GENERAL CONDITIONS APPLICABLE TO THE SERVICES IN THE SUIT MDIRECTOR
1. GENERAL VISION OF MDIRECTOR
1.1. The Marketing Director Platform (“MDirector”) is a suite of products and services the objective of which consists of providing and optimizing certain digital marketing tasks of the client company ("The Client"), thereby allowing it to execute the actions described in the Particular Conditions and in the General Conditions for the provision of the MDirector Service through the platform available at the URL www.mdirector.com (“MDirector” or “The Platform”) on the part of MMSM in order for the Client to be able to be served by it, its services and functions.
1.2. The owner of MDirector is MARKETING MANAGER SERVICIOS DE MARKETING, S.L.U. ("MMSM"), with N.I.F. B-84459791, inscribed in the Mercantile Registry of Madrid at volume 21786, Book 0, Sheet 70, Section 8, Page M-388107, the corporate domicile of which is at Marqués de Riscal 11 – 2ª, 28010, Madrid (Spain) and with electronic mail email@example.com
1.3. The contracting of the services provided by MMSM is subject to the acceptance of the Particular Conditions and The General Conditions (hereinafter the “Conditions for the Provision of Services” or “CPS” which shall be mandatory on the part of the Client in function of the services contracted. The Particular Conditions shall be signed by the Client through a physical document or digitally through the Platform by means enabled by MMSM:
MMSM reserves the right to update the Particular Conditions and/or the General Conditions at any time with a prior notice of 15 days by way of an irrefutable correspondence or the Platform. In the event that MMSM communicated some substantial change in said contractual documents, the Client may rescind the relationship in advance, thereby having to communicate their decision within the 10 days following the reception of the intended changes. Only under these circumstances, shall MMSM refund to the Client the amount that proportionally corresponds to the annual consideration paid by them in accordance with the period of the contracted services not used by the Client.
1.4. Finally, by signing the Particular Conditions, MMSM grants the Client, who accepts, a license for the commercial use of the Platform under the subsequently described conditions.
Services provided on the Platform:
1.5. The MDirector Services allows the Client to execute the actions that are described on the Platform in function of the service for which they themselves opt and the contractual mode (“Starter, “Advanced” y “Premium”) for the MDirector Services of Email Marketing and SMS Marketing modes that will have the functions described on the Platform all of which are available in the private section of the Client area.
1.6. The MDirector Service may continue adding new products and services in the future which, in any case, shall be governed by the conditions set forth in these General Conditions and Particular Conditions. Likewise, MMSM reserves the right to modify the functions of each one of the modes previously described, thereby adding, eliminating or modifying a characteristic or function of each mode. In the event that said modification or elimination is essential, the Client may request unsubscribing from the MDirector Service under the terms described in point 3.3. of these General Conditions.
1.7. The MDirector Service of Email Marketing and SMS Marketing allows the multi-channel communication of the Client with the recipient included by the latter on the Platform through email and/or SMS. Through the pertinent technical configuration, the platform permits the automatic exchange of data between MDirector and some computer systems owned by the Client. The MDirector Service produces detailed reports that contain all the relevant information of the mailings. The Platform permits the loading of a creativity, its editing and modification or the selection of some of the existing templates for their subsequent personalization. Likewise, the Platform allows segmentation of the recipient of the Client databases.
1.8. The MDirector Service of Landing Optimizer provides the option to create static pages accessible through a web navigator (“Landing Pages”) with the objective of collecting personal data with the Client thereby being ultimately responsible for the collection of said data to be in conformity with the applicable Regulation. Likewise, the Landing Optimizer service allows managing the Landing Pages previously designed by the Client or created while making use of the standard models of the MDirector Service as well as obtaining complete statistics and analysis of the procedures by means of metric, analytical and reporting utilities.
1.9. The MDirector Service of Marketing Automation allows automatically performing certain marketing options and optimizing communication with its users. By finding out the data related to the behavior of the contacts and other data of which the Client disposes by means of the use of the functions contracted from the MDirector Service of Marketing Automation, the latter may personalize the communication with them (via e-mail or SMS) among other options that MMSM may add or eliminate in the future.
1.10. The hiring of the MDirector Service may be performed, as MMSM determines by telematics means or by means of the signing of the General Conditions and the Particular Conditions thereby considering both options valid, in fulfillment at all time with the terms set forth in Conditions 1.3 and 1.4 of these Conditions for the Provision of Services.
1.11. For purposes of Article 27.2 of the Law of Services of the Information Society, the Client hereby confirms that they have received sufficient information prior to contracting and thereby do not need to receive any more and that they do not have the status of consumer.
