THESE TERMS AND CONDITIONS (the « Terms ») are a legal and binding agreement between Dmax & Associates Ltd (referred to as ‘Service Provider’) and the Customers who subscribe to Dmaxepaper.com email marketing platform, governing the use of the Services.
By agreeing to these Terms the Customer is assigning Dmax & Associates Ltd. as its Service Provider for Dmaxepaper.com, the online-based email marketing service, and these Terms remain in force as long as the Customer is using the Services.
THESE TERMS ESTABLISH ALL OF THE PARTIES’ RIGHTS AND OBLIGATIONS AND SUPERSEDE ALL PRIOR ORAL OR WRITTEN COMMITMENTS THAT DIRECTLY OR INDIRECTLY CONCERN THE SUBJECT MATTER OF THIS AGREEMENT. BY SUBSCRIBING TO THE SERVICES OR BY ACCESSING THE DMAXEPAPER.COM OR BY USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREED WITH ALL TERMS, WITHOUT RESERVATIONS.
|1.||Terms of Service and Responsibilities|
|1.1||The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with these Terms and the Laws of Malta (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation).|
|1.2||This is an Agreement for online hosted Services, and the Customer is not granted a license to any software by this Agreement. The Customer shall not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or any software, documentation, or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes with the written consent of Dmax & Associates Ltd. ), distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.|
|1.3||The Customer may not make use of any contacts or contact lists belonging to third parties in connection with preparing or distributing unsolicited e-mail campaigns. The Customer hereby agrees to be solely responsible for any violation of the foregoing and consequently to indemnify Dmax & Associates Ltd. against any damages, losses, liabilities, settlements, and expenses including without limitation costs and reasonable legal fees in connection with any claim or action that arises from an alleged violation of the foregoing.|
|1.4||When signing up for the Services, the Customer has to assign person(s) who will be authorized to use the Services, otherwise referred to as the “User”, and such User(s) will be provided with a username and password in order to access the Customer’s Dmaxepaper.com account. It is the responsibility of Users to keep their username and password secure.|
|1.5||In using the varied features of the Services, the following data is collected from the Customer and managed by the Service Provider: email address, first name, last name, company name, company’s address and contact telephone numbers of all Users who will have access to the Services. The principal purpose of collecting this personal data is to offer the User(s) a safe, optimum, efficient and personalized support. Dmax & Associates Ltd. will use the personal data submitted only in accordance with the applicable data protection legislation and obliges itself not to divulge any Customer’s personal data unless this is authorized in writing by the Customer.|
|1.6||In the context of using Dmaxepaper.com Services, the Users, assigned by the Customer, may import contacts collected from subscribers in order to distribute associated email campaigns. Dmax & Associates Ltd. have no direct relationship with the Customer’s contacts or any persons other than the Users who are authorized by the Customer. Therefore the Customer and its authorized Users, are considered the Data Controller and Dmax & Associates Ltd. is acting only as a Data Processor.|
|1.7||The Customer, as Data Controller, is responsible in particular for:
a) obtaining the explicit consent of the persons concerned when collecting their personal data specifically to be used for email communications;
b) ensuring that the Users have the authority to use the personal data collected in accordance with the defined end purposes and refraining from any unauthorized use;
c) complying with all current regulations in force and making all the declarations necessary to the relative data protection authority;
d) Providing email recipients throughout all email campaigns with a clear and concise link to easily opt-out of receiving future communication. The link must be easy for anyone to recognize, read, and understand. The unsubscription must be granted immediately, with no further emails being sent to this recipient(s) from that moment forward. Dmax & Associates Ltd. is not responsible for any liabilities that may arise should the Customer deliberately decide to remove the unsubscribe facility from its email templates.
|1.8||The Customer shall be solely and wholly liable (i) for any data, information or content, in particular the content of emails and newsletters sent by the Users via Dmaxepaper.com, and (ii) for the content’s compliance with the regulations in force. The Customer acknowledges and warrants that the content, whether in whole or in part, shall in no event:
a) infringe, misappropriate or violate any right, especially any intellectual property right, of any third party whatsoever;
b) contain any virus or program designed to cause damage, intercept or misappropriate any data in a fraudulent manner;
c) contain any unlawful, bullying, harassing, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature or any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable laws or regulations;
d) contain any person’s social security number, individually identifiable health or health insurance information, complete bank account information or credit card information;
e) be false, misleading or inaccurate, or be in breach with the Data Protection law.
