CONDITIONS OF ENGAGEMENT OF THE E-APPLICATION E-NVIA
- 1 - Introduction
- 2 - Definitions
- 3 - Objective
- 4 - Scope of service and Conditions of Use
- 4.1 - Use license
- 4.2 - Featured services
- 4.3 - Price, duration, invoicing, and terms of payment
- 4.4 - Purchase requirements
- 4.5 - Change of benefits
- 4.6 - Change of terms and conditions
- 4.7 - Rules of use
- 4.8 - Usage and filing
- 4.9 - Warranties
- 4.10 - Termination of agreement
- 4.11 - Termination effects
- 4.12 - Other
- 5 - Intellectual Property
- 6 - Applicable Legislation and Competence
COEXIA, S.L., with address in Barcelona, 184 Avenida Icaria, hereby states the general conditions of the purchase which shall govern the lease of use of the tool/computer application E-NVIA, owned by COEXIA, S.L
Under these conditions, unless otherwise expressly stated herein, the following terms and expressions shall have the meaning below:
a) COEXIA: COEXIA, S.L.
b) CUSTOMER: Any physical or legal entity that contracts the COMPANY for the non exclusive lease of use of the tool/application E-NVIA, whereby he/she shall own a private use account to create, edit and send advertising, commercial, promotional or information messages via e-mail to a computer-based database containing personal data of recipients.
c) E-NVIA: tool/ application developed by COEXIA, available at
www.e-nvia.com.
d) Agreement: This contract
e) Mailing: e-mail sent to a recipient.
f) Designs: Information in HTML format containing text, images, and links that shall be used as a design template.
g) Listing management: A list of contacts is a group or segment of contacts. Listing management allows creating, editing or deleting lists.
h) Technical support: Help for users (customers) regarding the tool by means of explanatory texts included in E-NVIA, or via e-mails to their account .
i) Contacts management: A contact is a physical or legal person that has an identification email and/or additional private data, i.e., first name, last name, company, etc. Lists management allows creating, editing and deleting lists, as well as adding contacts to one or several lists.
This Agreement provides for the "non exclusive" lease of use of E-NVIA to the customer by COEXIA, according to the terms and conditions hereof.
4. SCOPE OF SERVICE AND CONDITIONS OF USE
The lease of non exclusive use delivered by COEXIA to E-NVIA’s customers for using the services and tools shall be governed by the terms and conditions of this AGREEMENT; these services include: a) Contacts management; b) Listing management; c) Design creation and management; d) Message management and mailing; e) Statistics analysis; f) Information; g) Filing; and i) Technical support.
The use of this tool and all related services does not imply in any way the transfer of property to the CUSTOMER.
CUSTOMERS may create and send e-mail campaigns through E-NVIA to distribute content provided by the CUSTOMER and sent to e-mails likewise provided by the CUSTOMER.
The CUSTOMER acknowledges and agrees that COEXIA is not liable for the contents of e-mail campaigns, and is not the intellectual author or advertiser of any campaign. Furthermore, the CUSTOMER knows and acknowledges that COEXIA does not sell or rent e-mail lists.
COEXIA reserves the right to review whether campaings are in compliance with the terms of use stipulated under clause 4.7 of this Agreement, and to approve its content consequently. However, this does not mean that COEXIA is responsible for reviewing all campaigns. Besides, COEXIA shall not be liable for any authorized or unauthorized intellectual property contents in campaigns. COEXIA reserves the right to declare null or void any campaign that violates any of the terms of use under the following clause 4.7.
The customer acknowledges the range of services provided by E-NVIA at his/her subscription and agrees to them..
4.3 Price, duration, invoicing, and terms of payment
In consideration for the lease of use of E-NVIA, the CUSTOMER shall pay COEXIA an amount to be determined according to the type of service purchased by the customer, i.e., "Subscription Plans" or "Campaign Plans".
a) Subscription plans
By means of the Subscription Plan, the CUSTOMER chooses to purchase a specific number of monthly e-mails at a specific price among different packages (number of monthly e-mails/price) offered by COEXIA at http://www.e-nvia.com/tarifas.php. Each package includes a price for additional mailing exceeding the monthly number of e-mails purchased. If the CUSTOMER chooses this service, the price shall be determined by the current fees applicable upon execution hereof, available at http://www.e-nvia.com/tarifas.php. If this applies, a monthly invoice shall be sent electronically to an e-mail address provided by the CUSTOMER.