2. DEVELOPMENT OF THEIR FUNCTION AS CLIENT OF MDIRECTOR
Reception Conditions of the MDirector Service:
2.1. In order to access the MDirector Service MMSM shall assign the Client a user name and an access password in accordance with the procedure described on the Platform.
2.2. The Client themselves shall be the sole party responsible for maintaining the confidentiality of their password and their account thereby expanding this liability to each and every one of the activities that occur therein The Client hereby accepts notifying MMSM immediately of any unauthorized use of its account or any other security breach. MMSM shall not be liable for the losses that the Client may incur as a consequence of another person using their password or account, whether this has occurred with or without their consent.
2.3. In the MDirector Service the Client may only use the lists of e-mails of recipients who have given their express consent to receive correspondence from the Client when said consent is a necessary requisite and, in any case, in accordance with the terms and the regulatory framework that is applicable, if the case, to the handling of privacy and/or deliveries of correspondence by electronic means, which is applicable to the Client. Furthermore, the Client may not use e-mails that have been obtained through the Internet or any other source that requires prior consent of the recipient without having it, provided that the applicable regulation so provides. In addition to the prohibition contained in this section in relation to correspondence not requested or authorized by the recipient/s, the delivery of contents that may involve the violation of a law or third-party rights is also prohibited, as is set forth below.
2.4. Under no circumstances may the Client use the MDirector Service to process personal data (in the broadest sense) the collection and use of which is not in accordance with the Data Protection regulations in effect at any time and in any place.
2.5. For technical purposes, for the correct functioning of the MDirector Service it is necessary for the Client to have installed a navigator and an Internet connection. The MDirector Service of E-mail Marketing and SMS Marketing and the MDirector Service of Landing Optimizer, including updates, improvements, new characteristics and/or the addition of properties is subject to additional conditions of use. The Client expressly recognizes and accepts that MMSM may expand, limit or restrict the capacity, availability and operability of the contents and/or services of the MDirector Services placed at their disposal, with the Client thereby reserving the right to terminate these CPS early in the event of substantial changes that affect the initial contracted conditions and be entitled to the return of the amount that by pro-rata corresponds to the amounts already paid for the unused MDirector Service.
2.6. When the Client accesses or uses the MDirector Service they shall act in compliance with the principals established in these CPS by MMSM, which is to say, in compliance with these Conditions and respecting the pertinent legislation in each case. Likewise, a report may be requested from the Client on the quality of the service both in terms of its contents as well as the quality of the support service provided.
2.7. MMSM hereby informs the Client that the contents provided on the Platform are protected by various technological measures of protection intended to guarantee that there is no use of said content that has not been authorized upon contracting
2.8. The Client of MMSM undertakes during and subsequent to the utilization of the MDirector Services to act with the utmost good faith. In the event that at any time they become aware of an infraction, violation, interference, conflict of interest or bad faith act that directly or indirectly affects MMSM, they shall communicate it in a period of no longer than 72 hours.
The Client may request the resolution of the claims, complaints and incidents that they intend to raise in relation to the service rendered by MMSM. For that reason, they shall make MMSM aware, by means of an e-mail to the address firstname.lastname@example.org, the reason for their complaint or claim and produce proof of their identity as the claimant. Once the claim in question has been received, MMSM shall proceed to its response as soon as possible.
2.9. In any case, the Client may resolve their concerns through the aforementioned e-mail email@example.com. In addition, if the client contracts the “Premium” option it shall have telephone support Monday to Friday (working days in the city of Madrid), from 9:00 a.m. to 6:00 p.m. through which MMSM will assist them in resolving any concern or incident communicated in this manner.
Obligations and Responsibility as Client:
2.10. Upon acceptance by the Client of the Particular Conditions, the latter undertakes the following:
- To pay the amounts on time and in the manner which correspond to the contractual modes and services.
- To rely on the technical and computer equipment necessary for the utilization of the Platform under the terms communicated by MMSM.
- To use the Platform under the terms described in the General Conditions and Particular Conditions.
2.11. The Client shall be the sole party responsible for the utilization of the MDirector Service of Email Marketing and SMS Marketing as well as the Landing Pages created and/or managed by means of the MDirector Service of the Landing Optimizer as well as the contents, information, publications etc. performed through any of them.
2.12. The Client ensures and guarantees the it fulfills at all times, the applicable regulatory, legal and statutory provisions, thereby guaranteeing in addition, that they do not violate any legislation or law, or right or any type of any third party.
