Terms Of Service

PREAMBLE

emarsys has developed a Web-based e-mail-marketing system which it shall provide to the Customer in accordance with the following terms and conditions:

PRODUCT DESCRIPTION
1. emarsys has developed a technically proven, Web-based software application for permission-based e-mail-marketing.
2. The system currently comprises the following modules with the functions described:
  1. The registration manager: preparation, design and visualization of registration forms (for newsletters, demonstration products, etc.).
  2. The list manager: import of contacts from any source, export of information from the permission database, target group segmentation, and the generation of segmentation profiles in order to identify mailing recipients, database management.
  3. The campaign manager: generation, design and management of e-mail campaigns.
  4. Reporting and analysis: monitoring and reporting of the number of online registrations and the success of e-mail campaigns.
  5. Landing page xpress: generation and management of HTML landing pages, and hosting of downloadable files.
3. The Customer hereby agrees that emarsys has the right to restrict the scope of supply, including, without limitation, functionality, where changes in legislation make this necessary; in this event, the Customer is entitled to immediately terminate the contract without giving the period of notice specified in Section 5, Subsection (1).
4. For the software to be operated, it is necessary to install a standard Web browser, such as Microsoft Internet Explorer (5.5 or higher), to employ the hardware equipment recommended by the browser vendor, and to have access to the Internet. To ensure adequate performance, a minimum Internet bandwidth of 56 kbit/sec is recommended. It is the duty of the Customer to ensure Internet access of the required type, and the Customer hereby confirms that emarsys is in no way responsible for Customer access to the Internet or for the quality, performance and reliability of such access.
5. Should enhancements made to the emarsys software require or entail additional software or hardware resources on the part of the Customer in order for the Customer to use the full scope or functionality, then emarsys shall notify the Customer hereof at least four weeks in advance.
DATA SECURITY AND SYSTEM AVAILABILITY
1. The customer is required to ensure on his own authority that data handling undertaken together with emarsys is in accordance with data protection laws applicable to him. The customer is responsible for proper and lawful use (i.e. collection, handling and transfer) of data. The customer is solely responsible for judging the legitimacy of data handling as well as protecting the rights of relevant people. The customer acts as data owner.
2. The Austrian data protection law (Österreichische Datenschutzgesetz, DSG 2000) applies to all emarsys activities. emarsys is a service provider as outlined in paragraph 4, row 5 of the DSG 2000.
3. All persons entrusted by emarsys to provide services are committed to maintain data confidentiality according to paragraph 15 of the DSG 2000 prior to starting their work. Persons entrusted to provide services are bound to professional secrecy also after completion of their work and after resigning from emarsys.
4. emarsys is committed to use data exclusively in the manner outlined in the contract or instructed by the customer; to undertake sufficient security measures according to paragraph 14 of the DSG 2000 and to prevent disorderly use of data and access by unauthorized persons. At any time he customer is entitled to inspect securtiy measures taken himself or through an authorized expert. Upon termination of the contractual relationship or of services rendered, emarsys is required to transfer all data to the customer or to destroy as ordered.
5. Customer data is hosted on emarsys servers within a data container reserved for that Customer, ensuring that other customers and third parties have no access to Customer data.
6. To ensure data security, emarsys shall employ exclusively state-of-the-art technologies; emarsys shall ensure that security technology is always state-of-the-art both with regard to the further development of information technology generally and to the Internet in particular. Moreover, emarsys will ensure that all and any third-party services are provided only by suitably qualified subcontractors employing state-of-the-art technology.
7. All emarsys servers reside in a state-of-the-art hosting facility protected by means of firewalls, with full-time operations management staff, redundant functions, back-up power generators, etc. Security guards and security cameras are provided 24 hours a day in order to safeguard the physical security of server rooms. The rooms in which emarsys servers reside are secured and only accessible to authorized personnel for the purposes of maintenance work.
8. emarsys is able to closely monitor systems operation around the clock, and to respond promptly to any disruption in operations (see Subsection (10)). All Customer data hosted on emarsys servers is backed up every 24 hours, with back-ups being stored at a different location; should there be any loss of data this would, therefore, only affect data which is less than 24 hours old.
9. The Customer is provided with a user ID and a password by emarsys enabling him to access his data. The Customer acknowledges that the confidentiality of emarsys-hosted data can only be guaranteed when the Customer protects the confidentiality of the access details provided to him. Should these access details be compromised in any way, then the Customer shall inform emarsys of this fact immediately, and instruct emarsys to change and/or disable access details, as emarsys otherwise cannot guarantee that the Customer has exclusive access to his data. To ensure secure data transmission between the Customer's IT equipment and the emarsys servers, a VPN or SSL connection is required. Should such a connection require action on the part of the Customer's Internet Service Provider (ISP), then the Customer shall ensure that such action is taken.
10. In the event of disruption to operations, emarsys shall begin problem resolution activities within
  1. two hours (severity level 1) where such disruption affects components which are essential to the availability of the system or its operability;
  2. within 24 hours (severity level 2) where the disruption affects availability or operability as described by documentation but where such disruption is not critical to the Customer's work
  after the problem report is logged during normal business hours. Customer requests for additional or modified functionality will, wherever possible, be taken into account in the next software release (severity level 3).
  