The minimum period for Subscription Plans is 6 (six) months, which shall be binding on the CUSTOMER. Upon expiration of the minimun period, the contract shall be automatically extended by monthly periods, unless either party declares intention to terminate the contract. The termination hereof shall be notified within a week prior to the end of the initial period or of any of the subsequent extensions via e-mail to the Commercial Department : .
Services shall be invoiced on a monthly basis within the first seven days of each month. The CUSTOMER shall receive an invoice with monthly charges, according to the purchased plan, plus the charge for any additional mailing from the previous month, according to the purchased plan. The fee shall be prepaid through direct bank debit to the account indicated by the CUSTOMER in the E-NVIA subscription form within the first seven days of each month.
The CUSTOMER may switch among plans any time, including the initial period, through a written statement via e-mail to COEXIA commercial department : . In this case, the following shall apply:
a) If the CUSTOMER switches among plans within a month and chooses a package with a greater number of e-mails, the difference between the old monthly package and the new package monthly fee shall be charged within a seven-day period from the change.
b) If the CUSTOMER switches among plans within a month and chooses a package with a smaller number of e-mails, the change shall be effective the first day of the month after notification of the change.
During the initial period, it is not possible to switch to a "lower" plan.
b) Campaign plan
The CUSTOMER may also choose to purchase e-mail campaigns (number of e-mails/price). In this case, COEXIA provides different campaigns with different fees; these are available at http://www.e-nvia.com/tarifas.php.
If the customer chooses this plan, payment shall be performed through direct bank debit to the account indicated by the customer in the subscription form, or by bank transfer to COEXIA account stated in the invoice within seven days from subscription. COEXIA shall send the CUSTOMER an invoice via e-mail within seven days from purchase.
Subscription and service activation shall be effective after payment by the CUSTOMER.
If the CUSTOMER fails to perform payment within the period stated in this clause, COEXIA reserves the right to terminate this Agreement according to clause 4.11 hereof.
COEXIA may modify purchase plans, prices or any features from time to time. However, these changes shall not affect the CUSTOMER during the minimun initial period or any extension. I.e, any changes regarding plans, prices or features shall only be effective as of the first extension of this Agrement after publication of the new plans, prices or features. CUSTOMERS may review these changes at http://www.e-nvia.com/tarifas.php. The CUSTOMER is liable for reviewing the list of prices and charges applied by COEXIA.
Services by COEXIA may be purchased by any person, company, organization and any other entity legally capable of contracting under the Law. Please refrain from using COEXIA services if not complying with this requirement. The customer shall be willing to provide all data required during registration or invoicing. This information shall be accurate and updated.
COEXIA may refuse an offer and/or provision of services to any person, company or organization, and may change the criteria of the use of service at any time at its sole discretion. COEXIA reserves the right to declare null or void your account and the rights to use service should there be any reasonable evidence to believe that the data provided by the CUSTOMER is untrue, inaccurate, out of date or incomplete, and should the CUSTOMER break any of the terms of use.
The CUSTOMER agrees and acknowledges the use of the tool as it is, and COEXIA may edit, delete or make improvements and/or introduce functions without prior notice. Notwithstanding the changes that may be performed to the tool by COEXIA, it shall maintain its essential features and utilities..
4.6 Change in terms and conditions
At any time and at its sole discretion, COEXIA may change the terms and conditions hereof. Any change shall be immediately available after its release at E-NVIA Website http://www.e-nvia.com/condiciones_generales.php. The CUSTOMER agrees to review this Agreement regularly. When continuing to use E-NVIA, and after changes have been published, the CUSTOMER is agreeing to the conditions of this Agreement.
COEXIA reserves the right to change or update these terms at any time without prior notice to the CUSTOMER by means of the publication of changes in the license agreement on this Website.
The CUSTOMER declares and acknowledges that the use of E-NVIA is exclusively ruled under this Agreement and applicable laws.
The CUSTOMER undertakes to comply with Organic Law 15/1999 regarding the Personal Data Protection Act (LOPD), the Information Society Services Act (LSSI) and any other applicable law, particularly as regards the prohibition to send business e-mails not specifically requested by users. Furthermore, e-mails with business content should inform the user/recipient about its nature with a heading containing the word “advertisement”, and should state that e-mail addresses were taken from the CUSTOMER database. Users/recipients may revoke their consent at any time at no cost. Besides, the CUSTOMER e-mail address should appear in the "from:" field. Each email should include an option method to unsubscribe from the mailing list, as well as a verifiable postal address.
