This license agreement (the «Agreement ») is entered into between Acumbamail, S.L.U. with registered office at Ciudad Real (Spain), Avenida del Rey Santo 3D, 3ª, oficina 4, Postal code 13001, Tax identification number and VAT Code B13538590, in the person of its pro tempore legal representative («Acumbamail ») and the Client, identified with the information provided by completing the Registration Form as below defined (the «Customer »)
Acumbamail and the Client individually also the «Party » ,and collectively, the «Parties ».
WHEREAS
I. Acumbamail is a company that operates in the digital marketing and digital communications industry.
II. Acumbamail has developed and designed a Software as a Service (SaaS) which enables the users to create and send email, SMTP and SMS, and create and publish landing pages through a drag and drop user interface (the «Acumbamail Platform »)
III. The Client hereby states to know and have carefully checked the features of the Acumbamail Platform and to consider them suitable for its needs.
IV. The Acumbamail 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.
V. These recitals, the schedules, and the external links (e.g., the Privacy Policy, the Pricing Page, and the Support Pages, as better defined below) to the Agreement constitute an integral and substantive part hereof.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS
SECTION 1. DEFINITIONS
The following terms in this Agreement shall have the meaning attributed to them under this clause when capitalized. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.
«Acumbamail » : has the meaning set forth in the heading.
«Acumbamail Indemnitee » : has the meaning set forth in Section 10.5.
«Acumbamail Materials » : means the documentation any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Acumbamail or any Subcontractor in connection with the Acumbamail Platform, including any third party materials licensed to Acumbamail, or otherwise comprise or relate to the Acumbamail Platform. For the avoidance of doubt, Acumbamail Materials include Resultant Data and any information, data or other content derived from Acumbamail's monitoring of Client's access to or use of the Acumbamail Platform, but do not include Client’s Personal Data.
«Acumbamail Platform » : has the meaning set forth in whereas II of this Agreement.
«Activation date » : means the date on which one or more Plans are activated by the Client.
«AddOns » : has the meaning set forth in Section 2.7 and means the integrations available here: https://acumbamail.com/integraciones/.
«AddOns Provider » : has the meaning set forth in Section 2.7.
«Additional Plans » : means the plans – as per the current Pricing Plan – under which the Client can add to the configuration of its Acumbamail Platform other features (e.g. the creation and the publish of landing pages) that requires, for the use thereof, payments to be made on a recurring basis.
«Additional Plans Fee » means the periodic fee that Client undertakes to pay for use of any Additional Plan under the provisions specified in the relevant Order.
«Affiliates » : means any person, corporation, or other legal entity that, directly or indirectly, controls, is controlled by, or is under common control with Acumbamail. For this purpose, “control” shall mean i) possession, direct or indirect, of the power to direct or cause direction of the management and policies of a party, whether through voting securities, by contract or other means; and/or ii) ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding equity or voting shares of a party.
«Agreement » : means this contract between Acumbamail and the Client.
«Agreement Term » : has the meaning defined in Section 7.1.
«API » : means the function, tools and applications for integration with external software programs as established in the documentation viewable at the addresshttps://acumbamail.com/apidoc/.
«English version » : has the meaning set forth in Section 9.2.
«Customer » : has the meaning set forth in the heading.
«Confidential Information » : has the meaning set forth in Section 12.2.
«Database » : means the digital records containing email addresses and phone numbers of the recipients of the communications sent by the Client through the Acumbamail Platform.
«Dedicated IP Address » : has the meaning set forth in Section 2.7.
«Deliverables » : has the meaning set forth in Section 2.10.
«Effective Date » : means the date this Agreement comes into effect as accepted by the Client.
«Email Billing Period » : has the meaning set forth in Section 8.2.
«Email Plan » : as per the current pricing plan, under which the Client can send emails through the Acumbamail Platform and that requires, for the use thereof, payments to be made on a recurring basis.
«Email Plan Fee » : means the periodic fee that Client undertakes to pay for use of any Email Plan under the provisions specified in the relevant Order and this Agreement.
«Email Plan Term » : has the meaning set forth in Section 7.3.
«Expiry date » : means the prior between (i) the date on which the Agreement is terminated in accordance with Section 7.2 or 7.10 of this Agreement, and (ii) all the Services are fully provided to the Client.
«Feedback » : has the meaning set forth in Section 12.13.
«Fees » : means the Plans Fee plus, if applicable, the Una Tantum Fee and the Pre-Paid Email and SMS Credit Fee.
«Free Plan » : has the meaning set forth in Section 2.5.
«Harmful Code » : means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent Client from accessing or using the Acumbamail Platform by this Agreement.
«Initial SMS Plan Term » : has the meaning set forth in Section 7.5.
«Intellectual Property » : means all current worldwide copyright, utility models industrial designs, trademarks, domain names, database right and other intellectual property rights, whether or not capable of registration, whether or not registered, and applications of any of the foregoing and all intellectual property rights whether now known or created in the future.
«One-Time Services »: has the meaning set forth in Section 2.10.
«Order » : means the written or electronic document accepted from time to time (online or offline) by the Client, detailing the Fees and the configuration of the Acumbamail Platform and the Services.
«Parties » : has the meaning set forth in the heading.
«Personal Data » : means the personal information to be understood as any information concerning an identified or identifiable natural person that are processed by Acumbamail in performance of the Agreement. The data that can be processed by Acumbamail include but are not limited to email addresses, phone numbers, contact details, IP addresses, images, Databases and data generated using the Acumbamail Platform and sending communications. Personal Data does not include Special Categories of Personal Data. For avoidance of any doubts, Personal Data does not include Special Category of Personal Data.
«Plans » : means the Email Plan, the SMS Plan and the Additional Plan collectively considered.
«Plans Fee » : means the periodic fee – given by the sum of the SMS Plan Fee, the Email Plan Fee and the Additional Plan Fee, as the case may be – that Client undertakes to pay for use of the Acumbamail Platform under the provisions of the Plans, as specified in the Order and this Agreement.
«Plan Term » : means the Email Plan Term, the SMS Plan Term and the Additional Plan Term collectively considered.
«Pre-paid Email Credits » : means a predefined and non-divisible amount of Email credits that the Client can buy on a one-shot basis in addition to any Email Plan (if active) and which have the duration specified under Section 7.7.
«Pre-paid Email Credits Fee » means the one-shot fee that shall be paid for buying Pre-Paid Email Credits.
«Pre-paid Email Credits Fee » : has the meaning set forth in Section 7.7.
«Pre-paid SMS Credits » : means a predefined and non-divisible amount of SMS credits, different from the Recuring SMS Credits, that the Client can buy on a one-shot basis in addition to any SMS Plan (if active) and which have the duration specified under Section 7.8.
«Pre-paid SMS Credits Fee » : means the one-shot fee that shall be paid for buying Pre-paid SMS Credits.
«Pre-paid SMS Credits Term » : has the meaning set forth in Section 7.8.
«Pricing Page » : webpage available at https://acumbamail.com/pricing/ or otherwise provided to Client.
«Privacy policy » : means the document available at https://acumbamail.com/glosario/politica-de-privacidad/.
«Privacy Regulation » : 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 («GDPR ») and the Spanish “Ley Orgánica 3/2018 de Protección de Datos Personales y garantía de los derechos digitales («LOPD »)
«Professional Services »: has the meaning set forth in Section 2.10.
«Recurring SMS Credits » : means the amount of SMS credits that are included in the SMS Plan as specified in the Order.
«Registration Form » : means the registration form available at the subscription page of Acumbamail: https://acumbamail.com/.
«Resultant Data » : has the meaning set forth in Section 5.4.
«Services » : means all the Plans plus, if applicable, the Email and SMS Credits, the Una Tantum Services and any additional services.
«SMS Billing Period » : has the meaning set forth in Section 8.3.
«SMS credits » : has the meaning set forth in Section 11.1.
«SMS Credits Table » : means the table viewable at the address: https://soporte.acumbamail.com/article/99-crear-campanas-de-sms#paises_sms.
«SMS Plan » : as per the current Pricing Plan, under which the Client can send SMS through the Acumbamail Platform and that requires, for the use thereof, payments to be made on a recurring basis.
«SMS Plan Fee » : means the periodic fee that Client undertakes to pay for use of any SMS Plan under the provisions specified in the relevant Order.
«SMS Plan Term » : has the meaning set forth in Section 7.5.
