“alkima MAIL” extended Terms and Conditions
between
client
- hereinafter referred to as "client" -
and
alkima LTD, Centris Business Gateway, Level 2M, Triq Is-Salib Tal-Imriehel, Zone 3, Central Business District, CBD3020 Birkirkara, MALTA
- hereinafter referred to as "contractor" or "alkima WEB & DESIGN ®" -
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Services of alkima WEB & DESIGN ®
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The contractor operates "alkima MAIL" and offers "alkima MAIL" as SaaS (Software as a Service).
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The contractor enables the client to create, send and analyze direct marketing messages with this SaaS solution. The contractor carries out delivery attempts for all messages, but cannot guarantee successful delivery. The contractor is only the transmitter of the messages and is not obliged to check their content from a legal, factual or other point of view. The contractor is therefore not responsible for the content of the messages.
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The contractor grants the client a simple, non-exclusive, non-sublicensable and non-transferrable right of use to "alkima MAIL" in its current version for the duration of the contract on condition of compliance with the anti-spam rules listed here.
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The connection of the client to the Internet is not part of the contract. It is the responsibility of the user within the usage requirements.
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The contractor is not responsible for the full functionality of the service provided at all times. The contractor and the client agree that it is not possible to develop SaaS solutions in such a way that they are error-free for all application conditions. In particular, the contractor does not owe the unrestricted transmission, the completeness of the transmission and/or the timely transmission of messages.
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The contractor is not obliged to maintain existing information, data and services, not to interrupt or change them. However, the contractor will endeavor to inform the client in good time if an electronic service is canceled or suspended.
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Rules of Participation
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The customer makes a binding declaration that the messages will only be sent to the customer's recipients in a legally compliant manner (e.g. after using the double opt-in procedure).
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At the request of the contractor, the client must explain in writing how the contact data was collected.
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The client may not cause any reputation problems (IP or domain-based) for alkima WEB & DESIGN ® with participating ISPs and technology partners (e.g. based on spam trap hits, content scanners or high spam quotas). Such server problems lead to economic damage for alkima WEB & DESIGN ®. alkima WEB & DESIGN ® reserves the right to demand compensation for such damage. With the form, content or intended purpose of using the services of alkima WEB & DESIGN ®, the customer may not violate statutory prohibitions, morality and the rights of third parties (brand, name, copyright, data protection rights, etc.). In particular, the user undertakes to use the services of alkima WEB & DESIGN ®
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not to display any pornographic content, i.e. content that violates Sections 184 – 184e of the Criminal Code,
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do not display any content that incites the people, i.e. that violates Section 130 of the Criminal Code,
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no depictions of violence, i.e. content that violates Section 131 of the Criminal Code and
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not to incite or provide instructions for criminal offenses.
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For each case of culpable infringement of the above obligations, considering the legal institution of the continued context, the client undertakes to pay a contractual penalty of 5,000.00 (in words: five thousand) euros. This does not exclude the assertion of further compensation by alkima WEB & DESIGN ®.
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The contractor has the right to save the IP address of the user every time a message is sent.
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The client acknowledges that the contractor is obliged for legal reasons to remove contact data from the database and to place it on a black list if a message to a specific and identical contact address is returned as undeliverable three times in a row (so-called hard bounces) or complaints from recipients.
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The client acknowledges that the sending of messages may be subject to the legal systems of the respective recipient countries and undertakes to comply with the laws or other regulations applicable in these countries with regard to the messages sent.
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The client must provide the contractor with a contact person with a telephone number and email address for complaints.
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It is the client's responsibility to immediately save the information, data and other messages made available by the contractor for retrieval.
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Liability
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The client and in no case the contractor is solely responsible for the consequences arising from the content and the sending of messages.
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If the contractor suffers a loss of data, any liability of the contractor is limited to the value of the effort required to restore the lost data on the client's system using existing backup copies.
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In the case of simple negligence, the contractor is only liable for damages, regardless of the legal reason, insofar as these are caused by a culpable violation of a contractual obligation, namely an obligation whose violation jeopardizes the achievement of the purpose of the contract and/or whose fulfillment enables the proper execution of the contract in the first place and on the fulfillment of which the client may regularly trust were caused. The same applies if the client is entitled to claims for damages instead of performance. In the event of a breach of essential contractual obligations, liability is limited to the foreseeable, contract-typical, direct average damage that the contractor had to expect at the time the contract was concluded due to the circumstances known to him at that time.
