possible, that this operation is guaranteed for the entire Duration, unless European or domestic legislation requires storage of such data for a longer period. In the latter case, MailUp shall process Client Personal Data only for the purposes and period defined by such legislation. Any further, specific provisions contained in the Agreement shall remain valid in any case.
6.2 Erasure on Period expiry. Upon expiry of the Period, Client shall order MailUp to erase all Client Personal Data (including existing copies) from MailUp systems in accordance with the applicable law. MailUp shall execute this instruction as soon as reasonably possible, unless European and domestic requires further storage in compliance with art. 2.7 of the Contract, which is deemed to be referred to in full herein.
7. Data security.
7.1 Security measures and assistance by MailUp.
7.1.1 Security Measures on MailUp systems. MailUp shall adopt and maintain technical and organizational measures to protect Client Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access as described in Appendix 2. Taking into account the state of the art and the costs of implementation, as well as the nature, scope, context and purpose of the processing carried out through the Processor Services, as well as the variability, likelihood and severity of the risk to the rights and freedoms of natural persons, Appendix 2 shall at all times include security measures: (a) to encrypt personal data; (b) to help ensure the ongoing confidentiality, integrity, availability and resilience of MailUp systems and services; (c) to help restore personal data promptly following an incident; and (d) to periodically verify effectiveness of the measures. MailUp has the right to update or amend the Security Measures, provided that such updates and modifications do not lead to degradation of the overall security of Processor Services.
7.1.2 Security Measures for MailUp personnel. MailUp shall take appropriate steps to ensure compliance with the Security Measures by all persons operating under its authority, including its employees, agents, contractors and Subprocessors, insofar as applicable to the scope of their services, including assurances that all persons authorized to process Client Personal Data have signed non-disclosure agreements or are subject to appropriate statutory obligations to of confidentiality in accordance with European and Domestic Legislation. MailUp shall also manage all obligations associated with the appointment of system administrators and personnel responsible for managing and maintaining the Processor Services, in compliance with the provision of the Supervisory Authority dated 27 November 2008.
7.1.3 MailUp data security assistance. MailUp shall assist the Controller in ensuring compliance with any obligations regarding the security of personal data and personal data breaches, including (if applicable) the obligations of the Controller pursuant to Articles 32 to 34 of the GDPR, through:
(a) the implementation and maintenance of Security Measures in accordance with Section 7.1.1. (Security Measures on MailUp systems);
(b) the implementation of the provisions of Section 7.2 (Data Incidents); and
(c) providing the Controller with Security Documentation in accordance with Section 7.5.1 (Review of Security Documentation) and the information provided for in this Data Processing Agreement.
7.2 Data Incidents.
7.2.1 Due Diligence. MailUp adopts due diligence in monitoring the security of Client Personal Data processed in the provision of the Processor Services.
7.2.2 Incident Notification. In the event MailUp becomes aware of an incident, MailUp shall: (a) inform the Controller of the Incident without undue delay; and (b) promptly take reasonable steps to mitigate any damage and secure the Client Personal Data (c) cooperate with the Controller in the investigation of the causes and gravity of the Incident.
7.2.3. Incident Details. Notifications made pursuant to Section 7.2.2 (Incident Notification) shall describe the details of the incident to the greatest possible extent (also through additional notifications), including the categories and approximate number of Data Subjects involved and the personal data records affected, the potential risks to the Data Subjects and the steps that the MailUp has taken or recommends the Client adopts to address the Incident and mitigate its effects. If it is not possible to provide the above specific information within the time allowed, MailUp shall explain the reasons for the delay to the Controller, in any case providing the Controller with any initial information concerning the breach for the purposes of the related notification.
7.2.4 Delivery of Incident Notification. MailUp shall deliver notification of any Incident to the Notification E-mail Address.
7.3 Client security responsibility and assessment.
7.3.1 Controller Security Responsibility. Without prejudice to the obligations of MailUp under Sections 7.1 (Security Measures and Assistance by MailUp) and 7.2 (Incidents), the Controller acknowledges that it is the sole party responsible for the use of the Processor Services, including the protection of authentication credentials, systems and devices used by the Controller to access the Processor Services.
7.4 Security Certification. To evaluate and help ensure the continued effectiveness of the Security Measures, MailUp may, at its sole discretion, supplement the Security Measures and Security Documentation with certifications (e.g., ISO27001), codes of conduct and/or certification procedures.
