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Terms and Conditions

OVERVIEW

These TERMS AND CONDITIONS (‘Terms and Conditions’) govern the relationship between the End User and RealCampaign (as defined below) with respect to the use of the RealCampaign Service (as defined below) by the End User. End User has signified his acceptance of the Terms and Conditions by ticking the box in the Registration Form

Article 1 Definitions

As used herein, the following terms shall have the following meanings ascribed to them, unless the context requires otherwise. Other capitalized terms used in these Terms and Conditions are defined in the context in which they are used.

  1. Anti-Spam guidelines: the anti-spam guidelines as applicable from time to time, adopted by RealCampaign, and as stated at : http://www.spamhaus.org/consumer/definition.
  2. Data: all data, and materials stored, processed and/or transmitted by the End User, using the RealCampaign Service.
  3. Database: the file(s) and Data stored by the End User, containing personal data of the subscribers of End User, using the RealCampaign Service.
  4. End User: the person or legal entity registering for the (trial) RealCampaign Service.
  5. Password: the personal password used by the End User.
  6. Realcampaign Entity: the legal entity defined as Realcampaign .
  7. RealCampaign Service: the SAAS service, including an use license to the RealCampaign Software, which is provided by RealCampaign to the End User, including (virtual or physical) hardware, application software, operating system software, firmware, communication devices and all other equipment, software, devices and related materials provided by or used by RealCampaign in providing the RealCampaign Service.
  8. RealCampaign Software: the software developed by RealCampaign.
  9. RealCampaign: the private limited liability company incorporated under the laws of the Netherlands RealCampaign B.V., having its statutory corporate seat in Amsterdam, the Netherlands, Joop Geesinkweg 125C, registered with the Chamber of Commerce under number 63828049 and all of its subsidiaries.
  10. Registration Form: the registration form completed by the End User.
  11. Terms and Conditions: these Terms and Conditions regarding the RealCampaign Service between RealCampaign and End User.
  12. User Name: the email address(es) specified by the End User.

Article 2 Scope

  1. As referred to in the Registration Form, the purpose of these Terms and Conditions is to define the reference parameters for the provision of the RealCampaign Service to the End User.
  2. In the event that any conditions in the Registration Form deviate from and/or are in conflict with the terms herein, the terms of these terms and Conditions shall prevail.

Article 3 Service

  1. In accordance with these Terms and Conditions, RealCampaign will provide the End User with access to the RealCampaign Service.
  2. RealCampaign grants the End User the non-exclusive and non-transferable right and license (without the right to sublicense) to access and use the RealCampaign Service. The RealCampaign Service is made available to End User solely as a hosted service and nothing in these Terms and Conditions shall be construed to grant the End User any right to receive a copy of any proprietary software of RealCampaign.
  3. The End User is responsible for the hardware, application software, operating system software, firmware, networks, communication devices and lines and all other equipment, software, devices and related materials required to connect to, access or otherwise use RealCampaign Service.
  4. The End User hereby grants RealCampaign a limited, restricted, non –exclusive and royalty-free license to access, copy, process and use the Data during the term of its use of the RealCampaign Service, solely for the purpose of performing the RealCampaign Service. The End User agrees that it is solely responsible for the Data and that RealCampaign shall not have any responsibility whatsoever to verify the accuracy or completeness of the Data in the form such Data is provided to RealCampaign.
  5. To improve the RealCampaign Service, RealCampaign is entitled to make changes to the RealCampaign Service at any and all times. If such change materially affects the functionality to the End User and the End User does not accept such change, the End User is entitled to terminate its use of the RealCampaign Service in writing, as of the date on which the changes to the RealCampaign Service shall be effective. Continued use of the RealCampaign Service, shall constitute consent by the End User to the changes.
  6. The End User hereby grants RealCampaign permission to use its name and logo for promotional purposes and as a reference, subject to prior notice.
  7. RealCampaign retains the right to include “powered by RealCampaign” or the RealCampaign logo in the lay-out of any content sent by End User using RealCampaign Service or RealCampaign Software. The words “RealCampaign”, “powered by RealCampaign” or the logo shall have a hyperlink attached for the webpage of RealCampaign.