2.13. MMSM is not responsible for the contents of the Client pages. The Client undertakes to not design or create pages the contents of which, includes but is not limited to a crime, encouraging or promoting criminal or unlawful acts or those against morality and/or public order or that make available or permit accessing services aimed at their perpetration, including violent, pornographic, racist or discriminatory acts or that infringe on intellectual property or industrial property rights and the secrecy of communication.
2.14. MMSM is not responsible for personal data that the Client adds to the MDirector Service from its own data bases from those of third parties that they add, use, implement or decide to use/exploit only according to their own criteria. Nevertheless, the Client undertakes to only process personal data the collection and utilization of which is in accordance with the Data Protection Regulation.
2.15. MMSM prohibits the utilization of the MDirector Service in order to send unsolicited publicity messages or SPAM messages, thereby being able to unilaterally terminate the service and take other appropriate measures against the Client that violate the MMSM policies in this area.
2.16. The Client undertakes to diligently use the Platform and therefore undertakes the following:
- To not grant third parties or employees of the Client access to the Platform which due to their position in the company do not have authorized access to the Platform;
- To not use the information, rules or instructions contained on the Platform for aims other than those established in the General and/or Particular Conditions;
- To not reveal to any third party the information obtained from the Platform;
- To not permit the utilization of the Platform to a third party without the prior authorization of MMSM;
- To not permit that the public access or use the Platform (including but not being limited to the Internet) ;
- To not produce nor represent more products than those contracted;
- To not copy and/or distribute the Platform in its entirety or in part by any means;
- To avoid the measures for technological protection integrated in the Platform.
In general, they shall not use the Platform in a manner that is not specifically permitted by MMSM.
3.1. The Client shall pay MMSM the amounts agreed in the Particular Conditions or those set forth on the Platform as applicable in each case. In any event, the use of the MDirector Service shall be conditional on the prior payment of the corresponding consideration. The Client shall choose among the options “Starter”, “Advanced” and “Premium” for the MDirector Service of E-mail Marketing and SMS Marketing which at any time shall have the functions and costs described in the section “Prices” of the Platform at the URL https://signup.mdirector.com/payments/mdirector unless otherwise agreed between the parties.
3.2. In the event that MMSM proceeded modify the economic conditions, the Client may in the event of not being in agreement thereof, terminate these CPS without any penalty for this concept provided that the modification or change of the prices affects a service or product contracted by the Client in the period of one (1) month from when it could reasonably have knowledge or they were notified of the change in economic conditions.
3.3. In the event that the Client has contracted the MDirector Service or another other service, thereby acquiring the packaged services (for example, the number of e-mails delivered, the hours of support service, the duration packaged from any service etc.), the Client shall pay in advance and will not be entitled to the total or partial return of the amount paid under any circumstances. For that reason, if any remainder existed or the Client had not fully used the options of the contracted services MMSM shall not be obligated to return any amount to the Client.
3.4. Any promotion and/or discount on the part of MMSM regarding the Consideration is limited to the specific circumstances for which it was granted, which shall be set forth in the Particular Conditions signed by the Client and under any circumstances is this to become a precedent in favor of the Client.
3.5. The amounts established shall be in any case, net, and therefore, the Client shall pay the taxes, withholdings, duties and tax encumbrances that legally correspond.
3.6. The non-payment by the Client of the amounts, owed for the utilization of the MDirector Service on the date on which the payment must be made according to the invoice, shall involve the obligation for the Client to pay late interest equal to the legal monetary interest increased by (8) percentage points as well as the expenses arising from the return and notwithstanding other consequences that could arise from the default.
3.7. This clause shall not be applicable to gratuitous services if such Service existed when the Particular Conditions so determine it. At the time in which the Service becomes a service or product for pay these provisions shall be totally applicable.
3.8. The general form of payment shall be in advance or ”pre-paid” by recharging your balance using the Paypal payment service or a credit or debit card when the Particular Conditions do not state otherwise. Nevertheless, certain MDirector Services shall be invoiced to the Client monthly when the Particular Conditions so determine it.
3.9. In regard to the invoicing of the MDirector Service, which must be paid prior to its use and enjoyment, the Client shall receive an invoice and/or payment receipt for them. This shall be sent to the Client in the shortest period possible through the Platform and electronic mail at the contact address that has been provided.
3.10. The invoice shall be issued on electronic support, which will have the same validity as the invoices on paper support, regardless of the alternative paper invoice that MMSM may send to the Client in the event that it is requested at the domicile indicated by the Client.
3.11. MMSM may invoice to immediately collect the amounts owed when (i) the temporary or definitive inactivation of the MDirector Service at the moment in which it occurs or (ii) the Client breaches the Particular Conditions or the General Conditions and/or any other condition established by MMSM applicable to the MDirector Service at the moment in MMSM has knowledge of the breach or (ii) in the event of fraud or risk of non-payment at the moment in which it has knowledge of any fraudulent conduct or risk of non-payment.