«SOW »: has the meaning set forth in Section 2.10.
«Subcontractor » : has the meaning set forth in Section 2.9.
«Support Services » : has the meaning set forth in Section 9.3.
«Taxes » : means all applicable taxes, including but not limited to indirect taxes such as goods and services tax, value added tax (VAT), sales tax, fees, duties, levies, or other similar taxes.
«Una Tantum Service » : means services for which a one-shot payment is due for the use thereof. By way of example and without any limitation whatsoever, the following services are Una Tantum Services: creation of custom templates, trainings; deliverability audit and statistical data analysis report..
«Una Tantum Services Fee » : a one-shot fee that the Client undertakes to pay for the Una Tantum Services. .
«Una Tantum Service Term » : has the meaning set forth in Section 7.9.
Moreover, for the purpose of this Agreement, the Parties make explicit reference to the definitions contained in Article 4 of the GDPR.
SECTION 2: LICENSE, SUBLICENSE, FREE PLAN AND GENERAL USE POLICY
2.1. License Subject to Client’s acceptance of and compliance with this Agreement and based on the Plan activated by the Client, Acumbamail undertakes to provide to the Client a limited, worldwide, non-exclusive, non-assignable (except as specifically set out in this Agreement) and non-transferrable (except as specifically set out in this Agreement) right and license to use of the Acumbamail Platform for:
a) creating and sending email, SMS, SMTP, and other communications through the channels made available from time to time.
b) creating and publishing landing pages through a drag and drop editor interface.
c) checking relative reports and mailing reports.
d) receiving or using the Services linked to the Acumbamail Platform.
2.2. Sub-license. If the Client grants, under a sub-license, access to and use of the Acumbamail Platform to its own customers, the Client will be the sole party responsible for compliance with the provisions and obligations set forth in this Agreement since no direct relationship exists between such final customers and Acumbamail. The Client’s appointment of Acumbamail as Data Processor under the Data Processing Agreement 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 Acumbamail from and against any prejudice that the latter may suffer as the result of conduct, infringements, or breaches by the sub-licensees.
2.3. Consumer legal framework. The Client expressly accepts that the Acumbamail Platform is a tool reserved to professional users, and therefore this Agreement is not subject to the legal framework applicable to agreements with consumers (e.g., the right of withdrawal within the first fourteen days).
2.4. General Use Policy. The Client shall not, and shall not permit any other person to, access or use the Acumbamail Platform except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:
a) Directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to access the source code of the Acumbamail Platform, or underlying structure, ideas, or algorithms of the Acumbamail Platform or any software, documentation, or data related to the Acumbamail Platform; modify, translate, or create derivative works based on the Acumbamail Platform, except and only to the extent that such activity is expressly permitted by this Agreement; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Acumbamail Platform; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Acumbamail Platform to any person, including on or in connection with the use of Acumbamail Platform for timesharing or service bureau purposes, software as a service, cloud or other technology or service; or otherwise for the benefit of a third party unless specifically authorized by Acumbamail under this Agreement.
b) Remove or alter the Acumbamail’s trademarks, or any trademark, copyright or other proprietary notices, legends, symbols or labels in the Acumbamail Platform
c) Display or integrate any advertisements on the Acumbamail Platform.
d) Distribute or disseminate any information or materials that are inappropriate, profane, defamatory, obscene, indecent, unlawful or injurious, or contain, transmit or activate any Harmful Code
e) Use the Acumbamail Platform to upload, create, publish or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright, trademark or privacy laws unless Client owns or controls the rights thereto or has received all necessary consent to do the same.
f) Use any material of information, including images or photographs, which are made available through the Acumbamail Platform in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any third party
g) Input, upload, transmit or otherwise provide to or through the Acumbamail Platform, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code
h) Damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Acumbamail Platform or Acumbamail’s provision of services to any third party, in whole or in part.
i) Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of the Acumbamail Platform or other material contained in a file that is uploaded
j) Violate any applicable laws or regulations.
k) Create several free accounts for common use (account created from the same IP address)
l) Otherwise access or use the Acumbamail Platform and the Services beyond the scope of the authorization granted under Section 2.
2.5. Improvements. The Client recognizes that Acumbamail is always innovating and finding ways to improve the Acumbamail Platform with new features and services. Therefore, the Client accepts that the Acumbamail Platform may change from time to time, and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Acumbamail Platform. In any case, Acumbamail 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 Acumbamail Platform.
2.6. Free Plan. The Client may have access to basic functionality of the Acumbamail Platform under the free plan («Free Plan » ). The use of the Free Plan is regulated by the provisions of this Agreement. The obligations of Acumbamail on the basis of provisions of Sections 9.1 (Service Level), 9.3 (Support) and 10.2 (Acumbamail's representations and warranties) of these Agreement are not applicable to and cannot be enforced by Clients which make use of the Acumbamail Platform and Services via the Free Plan. In deviation of Section 10.10 (Limitation of Liability) the maximum aggregate liability of Acumbamail in respect of Clients which make use of the Acumbamail Platform and Services via the Free Plan, shall be EUR 15,00 (in words: fifteen euro). To the maximum extent permitted by applicable law, Acumbamail disclaims all obligations or liabilities with respect to Free Plans, including any support services, warranty, and indemnity obligations.
2.7. AddOns, Plugins, and Integrations Acumbamail in its absolute discretion may make available additional features, functionality, and services offered by third-party providers («AddOns ») with the Acumbamail Platform. Client’s use of AddOns is subject to a separate agreement between Client and the third-party licensor of that AddOn («AddOns Provider » ). Acumbamail is not, and in no event will be considered as a party to, or a third-party beneficiary of such agreement. The Client’s use of the AddOn is strictly at the Client’s risk. The AddOn Provider is solely responsible for that AddOn, its content, performance and security and the privacy and security of any of the Client data processed or affected, directly or indirectly, by the AddOn. Neither Acumbamail nor any BEE affiliates make any warranties, express or implied, as to the AddOns, their security, legality, performance, accuracy, or reliability. Acumbamail disclaims any liability in connection with any claims that the Client or any other party may have relating to any AddOn or the Client’s use of that AddOn. By subscribing to or purchasing an AddOn, the Client warrants that (i) it has the right to directly transfer Personal Data to the Addon Provider; (ii) only if applicable, it grants Acumbamail permission to share Client Personal Data and Resultant Data with the AddOn Provider as necessary in order to provide the Client with the AddOn; and (iii) it has all permission to use them and to transfer any information related to their use to Acumbamail. Acumbamail disclaims any responsibility as to the AddOn Provider’s use or misuse of Client Personal Data and Resultant Data.
2.8. Dedicated IP Address. Under certain Plans, the Client may have the option to purchase access to a dedicated IP address or specifically designated shared IP address (collectively, a «Dedicated IP Address») for email sending purposes. Acumbamail, in its sole discretion, may determine whether to provision access to a Dedicated IP Address. Dedicated IP Addresses used to provide the Acumbamail Platform are owned and operated by Acumbamail and Acumbamail reserves the right to revoke a Client’s use of a Dedicated IP Address at any time. If the use of Acumbamail Platform is paused or suspended for any reason (including but not limited to compliance matters, failed or overdue payment issues, or voluntarily pausing Client’s Plan), Acumbamail may reclaim the Dedicated IP Address from the account and terminate any future use of the Dedicated IP Address by the Client.
2.9. Subcontractors. Acumbamail may from time to time in its discretion engage third parties to perform Services (each, a«Subcontractor »)
2.10. Professional Services. The Client may order from Acumbamail rights to access and use Platform related professional services («Professional Services »). Where applicable, Acumbamail or its third-party providers will perform the Professional Services set forth on the applicable Order (if any). The particulars of each Professional Services engagement will be as set forth in executed statements of work (each an «SOW») entered into by the Parties. Certain Professional Services projects which are discreet in nature may be provided to the Client on a one-time basis without an executed SOW («One-Time Services»). All One-Time Services shall be governed by this Agreement and shall be subject to the terms in the applicable SOW approved by the Client in writing. Acumbamail will retain all right, title and interest in and to all deliverables (including any and all intellectual, property rights therein) provided under each SOW («Deliverables»), except to the extent that they contain any pre-existing Client intellectual property, or it is otherwise regulated and agreed between the Parties in each SOW.