Article 4 Use of the Realcampaign Service

  1. The use of the RealCampaign Service is the sole and exclusive responsibility of the End User.
  2. The End User represents, covenants, warrants and guarantees that the Data does not:
    1. conflict with any applicable laws and regulations and, where applicable, the laws and regulations applicable in the jurisdiction of the End User, including but not limited to laws relating to spamming, privacy, intellectual property, consumer and child protection, obscenity or defamation;
    2. conflict with any directives and/or guidelines published by Realcampaign, including but not limited to the Anti-SPAM guidelines;
    3. impede or cause damage to the Realcampaign Service;
    4. constitute another form of unlawfulness or wrongdoing; and/or
    5. damage the interests and good name an reputation of Realcampaign.
  3. Should RealCampaign become aware that the Data which the End User stores, processes and/or transmits by using the RealCampaign Service are unlawful and/or in breach of these Terms and Conditions, it reserves the right to remove such Data or make access to such Data impossible, without prejudice to any other rights and remedies and without incurring any liability for such removal or making such Data not available.
  4. The End User is responsible for maintaining the confidentiality of its Password and User Name. The End User is responsible and liable for all activities conducted through the RealCampaign Service by means of its Password and User Name, permitted and/or unpermitted. The End User agrees to immediately notify the RealCampaign Entity in writing of any unauthorised and/or fraudulent use of its Password and User Name.

Article 5 Intellectual property rights

  1. Except for the limited rights and licenses expressly granted by these Terms and Conditions,, no other license is granted, no other use is permitted and RealCampaign (and its suppliers and licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the RealCampaign Service and RealCampaign Software. RealCampaign (or any of its suppliers and licensors) does not grant any other license, retains all rights, titles and interests in and to the RealCampaign Service and RealCampaign Software as well as any modifications, adaptations or translations thereof.
  2. RealCampaign shall be allowed to take technical measures to protect the RealCampaign Service in accordance with agreed restrictions in the duration of the right to use the RealCampaign Service. End User shall not be allowed to remove or evade such technical measures.
  3. Except for the limited rights and licenses expressly granted by these Terms and Conditions, no other license is granted, no other use is permitted and End User shall retain all right, title and interest (including all intellectual property rights embodied therein) in and to the Data.
  4. The End User shall not be authorized to register or apply for any right concerning any object or trademark, which is the subject of any intellectual or industrial property right belonging to RealCampaign. End User shall not be permitted to use a domain name or apply for a domain name which is identical to or which is confusingly alike any object, which is the subject of any intellectual or industrial property right, which belongs to RealCampaign.
  5. The End User may not remove or change any copyright references, trademarks or references to confidentiality in the RealCampaign Service.