  emarsys support can be reached as follows:
  by telephone at +43 (0) 1 470 2080-36
  by e-mail at
  
  The Customer shall be notified without delay of successful problem resolution.
ANTI-SPAM AND CONTENT POLICIES
1. The Customer hereby takes note of European directive 2002/58 EC on privacy and electronic communications, in particular, without limitation, the terms of article 13 on unsolicited communications, and agrees to comply with both this directive and any other applicable legislation. Should there be any changes to applicable legislation, the Customer shall make all and any changes to ensure compliance with the new legal requirements. Directive 2002/58 EC is provided as an appendix to this contract.
2. The Customer hereby indemnifies and holds emarsys harmless against all and any infringements of applicable law.
3. The Customer hereby notes that the distribution of e-mails to recipients based in countries that are not members of the European Union may be subject to certain legal restrictions in these countries, and hereby undertakes to comply with all legislation or other requirements that apply to such e-mails.
4. The Customer also undertakes not to send e-mails by means of software provided by emarsys where the e-mails contain material which is illegal in the country where the recipient is either temporarily based or officially resident.
LICENSING
1. The conclusion of the present contract gives the Customer the right to use the software provided by emarsys for the purpose defined in this contract within the defined terms of the contract.
2. The data that reside in the database provided by emarsys remain the exclusive property of the Customer, and may only be modified, deleted or supplemented by the Customer. emarsys shall not employ this data for its own purposes nor shall it make it accessible, nor sell this data, to third parties, nor will it allow third parties to use this data.
3. Following termination of contract, the data shall remain available to the Customer for a period of 30 days, accessible using the access details provided to the Customer, and this data can be exported by the Customer by means of the module provided using comma separated values. After the period of 30 days has elapsed, emarsys shall be entitled to remove Customer data from its servers.
4. By signing this contract, the Customer secures the right to use the software described in Subsection 1 above, but no other rights whatsoever, in particular, without limitation, the Customer does not acquire copyright to the software provided by emarsys. Accordingly, the Customer is not entitled to decompile the software or its source code in part or in its entirety, or otherwise to make such software or source code readable or usable.
TERMINATION OF CONTRACT
1. The contract shall come in to force on November 1, 2005.
2. Each party to the contract is entitled to terminate the contract by serving notice in accordance with the periods given in the price list applicable to the tariff chosen by the Customer. The current price list is enclosed with this contract.
3. Notwithstanding the provisions of Section Four (3), termination of the contract shall be immediately effective, such that the Customer is no longer entitled, following the elapse of the final day of the contractual term, to employ emarsys modules, with the exception of the module for data export.
PAYMENT
1. The amount due to emarsys for the provision of services is the amount given on the current price list, attached to this contract.
2. The full amount is payable net to an emarsys account, as specified on the emarsys invoice, within eight working days of the date of the emarsys invoice.
3. The Customer is not entitled to offset claims for monies from emarsys of whatever type whatsoever against claims arising from this contract, except where emarsys has acknowledged the validity of such claims in writing.
4. The Customer is only entitled to assign or transfer rights or obligations arising from this contract in part or in entirety, free of charge or for payment, where emarsys has given its express prior consent in writing.
GENERAL PROVISIONS
1. This contract is subject to the law of the Republic of Austria.
2. For all and any disputes arising from this contract, both parties agree that the appropriate court within the jurisdiction of Vienna, Austria, shall be the legal venue.
3. Should any of the provisions of this contract be or become invalid, then the parties shall agree on a suitable replacement provision which is valid, and which corresponds as closely as possible to the original economic purpose of the invalid provision.
4. Any and all general terms and conditions of business of the Customer shall not be applicable to this contract.