As regards marketing campaigns, the CUSTOMER specifically undertakes not to execute any illicit activity or acts which may constitute a crime, be in conflict with the law, good faith, moral and public order and uses, and particularly, the CUSTOMER undertakes not to use E-NVIA for:
a) Sending e-mails to any recipient who has not given prior autorization to receive information from the CUSTOMER. The CUSTOMER acknowledges that it is illegal to send messages to "captured" e-mail addresses (e.g., by means of a Website automatic scan), as well as forward e-mails to addresses in the aforementioned way, and recognizes his liability for the misuse of the service. The CUSTOMER agrees to comply with the terms stated in COEXIA anti-spam policy, available at http://www.e-nvia.com/condiciones_generales.php. COEXIA reserves the right to update or correct the anti-spam policy in E-NVIA Website without prior notice to the CUSTOMER. The CUSTOMER also acknowledges that the consequence of breaking this anti-spam policy may include, but is not limited to, the termination of this Agreement with no refund of any deposit or payment.
b) Illegal purposes
c) Threatening, soliciting confidencial information, obtained unwanted attention or generating or creating inconveniences to any person or entity.
d) Sending contents or links containing pornographic or sexual material of any nature.
e) Sending or releasing libelous, abusive, obscene, rude information or disgusting or threatening images related to race, ethnicity, pornography, terrorism, or otherwise against human rights.
f) Sending contents with links to Websites containing nude pictures, sex, pornography, propaganda about hate, illegal material, illegal software, software serial numbers, mailing fraude, junk mail, e-mail chains, 'pyramidal structures’, or any other material which may be offensive to others.
g) Promoting the use of prohibited or controlled substances, transferring material, information or software which may violate any local, state or federal law.
h) Falsely representing any person, including, as a statement, COEXIA personnel or any information provider. Furthermore, it is forbidden to provide information under a fake name or a name the CUSTOMER is not allowed to use.
i) Uploading information, publishing or copying in any way any copyright material without prrior authorization by its owner.
j) Sending content promoting or including information or instructions regarding illegal activities, promoting physical damage or injuries to any group or individual.
k) Inserting or releasing data programs through Internet (virus and harmful software) which may damage the computer systems of COEXIA or other internet users.
l) Providing your user name and/or passwords for accessing E-NVIA to unauthorized third parties; and if your passwords are obtained by unauthorized users, you undertake to immediatly inform COEXIA, who reserves the right to edit data for service protection.
m) Furthermore, it is expressly forbidden for users of E-NVIA to reproduce, replicate, copy, sell, resell or exploit any section, source code, algorythms, uses and/or ideas belonging to E-NVIA.
n) Sending any contents that, according to applicable legal provisions or existing contracts, the CUSTOMER is unauthorized to provide (e.g., privileged information, industrial or intellectual property rights information, or confidential information).
The CUSTOMER undertakes not to decompile, desamble, or activate a reverse engineering process; to break any code, programming, physical structures, algorythms, or ideas built in COEXIA services, products or documents, either directly or indirectly.
The CUSTOMER undertakes not to decompile, desamble, or activate a reverse engineering process; to break any code, programming, physical structures, algorythms, or ideas built in COEXIA services, products or documents, either directly or indirectly.
The CUSTOMER further undertakes not to delete any intellectual property notice of the services or software, or to edit, translate or create products using existing services or software. He/she shall not copy, distribute, assign or transfer the rights to services or software. Services shall not be used to create campaigns for other companies which provide e-mail services for marketing purposes.
The customer undertakes not to assign or transfer products or services under this Agreement or its technical information without prior express authorization by COEXIA.
If the CUSTOMER breaks any of the terms hereof or any applicable legal regulation, COEXIA shall require the CUSTOMER to remedy this violation within a 3-day period following requirement. If the customer continues to breach the terms, COEXIA reserves the right to diactivate or cancel the CUSTOMER account and all related information.