Article 6 Confidential information

  1. Both parties shall treat as proprietary all non-public information received directly or indirectly, in tangible or intangible form, concerning or received by the other party of which the receiving party knows or should know that disclosure may harm the interests of the other Party, including, without limitation, documentation, marked confidential (hereinafter referred to as “Confidential Information”). Confidential Information shall include Data.
  2. All Confidential Information and all patent, copyright, trade secrets, trademark and other intellectual property rights therein disclosed or transferred by either party to the other shall remain the property of the disclosing party. Moreover, parties shall not duplicate any Confidential Information received from the other party. In addition, both parties shall not disclose any Confidential Information to any party that is not specifically authorized to receive it and who has not agreed to the same obligations specified by these Terms and Conditions.
  3. Both parties further agree that they will disclose the Confidential Information only on a need-to-know basis to its employees and under the same obligations as set forth herein with respect to such Confidential Information.
  4. The parties agree that information disclosed by the parties pursuant to these Terms and Conditions which otherwise would be Confidential Information shall not be deemed Confidential Information to the extent that it can be proven by written record that that information:
    1. is or has become a part of the public domain without violation of these Terms and Conditions or other wrongful act of the receiving Party;
    2. is known and on record at the receiving party prior to disclosure by the disclosing Party;
    3. is lawfully obtained by the receiving party from a third party who is bound by similar confidentiality obligations;
    4. is developed by the receiving party completely independently of any such disclosure by the disclosing party;
    5. If legally required, is disclosed pursuant to administrative or judicial action provided that the receiving party shall use reasonable efforts to maintain the confidentiality of the Confidential Information, e.g. by asserting in such action any applicable privileges, and shall, immediately after gaining knowledge or receiving notice of such action, notify the disclosing Party thereof and give the disclosing party the opportunity to seek any other legal remedies so as to maintain such Confidential Information in confidence.
  5. If only a portion of the Confidential Information falls under any of the above subsections, then only that portion of the Confidential Information shall be excluded from the use and disclosure restrictions of these Terms and Conditions.
  6. In protecting Confidential Information, both parties will take all necessary precautions and Confidential Information will be treated in the same manner and with the same degree of care as each party applies with respect to its own Confidential Information.

Article 7 Representations and Warranties, Data Protection, Data Security, Disclaimer

  1. Each party shall be responsible for the use and application in its organization of its equipment as well as for the system of controls and the security procedures used, and each party shall apply adequate system management.
  2. The End User represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Data as may be necessary to permit the use contemplated under these Terms and Conditions.
  3. During its use of the RealCampaign Service, the End User shall be responsible for each and every Database. To the extent the End User is not deemed to be the manufacturer of the Database by operation of law, these Terms and Conditionstransfers in full all sui generis database rights to the End User in accordance with the applicable database laws in the jurisdiction of RealCampaign.
  4. By providing the RealCampaign Service, RealCampaign shall process personal data for the End User. Since the End User determines the purpose and means for processing the personal data, it is deemed the responsible party in accordance with the applicable personal data protection laws in the jurisdiction of RealCampaign. RealCampaign merely processes the personal data for the End User and it is therefore considered a processor acting under instructions issued by End User in accordance with these applicable personal data protection laws. The End User represents and warrants that all personal data will be processed in accordance with applicable legislation. Parties agree that these Terms and Conditions also qualify as a processor agreement in the sense of these applicable laws.
  5. The End User represents and warrants that the Database(s) will be in accordance with all applicable laws. In addition, the End User represents and warrants that the use of any email addresses, social media addresses, phone numbers, any other information used for identification and/ or personal data in the Database(s) complies with all applicable laws and regulations, including but not limited to, the Anti-Spam guidelines as published by RealCampaign.
  6. RealCampaign represents and warrants that: (i) it owns all rights, titles and interests, or possesses sufficient license rights, in and to the RealCampaign Service and the RealCampaign Software as may be necessary to permit the use as contemplated under these Terms and Conditions, and (ii) it has and will comply with all applicable laws, rules and regulations in its jurisdiction.
  7. RealCampaign represents and warrants that the RealCampaign Service and RealCampaign Software will be provided in a professional and workmanlike manner.
  8. RealCampaign represents and warrants at all times to take appropriate technical and organizational safety measures in accordance with industry standards to ensure that there is no unauthorized access to, or use of, the Data or Databases.
  9. RealCampaign agrees to use best efforts and commercially reasonable best practices when deploying services related to data integrity, backup, security, and retention. These services include, but are not limited to: hard drive storage, raid hard drive arrays, network attached storage, storage area networks, operating system installs, operating system reloads, customer portal information, and other situations involving the End User’s data. The End User assumes ultimate responsibility for data integrity, retention, security, backup, and ownership.
  10. The security RealCampaign provides for a virtual computer is that which is expressly advertised as part of the RealCampaign Service. The End User shall be solely responsible for: (a) determining whether that security is sufficient for its purposes and (b) implementing any other security measures it deems appropriate.
  11. RealCampaign warrants that it complies with its obligations under applicable data protection laws regarding personal data that it processes as part of, or in connection with, its provision of the RealCampaign Service.
Disclaimer
Except as provided in these Terms and Conditions, use of the RealCampaign Service and RealCampaign Software and any reliance by the End User upon the results is at End User’s sole risk. Except as provided in these Terms and Conditions,, results are provided without any other warranty of any kind. Except as provided in these Terms and Conditions, RealCampaign makes no warranty (I) that the RealCampaign Service or RealCampaign Software will meet End User’s requirements or be uninterrupted, error-free or bug-free, (II) regarding the security, reliability, timeliness, or performance of the RealCampaign Service or Server, and (III) that any errors in the RealCampaign Service will be corrected. Except as specifically provided in, to the fullest, these Terms and Conditions, extend permitted by law, each party hereby disclaims (for itself and its licensors and suppliers) all other warranties, whether express or implied, oral or written, including without limitation, all implied warranties of non-infringement, merchantability or fitness for any particular purpose and all warranties arising from any course of dealing or course of performance.