7.5 Checks and Audits.
7.5.1 Security Documentation Review. In order to demonstrate MailUp compliance with its obligations under this Data Processing Agreement, MailUp shall make information on the technical, organisational and security measures available to the Client, in addition to any other information available and necessary for Client compliance with regulations, and which should be formally requested in writing by the Client for compliance with its legal obligations and to demonstrate the adoption of adequate technical and organizational measures.
7.5.2 Client Audit Rights. The parties agree that:
(a) MailUp shall contribute to the inspection and audit activities the Client wishes to conduct, either directly or through a third party appointed by the latter;
(b) such activities shall be conducted with a view to safeguarding normal MailUp operations;
(c) the use of the information which the Controller and any third party appointed by the Controller should become aware of during the audit must be previously regulated by a specific non-disclosure agreement.
7.5.3 Further Conditions for Audits. To conduct an audit:
(a) the Controller shall send the request for audit to the Controller pursuant to Section 7.5.2(a) as described in Section 12.1 (MailUp Contacts), giving notice of at least 15 (fifteen) working days, it being understood that such activities may not be conducted by the Controller more than once (1 time) per year and, in any case, if less than 12 (twelve) months have passed since the last audit by the Controller;
(b) upon receipt of a request pursuant to Section 7.5.3(a) from the Controller, MailUp undertakes to discuss and agree in advance on the start date, scope and duration, security and confidentiality controls applicable to the audit pursuant to Section 7.5.2(a);
(c) nothing in this Data Processing Agreement shall require the MailUp or its Subsidiaries to disclose or grant access by the Controller or third-party auditor to:
(i) data of any other client of MailUp;
(ii) any MailUp internal accounting or financial information;
(iii) any MailUp trade secret or know-how;
(iv) any information that could compromise the security of MailUp systems or premises; or cause MailUp to breach its obligations under European and Domestic Legislation or its security obligations toward the Controller or third parties; or
(v) any information to which the Controller or third-party auditor seeks access for reasons other than the fulfilment in good faith of the Controller’s obligations under European and Domestic Legislation.
(d) audits shall be subject to a specific confidentiality agreement between all parties involved.
7.5.4 The Controller acknowledges and accepts that all costs due to the conduction of audits pursuant to this Section 7.5 (such as, for example, the costs of personnel and any appointed external consultants) shall be at its exclusive expense.
8. Data protection impact assessments and prior consultation.
MailUp agrees (considering the nature of the processing and the information available to MailUp) to provide the Controller with any reasonable assistance in ensuring compliance with any obligations of the Controller regarding data protection impact assessment and prior consultation, including any obligations of the Controller pursuant to articles 35 and 36 of the GDPR.
9. Rights of Data Subjects.
9.1 Response to Data Subject requests. MailUp ensures adequate protection of the rights of Data Subjects, assisting the Client in the fulfilment of its obligation to follow up requests from Data Subjects to exercise their rights, even if such requests are received by MailUp. In this event, MailUp shall provide the Data Subject with the address for communicating their request directly to the Controller. The Controller shall remain the sole party responsible for responding to such requests.
9.2 MailUp assistance in Data Subject requests. MailUp agrees (considering the nature of the Client Personal Data processing) to provide reasonable assistance to the Controller in the fulfilment of its obligations regarding their rights pursuant to Chapter III GDPR through: (a) where possible, the provision of specific functionalities in the Processor Services; (b) compliance with the commitments pursuant to Section 9.1 (Response to Data Subject requests).
10. Data Transfers.
10.1 Data storage and processing facilities. the Controller agrees and authorizes MailUp to process (also through Subprocessors) Client Personal Data both within and outside the EEA, provided that such processing is supported by suitable Transfer Procedures, to be indicated in Appendix 3.
11.1 Authorization to use Subprocessors. The Controller shall grant a general authorization to use Subprocessors for provision of the Processor Services.
11.2 Information on Subprocessors. MailUp agrees to include the list of Subprocessors and the respective information in Appendix 3 of this Data Processing Agreement.