>The CUSTOMER accepts liability according to the law and waives to hold COEXIA liable partially or totally if the CUSTOMER breaks the law. To wit, the CUSTOMER shall compensate COEXIA for any damage or detriment that may arise from claims by third parties due to payment obligations and liabilities, contingencies, debts, or civil, business, working, social, taxing, administrative obligations or of any other nature which may have been incurred, originated, existing or accrued resulting from the breach of this clause or applicable law (Organic Law 15/1999, regarding the Personal Data Protection Act (LOPD), and the Information Society Services Act (LSSI).
COEXIA shall keep information, content, contact lists, messages, campaigns statistics, and any other information from the CUSTOMER in the CUSTOMER database for a 18-month period. After this period, the information provided shall be deleted.
COEXIA reserves the right to set general practices and limits regarding the use of services, including, but not limited to, the maximum number of days that information is stored, and the disk space reserved to each CUSTOMER.
COEXIA shall not be liable for the loss of messages or the inability to store them, its content, or any other information maintained or provided by our service.
If the CUSTOMER a) does not enter his/her account for a continuous period of 180 days or more, b) does not comply with payment obligations, c) has his/her account cancelled by breach of the regulations herein, or d) does not solve any complaint made by COEXIA within a period of seven days from complaint, his/her account shall be disabled. Whenever an account is disabled, COEXIA may either notify the CUSTOMER of the situation by e-mail, or may remove the account from the database. If COEXIA decides to notify the CUSTOMER, he/she shall have 30 days as of first day of notice, to reactivate his/her account.
The CUSTOMER is responsible for ensuring good data management practices within his/her account provided by COEXIA and for deleting any out-of-date campaign and/or unused lists. If COEXIA requests the CUSTOMER to delete campaigns or lists, the CUSTOMER should do so within seven days.
Upon COEXIA request, the CUSTOMER undertakes to defend and discharge COEXIA, its representatives, managers and employees from any liability in case of legal proceedings arising from the use of E-NVIA by the CUSTOMER, or from any breach of this Agreement, including, but not limited to, proceedings regarding the violation of registered trademarks, registered patents, industrial espionage, libel,invasion of privacy, harassment, fraud or calumny.
As regards direct or indirect e-mail campaigns, COEXIA shall not guarantee the truthfulness, legality, lawfulness or ownership of their content. To wit, COEXIA is not liable for any damage whatsoever that may result from such campaigns. The CUSTOMER undertakes to hold COEXIA harmless from any complaint, claim, lawsuit, or civil, criminal, administrative or other actions that may result from the use of E-NVIA by the CUSTOMER.
The CUSTOMER authorizes COEXIA to disclose his/her name to third parties in case of any breach of the terms of use. By using E-NVIA, the CUSTOMER authorizes COEXIA to copy and/or file the CUSTOMER’s data, mailing lists and other information. COEXIA shall not use the CUSTOMER’s data, mailing lists or any other information from the CUSTOMER for any purpose that may violate the privacy policy stated under the terms and conditions herein.
COEXIA further reserves the right to make changes in its privacy policy periodically without prior notice to the CUSTOMER since these changes shall be published on the privacy policy of this website. Among its services COEXIA may notify the CUSTOMER at the e-mail address provided by the CUSTOMER during registration, or at an address provided by the CUSTOMER at any moment for updating purposes.
COEXIA shall make every reasonable effort to ensure the campaign of the CUSTOMER is published as agreed. However, if circumstances beyond our control or any act of God prevents us from doing so (mainly due to technical problems), COEXIA reserves the right to change the campaign time and date, as well as the results of the mailing sent without prior notice to the CUSTOMER.
All services and information by COEXIA are provided 'as they are' and COEXIA specifically refuses to provide any warranty, expressed or implied, including, without limitation, commercial warranties, for specific purposes, availability, accuracy, omissions, prompt delivery or delays in the service, information or products provided through the Website.
COEXIA shall not be liable for direct or indirect damages, consequential or incidental, material damages, income or revenue loss related to the use of COEXIA tools, its Website or information or data included therein as well as damages resulting from negligence, events regulated by contract, law, decree or otherwise. To COEXIA, any legal complaint or any complaint for damages resulting from the use of services, any detriment, any offense, whether individual, jointly or contractual, shall be subject to the total charge for the services paid by the CUSTOMER to COEXIA regarding the services provided within the 12 months prior to the event(s) originating the complaint.