SECTION 3. EMAIL AND SMS USE POLICY
3.1. Privacy Legal Basis. The Client is aware and accepts that the essential requirement to send email and SMS is the existence of a suitable privacy legal basis in accordance with the data protection law in force from time to time. Acumbamail may at any time, in case of breach of the terms under this section (e.g. through a report addressed to Acumbamail or when certain control thresholds on specific indicators, such as “rate of spam reports (feedback loop)” and “hard bounce rate” are exceeded), block Client’s account and suspend access to and use of the Acumbamail Platform and/or cancel a planned campaign without the right to restore the Email and SMS credits for the Client; in this case the Client undertakes to provide Acumbamail with relevant explanations and everything deemed appropriate by Acumbamail to verify that the sending of messages is carried out by the Client in compliance with the data protection laws in force from time to time. The existence of an appropriate privacy legal basis concerns both the recipients of the messages sent via e-mail and the recipients of SMS messages.
3.2. Prohibited email and SMS contents. The Client declares that it is aware that Acumbamail expressly prohibits:
i. 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
ii. 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) 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
iii. The use of applications/functions such as SMTP+, SMTP Relay, Fast Email, Instant SMTP, WebService/API to send bulk messages with commercial/marketing/promotional content provided by third parties as well as DEM, EDM, direct emailing, and direct email marketing.
iv. 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) material 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; (l) material considered “dubious” in Acumbamail’s absolute discretion
In all such cases, Acumbamail 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 Acumbamail Platform and/or to declare the automatic termination of the Agreement by law due to breach in accordance with art. 4.2 of this Agreement.
3.3. IP Blacklisting. In the event that the Client were responsible or liable for the use of the service for unlawful purposes and/or for the mailing of unsolicited or unauthorized advertising («spamming»), causing damage to the reputation of Acumbamail and/or to the functioning of its service, such as the registration of one or more mailing or second level domain IPs linked to the service on a Relay Block List or international Blacklist (including but not limited to such blacklists as URIBL, SURBL, SORBS, SPAMCOP, SPAMHAUS, and others), or a blacklisting or relay block listing with any Internet Service Provider (including but not limited to such ISPs as Google, Microsoft, Yahoo!, AOL, Godaddy, Register, Aruba, Fastweb, Alice and others), the Client shall be considered the sole and exclusive responsible for this material breach, and shall indemnify and hold harmless Acumbamail from and against any liability whatsoever in such regard, and Acumbamail reserves the right to take action in the advisable forums to obtain compensation for damages, whether suffered by Acumbamail itself or third parties, caused by such conduct.
3.4. Unsubscribe link. The Client undertakes to include - in each message with a promotional or commercial nature and or for which the relevant legal basis is the consent - a working link that enables the recipient to have access to all information necessary to freely unsubscribe and therefore not receive any further emails. This cancellation link 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 an email address. Any requests to unsubscribe must be processed by the Client within 3 (three) days after a recipients’ request. Acumbamail 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 Acumbamail Platform
3.5. Automatic exclusion. 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 spam and unsolicited messages, the Client is aware and authorize Acumbamail to automatically exclude from the mailing lists entered onto the Acumbamail Platform (i) email addresses which are inexistent or wrong, and (ii) 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.
3.6. Information to be provided to the recipients and users. The Client is the sole party responsible for informing its recipients and users that (i) for the mailing of its communications and for the creation of its landing pages it may avail itself of third parties’ services and tools such as the Acumbamail Platform, and (ii) statistical tracing systems and cookies may be used to track information related to the Client’s recipients and users, and their behavior (e.g., IP address, the date and the time on which the email is read, the number of clicks made on the links contained in the emails or the landing pages, etc.) (iii) the information related to this tracking will be transferred to Acumbamail.
3.7. About us. The Client shall 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:
a) 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
b) contact information consisting of at least a valid telephone number or an electronic contact form, as well as an e-mail address, and
c) if available, the identification number must be provided for purposes of VAT, the Spanish tax id number or NIF, VAT code for EU purposes, or other equivalent tax identification number recognized in Spain
d) If Client is a foreign individual, on top of that shall provide his/her foreign id number or NIE.
Client acknowledges that Acumbamail expressly prohibits the use of temporary, or disposable, email 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.
3.8. Message Size Limit. The Client is aware and accepts that the traffic generated by a file uploaded and connected within a message may not, in any case, be greater than the size defined in the Order. Once such limit is exceeded, Acumbamail may, in its absolute discretion, slow down or limit access to the file or eliminate the file from the Acumbamail Platform without any obligation to notify the Client. For any further information about space and/or traffic limitations, please refer to the Order.
3.9. Acumbamail rights. The Client is aware and accepts that, at any time Acumbamail may suspend the mailings through the Acumbamail Platform and ask the Client to provide documentation proving compliance with the provisions of this Section 3. The Client will have 10 (ten) calendar days - starting from the receipt of the communication sent by Acumbamail - in order to provide the documentation requested. 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, Acumbamail reserves the right to reduce the mailing speed until the risk of further violations has been excluded, or to definitively block access to the Acumbamail Platform and to declare the automatic termination by law of the Agreement due to breach in accordance with art. 7.2. In such case, Acumbamail will have no liability whatsoever, and will not be under any obligation to pay any indemnity and/or compensation for the service not used; Acumbamail, in such case, will be entitled to charge to the Client the greater amount between EUR 1,000.00 (one thousand Euro) and 10% of the Fee due during the current Billing Period, 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.
SECTION 4. SECURITY
4.1. Username, password and 2FAUsername, password and 2FA. The Client will have access to the Acumbamail Platform through the username and password chosen by the Client. The Client shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to maintain the confidentiality of its account and password, and Client agrees to notify Acumbamail promptly of any known unauthorized access or of any reasonably suspected breach of its account’s security. Client shall be liable for losses incurred by Acumbamail and/or another party due to a third-party using Client’s account or password. The Acumbamail Platform support logins using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Acumbamail Platform. Acumbamail therefore will not be responsible for any damages, losses or liability to Client or anyone else if any event leading to such damages, losses or liability would have been prevented by the use of 2FA.
4.2. Backup. The Client is aware and accepts to create on a regularly basis its own backup copies of the Database and of all the Personal Data uploaded into the Acumbamail Platform to avoid the loss, in whole or in part, of the same. Acumbamail 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 Acumbamail.
4.3. API. The Acumbamail Platform may make available to the Client some API as established in the documentation “Acumbamail API”. Through the API, the Client has the possibility of creating personalized integrations between the Acumbamail Platform and third-party applications in order to facilitate automatic data updating functions. The Client is the only responsible party 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 Acumbamail Platform of functions made available by third parties may be subject to acceptance of contractual conditions imposed by such third parties.
4.4. Correspondence. The Client is aware and accepts that all correspondence between the Client and Acumbamail, including its collaborators, may be saved, and stored. In this regard, the Client authorizes Acumbamail 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 abuse@acumbamail.com 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 this Agreement, the Client shall fully release Acumbamail.
SECTION 5. DATA PROTECTION
5.1. Appointment as Data Processor. By entering into this Agreement and in accordance with article 28 of the GDPR, having considered Acumbamail as a suitable and reliable company, the Client hereby appoints Acumbamail as the Data Processor or, as the case may be, as Sub-Data Processor. By entering into this Agreement and effective as of the date hereof, Acumbamail hereby accepts this appointment and confirms to have the in-depth knowledge of any related obligations, representing to have the ability, expertise, and skills as required to take on such role. Acumbamail undertakes to process the Personal Data in compliance with the instructions and provisions set forth under the data processing agreement attached as Annex A of this Agreement.
5.2. Deletion of Data and account. Upon the expiration or the early termination of the Agreement, Acumbamail will be entitled to permanently delete the Client’s account and all the data associated with it, including any templates, files and programmed campaigns. Such data may be viewed and downloaded freely by the Client by the above deadline by using the normal functions of the Acumbamail Platform. In the event of block on access to the Acumbamail Platform due to material breach by the Client, the Client may gain access solely after removing the cause that gave rise to the block. If the Agreement and its account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed. 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.
5.3. Privacy Policy. Each Party undertakes to comply with the data protection legislation applicable at the time and place and to process all personal data and information of the other Party, its legal representatives and/or employees and/or collaborators to which it may have access in the context of the conclusion and execution of this Contract, solely for specified and legitimate purposes. Without prejudice to Section 5.1 above, Acumbamail will process these data in compliance with its Privacy Policy.