11.3 Requirements for the involvement of Subprocessors. When using a Subprocessor, MailUp shall:
(a) ensure, through a written contract or other binding legal deed that:
(i) the Subprocessor may only access and utilise Client Personal Data to the extent necessary to fulfil the obligations subcontracted to it in accordance with the Contract (including this Data Processing Agreement) and the Transfer Procedures;
(ii) the data protection obligations pursuant to article 28(3) GDPR are applied to the Subprocessor;
(b) remain fully responsible for all obligations subcontracted to the Subprocessor.
11.4 Faculty to object to change of Subprocessor. The parties agree that:
(a) for the entire Period, MailUp shall give notice of its intention to use new Subprocessors to process Client Personal Data, to the Notification E-mail Address. The notice shall include the Subprocessor’s name, activities conducted and country of establishment, as well as the Transfer Procedure, if applicable;
(b) in the event the Controller considers, with due motivation and documentation, that a Subprocessor is not suitable to process Client Personal Data, it may oppose the use of said Subprocessor, by notifying MailUp within 10 days of receiving notice of the intention of the latter to use new Subprocessors.
MailUp may, at its discretion, i) not use the Subprocessor for the processing of Client Personal Data; or ii) withdraw from the Contract giving notice of such to the Client within 30 days of the notice described in Section 11.4(a), it being understood that the Client shall be required to pay the entire amount due in accordance with the Contract;
(c) if no objection as set out in Section 11.4(b) is received, MailUp agrees to send an updated version of Appendix 3 to the Notification E-mail Address, which shall become integral part of this Data Processing Agreement.
12. MailUp Contacts.
12.1 MailUp Contacts. The Controller may contact MailUp with regard to all aspects of this Data Processing Agreement, at the e-mail/certified electronic e-mail addresses: a) indicated by MailUp in the Contract; b) used by MailUp during provision of the Processor Services to receive certain notifications from the Controller concerning this Data Processing Agreement.
13.1 Conflict between the agreements of the parties. In case of conflict or incoherence between the provisions of the Contract, the Data Processing Agreement and the Additional Instructions, if not otherwise established in this Processing Agreement, the following order of precedence shall apply: (a) the Additional Instructions; (b) the remaining provisions of the Data Processing Agreement; and (c) the remaining provisions of the Contract. Subject to any amendments to the Data Processing Agreement, the Contract shall remain fully valid and effective.
13.2 Infringements of rules and regulations. Any provision of the Contract, the Data Processing Agreement and/or the Additional Instructions in conflict with European and National Legislation shall be deemed not to be present herein and shall be replaced in its entirety by provision effectively infringed if it cannot be otherwise resolved through an agreement between the parties.
In the event of dispute regarding the execution or interpretation of this Data Processing Agreement, the parties assign exclusive jurisdiction to the Court established by the Contract, expressly waiving any other provisions of international law or convention.
The provision of an on-line digital platform that allows users to manage their marketing and on-line communication campaigns independently and directly, using different messaging channels as better defined in the Contract.
Duration of processing
The duration of processing shall include the entire Period plus the term until all Client Personal Data is deleted by MailUp in accordance with the Data Processing Agreement and the provisions of the Contract.
Nature and scope of the processing of the Processor Services
MailUp shall process Client Personal Data in order to provide the Processor Services in accordance with the instructions contained in the Data Processing Agreement.
Depending on the Processor Services chosen in the Contract, Client Personal Data may include the following.
Types of Data Subjects involved
Recipients of communications sent by Client through the Processor Services
Personal data processed
Data collected by tracking technology and devices if not disabled by the Client
Common identification data (e.g., name, surname, e-mail address, telephone number)
Data that cannot be determined a-priori.
The parties may update the list of personal data processed to provide the Processor Services at any time.
MailUp may periodically update or amend the following Security Measures, provided that such updates and amendments do not lead to a deterioration of the overall security of the Processor Services or in any case to a decrease in the security level agreed below.
Part of the activities that allow MailUp to provide the Processor Services may be delegated to Subprocessors:
Processor Services or description of subcontracted activities: provision of network support services and filing of images uploaded by clients, including CDN (Content Delivery Network) and Web proxy services.
Place of establishment: European Union
Transfer procedure (where applicable): N/A
Processor Services or description of subcontracted activities: Provision of SMS traffic routing service to telephone operators.
Place of establishment: European Union
Transfer procedure (where applicable): N/A
Processor Services or description of subcontracted activities: Provision of SMS traffic routing service to telephone operators.
Place of establishment: United Kingdom
Transfer procedure (where applicable): N/A