Magileads

GENERAL TERMS AND CONDITIONS OF SALE

  Magileads  is a brand of SAS KA-Groupe, which offers online marketing services.

The CLIENT wishes to use the services provided by Magileads as described in the special conditions attached to the general conditions.

The CUSTOMER, after having taken note of their respective characteristics, wished to subscribe to the services offered by Magileads.

Object

The purpose of the General Terms and Conditions is to define the legal conditions under which Magileads provides the services described in the Special Terms and Conditions.

The provision of services is subject to the conclusion of Special Conditions.

The Parties agree that the terms and conditions set forth in the General Terms and Conditions shall be implemented and applied in the performance of the Special Terms and Conditions.

The same applies to any special conditions signed subsequently between the Parties and corresponding to new services requested by the CLIENT.

1° Definitions

In all contract documents, the terms hereinafter defined shall have the meanings set forth in their definitions:

SOLUTION : ONLINE APPLICATION – Magileads

CAMPAIGN : Operation which consists in promoting a brand, a product or a service by means of a message through communication supports.

RECIPIENT: Any natural or legal person receiving an electronic message on behalf of the CLIENT.

CONTENT: Any information or multimedia content contained in any database, electronic newsletter, template, message or other similar document provided by CUSTOMER to Magileads for use as a CAMPAIGN component.

DATA: All PERSONAL and NON-PERSONAL DATA.

PERSONAL DATA Any information about a RECIPIENT defined as such by the Law of August 6, 2004 amending the Law on Information Technology and Civil Liberties of January 6, 1978, including – but not limited to – the complete e-mail address of the RECIPIENT, consisting of a user name and a domain name, separated by the @ character, the full name and postal address of the RECIPIENT

NON-PERSONAL DATA: Any information concerning a RECIPIENT of which Magileads has knowledge and which does not meet the definition of « PERSONAL DATA » as mentioned in the Law of August 6, 2004 modifying the Law of January 6, 1978 on Data Processing and Freedoms.

RECORD: Any data (personal or otherwise) or information, including, but not limited to, name, e-mail address, mailing address and related information, collected by a customer and provided by the RECIPIENTS who have consented to receive e-mail CAMPAIGNS from CUSTOMER and/or its partners

BLOCKING DYSFUNCTION: Any dysfunction attributable to Magileads making it impossible to use all the features of the development

SEMI-BLOCKING DYSFUNCTION: Any dysfunction attributable to Magileads allowing the operation of the development only for a part of its features

NON-BLOCKING DYSFUNCTION: Any malfunction attributable to Magileads that allows the development to continue to operate at full functionality, but using unusual procedures

DELIVERABILITY: Ability to send inbox emails to recipients with valid addresses.

2° Obligations of Magileads

  • Provision of the Magileads solution

Magileads undertakes to make the SOLUTION available under a right of use. As such, Magileads grants the CUSTOMER a personal, non-exclusive and non-transferable right to use the SOLUTION. This right is granted solely in connection with the use of the Services and for the duration of the Services.

This grant of rights does not entail the transfer of any intellectual property rights to the benefit of the CUSTOMER, Magileads retaining full and complete ownership of the SOLUTION and the elements that compose it.

2.2    Provision of services (description in the Special Conditions)

Given the nature of the Services provided, it is expressly specified that Magileads is bound by an obligation of means.

Magileads is committed to:
  • Guarantee that the services are in accordance with the specifications and benefits advertised and usable as such;
  • Do everything possible to ensure the permanence, continuity and quality of the services offered through

The ONLINE APPLICATION, Magileads; accordingly, Magileads will endeavor to provide access to the servers 24 hours a day, 7 days a week;

– Provide technical support, Monday through Friday from 10:00 am to 5:00 pm;

  • Provide the CUSTOMER with the computer access necessary to use the service(s) and generally do everything possible to allow the normal use of the service(s) by THE CUSTOMER
  • Ensure the control and maintenance of the ONLINE APPLICATION – Magileads
  • Provide, by mutual agreement, professional services

Magileads reserves the right to exceptionally and briefly suspend accessibility to the services of the ONLINE APPLICATION, Magileads for possible maintenance or improvement interventions to ensure the proper functioning of its services.