4. SPECIFIC CONDITIONS OF THE MDIRECTOR SERVICE OF LANDING OPTIMIZER
4.1. Landing Optimizer provides the Client with a trial subscription period (deemed “Try&Buy” or similar) for which MMSM grants the Client a period of use without any charge during the period indicated in the Particular Conditions.
4.2. The Client may at any time in this period cancel said subscription unilaterally thereby losing the MDirector Service of Landing Optimizer, avoiding the payment thereof and on the contrary, once the time of the subscription has passed, choosing a payment mode.
4.3. MMSM shall invoice the Client for the monetary amounts resulting from applying the proposed unit price according to the number of Client domains, the traffic received, the number of clicks, registries or references (“leads”).
4.4. MMSM shall respect the limits established for each Client and shall not make any monetary charges higher than those set forth in these limitations, regardless of the additional traffic that the users perform in the corresponding contents from the Landing Pages. Nevertheless, with prior agreement of the parties, this limit may be exceeded.
5. LICENCE OF USE INTELLECTUAL AND INDUSTRIAL PROPERTY
5.1. This document does not guarantee nor grant rights regarding the Platform to the Client in any respect. Consequently, as explicitly described in this document the Client does not acquire any right to intellectual or industrial property (including, as an example but not limited to, copyright or CONEXO, patents, registered trademarks, commercial secrets etc.) relation to the Platform other than the right to use the Platform.
5.2. MMSM expressly reserves all these rights and as a consequence all the property rights of the Platform as well any other complete or partial copy thereof.
5.3. In exchange for the payment of the Consideration MMSM grants to the Client a limited non-transferable non-exclusive license which cannot be sub-licensed for the use of the Platform for commercial purposes and during the time that the Consideration is being paid.
6. LIMITS OF THE LIABILTY OF MMSM
6.1. MMSM does not guarantee the Client that the Platform fulfills its requisites or that it satisfies all their needs including those related to the fulfillment of the requisites of any regulation. Except for that which is expressly provided in these General Conditions or Particular Conditions, MMSM provides the Platform to the Client “as is” and without any guarantee of any type.
6.2. The Client expressly accepts that MMSM cannot guarantee the uninterrupted functioning without errors of the MDirector Service and/or Platform to the degree that both depend on network access, with interruptions or errors thereby being able to occur due to the supply of the connection, login and/or the similar. Likewise, the use of the Platform on the part of the Client may be interrupted for the time necessary in order to undertake those occasional tasks of maintenance and improvement thereof that MMSM deems necessary to perform. Similarly, some of the mail sent with the Platform may be blocked by the mail services of the recipient, which is an incident beyond the correct service of MMSM. In this way, the Client acknowledges and accepts that MMSM shall not assume any liability for the interruptions and/or errors that may occur from the operation of the Platform and/or in the rendering of the MDirector Service. In any event, the mere performance of certain maintenance tasks and improvement of the platform shall not constitute a reason for the termination of the contractual relationship between the Client and MMSM or for demanding any type of liability.
6.3. To the maximum extent permitted by Law, MMSM shall not assume any tort liability, contractual liability or any another type in regard to the Client and third parties. MMSM shall not be liable under any circumstances for the loss of profits or opportunities or sanctions imposed of any type even if MMSM has been warned of the possibility of such damages except if they were directly attributable to it. MMSM does not assume any obligation to control the utilization by the Client of the MDirector Service. Therefore, it does not guarantee that the Client uses it according to that established in the CPS. Likewise, it does not have the obligation to verify the identity of the users, nor the veracity, effectiveness, thoroughness and/or authenticity of the data that the Client provides. The limitation of liabilities mentioned in the previous paragraph shall not affect nor impair the rights that could legally be applicable to the Client.
6.4. MMSM does not guarantee the quality, exactitude, reliability, correction or availability of the data and/or contents that the Client may use during the utilization of the Platform and/or the MDirector Service given that the Client is the Controller of the Data (personal and/or professional data) provided for its processing in the MDirector Service. Consequently, MMSM shall not be responsible either for the violations that the Client may incur with the latter thereby assuming the damages or actions that could arise from the use of the data, contents, images used during the utilization of the Platform, including the acts that affect the rights of third parties such as the rights of intellectual property, trademarks, patents, confidential information data protection or any other.