This Agreement may be terminated by either party upon expiration of the initial period or any extension by means of a written notice to the other party under the terms established in clause 4.12, with one week notice prior to the expiration of the (initial or extension) period.
The CUSTOMER may terminate this Agreement by a written notice prior to the expiration of the initial period and having paid all applicable charges by the expiration date. Incurred charges include the initial minimun period fee, if it has not taken place.
If COEXIA terminates this Agreement, the CUSTOMER shall not be applied any charges, unless the termination is attributable to the CUSTOMER due to breach of any of the conditions hereof, particularly the breach of the terms of use under clause 4.7.
If the CUSTOMER fails to comply with the terms of use, the following regulations shall apply:
(a) No refund shall be made in respect of prepayments for the current month period or initial period.
The termination of this Agreement by either party shall not affect the CUSTOMER's obligation to pay any incurred charges for the services then used, plus a fee of the minimun initial period, if it has not taken place.
Upon termination of the Agreement, all CUSTOMER’s rights shall be extinguished. The CUSTOMER agrees and consents to the deletion by COEXIA of any files and data from the CUSTOMER.
The CUSTOMER shall pay any due amount according to the plan, as well as the cancellation fee through direct bank debit to the account indicated by the customer in the subscription form or by bank transfer to the account indicated in the COEXIA invoice, immediately after the termination by the CUSTOMER is effective or, if requested by COEXIA, the liability is attributable to the Customer.
The CUSTOMER acknowledges that the software, algorythms and other processes used in this service, its content (different from the content belonging to the CUSTOMER or a third party), the CUSTOMER’s name, passwords, the site's image and the service functionality are exclusive property of COEXIA.
These terms and conditions constitute the definite, complete and sole Agreement between COEXIA and the CUSTOMER and supersedes any other oral, written or electronic agreement between COEXIA and the CUSTOMER.
The CUSTOMER authorizes COEXIA to use the company name and logo on E-NVIA customers list, including the E-NVIA Web site, promotional material, sales presentations, conferences, trade fairs and/or special exhibitions.
Any notice or communication regarding this Agreement shall be in written form and delivered by e-mail.
NOTE: Purchase of E-NVIA shall be effective after signing this Agreement on E-NVIA Website during subscription and/or creation of a trial account.
COEXIA undertakes not to use data to which it has access as specified herein for a purpose different from the stated herein, and not to disclose, sell, rent or assign it to third parties.
COEXIA expressly agrees to adopt appropriate technical and organizational security measures (at least basic measures established in the Royal Decree 994/1999 of June 11th), in order to guarantee the accuracy and safety of personal data under this Agreement, thus avoiding any alteration, loss or unauthorized access, considering its technological state, the nature of the stored data and the involved risks, whether these are caused by a human action or a physical or natural event.
The CUSTOMER authorizes that the service includes at the message footer the expression "powered by e-nvia" or a similar phrase..
Both parties expressly agree that the use of E-NVIA by the CUSTOMER does not grant him/her any proprietary right. All intellectual property rights, legal rights and/or rights related to the source code are and shall continue to be owned by COEXIA.
The CUSTOMER acknowledges and agrees that E-NVIA services, registration names and logos are solely owned by COEXIA. The CUSTOMER further acknowledges that COEXIA is owner and holds all rights regarding the software required to provide services under this Agreement. "E-NVIA" y its logo are registered trademarks by COEXIA. Any other trademark mentioned in the services is owned by the respective owners. The CUSTOMER is fully aware and acknowledges that no right or license of use is granted to him/her regarding any registered trademark and logo owned by COEXIA or any other entity, and that the use of these registered trademarks through products and services is strictly prohibited unless prior written consent by COEXIA.
The CUSTOMER understands and agrees that the services provided by COEXIA and its Website E-NVIA contains registered information or material owned by COEXIA.The CUSTOMER understands and agrees that, except for personal view and the use of services by COEXIA and its Website E-NVIA through a browser tool such as Microsoft Internet Explorer, Firefox or Netscape browser, the CUSTOMER has no license to link, reproduce, reverse engineer, modify, replicate, spread, show or execute any protected material from this Website nor to allow any third party to do so without previous written consent by COEXIA.
6. APPLICABLE LEGISLATION AND COMPETENCE
This Agreement is governed by the Spanish law.
Any dispute between the parties that may arise from the construction and execution of this Agreement shall be expressely submitted to the competence of courts of Barcelona.