5.4. Resultant Data. As established between the Parties, Acumbamail holds all rights to the use of statistical information, data and related analyses in aggregate form, deriving from the Clients’ use of the Acumbamail Platform («Resultant Data » ). The Resultant Data are in aggregate and or anonymized form and do not include Personal Data. The Client expressly authorizes Acumbamail to use the Resultant Data in order to improve the functioning of the Acumbamail Platform or for statistical information that may be published in aggregate form.
SECTION 6. OWNERSHIP OF THE SOFTWARE AND MATERIALS
6.1. Acumbamail Platform and Acumbamail Materials. Acumbamail® is a registered trademark. The unauthorized copying and dissemination of the same in breach of the Intellectual Property rights are prohibited. All right, title and interest in and to the Acumbamail Platform and Acumbamail Materials, including all Intellectual Property Rights therein, are and will remain with Acumbamail or Acumbamail licensors, as applicable. Client has no right, license or authorization with respect to any of the Acumbamail or Acumbamail Materials except as expressly set forth in this Agreement. All other rights in and to the Acumbamail Platfom and Acumbamail Materials are expressly reserved by Acumbamail and the respective third-party licensors. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to Acumbamail an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
6.2. Wording and logo «Enviado con Acumbamail». Free customers of the Acumbamail Platform acknowledge and accept the fact that Acumbamail may insert in every message sent by the customers text and/or a logo related with the Acumbamail Platform, containing a link to one of the Acumbamail websites.
SECTION 7. TERM AND TERMINATION
7.1. Agreement Term. This Agreement will be effective commencing on the Effective Date and will remain in effect for so long as all the Services are provided to the Client, unless the Agreement and the Services are sooner terminated in accordance with the provisions of this Agreement («Agreement Term »)
7.2. Express Termination Clause. This Agreement and all the related Services shall be deemed automatically terminated pursuant to article 1124 of the Spanish Civil Code, by simple written notice which may be sent by Burofax or email in the event of a material breach of the obligations provided under:
(i) Section 2.4 (General Use Policy).
(ii) Section 3 (Email and SMS Use Policy).
(iii) Section 8 (Payment).
(iv) Section 12.3 (Assignment).
(v) if the Client is put into liquidation or admitted to insolvency proceedings.
The termination of the Agreement and of all the related Services and Plans, in the situations referred to above, will be effective by law upon the Client’s receipt of the communication through which Acumbamail declares its intention to avail itself of the express termination clause. Acumbamail in any case shall retain the right to demand payment of any Fee and or to withhold it in its entirety, even if such services have not been completely used by the Client.
7.3. Email Plan term and termination. The Email Plan will be effective on the Activation Date and will remain in effect for an indefinite term («Email Plan Term » ). At any time, the Client may terminate the Email Plan for convenience by using the special function made available in the Acumbamail Platform. In this case, the Client is aware and accepts that (i) the termination will be immediately effective; (ii) it will not be entitled to any refunds for any unused Services, and (iii) Acumbamail reserves the right not to send any email campaigns planned by the Client through the Acumbamail Platform, in the event that such mailing, while starting before the termination, continues beyond it. The termination will not affect the expiration of any Pre-paid Email or SMS Credits bought by the Client which will last as defined in the Sections 7.7 and 7.8 below.
7.4. Email Plan pause. Once a year, the Client may temporarily pause the Email Plan for 30 (thirty) days, as long as they have activated it with a monthly Email Billing Period. The Client is aware and accepts that the pause will take effect immediately at the moment of the activation and for the next 30 days. During this period the Client will not be able to use the Acumbamail Platform to send emails. The provisions set forth in this Section 7.4 do not apply to (i) the SMS Plan, (ii) the Additional Plan and (iii) all the Plans with yearly recurring payment.
7.5. SMS Plan term and termination. The SMS Plan will be effective on the Activation Date and will remain in effect for an indefinite term («SMS Plan Term » ). Starting from the beginning of the fourth month, the Client may terminate the SMS Plan for convenience by written email notice to Acumbamail or, if available, by using the special function active in the Acumbamail Platform. In this case, the Client is aware and accepts that (i) the termination will be immediately effective upon receipt of the termination notice by Acumbamail (ii) it will not be entitled to any refunds for any unused Services, and (iii) Acumbamail reserves the right not to send any SMS campaigns planned by the Client through the Acumbamail Platform, in the event that such delivery, while starting before the termination, continues beyond it. The termination will not affect the expiration of any Pre-paid Email or SMS Credits bought by the Client, which will last as defined in Sections 7.7 and 7.8 below.
7.6. Additional Plan term and termination. The right to terminate any Additional Plans or all the Plans shall be exercised by the Client in accordance with the same methods indicated above in this Section 7. The termination will not affect the expiration of any Pre-paid SMS Credits bought by the Client, which will last as defined in Section 7.8 below.
7.7. Pre-paid Email Credits Term. Each Pre-paid Email Credit will be effective on the purchase date and will last as long as the Client has not consumed them with a cap of 2 (two) years since the date of the related purchase («Pre-paid Email Credits Fee » ). Once this two-year term expired, any remaining unused Pre-paid Email Credits will be cancelled and the relevant amount will be definitively withheld by Acumbamail, without any reimbursement or restitution being due. Any further purchase of credits within such period of two (2) years will not extend the Pre-paid Email Credits Term of the previous Pre-paid Email Credits purchased by the Client.
7.8. Pre-paid SMS Credits Term. Each Pre-paid SMS Credit will be effective on the purchase date and will last as long as the Client has not consumed them with a cap of 2 (two) years since the date of the related purchase («Pre-paid SMS Credits Term » ). Once this two-year term expired, any remaining unused Pre-paid SMS Credits will be cancelled and the relevant amount will be definitively withheld by Acumbamail, without any reimbursement or restitution being due. Any further purchase of credits within such period of two (2) years will not extend the Pre-paid SMS Credits Term of the previous Pre-paid SMS Credits purchased by the Client.
7.9. Una Tantum Service Term . Any Una Tantum Services will have a term set forth under the relative Order («Una Tantum Service Term » ). If the Client does not use the Una Tantum Services within Una Tantum Service Term, it will still be required to pay the entire amount and will not be entitled to any refund.
7.10. Acumbamail Termination for convenience. Acumbamail may terminate for convenience the Agreement and all related Services and Plans, by providing a thirty (30) days written notice prior to the date on which it wishes to terminate the Agreement by email, registered Letter or a Burofax. In this case, Acumbamail shall refund the Client with a pro rata portion of any Fee that may have been paid by the Client for the portion of the Services not provided to the Client. The refund amount will be equal: (a) for the Plans, to the pro rata amount calculated in relation to the days remaining before the end of the current Billing Period, and (b) for the Email and SMS Prepaid Credits, to the amounts paid for the outstanding Email and SMS credits purchased during the thirty (30) days prior to the receipt date of the Acumbamail notification. Unless otherwise stated in this Agreement, there are no other circumstances in which the Client is entitled to a refund from Acumbamail.
7.11. Client Termination for convenience The Client may terminate for convenience the Agreement and all related Services and Plans, by providing a thirty (30) days written notice prior to the date on which it wishes to terminate the Agreement by email, registered Letter or a Burofax. In this case, the Client will not be entitled to a refund for any prepaid amounts or reimbursement for unused Email or SMS Pre-paid Credits, and Acumbamail will reserve the right to demand any outstanding Fee.
SECTION 8. FEES AND PAYMENTS
8.1. Fees The Client shall pay the Fees in accordance with Section 8. Unless otherwise stated, any consideration, amount payable, prices, Fees, payment terms and/or any other amounts are exclusive of Taxes.
8.2. Email Plan Fee The Client undertakes to pay in advance the Email Plan on a thirty-days or, as the case may be, on a yearly recurring basis («Email Billing Period » ) for the Email Plan Term.
8.3. SMS Plan Fee. The Client undertakes to pay in advance the SMS Plan Fee monthly or yearly («SMS Billing Period » ) for the SMS Plan Term.
8.4. Additional Plan Fee. The Client undertakes to pay the Additional Plans in the timeframe and in accordance indicated in the relevant Orders.
8.5. Pre-paid Email Credit Fee. The Client undertakes to pay the Pre-paid Email Credit Fee in advance and, in any case, in accordance with the methods indicated in the relevant Orders.