6.5. MMSM shall not be liable for any loss whether arising directly or indirectly from the (a) profits, (b) savings, (c) good will (d) reputation, (e) revenue (f) foreseeable saving (g) business opportunities (h) data stored on the Platform or (i) any other loss purely economical, nor shall it be liable for the special, indirect, consequential or accidental losses or damages of any type or nature regardless of that which in each case may arise from the breach of contract, guarantee, damages, liability, negligence or any other type, including if it has been informed of the possibility of such loss or damages or if such loss or damages could have been reasonably foreseen.
6.6. In any case, the utilization due to the MDirector Service is the total and absolute responsibility of the Client. The Client shall assume all liability and maintain MMSM harmless and released from the any liability for the use of the MDirector Service and the Platform, including that arising from an act or omission of the Client.
6.7. MMSM reserves the right to immediately suspend or cancel the MDirector Service or terminate the contract with the Client for any reason without the Client being entitled to indemnification of any type.
6.8. The liability of MMSM by virtue of these General Conditions and Particular Conditions of the Contract or in relation to the MDirector Service (including damages) whether arising from negligence, breach of contract or any other clause, shall be limited to the consideration received by MMSM from the Client during the twelve (12) months prior to the date of the claim.
7. SERVICE LEVEL AGREEMENT
7.1. The access to the Platform is initially available 24 hours, every day of the year, however at no time is said or any other availably guaranteed. It is hereby expressly accepted by the client that MMSM solely has an obligation of means and not results.
7.2. MMSM reserves the right to suspect the MDirector Service in the following cases (without being limited to) (i) to perform maintenance tasks, security and development of the Platfrom (ii) to improve and install new features of the Platform (iii) to verify and audit the operation of the Platform (iv) in the event of break-down or chance of break-down
7.3. The client recognizes and accepts in relation to the availability (i) the particular aspects and limits of the Internet (ii) that the confidentiality of the data transmitted by Internet is guaranteed up to the limit that the https protocols permit, (iii) that the response times of the services may be affected by the poor functioning of the network (iv) that the Platform made available to the Client uses complex features that may cause incidents in the operation thereof.
8. DURATION AND TERMINATION
8.1. This Contract and its General Conditions are established for an indefinite time and shall continue in effect insofar as the Client pays the Consideration notwithstanding the occurrence of one of the reasons for termination of the MDirector Service.
8.2. MMSM may discontinue rendering the MDirector service, by the mere communication to the Client under the following scenarios (i) the utilization of the Platform in a manner which is unethical, offensive or incorrect, in breach of the conditions of use of the Platform (ii) the breach of any of the obligations assumed by virtue of these General Conditions or the Conditions (iii) the reception or knowledge of repeated complaints by the recipients of the correspondence sent by the Client or any actions of the latter that could affect the reputation of the MMSM (iv) the technical knowledge of minimum opening ratios of the e-mails sent, which may constitute an illegal index of the Law of Services of the Internet Society due to the sending of non-consensual commercial correspondence ( or the applicable regulatory rules applicable at the place of the rendering of the service and/or utilization of the MDirector Service (v) the inactivity of the Client in the MDirector Service of a period longer than six (6) months (vi) a sanctioning resolution of the Competent Authority in the area of data protection and/or services of the information society and electronic commerce due to a violation by the Client or by any other third party related to the Client (companies of the Group, providers, partners etc.) to which the client itself has communicated the data, under their responsibility, to the MDirector Service in order for it to be used on its behalf and under its instructions.
8.3. In any of these cases, the MDirector Service shall be suspended. MMSM shall cease receiving paymet for the MDirectory Service from the time of the suspension, thereby refunding, if the case, the monetary amount that proportionally corresponds to the Client in accordance with the amounts that have been paid for the MDirector Service and that correspond to the period in which it has not used the MDIrector Service or the number of mailings that it cannot perform. In the event that a “post-pay” mode is used, MMSM shall automatically proceed to invoice the MDirector Service performed up to the date of the suspension.
8.4. In the event of the total or partial suspension of the MDirector Service, MMSM shall have the ability, at its full discretion, to eliminate each and every part of the contents of the Client associated with the resolved service. In such a case, MMSM may require (without obligation) the Client to make a copy of its contents in order to proceed to their elimination from the MMSM systems after a period of 30 days without the Client being able to request anything from it.
8.5. The claim may terminate the relationship with MMSM early in regard to the MDirector Service in the case that a substantial change occurs in the characteristics thereof, provided that it does so within the period existing between the reception of the modification and the entry into effect of the new conditions. In this event, MMSM shall pay the Client the amounts indicated in the previous paragraph that could correspond to it.