Article 8 Third party claims, indemnification

  1. In the event of any claim by any third party (including any governmental authority) that the RealCampaign Service or RealCampaign Software or the use thereof infringes, misappropriates, breaches or violates any copyright, patent, trade secret or other intellectual property right, RealCampaign shall, at its sole discretion, (i) replace or modify the RealCampaign Service or the RealCampaign Software to be non-infringing; (ii) obtain for End User a license to continue using the RealCampaign Service or RealCampaign Software or (iii) amend these Terms and Conditions with respect to the part of the RealCampaign Service or RealCampaign Software that is infringing, without End User being entitled to any compensation or damages.
  2. The End User shall indemnify RealCampaign against any and all damages and costs (including reasonable attorney fees) in connection with any claims by third parties regarding the use of the RealCampaign Service and/or RealCampaign Software by the End User, including, but not limited to, claims regarding the storing, processing and/or transmitting of the Data.

Article 9 Limitation of Liability

  1. In no event shall either party (or its licensors or suppliers) be liable to the other party (or to any third party claiming under or through such party) concerning the subject matter of these Terms and Conditions, regardless of the form of any claim or action (whether in contract, negligence strict liability or otherwise), for any indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits and goodwill.
  2. Neither party shall be liable for direct damages, in the aggregate, in excess of the amounts paid RealCampaign or payable under these Terms and Conditions during the twelve (12) month period preceding the claim (including not more than one annual license fee), even if it has been advised of the possibility of such damages. These limitations are independent from all other provisions of these Terms and Conditions and shall apply notwithstanding the failure of any remedy provided herein. In no event shall the aggregate amount of damages exceed EUR 50,000.
  3. The limitations and exclusions of liability in sections 9.1 and 9.2 shall not apply with respect to (I) RealCampaign’ obligations in section 10 (Indemnification); (II) gross negligence; (III) wilful misconduct.
  4. In addition, RealCampaign shall not be liable for (i) any acts or omissions by or on behalf of the Support Desk, (ii) disruption of the RealCampaign Service due to disruptions in the internet or telephone connections or (iii) any infringement claim regarding the RealCampaign Service resulting from use of the RealCampaign Service other than in accordance with these Terms and Conditions.
  5. Any right to claim under these Terms and Conditions shall lapse upon expiration of a six (6) month period from the occurrence giving rise to the claim or action.