Magileads will inform the CLIENT, as far as possible, by e-mail or via the ONLINE APPLICATION, of the deadline and timeframe for these interventions.

2.3    Provision of maintenance service for specific developments

Magileads agrees to provide maintenance service on the developments delivered and hosted in the SOLUTION during the performance of this Agreement.

Magileads undertakes to perform maintenance services from the date of signature of the contract or after delivery of the development with due diligence and in a manner that causes the least possible disruption to CUSTOMER’s operations.

The maintenance service is performed on all developments delivered by Magileads throughout the duration of the contract or throughout the life of the development.

As part of the maintenance service, Magileads undertakes:

  • To correct any blocking, semi-blocking or non blocking DYSFUNCTION (or bug)
  • To verify or review the hosting environment of the development done for the CLIENT
  • To follow up on the good execution of the developments and the delivered scripts.
  • To restore the development to good working order or condition following an incident caused by a malfunction of the development unless the incident is due to improper handling of the

More generally, Magileads ensures that the development and scripts covered by the contract are maintained in good working order.

Services not expressly included in the above list may be provided as additional services and invoiced in addition to the maintenance service.

Cannot be included in maintenance under any circumstances:

  • The developments necessary for the updating, evolution of the development or the ONLINE APPLICATION
  • Improving the functionality or performance of the Magileads ONLINE APPLICATION or development.
  • Provision of new versions of the development or the Magileads ONLINE APPLICATION

The above services will be subject to a new estimate or contract.

In addition, Magileads will not be obligated to provide the maintenance service if the CUSTOMER generally fails to meet its obligations under the contract.

In return for the services performed, the CUSTOMER will be invoiced a lump sum at the beginning of each contractual period. Exceptionally and at the request of the CUSTOMER, the development maintenance service may be invoiced monthly.

The cost of maintenance is billed according to the rates in effect in the Special Conditions.

2.4   Deliverability (E-MAILING module)

Magileads will make every effort to ensure the best possible delivery of CAMPAIGNS, in particular by

  • A follow-up of the CAMPAIGNS in order to minimize the risk of blacklisting on the main Webmailers;
  • A privileged relationship with the main Internet Service Providers (ISPs) and a whitelisting agreement with some of them. In this context, the CUSTOMER agrees to work with Magileads to maintain the best possible relationship with ISPs in order to enable the delivery of emails from LA
  • An evolution of Magileads’ tools to comply with standards and best practices in terms of deliverability.

3° Obligations of the CLIENT

CLIENT agrees to:

  • Use the service in accordance with the operating instructions provided by Magileads and shall be solely responsible for the harmful consequences of any use not in accordance with the operating instructions.
  • Communicate any difficulties to Magileads so that they can be dealt with as quickly as possible
  • Communicate the information requested or necessary for the execution of the
  • Designate a contact person with
  • Use the customer request management system accessible via the Magileads ONLINE APPLICATION for all requests related to the services provided by Magileads. Requests that are not made via this interface will not be considered.

In particular, CUSTOMER’s employees will have access to the Magileads ONLINE APPLICATION after authentication by entering their login and password provided by Magileads. The CUSTOMER agrees to keep secret these login and password and not to disclose them in any form whatsoever to persons other than those responsible for the use of services provided by Magileads.

The CUSTOMER is solely responsible for the use of the login and password that Magileads will have sent him. Any connection to the service or transmission of data using a password or identifier of the CUSTOMER will be deemed to have been carried out by one of its employees. In case of loss or theft of a password or login, the CUSTOMER agrees to notify Magileads, without delay, by electronic mail (E-mail).

Magileads reserves the right during the execution of the contract to change the login and password for technical or security reasons. In this case, Magileads will inform the CUSTOMER of these changes and will communicate as soon as possible the new identifiers and passwords.

In addition, CUSTOMER agrees, and throughout the performance of these Terms and Conditions, to:

  • Respect all the provisions of the law n° 78-17 of January 6, 1978 as modified by the law of August 6, 2004, relating to data processing, files and freedoms.