9.1. The Client shall not be able to assign, license, subcontract, delegate nor transfer in any manner this contract, nor its rights and obligations without the prior written consent of MMSM. Any transfer, sub-contracting, delegation or transfer without the prior written authorization of MMSM shall be deemed null and void.
9.2. This contract shall be accessible at all times by the Client who may consult it through its client account and/or request the sending of a copy thereof by means of a request addressed to firstname.lastname@example.org
9.3. During the period of effectiveness of this contract MMSM shall be entitled to use the name, logotypes and trademarks of the Client in any manner or means of communication to the degree that is necessary in order to indicate that the Client is a user of the MDirector Service. In addition, upon the request of MMSM, the Client shall provide a “success case” or “an example of use” whether in a video, audio or text format as well as the corresponding rights for its publication in any manner or means of communication for an unlimited period of time.
9.4. The total or partial, current or ensuing nullity of any of the clauses of this contract shall not signify the nullity of the contract and said clauses shall be treated as null and void and the contract shall continue in effect and will be effective in all its other aspects. The MDirector Service is not directed at consumers for purpose of the General Law of Consumers and Users for which, if the Client has such status, they cannot use the MDirector Service or the Platform.
9.5. The Particular Conditions and the General Conditions shall constitute in full the relationship between MMSM and the Client in regard to the MDirector Service. In the event of a contradiction between the Particular Conditions and the General Conditions the first shall prevail.
10.1. The data of the PARTIES:
10.1.1. The data of the physical persons that intervene in this Agreement as well as any others that are facilitated during the commercial relationship shall be recorded in the registries of processing activities or similar automated and/or manual documents, owned by the contracting Parties for the management and maintenance of the contractual relationship.
10.1.2. If during the commercial relationship, personal data of employees and other third parties were provided, that party that provides them guarantees that they are lawfully authorized to do so and has informed the affected parties thereof.
10.1.3. The interested parties may exercise their rights of access, rectification, elimination and opposition, limitation of processing and portability of data and to be object of individualized automated decisions, thereby addressing a correspondence to the respective channels implemented by the parties for these purposes, as is described in the Data Protection Policy.
10.2. Reference to the Data Protection Policy:
10.3. For the effective use of the MDirector Service, the Client shall have the option and the corresponding features (explained in Sections 1 and 2 of these General Conditions) to upload on the Platform the lists of Contacts and/or Recipients of their correspondence (hereinafter “The Interested Parties”).
10.3.1. MMSM undertakes to comply with all the requirements that the GDPR attributes to it as the Data Processor (explained in Condition 12 of these General Conditions) and to respect the terms of the Data Protection regulation with respect to the rights and data protection of the Interested Parties.
10.3.2. The Client is the sole Data Processor under the regulatory terms and the GDPR and is explicitly obligated to respect, comply and observe compliance with all the obligations of the latter and/or any other that is applicable at any time and/or place that they imposed on it.
11. Data Processor Clause:
11.1. MMSM, when executing the MDirector service, may manage to have access to certain data, which is the responsibility of the Client. For that reason and in fulfillment of that provided in the Data Protection Regulation and in particular (EU) 2016/679 of the European Parliament and Council of April 27, 2016 related to the protection of natural persons insofar as the processing of personal data and the free circulation of this data (hereinafter the “GRDP”), MMSM assumes its status as the Data Processor in that which refers to services of storing personal data.
11.2. The Platform provides the feature to load Lists or Data Bases with the personal data of Contacts (hereinafter “Interested Parties”) in order to manage the mailings of the MDirector Service.
11.3. On the other hand, the registries or leads that the Client generates through the MDirector Service shall be stored on the data bases located in the MMSM computer system until this organized collection of data is requested by the Client and sent by the channel or means that the Client, as a Data Controller determines, being able to choose the sending via (i) electronic mail account, (ii) integration in a “MDirector” account or (iii) Webservice.
11.4. In fulfillment of the obligations assumed as “Data Controller of the personal data owned by the Client, MMSM undertakes to respect and apply the regulations in effect at any time in the area of Personal Data Protection and Processing in all the direct and supplementary activities that it performs in the execution of this Agreement or Service and declares and guarantees the Client the following:
11.4.1. MMSM undertakes to process the personal data that it stores, solely for the performance of the services arising from this contract and if the case, in accordance with the specific conditions that both parties agree upon. The use of such personal data for purposes other than those previously mentioned shall require the express consent of the Client.
11.4.2. MMSM shall maintain in writing a registry of all the categories of processing activities preformed on the account of the Client that contains the information required by Article 30 GDPR.