|1.9||Dmax & Associates Ltd reserves the right to use subcontractor(s) of its choice to provide the services in connection with the Services, and shall remain liable to the Customer for the performance thereof in accordance with the terms stipulated in the Agreement.|
|1.10||The Parties agree that all the data hosted, safeguarded or stored by the Service Provider for the provision of the Services are and shall remain as the Customer’s property. In no case does Dmax & Associates Ltd. sell, share or rent out Customer’s data to third parties, nor does it use them for any purposes other than those set forth in these Terms.|
|1.11||The Customer shall not transfer the access to the Customer’s Dmaxepaper.com user-account(s) or any right derived from the access and use of the Services to a third party, whether by a contribution, assignment, concession, merger, demerger, loan or otherwise, including without consideration, or within the group to which the Customer belongs, without Service Provider’s prior written agreement.|
|1.12||Every email issued by the Customer via Dmaxepaper.com carries a credit for the system itself in the form of a footnote which is linked to the Dmaxepaper.com service URL.|
|2.||Termination of Services|
|2.1||The Customer may terminate this Agreement at any time by sending an e-mail to email@example.com or by sending written notice to Dmaxepaper.com administration team at Dmax Business Centre, #23, Cat Lane, Swatar, l/o B’Kara, Malta, Europe, by not later than 30 days before the desired termination date. However, upon termination the Customer shall not be entitled to any refund for the remaining period for which payment would have been already affected by the Customer.|
|2.2||Dmax & Associates Ltd. has the right to terminate this Agreement or provision of the Services to the Customer in case of a persistent breach of the any of the below conditions:
a) if the Customer did not confirm the prolongation of the Services for a subsequent year prior to the service renewal date, and failed to pay the Annual Service Fee within 30 days after the renewal date;
b) if the Customer is found to be using illegally obtained contacts, or contacts which did not provide the Customer with their consent specifically for email communications;
c) if the Customer is found to be issuing emails containing content that is illegal, promotes illegal activity, or infringes on the legal rights of others;
d) if the Customer is found to be sharing its Dmaxepaper.com user-account with third parties or offering email campaign management to the third parties, and these are not Users which are authorized by Dmax & Associates Ltd. In such cases, Dmax & Associates Ltd. shall not be held responsible and shall not be in anyhow liable to the Customer or any third party because of such termination of Services.
|2.3||Upon termination of Services, the Customer has the right to request Dmax & Associates Ltd. any archived data stored in Customer’s Dmaxepaper.com user-account within 10 working days from the termination date. Dmax & Associates Ltd. reserves the right to permanently delete the Customer’s user-account with all archived data after 10 working days from the termination provided that a written notice is sent via email to the Customer prior the deletion of the said user-account.|
|2.4||All sections of this Agreement which, by their nature, should survive termination, will survive termination, including, without limitation, warranty disclaimers and limitations of liability.|
|3.1||Within the framework of its services, Dmax & Associates Ltd. undertakes to take strong precautions in order to preserve the security of the data and, in particular, to protect the data against any accidental or unlawful destruction, accidental loss, corruption, unauthorized circulation or access, as well as against any other form of unlawful processing or disclosure to unauthorized persons. Nevertheless, there is no absolute safety from piracy or hackers. That is why in the event of a breach of security that may affect the Customer’s data, Dmax & Associates Ltd. undertakes to inform the Customer thereof without undue delay and to use its best efforts to take all possible measures to neutralize the intrusion and minimize the impacts.|
|3.2||In the context of providing support and maintenance services, Dmax & Associates Ltd. has access to the data contained in the Customer’s Dmaxepaper.com user-account(s). This data is stored on secure servers exclusively within the European Union. Only a limited number of people are authorized to access the data stored in the Customer’s Dmaxepaper.com user-account(s), in particular for the purpose of providing support services.|
|4.||Limitation of Liability|
|4.1||Notwithstanding anything to the contrary, Dmax & Associates Ltd. , as Dmaxepaper.com Service Provider, and its suppliers (including but not limited to all equipment, hosting services and software solutions and related suppliers), officers, affiliates, representatives, contractors, and employees shall not be liable for any direct, indirect, special, or consequential damages resulting from any action in contract, tort, or otherwise.|
|4.2||Dmax & Associates Ltd. is not liable should any cyber-attacks take place that may affect provision of the Services, internet service provider’s service interruptions or server downtime, compatibility with different email service providers and security settings of third party email servers, recklessness of system Users from the Customer’s side or unauthorized third party interventions.|
|4.3||Moreover, the Customer expressly acknowledges and agrees that Dmax & Associates Ltd. shall not be liable for any loss or destruction of the content stored in the Customer’s Dmaxepaper.com user-account, including personal data of contacts, and that the Customer shall be solely responsible for ensuring that proper backups are taken by the Users thereof.|
|4.4||Dmax & Associates Ltd. shall not be responsible for any default or delay due to extraordinary events beyond its control including, without limitation, strikes, lock-outs, shutdown of internet connections by Internet provider, cyber-attacks on the website (« Force Majeure »). If a Force Majeure event occurs, the provision of the Services shall be automatically suspended during the time the Force Majeure event continues, and neither Party shall be liable to the other for non-performance or delay in the performance of required obligation(s) due to the Force Majeure event, provided the non-performing Party gives prompt written notice of its inability to perform specified obligation(s) due to the event and uses reasonable efforts to resume its performance of its obligation(s) as soon as possible. If a Force Majeure event continues for more than a period of sixty (60) days, the provision of the Services may be terminated by either Party, by giving a notice in writing, however no refund would be given for any pre-paid services.|
|5.1||If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.|
|5.2||Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.|
|5.3||No agency, partnership, joint venture, or employment is created as a result of this Agreement, and the Customer does not have any authority of any kind to bind Dmax & Associates Ltd. in any respect whatsoever.|
|5.4||Dmax & Associates Ltd reserves the right to update these Terms at any time, in particular pursuant to any changes made to the laws and regulations in force. Any modifications made will be notified to the Customers via our Website or by email, to the extent possible, at least thirty (30) days before any changes come into force.|
|5.5||The Services are available only to persons who can form legally binding contracts in terms of the law. Without limiting the foregoing, the Services are not available to individuals under the age of 18 unless the Customer is a minor who had been legally emancipated to trade in terms of the Law.|
|5.6||This Agreement shall be governed by the Laws of the Malta. In case of a dispute between the parties with respect to this agreement, the parties are agreeing that they shall refer such dispute to Arbitration at the Malta Arbitration Centre.|