And in particular, without this list being restrictive:

  • To obtain the prior consent of persons who are to be contacted by electronic mail for advertising purposes;
  • To authorize the RECIPIENTS to exercise, free of charge, their individual rights of access, rectification and deletion of information concerning them;
  • Not to conceal the identity on behalf of which the communication is issued and not to mention a purpose unrelated to the service offered.
  • To include a visible and effective unsubscribe link for all commercial emails sent from the Magileads Platform
  • To regularly update their FILE (taking into account requests for modification or deletion of PERSONAL DATA from the RECIPIENTS)

In this regard, Magileads reserves the right to suspend the services of CUSTOMERS who do not respect, in any way whatsoever, the legislation on Information Technology and Freedoms in force as well as the ethical rules dictated by Magileads and to require the CUSTOMER to comply with the rules on Information Technology and Freedoms

4° Invoicing and payment terms

CUSTOMER agrees to pay Magileads for the services set forth in the Special Conditions in accordance with the payment terms set forth herein.

Magileads offers its customers three subscription formulas with a 3-month commitment, tacitly renewable on the platform at D+30 the date of subscription.

The customer is free to stop his subscription whenever he wants after the 3 months commitment. The amounts are expressed without taxes.

The present contract will be automatically renewed, by application of the principle of tacit renewal, on the anniversary date of the contract unless expressly terminated in accordance with the provisions set out below.

4.1 -Contract regime

4-a) Duration of the contract, Effective date
The present service contract is established for a minimum period of 3 months (three consecutive months), and takes effect from the date of payment of the first instalment.

4-b) Renewal: Tacit renewal
This contract will be automatically renewed, by application of the principle of tacit renewal, on the due date or anniversary of the contract unless expressly terminated in accordance with the provisions below.

4-c) Methods of denunciation / termination
Regular Anniversary Denunciation:
Each year, either party shall have the option to terminate this Agreement in the following manner:
– Minimum of 30 days notice prior to the contract expiration or anniversary date
– Denunciation directly on the customer’s account in the payment page

Breach of contract by mutual agreement
By mutual agreement, the parties may at any time elect to terminate this contract

Termination for Non-Performance:
In the event that one of the parties fails to comply with its contractual obligations, the other party may validly make representations, terminate the contract and obtain early termination in accordance with the following procedures:
– Minimum 30 days notice

During the performance of this Agreement, CUSTOMER may be granted a price reduction in the form of a trade discount. If the commercial discount is greater than the sum of one thousand five hundred euros excluding taxes (1500 € HT), Magileads reserves the right to spread the discount over twelve (12) monthly payments of the same amount.

The sums due under the contract by the CLIENT shall be invoiced on the last day of each month, in arrears, to be paid, net of any discount, within thirty (30) days of the date of the invoice. Any month started is due in full. The CLIENT shall pay the invoiced amounts in full to Magileads at the address indicated on the invoice. Compliance with the payment dates of all sums due to Magileads is an essential obligation of the CLIENT under the contract.

The CUSTOMER has a period of two (2) months from the issue of the invoice to contest it. After this period, any request for dispute will be declared inadmissible and the CLIENT undertakes to pay the invoice as soon as possible.

In case of dispute of an invoice, the CUSTOMER shall send in writing (registered letter, simple letter or email) to Magileads all the elements likely to justify his claim.

In the event of a dispute concerning a part of the invoice, the CLIENT undertakes to pay all the amounts that are not the subject of a dispute.

In case of late payment beyond the due date indicated on the invoice, Magileads will put the CLIENT in default by e-mail or by post.

The total or partial non-payment of the invoices will involve by right the forfeiture of the term of all the issued invoices. All invoices are due immediately from the date of issue until full payment.

Without prejudice to Magileads’ other rights, in particular the right to terminate the contract, Magileads reserves the right to demand the payment of daily interest on arrears in the event of total or partial non-payment of an invoice by the due date, without the need for any formalities.

In accordance with the law for the modernization of the economy of August 4, 2008, the interest will be equal to the interest rate applied by the European Central Bank in force on the day the payment is due.

In this case, interest on arrears will be payable from the day following the due date of the invoice until and including the day on which the amount owed by the CLIENT is fully paid to Magileads. Such interest shall continue to accrue on amounts due notwithstanding termination of the Agreement for any reason.

In the event of non-payment of invoices on the due date, any collection costs will be borne by the CLIENT, who is obliged to pay them.