8.6. Pre-paid SMS Credit Fee. The Client undertakes to pay the Pre-paid SMS Credit Fee in advance and, in any case, in accordance with the methods indicated in the relevant Orders.
8.7. Una Tantum Services Fee. The Client undertakes to pay the Una Tantum Services Fee in the specified timeframe and in accordance with the methods indicated in the relevant Orders.
8.8. Payment. The payment of the Fees shall be made in Euro, by wire transfer or credit card (subject to successful payment) or other payment method acceptable to Acumbamail.
8.9. Failure to Pay. In the event that the Client fails to pay the Fees, Acumbamail may, in its absolute discretion and at any time, deactivate Clients’ account and all the Acumbamail Platforms activated by the Client, upon email notice. If this material breach is not cured by the Client within such ten (10) calendar day period, Acumbamail will be authorized to block the Client’s access to the Acumbamail Platform and to terminate the Agreement pursuant to section 7.2 above and subsequently eliminate all data present on the same, without prejudice to Acumbamail’s right to demand, in any case, payment of the entire Fees under this Agreement. Payment of the Fees may not be delayed or suspended for any reason whatsoever, even in presence of pending complains/claims, it being agreed that the Client may enforce any rights solely through separate proceedings and only after the full fulfillment of its obligation to pay the Fees.
8.10. Automatic charge. In the event of payment via credit card, Acumbamail is hereby authorized to implement a recurring credit card payment of the Plans Fee by processing an automatic pre-authorized charge of the amount of the Plans Fee for the use of the Acumbamail Platform for the Plans Term, subject to termination which may be carried out by Client in accordance with sections 7.3, 7.5 and 7.6 of this Agreement. If 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), Acumbamail may, in its absolute discretion, deactivate Clients’ account and all the Acumbamail Platforms activated by the Client. If this material breach is not cured within ten (10) calendar days, Acumbamail shall have the right to terminate this Agreement pursuant to Section 7.2 and delete allClient’s data, without any prejudice to Acumbamail’s right to the collection and/or definitive withholding of all the Fees due under the Agreement.
8.11. Interests. The Parties agree that in the event of delay in the payment of the Fees, Acumbamail may charge interest pursuant to article 7 of Spanish “Ley 3/2004 por la que se establecen medidas de lucha contra la morosidad en operaciones comerciales”, as subsequently amended, and as published by the Economy Ministery in the official Gazette (“Boletin Oficial del Estado”) and in force at the date of start of the delay (mora). For all activities requested by the Client to Acumbamail by way of derogation of this Agreement and to which Acumbamail – at its sole discretion – consents, the Client shall agree to pay Acumbamail the amount of EUR 100.00 (one hundred euro) to cover the administrative costs.
8.12. Plans Fee Increases. Acumbamail may increase the Plans Fee or introduce fees for the Free Plan at any time by providing written notice (by email or by notice in the Acumbamail Platform) to Client at least fifteen (15) days’ before the commencement date of any Billing Period. In the event that the Client does not intend to accept the new rates, Client must terminate its Plan before the commencement of the new Billing Period. In the event of termination submitted beyond the aforesaid deadline, the new rates shall be considered accepted by Client and will be legally applied starting from the relevant Billing Period.
8.13. Upgrade and/or downgrade. At any time, the Client can upgrade or downgrade its active Plans. In this case, (a) the new Billing Period will start to run from the upgrade or downgrade date; (b) without prejudice to Sections 7.7 and 7.8 and exclusively in case of downgrade, all unused portions of mailings and Services linked to the previous Plan – before the downgrade of the Plan - will not be accumulated in the Client’s account and will be lost without any right to refund; (c) the new Plans Fee will be immediately charged and applied.
8.14. No Deductions or Setoffs. All amounts payable to Acumbamail under this Agreement shall be paid by Client to Acumbamail in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
SECTION 9. SLA, SUPPORT AND BETA
9.1. Service Level Agreement. Acumbamail does not provide any service level agreements. The Client is aware and accepts that Acumbamail may temporarily interrupt the Client's access to or availability of the Acumbamail Platform and its Services due to security reasons or to redesign Acumbamail's computing resources in order to improve the provision or configuration thereof. In any case, Acumbamail will take all reasonable commercial efforts: (a) to notify the Client, to the extent possible and with reasonable notice, of those periods in which it interrupts it Services and (b) to ensure that such interruptions minimally affect the Customer.
9.2. Beta. If Acumbamail grants to the Client specific functioning of the Acumbamail 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 Acumbamail’s sole discretion, by Acumbamail. 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 Acumbamail 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 Acumbamail under this Clause. Acumbamail grants to the Client a non-exclusive, revocable, non-sublicensable and non-transferable license to use the Beta for testing purposes only. Acumbamail does not provide any guarantee, indemnity or support for Beta and, except in cases of intent and gross negligence, any form of liability of Acumbamail is excluded. Acumbamail 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.
9.3. Support Acumbamail will use its best efforts to provide standard support services to the Client («Support Services ») in accordance with its best practices in effect, through online manuals and other documentation available at https://en.soporte.acumbamail.com/. Acumbamail may amend such manuals and other documentation from time to time in its sole discretion.
9.4. Authorized contacts. The technical assistance and support (as well as any other administrative, compliance or privacy notification) will be provided by Acumbamail solely to the email addresses entered in advance by the Client into the Acumbamail Platform. The Client will be solely responsible for keeping such list up to date. Acumbamail shall not, under any circumstances, be considered liable for (i) failure to provide and/or delayed technical assistance, or (ii) non-receipt of specific communications, due to incorrect or negligent completion by the Client of the list of contacts in its records.
SECTION 10. R&W, INDEMNIFICATIONS AND LIABILITY CAP.
10.1. Client’s representations and warranties. The Client represents and warrants: (i) that all information provided by the Client to Acumbamail are complete, accurate and updated; (ii) that it is entitled to authorize, and does authorize Acumbamail to exercise all rights necessary to thoroughly perform this Agreement (iii) Client’s materials, contents of the messages, data, and information used by Client in connection with this Agreement and the Acumbamail Platform does not as of the Effective Date, and will not during the Term of this Agreement, operate in any manner that would violate any applicable law or regulation.
10.2. Acumbamail’s representations and warranties. Acumbamail 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) Acumbamail owns or controls all right, title, and interest in and to all Intellectual Property rights therein, necessary to carry out its obligations hereunder and to grant and assign any rights and licenses granted to Client herein.
10.3. No Delivery Warranty. Messages are deemed to be delivered when they are sent from the Acumbamail Platform to the destination planned in the Acumbamail Platform, including but not limited to: SMTP servers, mobile telecommunications networks or any server of intermediaries or API of third-party suppliers of services. The Client acknowledges and accepts that third-party suppliers could interrupt the services provided to Acumbamail or to Acumbamail’s suppliers without notice. In such case, the messages will not be delivered to their destination, but MailUp shall not be liable for this interruption. The receipt of delivery of messages is not guaranteed: if the services supplier or mobile telecommunications operator provides it, it is indicated in the Acumbamail Platform. The Client acknowledges that the mailing of communications, due to the intrinsic technological characteristics of the same, cannot be used in situations in which the failure to receive a message, whether completely and/or in a certain period of time, is likely to cause damages to the Client or to third parties. Acumbamail does not guarantee the delivery of communications and the continued usability of the Acumbamail Platform and, in case of failed and/or delayed delivery or in the absence of a delivery receipt, Acumbamail is not in any way liable either directly or indirectly to the Client and/or third parties. Acumbamail 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 (e.g., Spamtrap).
10.4. No other warranties. Except as expressly stated in this Agreement, the Acumbamail Platform is provided as-is and Acumbamail does not provide warranties, conditions, or undertakings of any kind in relation to the Acumbamail Platform, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, data loss, merchantability, or non-infringement or any warranties with respect to the accuracy, reliability, or availability of any content or information made available in or through the Acumbamail Platform, which are, to the fullest extent permitted by law, excluded from the Agreement.
10.5. Client’s Indemnification The Client shall indemnify, defend and hold harmless Acumbamail and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, successors and assigns (each, a «Welcome to Acumbamail ») ) from and against any all damages, losses, liabilities, costs, charges and expenses, including any legal fees and expenses, incurred or suffered by such Acumbamail Indemnitee:
(1) That could have been avoided if (a) Client had fulfilled the obligations undertaken upon entering into this Agreement and (b) the warranties provided by Client by entering into this Agreement had been truthful, accurate, complete, and not misleading.