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Any further liability of the contractor is excluded, regardless of the legal nature of the asserted claim; this also applies in particular to claims in tort or claims for reimbursement of futile expenses instead of performance.
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Insofar as the contractor's liability is excluded or limited, this also applies to the personal liability of his employees, workers, employees, representatives or vicarious agents.
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The above limitations of liability (sections 3.1 - 3.5) do not apply to product liability claims by the client. Furthermore, these limitations of liability do not apply in the case of injury to life, limb or health attributable to the contractor, or for damage based on intentional or grossly negligent breaches of contract or fraudulent intent on the part of the contractor, his legal representatives or a vicarious agent.
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Miscellaneous
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All other provisions are regulated in the "General Terms and Conditions" of alkima WEB & DESIGN ®.
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Antispam Rules
As an email marketing service provider, we are obliged to adhere to anti-spam rules. Sending unwanted email affects deliverability. We want your e-mails to get through, and we need to make sure that you comply with our anti-spam rules and the laws of your country.
Basic rules for all countries:
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You accept our general terms and conditions
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The client must tell us how he collected the data of his recipients and obtained consent for the sending of e-mails
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The client accepts the content rules of the contractor
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There must be an unsubscribe link in every e-mail
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Each e-mail must contain a valid imprint with your contact details
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The client may not falsify or disguise contact details, sender information or information in the subject
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The client accepts the international anti-spam laws of the respective country
Content rules for emails, images and forms:
The following content may not be processed or distributed via the contractor's systems.
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pornographic or other sexual content
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E-mails about illegal substances
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Emails with content that violates the laws of your country
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Illegal Goods or Services
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Escort and dating services
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Pharmaceutical products
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"Work from home" mails
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Gambling Services
If the client is not sure or works in an industry that is often associated with spam, the client must contact alkima WEB & DESIGN ® support. alkima WEB & DESIGN ® checks whether alkima WEB & DESIGN ® can accept the client as a customer.
The client may NOT use such data
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Purchased e-mail addresses
Purchased data is strictly forbidden within our system!
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E-mail addresses copied from the Internet
E-mail addresses that are displayed on websites as a contact option or in public directories are not permitted.
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Single opt-in
E-mail addresses collected via a single opt-in form without confirmation are not permitted. The secure double opt-in procedure must be used in the registration form.
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Oral survey
E-mail addresses that were given orally, e.g. B. collected through telephone calls, are not permitted. Consent to the use of the e-mail address must be confirmed in writing. Such a confirmation is the prerequisite for an effective consent in the case of declarations of consent not obtained in writing or electronically according to § 28 Para. 3a BDSG.
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B2B addresses: sending without permission
A widespread misconception is that in the B2B environment no advertising permission is required for the sending of e-mails. In fact, case law states that e-mails to traders also require prior consent.
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Data from a third party
Data collected by a third party is not permitted. Through the survey, the third party has permission to write to these people by e-mail - but not you! However, if this third party collected the data on your behalf, only you may use this data to send emails on your behalf - but again not the third party.
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Members, Clubs & Cooperatives
Membership in a club or cooperative may NOT simply be sent to members via e-mail. Here, too, you need the explicit consent of the individual recipients.
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Social or business networks
E-mail addresses of people who have shared their data with you via social or business networks such as LinkedIn, Xing, Facebook, etc. may not be used. These persons may only be contacted via the respective network. Sharing data is not valid consent for sending emails through external systems like ours.
The client may use such data
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Double opt-in via your own website
All recipients have registered using the secure double opt-in procedure via your own website. Perfect!
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Purchase of goods or services
The recipients have purchased goods or services and were informed of this before the data was collected, with the following sentence: "The use of your data for your own advertising purposes for similar goods and services is not excluded. You can object to this use at any time without incurring any costs other than transmission costs according to the basic tariffs.” A sole reference in your terms and conditions is NOT permitted.
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Registration via offline form
The recipients have filled out a form offline and explicitly agreed to the sending of e-mails. The form must be present as proof.
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Co-Registration via a competition
Recipients who registered for a competition were clearly informed of the relevant sponsors (max. 10). In addition, registration for the newsletter must not be a mandatory requirement for participation in the competition. The newsletter entry must be voluntary and explicit (e.g. using a checkbox).
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Contact via business card
Recipients who have given you a business card, for example – and have asked for an e-mail to be sent. In this case, you need the business card and a written declaration of consent as proof.