In accordance with Law No. 2012-387 of March 22, 2012 on the simplification of the law and the reduction of administrative procedures, the CUSTOMER in a situation of late payment will be automatically liable to Magileads for a flat-rate compensation, for collection costs, in the amount of forty euros (40€) per invoice not paid within a maximum period of sixty days from the date of issue of the invoice.

If the recovery costs incurred are greater than the amount of this compensation, Magileads will be able to ask the CUSTOMER for additional compensation on proof of costs incurred.

In the event of total or partial non-payment of an invoice by the payment deadline, after a formal notice has remained without effect, and in the absence of a serious challenge to the amounts invoiced that the CLIENT would bring to the attention of Magileads within the period indicated above, Magileads reserves the right to restrict or suspend access to the Magileads ONLINE APPLICATION service. In the event that non-payment persists, the contract will be terminated within the period indicated in the letter of default, without the need to send a new letter of default.

5° Duration and termination.

They are entered into for the duration of the services specified in the Special Conditions.

In the event of termination of the contract, CUSTOMER agrees to pay the full monthly minimum billing fee as set forth in the Special Conditions until the end of the current period.

  • In the event of non-compliance by one of the parties with one of the clauses hereof, and within a period of 30 days after receipt by the defaulting party of a registered letter with acknowledgement of receipt serving as a formal notice to perform which has remained without effect, the other party may terminate this contract at any time and by operation of law by registered letter with acknowledgement of receipt without the need to perform any judicial formality, without prejudice to damages that may be claimed by way of
  • In the event of the receivership or liquidation of one of the parties, the other party may terminate the present contract at any time by registered letter with acknowledgement of receipt, without the need for additional formalities.
  • In the event of termination of the relationship for any reason whatsoever

Magileads shall discontinue access to the provision of the relevant Services at the normal time or times set out in the notice of termination, unless otherwise agreed between the Parties.

Each party will return to the other party any documentation, materials, and/or confidential information provided to it within thirty (30) days. All provisions hereof which by their nature are intended to survive termination shall survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty waivers and limitations of liability.

Magileads will destroy all records relating to the FILES within thirty (30) days of termination.

6° Prices and payment terms

6-1 Rates – billing frequency – payment terms

The parties agree on a monthly billing rhythm, as well as the application of the rate validated by the customer when purchasing the package of his choice

The customer agrees to pay the amounts due each month, upon receipt of invoice, by credit card (CB), check or bank transfer to the order of Magileads

7° Intellectual property and protection of files

7-1 The CUSTOMER or companies specializing in the sale or rental of FILES, holders of intellectual property rights on the FILE, retain full and exclusive ownership of the FILE transmitted to Magileads under the present intervention under Law No. 98-536 of 1 January 1998. July 1998 transposing into the Intellectual Property Code Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.

Magileads affirms that it has declared all of its activities, in accordance with the provisions of the French Data Protection Act, under declaration no. 69.75.05.

Magileads commits itself during the term of the contract and within two years after its end.

  • Not to disclose any PERSONAL DATA or data considered as such contained in the FILE, except with the prior written authorization of the CLIENT
  • Not to use the PERSONAL DATA in the FILE in any way, in whole or in part, for any purpose other than the CAMPAIGNS carried out by the CUSTOMER, without the prior written consent of the CUSTOMER
  • To destroy the FILE, as well as any media and copies made in the course of processing and routing operations within a maximum period of thirty (30) days after termination of the contract

7-2 CUSTOMER acknowledges that the technology, software, services, SOLUTON, source code of specific developments are the property of Magileads or its licensors and that Magileads owns all proprietary rights, including patent, copyright, trade secret and trademark rights.

CUSTOMER shall have no rights with respect thereto except as expressly granted herein. Nothing herein shall be construed to limit Magileads’ right to sell, license, modify, publish or otherwise use or distribute the SOLUTION, in whole or in part, to any other person.

CUSTOMER acknowledges and accepts all product enhancements and modifications to the SOLUTION.

CUSTOMER hereby assigns to Magileads all proprietary rights to any improvements and modifications to the product created for it as a result of its request. CUSTOMER acknowledges that Magileads owns all right and title in and to the routing domains and subdomains and that Magileads, express or implied, does not grant any right, title or other ownership whatsoever to Magileads’ domains. CLIENT acknowledges and agrees that all trademarks of Magileads shall remain the exclusive property of Magileads.