Article 10 Duration and termination

  1. These Terms and Conditions apply from the date End User completed the Registration Form and continue to be in effect for a period of twelve (12) months, after which the agreement between the parties shall automatically extended by a period of twelve (12) months, unless these Terms and Conditions determines otherwise. RealCampaign may terminate the RealCampaign Service on each anniversary date upon a prior written notice of three months.
  2. RealCampaign may terminate the RealCampaign Service (a) if the End User materially breaches a provision of these Terms and Conditions and fails to cure such breach within thirty (30) days after receiving written notice of such breach from RealCampaign, or (b) immediately upon written notice, if the End User makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes judicially declared insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
  3. In the event that the Registration Form ends, for whatever reason, these Terms and Conditions remain in effect for a period of three (3) months.
  4. If these Terms and Conditions are terminated for whatever reason, all rights granted to the End User automatically end. Upon termination RealCampaign will immediately block access to the RealCampaign Service and the RealCampaign Software. Upon termination, for whatever reason, during a period of three months End User may retrieve its Data and Databases only if any charges for any post-termination use of the RealCampaign Service and/or Software and all other amounts due are paid. RealCampaign is entitled to charge the End User for any post-termination assistance at its then current hourly rate. After the three month period stated above, RealCampaign is entitled to destroy the Data.
  5. Upon any expiration or termination of these Terms and Conditions, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the date of termination (including without limitation, all payment obligations) and all remedies for breach under these Terms and Conditions shall survive, and (b) the provisions regarding Fee, Confidentiality, Proprietary Rights, Warranties and Disclaimers, Indemnification, Limitation of Liability and Miscellaneous shall survive.

Article 11 Fees

In consideration of RealCampaign’ performance End User shall make the payments in accordance with the Registration Form.

Article 12 Miscellaneous

  1. Notices
    All notices, requests, demands and other communications to be delivered hereunder shall be in writing and shall be delivered by hand, email, telecopy or mailed, by registered or certified mail, postage prepaid, at or to the email addresses specified by the End User, or to such other address or to such other person as either party shall have last designated by written notice to the other party. Notices, etc., so delivered shall be deemed given upon receipt when given by e-mail or telecopy or ten days after posting in the mail.
  2. Waiver
    1. Any waiver of a provision of these Terms and Conditions must be in writing.
    2. No failure of a Party to take any action in the event of breach of any of the provisions of these Terms and Conditions or in the event of any of the representations and warranties herein not being realized shall be considered to constitute a waiver by other Party.
    3. To the maximum extent permitted by law, the parties hereto waive any and all provisions of applicable law to the end that these Terms and Conditions shall be enforceable in accordance with its terms.
  3. Severability, Waiver
    If any term or provision of these Terms and Conditions or any application thereof shall be invalid or unenforceable, the remainder of these Terms and Conditions and any other application of such term or provision shall not be affected thereby.
  4. No Third Party Beneficiary
    These Terms and Conditions are for the benefit of, and may be enforced only by, RealCampaign and End User and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party.
  5. Independent Contractors RealCampaign shall be an independent contractor under these Terms and Conditions and nothing herein will constitute RealCampaign as the employer, employee, agent or representative of the End User, or as joint venture partner or partners for any other purpose.
  6. Force Majeure
    Neither RealCampaign nor End User shall be liable to the other for a failure or delay in its performance of any of its obligations under these Terms and Conditions to the extent that such failure or delay is (i) caused by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party's reasonable control and (ii) and could not have been prevented by the non-performing party's reasonable precautions (including without limitation, such party's backup, redundancy or disaster recovery procedures), provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent  and as soon as reasonably possible, and provided further, that The End User may terminate the RealCampaign Service upon delivery of written notice to RealCampaign if such condition continues for a period in excess of ten days.

Article 13 Applicable law and Forum

  1. These Terms and Conditions shall be governed by, and construed and enforced in accordance with the laws of The Netherlands. The UN Convention on Contracts for the International Sale of Goods (‘CISG’) does not apply.
  2. Any disputes shall be submitted exclusively to the competent court in Amsterdam, The Netherlands.