11.4.3. MMSM shall destroy or return any copy of the data processed that it has saved, whether on an automated support or on a physical support, once the purpose for which it was collected has been fulfilled, in a period of no less than 30 days from which the Client, if the case, requests as such. Nevertheless, it may store the data during the time in which some type of liability could arise related to the Agreement or Service rendered.
11.4.4. MMSM shall not communicate the data to third parties except when it has the express authorization of the Client or in the legally admissible cases.
11.4.5. MMSM may communicate the data to other data processors of the same Client in accordance with the instructions of the latter. In this case, the Client shall identify previously and in writing the entity to which the personal data must be communicated, the personal data to be communicated and the security measures to be applied in order to proceed with the communication. The sub-contracting may be performed if the Client does not express their opposition in a period of FIVE (5) WORKING DAYS. In this regard, the Servers who save the data of which is the responsibility of the Client are the property of a third party entity, the Holding company of the ANTEVENIO Group (ANTEVENIO S.A.). This is the group to which MMSM belongs and the information of which the Client may accept at www.antevenio.com. Likewise, the entity MAMVO PERFORMANCE, S.L.U. renders services of hosting, support and technology.
11.4.6. In the manner that the Client expressly accepts the existence of a new processing job of the data that is under its responsibility. Except for these circumstances, MMSM undertakes to save under its control and custody all the files supplied by the Client and to not reveal them, transfer them or in any way communicate them, not even for its keeping with other persons without prior written authorization of the Client.
11.4.7. The Sub-contractor, which also has the status of MMSM, is likewise obligated to fulfil the obligations established in this Agreement for the MMSM and the instructions that the responsible party dictates. It is the responsible of the initial MMSM to regulate the new relationship in a manner that the new processor is subject to the same conditions (instructions, obligations, security measures) and with the same formal requisites as they have, in regard to the appropriate processing of the personal data and the guarantee of the rights of the affected parties. In the event of breach on the part of the Sub-contractor, the initial MMSM shall continue being fully responsible to the Client in regard to the fulfillment of the obligations.
11.4.8. If MMSM must transfer the personal data to a third country or an international organization by virtue of EU Law or the laws of the member states which apply, it shall inform the Client of that legal requirement in advance, except when such Law prohibits if for important reasons of public interest.
11.4.9. MMSM is obligated to maintain the Client harmless for any claim that may be lodged (in particular in the event of the opening of any type of investigation by the Data Protection Agency) for the breach by MMSM of the legislation on Personal Data Protection and in particular, the guarantees set forth in this Clause and accepts to pay the amount which as a sanction, fine, indemnification, damages and interests may be imposed on the Client due to said breach by MMSM as the “data processor”.
11.4.10. MMSM adopts all the reasonable means possible in order to impede the non-authorized disclosure, destructions, alteration, releasee or use of personal data or non-authorized physical or logical access thereof in conformity to the corresponding Risk Analysis.
11.5. The Client, at its own cost, shall be entitled to inspect with a prior notice of seven (7) natural days, during working hours, the fulfillment by MMSM of the stipulations of this Clause. If an inspection demonstrated a substantial breach of MMSM, notwithstanding any other terms of this Contract, the Client may be able to require MMSM to remedy it. The costs of such remedy shall be paid by the latter.
11.6. MMSM guarantees that solely that part of its personnel who it authorizes will have access to the personal data or the physical premises at which the data is stored or processed. The persons in charge of the MMSM services shall be informed by it regarding the confidential nature of the personal data and their responsibilities. A similar obligation will exist with respect to those persons have access to any personal data in relation to the terms of this Contract. In both cases MMSM guarantees the necessary training of the indicated persons.
11.7. MMSM shall be responsible to the Client for the injuries causes as a consequence of the breach of the obligations contained in the Data Protection Regulation in accordance with the functions and obligations of MMSM as the data controller.
11.8. In undertaking to store the data MMSM is bound to professional secrecy thereof and to the duty to maintain them; obligation that will remain even after the contractual relationship ends.
11.9. MMSM shall support the Client in regard to (i) the performance of impact evaluations related to the protection of data when it proceeds and (ii) in the performance of prior consultations to the supervisory authority, also when it proceeds.
11.10. MMSM shall make available to the Clients all the information necessary in order to demonstrate fulfillment of its obligations.
11.11. When the affected or interested parties exercise the rights of access, rectification, elimination and opposition, limitation of processing, portability of data and right to not be object of individualized automated decisions before MMSM the latter must communicate it by e-mail to the contact persons designated for such purpose by the Client with a copy to the CLIENT DPO if designated for such purpose and if the appropriate correspondence to MMSM has occurred.