Neither party may register or attempt to register any trade name, logo, trademark or copyright belonging to the other party anywhere in the world except with the express written permission of the owner.

Upon termination of the Agreement, each party shall cease using the trademarks, service marks and/or trade names of the other party, except as may be agreed to in writing by the parties or as permitted by applicable law.

8° Indemnification – Liability – Force majeure

  • In accordance with common law, each party shall be liable to the other party for damages arising out of its contractual obligations hereunder.

Magileads’ liability is limited to compensation for direct damages suffered by the CLIENT.

Magileads shall not be liable for any special, indirect or consequential damages arising out of or in connection with this Agreement, for loss of profits, loss of data or costs of procurement of substitute products or services, even if such party has been advised of the possibility of such damages.

Any action directed against the CLIENT by a third party (in particular its customers) constitutes an indirect prejudice and consequently does not give right to compensation.

Furthermore, Magileads shall not be liable for the consequences of the analyses and actions taken by the CUSTOMER based on the use of the SOLUTION and the Services.

Magileads shall not be liable in case of hacking, fraudulent intrusion or theft of data except in case of non-compliance with the rules of the art commonly accepted in the profession resulting from an inexcusable fault on the part of Magileads

9° The CLIENT acknowledges:

  • that he/she must perform all checks before using the

That, because of the information brought to its attention in the contractual documents, Magileads has fulfilled its obligations to advise and inform, in particular with regard to the characteristics and limits of the Services to which it has subscribed.

That the services provided by Magileads are subject to the contingencies of the Internet network (reliability, saturation) and to the quality of the service provided by the ISP, the damaging consequences of which, in view of the skills and qualifications of Magileads’ staff, are unforeseeable. The responsibility of Magileads is thus limited to the hardware and software installed on its servers;

That he knows the Internet network, its characteristics, its limits, he agrees to support the possibility of the existence of imperfections or unavailability of servers and networks

given the nature and complexity of the technologies that are implemented, each Party acknowledges that the SOLUTION and the Services cannot be free of Anomalies, failures, interruptions and unavailability. In the event of incidents resulting from elements under the responsibility of one of the Parties, the other Party undertakes to inform the latter, which undertakes to make its best efforts to remedy the situation.

In addition, CUSTOMER acknowledges that:

  • Magileads is a passive conduit for the distribution of the CONTENT of the messages and that Magileads has no obligation to review the CONTENT to determine if it may result in any liability to third parties;
  • Magileads shall not be responsible for the data collection methods used by the CLIENTS and the use of the FILES made by them;

9-1 In the event that Magileads is held liable, Magileads shall only be liable for direct damages resulting from a proven fault. In this case, the damages due will be capped at an amount equal to the sums paid by the CUSTOMER for the three (3) month period preceding the event(s) that gave rise to such a challenge.

Magileads indemnifies CUSTOMER against any infringement action with respect to the elements of the Services and the SOLUTION implemented or provided by it in performance of the Terms and Conditions.

CUSTOMER shall indemnify and hold Magileads harmless from and against any and all costs, losses, liabilities and expenses, including all court costs, expenses and attorneys’ fees that Magileads may incur, suffer or incur for any reason whatsoever arising out of any legal action, suit, arbitration or other third party claim, whether commenced or threatened, arising out of or as a result of a CUSTOMER message containing :

  1.  Any information contrary to public order and morality to the legal provisions in force regulating communications and correspondence.
  2.  Any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable information, including, without limitation, any transmission constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state or federal law, is prohibited.
  3.  Any misleading or deceptive information or misrepresentation with respect to the products or services offered by the CLIENT or its
  4.  Any letter that is part of a chain or illegal pyramid scheme.
  5.  Any information, audio, video, graphics, software or other work that violates the copyright, trademark or intellectual property rights of any other person
  6.  Any other misleading information that implies affiliation with or sponsorship of any person or entity other than the CLIENT or its customers without the written consent of such person or entity
  7.  Any information delivered to, anyone who has not given CUSTOMER prior consent to receive email communications.
  8.  If CLIENT fails to respond to complaints or requests sent by RECIPIENTS or
  9.  Any other breach by the CLIENT of the Terms and Conditions

10° – Force majeure

In accordance with the provisions of Article 1148 of the Civil Code, each of the parties will be released from any responsibility if the non-performance of its obligations results from a case of force majeure, within the meaning of the jurisprudence in force.