(2) n connection with any claim, suit, action or proceeding by a third party that arise out of or relate to any (a) Client’s materials, including any processing of Client’s Personal Data by or on behalf of Acumbamail in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client, including Acumbamail's compliance with any specifications or directions provided by or on behalf of Client to the extent prepared without any contribution by Acumbamail; (c) the contents of the communications and the information sent or shared through the Acumbamail Platform; (d) allegation of facts that, if true, would constitute Client's breach of any of its representations, warranties, covenants or obligations under this Agreement; or (e) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client or any third party (including employees, personnel and collaborators) on behalf of Client, in connection with this Agreement.
10.6. External events. Acumbamail shall not be deemed in any way liable for the malfunctioning of the Acumbamail 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.
10.7. Force majeure events. Acumbamail 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, volcanic eruptions, and landslides.
10.8. Breach due to third parties. Acumbamail will furthermore not be liable for conduct or omissions on the part of third parties that prejudice the functioning of the Acumbamail 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 Acumbamail Platform.
10.9. Third parties services. If the Client uses functions of the Acumbamail Platform made available by third parties, including network operators, the following provisions shall apply: Acumbamail 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 Acumbamail 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, Acumbamail may as a result change, suspend or interrupt access to such services without any obligation to provide notice. Furthermore, Acumbamail will be authorized to suspend the use of the Acumbamail Platform that is directly dependent upon services offered by such third parties. Acumbamail in any case remains entitled, where necessary, to avail itself of different suppliers in order to guarantee the functioning of the Acumbamail Platform. In this regard, the Client authorizes Acumbamail to provide to such third parties all of the information necessary.
10.10. Limitation of liability. For Plans and Services - except in cases of willful misconduct or gross negligence and to the maximum extent permitted by law - the total liability of Acumbamail and our third-party providers, licensors, distributors, or suppliers to the Client arising out of or relating to the Agreement will be no more than the Fee the Client paid for the Services in the 30 calendar days preceding the first occurrence of the damages.
10.11. Exclusion of damages. In no event will Acumbamail and its licensors, including addon providers, service providers or suppliers, be liable under or in connection with this Agreement or its subject matter under any legal or equitable theory, (for example breach of contract, tort or negligence), strict liability and otherwise, for any: (a) loss of production, use, business, revenue or profit; (b) impairment, inability to use, loss, interruption or delay of the software, (c) loss, damage, corruption, unauthorized access to or alteration of data, or breach of data or system security, or (d) consequential, incidental, indirect, exemplary, special, enhanced or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. This is applied notwithstanding the failure of any agreed or other legal solution.
SECTION 11. SPECIAL RULES APPLICABLE TO THE EMAIL AND SMS CREDITS.
11.1. Number of credits per SMS sent. The Client acknowledges and accepts that the determination of the number of Pre-Paid SMS Credits and/or Recurring SMS Credits («SMS credits ») ) charged per each SMS message sent through the Acumbamail Platform may vary depending upon the country of destination. The Client acknowledges and accepts that the determination of the number of SMS Credits charged per sent message 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. The Client is aware that Acumbamail publishes and periodically updates a SMS Credits Table which sets forth the number of SMS Credits charged per country. Acumbamail will provides notice into the Acumbamail Platform for any change made to 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 Acumbamail Platform. 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 reasonably in line with their market share. If the allocation of one or more distribution lists is not in line with the market shares held, the amount of the credits charged for the SMS sent to users on such list may be increased proportionally. This increase is essentially due to the higher cost related to the telephone service.
11.2. Number of credits per SMS received. The Client acknowledges and accepts that the determination of the number of SMS Credits charged per message received may vary based on 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 Acumbamail in connection with the telephone service will be apparent only after the Client’s receipt of SMS. The Client therefore accepts that Acumbamail may charge to the Client the greater amount due only once the higher cost incurred becomes known.
11.3. No sufficient SMS credits When the cost of the mailing of a SMS message exceeds the number of the available SMS credits, the Client shall charge its own account with an amount of credits that is sufficient to cancel such negative balance. In case of the Client do not charge additional credits, the Client acknowledges and accepts that the SMS messages will not be delivered until the number of credits is sufficient.
11.4. Limits. The Client is aware and accepts that 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 118, 704, 803, 806, 807, 901, 902, 905, 907, 908 and/or 909) will not be sent.
11.5. Phone number for mailing and receiving SMS. Where Acumbamail assigns, upon the Client's request, a number for sending and/or receiving SMS messages, the Client declares that it is aware that the assigned number is, and shall remain, the property of Acumbamail or, if applicable, of its third-party supplier.
11.6. No sufficient Email credits for ordinary newsletter campaigns or SMTP In case the mailing of an email campaign determines an exceeding of the threshold as per the active Email Plan or of the amount of the available Pre-paid Email Credits, based on the Email Plan active at the time of the mailing Acumbamail will automatically charge the Client for an extra amount per each email sent as per the table available here: https://soporte.acumbamail.com/article/118-informacion-sobre-tarifas-de-pago#cambio_tarifawith a minimum amount of euro 1,00. The Client authorizes Acumbamail to automatically charge Client for these additional amounts and debit Client’s credit card (or other payment method).The Client is aware and accepts that the email campaign will be sent only if the payment charge is successful. Acumbamail disclaims any liability in connection with any claims that the Client may have relating to any email campaigns not sent due to any unsuccessful payment.
11.7. Right to refusal. Acumbamail reserves the right in its sole discretion to accept or reject any Order, without incurring any liability to the Client for damages or otherwise.
SECTION 12. MISCELLANEOUS.
12.1. Advertising. The Client authorizes Acumbamail’s use of its name and logo in presentations, marketing materials, client lists, financial reports, and website. Except as otherwise provided under this Agreement, the Client’s use of the logo, trade name or any other distinctive mark related to Acumbamail will have to be requested in advance by the Client in writing and authorized in writing by Acumbamail.
12.2. Confidential Information. Each Party acknowledges that it may have access to certain confidential information of the other party concerning the other party's business, plans, clients, technology, and products, including the terms and conditions of this Agreement («Confidential Information » ). Confidential Information includes, without limitation, trade secrets, ideas, processes, formulae, computer software (including source code), algorithms, data, data structures, scripts, applications, programming interfaces, protocols, know-how, copyrightable material, improvements, inventions (whether or not patentable), techniques, strategies, business plans, product development plans, timetables, forecasts, client and supplier lists, product and/or service designs, specifications and schematics, product and/or service costs, product and/or service prices, product and/or service names, financial information, employee information, marketing plans, business opportunities, research activities and results, market research activities and results, and development activities and results. Each Party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants, and other advisors as reasonably necessary), any of the other party's Confidential Information and shall take reasonable precautions to protect the confidentiality of such information. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) the receiving party can demonstrate by written or other documentary records is independently developed by the receiving party without reference to or use of any Confidential Information.
12.3. Assignment. Acumbamail 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 transfer the rights and obligations arising under this Agreement, with Acumbamail’s prior written consent, by completing the specific document available on the Acumbamail Platform and mailing the same, duly signed, to Acumbamail. In any case, Acumbamail 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. 12.3, Acumbamail may: (i) Automatically terminate the Agreement by law without returning anything whatsoever to the Client for any services not used in accordance with art. 7.2; (ii) Demand payment of the sum of EUR 100.00 (one hundred euros) for administrative expenses in connection with the termination process.
12.4. Validity of amendments and supplements. Acumbamail reserves the right to modify or amend any of the terms of this Agreement. All amendments will be effective from the moment in which the new version of the Agreement is published on our website or communicated by email to the email address provided by the Client. The subsequent use of the Acumbamail Platform is to be deemed an acceptance by the Client of the same amendments and/or supplements. In the event that the Client does not intend to accept those changes, the Client shall terminate the Agreement and all the related Services and Plans notifying Acumbamail by Burofax or registered mail within 10 (ten) days from the receipt of the aforementioned email or from the publishing of the new version of the terms of this Agreement. In this case, the Client will not be entitled to a refund for any prepaid amounts or reimbursement for unused Email or SMS Pre-paid Credits and Acumbamail will reserve the right to demand any outstanding Fee. Acumbamail therefore invites the Client to regularly visit this Agreement in order to acquaint itself with the latest, updated version of the Agreement.
12.5. 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 free and/or temporary use of the functions provided by Acumbamail.