To the degree that the means and resources applied to the execution of the Agreement and the Principal Contract depend on it, MMSM undertakes to adopt and respect the organizational, security and technical measures necessary in order to guarantee the security, integrity and confidentiality of the Personal Data, thereby impeding any modification, loss, processing, or unauthorized access.
The determination of the necessary security measures has been undertaken by MMSM by means of the corresponding risk analysis that they have taken into account in regard to the to the means used (technologies, resources etc.) and other circumstances such as the technical state, the application costs and the nature, scope, context and aims of the processing as well as the variable risks of probability and seriousness for the rights and freedoms of natural persons.
MMSM has a description of the appropriate Security Measures in order to guarantee a level of security adequate for the risk that, if the case may include, among others:
- The capacity to ensure the confidentiality, integrity, availability and permanent resilience of the processing systems and services.
- The capacity to restore the availability and the access to personal data quickly in the event of a physical or technical incident.
- The process for regular verification, evaluation and valuation of the effectiveness of the technical and organizational measures in order to guarantee processing security.
11.12. The Data Controller shall notify the Client without undue delay and in a case within a maximum period of 72 hours from when it has and knowledge thereof, of any security breaches of the Personal Data under its responsibility of which it has had knowledge together with all the knowledge relevant for the documentation and communication of the incident.
The notification shall not be necessary when it is improbable that said security violation constitutes a risk for the rights and freedoms of natural persons.
If available, the information indicated in Article 33.3 GDPR shall be provided and it shall consist of at least:
- The description of the nature of the security violation of the Personal Data, includes, when possible,the categories and the aproximate number of the affected interested parties and the categories and the approximate number of the data registries of the affected personal data.
- The description of the measures adopted or proposed in order to remedy the security violation of the personal data including, if appropriate, the measures adopted in order to mitigate possible negative effects.
If it is not possible to provide the information simultaneously, and to the degree that it is not, the information shall be facilitated gradually and without undue delay.
11.13. MMSM has a Data Protection Officer (hereinafter “DPO”) duly designated and communicated to the registry of the Spanish Data Protection Agency under the terms of Articles 37 to 38 of the GDPR, the contact data of whom, for purposes of the requirements of the GDPR, is email@example.com> and (c/c) firstname.lastname@example.org, at the attention of the Privacy Team and/or DPO or even by post with the same heading to calle Marqués de Riscal, 11, 2º, 28010 Madrid (España).
11.14. The Client has a Data Protection Officer (hereinafter “CLIENT DPO”) duly designated and communicated to the registry of the Spanish Data Protection Agency as is required in Articles 37 to 39 of the GDPR and the identification and contact data of whom must be communicated to MMSM in the corresponding section of the Particular Conditions or by the appropriate means that are defined in each case.
If the Client did not have a DPO the client must communicate the contact data to which the Data Processor shall address themselves for compliance with the provisions set forth in this Clause.
11.15. The Client is responsible for:
- Delivering or granting the Data Processor access to the Personal Data to which this Agreement refers.
- Performing when it proceeds, an evaluation of the impact on the protection of the personal data of the operations to be performed by the Data Processor.
- Performing the prior consultations that correspond.
- Safeguarding prior and during all the processing by compliance with the GRDP on the part of the Data Processor.
- Supervising the processing including the performance of inspections and audits if the case.
- Complying with Information Law when collecting the data.
12. APPLICABLE LAW AND FORUM
12.1. These Conditions shall be interpreted and governed by the laws of the Kingdom of Spain. The Client acknowledges that at the time of accepting the Particular Conditions by means of the signing of the document or the electronic acceptance thereof, they shall recognize the acceptance of the General Conditions and that both shall govern their status as a client of MMSM and for that reason, they shall be binding for the Client.
12.2. In the event that the Client has its corporate domicile in Spanish territory, the Parties agree to submit discrepancies that could arise regarding the application of this contract to the jurisdiction of the Courts and Tribunals of the city of Madrid. On the contrary, if the company domicile is outside of Spanish territory all disputes arising from this contract or that have a relationship thereto, including any issue related to its existence, validity, interpretation, fulfillment or termination shall be resolved definitely by means of arbitration administered by the Court of Arbitration of the Official Chamber of Commerce, Industry, and Services of Madrid in accordance with the Arbitration Regulation in effect on the date of the presentation of the arbitration request. The Arbitration tribunal, which is designated for such purpose, shall be comprised of a single arbitrator; the language of the arbitration shall be Spanish; the venue of the arbitration shall be Madrid (Spain ) and the arbitration shall be at-law.
In witness thereof the Parties sign these General Conditions of the MDirector Services after having signed the Particular Conditions of the MDirector Service and accepted them on the Platform in the creation of the Client Account.