In the event of force majeure, the parties shall use their best efforts to continue the contract.

The case of force majeure suspends the obligations arising from this contract for the duration of its existence. However, if the case of force majeure lasts for more than thirty (30) consecutive days, it shall entitle either party to terminate the present contract by operation of law eight (8) days after sending a registered letter with acknowledgement of receipt notifying this decision.

11° Confidentiality

The CLIENT and Magileads undertake to keep confidential during the term of the contract and after termination of the contractual relationship, all information and documents concerning the other party of any nature whatsoever, and in particular – but not limited to – economic or technical, to which they may have had access during the performance of the contract, unless otherwise authorized by the other party.

Magileads agrees not to disclose or exploit the CAMPAIGNS made by the CUSTOMER for any use other than that set forth herein, without the prior consent of the CUSTOMER.

The features, interfaces and processes of the Magileads ONLINE APPLICATION are the intellectual property of Magileads and are protected as such.

Both parties will therefore take all necessary measures to ensure the secrecy and confidentiality of all information and documents transmitted to their personnel under their responsibility. This clause does not apply to information that is in the public domain or that has been made known to either party prior to the performance of the services.

However, the CUSTOMER expressly authorizes Magileads to mention its name as well as its logo, its brand in its list of commercial references. Furthermore, the CUSTOMER acknowledges that Magileads may disclose to third parties the existence of this contract and all or part of the mission that has been entrusted to it.

It is understood, however, that for any commercial promotion operation or for any use mentioning information of a commercial, industrial, technical or financial nature communicated by the CLIENT, or of which it would have become aware during the performance of this contract, Magileads undertakes to request the CLIENT’s authorization, which it will grant or refuse.

This request for authorization is made by any means. The CUSTOMER has a period of fifteen (15) days from the request for authorization to agree or refuse. In the absence of a response from the CLIENT at the end of this period, it is deemed to have accepted.

Magileads is prohibited from making any other use than the one mentioned above and in particular from transmitting this information to a third party, whether free of charge or against payment.

12 ° Miscellaneous

Transfer

The Contract shall not be subject to total or partial assignment or transfer to another company without the prior written consent of the other party.

Modification

Magileads reserves the right to change the terms and conditions and applicable rates at any time. The general terms and conditions will come into effect as soon as they are posted on the SOLUTION. For the modified general conditions and/or tariffs, they will come into effect after their notification to the CLIENT and his acceptance.

Relationship between the parties

The Agreement shall not be construed as creating a joint venture or principal and agent relationship between the parties, nor shall it impose upon the parties any obligation for any loss, liability or other obligation incurred by the other party, except as expressly set forth herein.

Dispute, applicable law and jurisdiction

In the event of a dispute relating to the execution or interpretation of the clauses of the present conditions, the parties shall endeavour to resolve any disputes that may arise between them amicably.

In the absence of an amicable agreement, the contract is subject to French law. Any dispute relating to the interpretation, execution and termination of the contract shall be submitted to the Commercial Court of Nanterre, 4 rue Pablo Néruda, 92020 NANTERRE.

This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreement. The Special Conditions, the appendices and the price list complete the present General Conditions of Sale and are inseparable from them. However, in case of contradiction, the Special Conditions shall prevail.

Each party acknowledges and agrees that the other party has not made any representations, warranties or agreements of any kind, except as explicitly provided herein.

Lead generation tools, sales prospecting, lead nurturing, lead retargeting, lead scoring, PRM

SAS KA-Groupe – Magileads with a Capital of 20 000 Euros whose head office is located at 9 rue du Chalet, 92600 Asnières-sur-Seine registered at the Registre du Commerce et des Sociétés de Nanterre under the number of R.C : 848746632 – APE 6201Z – N° TVA : FR14 788769016. Represented by Mr. François KOLLI, acting in his capacity as General Manager, duly authorized for the purposes hereof