12.6. Tax costs. Tax costs deriving from the performance of this Agreement shall be borne by the Client.
12.7. Governing law and jurisdiction. This Agreement, including any Services provided by Acumbamail to the Client, is governed by and shall be interpreted in accordance with Spanish law, and the Parties expressly agree that the Court of Ciudad Real shall have exclusive jurisdiction over any dispute concerning the validity, effectiveness, interpretation, and performance of this Agreement.
12.8. Entire agreement. This Agreement, including the external links which constitute an integral part hereof, abrogates and supersedes all previous agreements, understandings, and negotiations, whether written or oral, between the Parties concerning the subject matter of this Agreement.
12.9. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.10. Electronic form. 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.
12.11. Severability. 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.
12.12. Headings. The headings contained in this Agreement or in any exhibit or schedule hereto, or linked document, as applicable, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
12.13. Feedback. The Client may provide or Acumbamail may ask the Client to provide suggestions, comments, input or other feedback (Feedback) regarding the Acumbamail Platform and the Services. If the Client provides Acumbamail with any Feedback, then it grants Acumbamail a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback as Acumbamail sees fit. Any Feedback the Client chooses to provide is given entirely voluntarily. The Client is aware and accepts that it will not receive any compensation for its Feedback, and that Acumbamail may use any Feedback the Client provides to improve the Acumbamail Platform and the Services or to develop new features and services.
12.14. Notice. Any notice to the Client will be effective when Acumbamail sends it to the last email or physical address the Client gave to Acumbamail or when posted on Acumbamail’s website. The Client is aware and accepts that, for purposes of providing notice, Acumbamail may use any email or physical address within the Client’s account, including contact information associated with an account’s primary contact, billing contact, owner profile, or any other profile associated with the account. Any notice to Acumbamail will be effective when received by Acumbamail in compliance with this Agreement.
12.15. Conflicts. In case of conflict or incoherence between the provisions of the Agreement, the Data Processing Agreement, the Additional Instructions, and external links, if not otherwise established in this Agreement, the following order of precedence shall apply: (a) the Additional Instructions; (b) the Data Processing Agreement; (c) the Agreement, (d) the Orders, and (d) the external links.
ANNEX A – DATA PROCESSING AGREEMENT
This data processing agreement («Standard data processing contract ») is in addition to the Acumbamail License Agreement entered between Acumbamail SLU («Acumbamail ») and the Client that incorporates this Data Processing Agreement by reference («Agreement ») and governs the Processing of Personal Data by Acumbamail in providing its service pursuant to the Agreement. This Data Processing Agreement contains the provisions of Article 28 of the GDPR as interpreted by the European Data Protection Board in its 14th plenary session. The Data Processing Agreement will be effective from the Effective Date and for the entire Agreement Term. It will also supersede any other previously applicable agreement between the parties relating to the same subject matter, including amendments and addenda to the processing of data relating to the Processor Services.
1. PREAMBLE
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. DEFINITIONS
2.1 All capitalized terms in the Data Processing Agreement shall have the following meanings:
«Additional Instructions » : additional instructions which reflect the parties’ agreement on the additional conditions governing the processing of certain data in relation to Processor Services.
«Agreement Term » : will have the meaning defined in the “Definitions” section of the Agreement.
«Client Personal Data » : personal data processed by Acumbamail on behalf of the Client in the provision of the Processor Services.
«Data Breach » : refers to a breach of Acumbamail 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 Acumbamail.
«EEA » : European Economic Area.
«Effective Date » : will have the meaning defined in the “Definitions” section of the Agreement.
«European and Domestic Legislation » : GDPR and the European Union Member State legislation applicable to the processing of Client Personal Data.
«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.
«Notification E-mail Address » : refers to the email address entered by the Client in the Registration Form or any email address provided in compliance with Section 12.14 of the Agreement.
«Security Documentation » : refers to any security certification or documentation that Acumbamail makes available in relation to the Processor Services as referred to in Appendix 2.
«Security Measures » has the meaning set out in Section 7.1.1. (Security Measures on Acumbamail systems)
«Sub-processors » : refers to the third parties authorized 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 and described in Appendix 3.
«Subsidiary » : refers to a legal entity belonging to a corporate group, which directly or indirectly controls has control or is controlled by another party.
«Supervisory Authority » : refers to a supervisory authority as defined in the GDPR.
«Processor Services » : refers to the services optioned in the Agreement and described collectively in Appendix 1.
«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).
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.
3. TERM
This Data Processing Agreement shall remain in effect for as long as Acumbamail carries out Processor Services or until termination of the Agreement.
4. SCOPE
4.1. Acumbamail 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. Additional Instructions. During the Agreement Term, the Client may provide Acumbamail with Additional Instructions, which Acumbamail may not refuse without just cause if such Additional Instructions are necessary to permit compliance of the Client with any European or domestic legislation. In all other cases, Acumbamail has the faculty to negotiate the content of the Additional Instructions with the Client 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 an integral part of the Data Processing Agreement.
4.3. Costs associated to the Additional Instructions. The Additional Instructions and/or supplements, amendments or reductions thereto shall not lead to any additional costs to Acumbamail; if this is not the case, the Client acknowledges and accepts that all costs directly or indirectly due to the adjustment by Acumbamail to the Additional Instructions, shall be at the exclusive expense of the Client.
4.4. Prohibited data. The Client will not provide (or cause to be provided) any Special Category of Personal Data to Acumbamail for processing under the Agreement. Further, Acumbamail will have no liability whatsoever for the Special Category of Personal Data, whether in connection with a Data Breach or otherwise. For the avoidance of doubt, this Data Processing Agreement will not apply to the Special Category of Personal Data.
5. PROCESSING OF DATA
5.1. Roles, responsibilities and instructions. The Parties acknowledge and agree that: (a) Appendix 1 describes the subject matter and details of the processing of Client Personal Data; (b) Acumbamail acts as Data Processor or, depending on the circumstances, as Sub-Data Processor of the 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.
5.2. Authorization by the third Controller. If the Client acts as Processor on behalf of a Subsidiary of the Client or other Controller, Client represents and warrants Acumbamail that the instructions and actions of the former in relation to Client Personal Data, including the appointment of Acumbamail, have been authorized by the respective Controller.
5.3. Client Instructions By entering into this Data Processing Agreement, the Client appoints Acumbamail 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 Agreement, 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 Client to Acumbamail as further instructions for the purposes of this Data Processing Agreement.
5.4. Acumbamail compliance with the instructions. Acumbamail shall comply with the instructions given in Section 5.3 unless the European or National Legislation to which it is subject requires Acumbamail 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 Acumbamail shall promptly inform Client at the Notification E-mail Address (unless such legislation prohibits Acumbamail from doing so on significant grounds of public interest).
6. RETURN OR DELETION OF DATA.
6.1. Deletion and export through the Acumbamail Platform functionality If the Processor Services include the possibility for the Client to export Client Personal Data autonomously and in interoperable format, Acumbamail shall ensure, insofar as possible, that this operation is guaranteed for the entire Agreement Term and in any case in compliance with any further provisions contained in the Agreement. If the Processor Services include the possibility for the Client to independently erase Client Personal Data, Acumbamail shall ensure, insofar as possible, that this operation is guaranteed for the entire Agreement Term, unless European or domestic legislation requires storage of such data for a longer period. In the latter case, Acumbamail 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. Deletion and export on the Expiration Date. Upon the Expiration Date, Acumbamail shall act in compliance with art. 5.2 of the Agreement, which is deemed to be referred to in full herein.
7. DATA SECURITY
7.1. Security measures and assistance by Acumbamail
7.1.1 Security Measures on Acumbamail systems. Acumbamail shall adopt and maintain technical and organizational measures to protect Client Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized access or disclosure 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 to: (a) ensure the ongoing confidentiality, integrity, availability and resilience of Acumbamail systems and services; (b) restore personal data promptly following an incident; and (c) periodically verify the effectiveness of the measures. Acumbamail may update or amend the Security Measures from time to time, provided that such updates and amendments do not lead to the degradation of the overall security of the Processor Services.
7.1.2 Security Measures for Acumbamail personnel. Acumbamail shall take appropriate steps to ensure compliance with the Security Measures by all persons operating under its authority, including its employees 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 of confidentiality in accordance with European and Domestic Legislation.
7.1.3 Acumbamail data security assistance. Acumbamail shall reasonably assist the Client 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.; (b) the implementation of the provisions of Section 7.2; and (c) providing the Client with Security Documentation in accordance with Section 7.5.1 and the information provided for in this Data Processing Agreement.
7.2. Data Breach.
7.2.1 Due Diligence. Acumbamail adopts due diligence in monitoring the security of Client Personal Data processed in the provision of the Processor Services.
7.2.2 Data Breach Notification. In the event Acumbamail becomes aware of a Data Breach, Acumbamail shall: (a) inform the Client of the Incident without undue delay; (b) immediately take necessary steps to mitigate any damage and secure the Client Personal Data; and (c) cooperate with the Client in the investigation of the causes and gravity of the Data Breach.
7.2.3. Data Breach Details. Notifications made pursuant to Section 7.2.2 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 Acumbamail 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, Acumbamail shall explain the reasons for the delay to the Client, in any case providing the Client with any initial information concerning the breach for the purposes of the related notification.
7.2.4 Data Breach Notification. Acumbamail shall deliver notification of any Data Breach to the Notification E-mail Address.
7.3. Client security responsibility and assessment.
7.3.1 Client Security Responsibilities. Without prejudice to the obligations of Acumbamail under Sections 7.1 and 7.2, the Client 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 Client to access the Processor Services.
7.4. Security Certification To evaluate and help ensure the continued effectiveness of the Security Measures, Acumbamail 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 Acumbamail’s compliance with its obligations under this Data Processing Agreement, Acumbamail shall make information on the technical, organizational 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) Acumbamail 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 Acumbamail operations; (c) the use of the information which the Client and any third party appointed by the Client 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 Client shall send the request for audit to Acumbamail pursuant to Section 7.5.2(a) as described in Section 12.1, giving notice of at least 90 (ninety) calendar days, it being understood that such activities may not be conducted by the Client 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 Client; (b) upon receipt of a request pursuant to Section 7.5.3(a) from the Client, Acumbamail 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 Acumbamail to disclose or grant access by the Client or third-party auditor to: (i) data of any other client of Acumbamail; (ii) any Acumbamail internal accounting or financial information; (iii) any Acumbamail trade secret or know-how; (iv) any information that could compromise the security of Acumbamail systems or premises; or cause Acumbamail to breach its obligations under European and Domestic Legislation or its security obligations toward the Client or third parties; or (v) any information to which the Client or third-party auditor seeks access for reasons other than the fulfillment in good faith of the Client’s obligations under European and Domestic Legislation; (d) audits shall be subject to a confidentiality agreement between all parties involved.
7.5.4 Costs. The Client acknowledges and accepts that its costs due to the conduction of audits pursuant to this Section 7.5 (such as, for example, the costs of Client personnel and Client external consultants) shall be at its exclusive expense.
8. DATA PROTECTION IMPACT ASSESSMENTS AND PRIOR CONSULTATION.
Acumbamail agrees (considering the nature of the processing and the information available to Acumbamail) to provide the Client with any reasonable assistance in ensuring compliance with any obligations of the Client regarding data protection impact assessment and prior consultation, including any obligations of the Client pursuant to articles 35 and 36 of the GDPR. The Client shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Acumbamail.
9. RIGHTS OF DATA SUBJECTS.
9.1. Response to Data Subject requests Acumbamail ensures adequate protection of the rights of Data Subjects, assisting the Client in the fulfillment of its obligation to follow up requests from Data Subjects to exercise their rights, even if such requests are received by Acumbamail. In this event, Acumbamail will invite the Data Subject to submit their communication directly to the Client and the Client will be responsible for responding to such request.
9.2. Acumbamail assistance in Data Subject requests Acumbamail agrees (considering the nature of the Client Personal Data processing) to provide reasonable assistance to the Client in the fulfillment of any of its obligations regarding their rights pursuant to Chapter III of the 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”). The Client shall be responsible, to the extent legally permitted, for any costs and expenses arising from any such assistance by Acumbamail.
10. DATA TRANSFERS
10.1. Data storage and processing facilities. The Client agrees and authorizes Acumbamail 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. SUBPROCESSORS.
11.1. Authorization to use Subprocessors. The Client shall grant a general authorization to use Subprocessors for provision of the Processor Services.
11.2. Authorized Subprocessors. The Sub-processors currently engaged by Acumbamail and authorized by the Client are available in Appendix 3 of this Data Processing Agreement.
11.3. Requirements for the involvement of Subprocessors. When using a Subprocessor, Acumbamail shall: (a) ensure, through a written contract or other binding legal deed that: (i) the Subprocessor may only access and process Client Personal Data to the extent necessary to fulfill the obligations indicated in this Contract, including this Data Processing Agreement, and the Transfer Procedures; (ii) the data protection obligations pursuant to article 28(3) of the 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 Agreement Term, Acumbamail shall notify the Client by email indicating the Subprocessor’s name, activities conducted and country of establishment, as well as the Transfer Procedure, if applicable; (b) the Client may object to such an engagement in writing within five (5) calendar days of receipt of the aforementioned notice by Acumbamail, as long as sufficient reasons and documentation are provided. If the Client reasonably objects to the engagement, Acumbamail may, at its discretion, i) not use the Subprocessor for the processing of Client Personal Data; or ii) terminate the Agreement and all the related Services and Plans by email written notice to the Client within 30 days of receipt of the aforementioned notice by the Client described in Section 11.4(b).Termination shall not relieve the Client of any fees owed to Acumbamail under the Agreement and shall not entitle the Client to any refund for any prepaid amounts or reimbursement for unused Email or SMS Pre-paid Credits. If the Client does not object to the engagement of a third party in accordance with Section 11.4(b), that third party will be deemed an Authorized Subcontractor for the purposes of this Data Processing Agreement.
12. ACUMBAMAIL CONTACTS
12.1. Acumbamail Contacts. The Client may contact Acumbamail with regard to all aspects of this Data Processing Agreement through: a) privacy@acumbamail.com; or b) the email addresses used by Acumbamail during provision of the Processor Services to receive certain notifications from the Client concerning this Data Processing Agreement.
13. MISCELLANEOUS
13.1. Infringements of rules and regulations. Any provision of the Agreement, 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.
13.2 Existing agreements. The parties agree that this Data Processing Agreement shall replace any existing data processing agreement or similar document that the parties may have previously entered into in connection with the Service.
14. JURISDICTION
14.1. Jurisdiction. 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 Agreement, expressly waiving any other provisions of international law or convention.
Appendix 1: Details of Data Processing
Nature and Purpose of Processing
The provision of the Acumbamail Platform and of the Services.
DURATION OF PROCESSING
The duration of processing shall include the entire Agreement Term plus the term until all Client Personal Data is deleted by Acumbamail in accordance with the Data Processing Agreement and the provisions of the Agreement.
CATEGORIES OF PERSONAL DATA AND CATEGORIES OF DATA SUBJECTS
Depending on the Processor Services, Client Personal Data may include the following:
Categories of Data Subjects: Recipients of communications sent by Client through the Processor Services and Client’s subscribers and other individuals about whom the Client has given us information or has otherwise interacted with a Client via the Acumbamail Platform.
Categories of Personal Data: Data collected by tracking technology and devices if not disabled by the Client (cookies data, online navigation data, location data, browser data). Common identification data (e.g., name, surname, e-mail address, telephone number, images, address, title, contact details)
CATEGORIES OF PERSONAL DATA AND CATEGORIES OF DATA SUBJECTS
Special Category of Personal Data processed (if applicable):
Acumbamail does not want to, nor does it intentionally, collect or process any Special Category of Personal Data as defined under Article 9 of the GDPR in connection with the provision of the Acumbamail Platform and of the Services.
Appendix 2: Security measures
As from the Effective Date, Acumbamail shall implement and maintain the Security Measures set out at the following links:
https://acumbamail.com/gdpr-acumbamail/
https://acumbamail.com/gdpr-infraestructura/
Acumbamail 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.
Appendix 3: Sub processors
Part of the activities that allow Acumbamail to provide the Processor Services may be delegated to Sub processors:
| Company | Processor Services or description of subcontracted activities | Place of establishment | Transfer procedure (where applicable) |
|---|---|---|---|
| Agile Telecom S.p.A. | Provision of SMS traffic routing service and text messages delivery service to end users | Italy | N/A |
| Stackscale S.L. | Hosting services | Spain | N/A |