General terms and conditions of Flexmail

1. General introduction

1. The general terms and conditions (hereinafter: the ‘General Terms and Conditions’) apply to all offers, orders and agreements relating to the supply of services and/or products to the Customer by Flexmail, with registered office in Jaarbeurslaan 29 bus 31, 3600 Genk, with company number 0835.786.642 (the ‘Services’).
2. These General Terms and Conditions apply both to Services aimed at sending transactional communications (‘Transactional Services’) and to Services aimed at sending marketing and promotional communications (‘Marketing Services’). Both forms of Services are offered through different plans (‘Fee Plans’) entitling to a certain volume of Services (‘Volume’), and entitling to accounts or sub-accounts for a certain number of users (‘Users’), in the form of a subscription (‘Subscription’).
3. By making use of Flexmail’s Services or creating an account, you (hereinafter: the ‘Customer’ or ‘you’) agree to these General Terms and Conditions. The terms of this Agreement shall prevail over any other document prepared during the provision of the Services, such as invoices and general terms and conditions of the Customer, and receipt of such other document shall not imply acceptance of its contents. The Parties acknowledge that the General Terms and Conditions represent an equitable balance between the Parties given prevailing market practices and the nature of the services, goods or works, and constitute the negotiated terms and conditions between the Parties.
4. These General Terms and Conditions, the anti-spam policy, privacy policy and acceptable use policy form an integral part of the agreement between Flexmail and the Customer (the ‘Agreement’).

2. Amendments to or deviations from the General Terms and Conditions

1. In the event of a valid reason to do so, Flexmail can amend or modify these General Terms and Conditions and the prices of the Services from time to time by sending the amended terms and conditions to the email address associated with your account or by means of a notification through its Services. The parties agree that, in any event, the following shall be considered ‘valid reasons’: a change in the technology used, a change in the prices charged by Flexmail’s suppliers, increases in costs to provide the Services or changes in applicable regulations. Unless otherwise stated in this notice, the revised General Terms and Conditions will be effective immediately and your continued access to and use of the Services after the notification is provided to you will constitute your acceptance of the amended General Terms and Conditions. If you disagree with the amended General Terms and Conditions, you have the right to unilaterally terminate the Agreement within five working days of receiving the amended General Terms and Conditions.
2. Deviations from the General Terms and Conditions shall only be enforceable against Flexmail if Flexmail has expressly accepted such deviations in writing. In such a case, the remaining General Terms and Conditions shall continue to apply. With regard to future services, the Customer cannot derive any rights from previously agreed-upon deviations.

3. Accounts and security

1. To make use of the Services, you are required to create an account by completing the registration form on the login page. You must provide reliable, accurate, current and complete information about yourself as requested in the registration form. As part of the registration process, you will be asked to provide an email address, user name and password for your Flexmail account.
2. You are responsible for the security of your account, user name, passwords and files and for all uses of your account and of the Services in your name or on your behalf. Flexmail reserves the right to refuse registration or cancel the accounts that it deems inappropriate. If you discover or suspect that someone has accessed your account without your permission, you must notify Flexmail immediately.
3. By creating a Flexmail account, you agree to receive electronic messages from Flexmail that are necessary for the provision of the Services (e.g. emails or messages posted using our Services). These messages may include notices about your account (such as payment authorisations, password changes and other transactional information) or other messages and form part of your relationship with Flexmail.
4. Flexmail’s service desk is the Single Point of Contact (SPOC) for call and incident handling. The service desk owns all IT-related incidents, requests, problems and change tickets. The service desk coordinates first and second-line service for all contracted services. The service desk carries out incident management for Flexmail services.
5. Depending on the Fee Plan chosen, the Customer will designate one or more authorised Users, compile a list of these Users and communicate this list to Flexmail before the Services are activated. These authorised Users may contact the contact person at Flexmail during a specified time window in connection with change requests and requests for information.
6. Authorised Users may attend specific training at Flexmail for which a separate price will be agreed upon.
7. All accounts and sub-accounts remain the property of Flexmail.
8. Flexmail has the right to verify the number of Users each month in relation to the allowed number of Users under the Fee Plan. Both Parties acknowledge that the determinations made by Flexmail are conclusive and probative in this regard.

4. Obligations of the Customer

1. The Customer shall at all times cooperate in good faith with Flexmail to enable the provision of the Services.
2. The Customer must use the Services at all times in accordance with the Acceptable Use Policy. The most recent version can be found at https://flexmail.be/acceptable-use-policy.
3. The Customer must use the Services at all times in accordance with all applicable legal provisions.
4. If the Customer fails to comply with their obligations under Article 4, and remains in default for 10 working days following a written notice of default from Flexmail, they agree to bear all costs and charges incurred in connection with any additional services or actions provided by Flexmail necessary to resolve issues arising from the Customer’s failure to comply with their obligations under this article.

5. Programmes, prices and billing

1. Marketing services
   1. You can make payment for Marketing Services by means of (i) a monthly Subscription or (ii) email credits purchased in advance.
   2. If you choose to pay using a monthly Subscription, you expressly agree that:
      (a) Flexmail is authorised to charge you a monthly fee for your Subscription (in addition to any applicable taxes and other charges) for as long as your Subscription continues, and;
      (b) your Subscription shall continue until (i) you cancel the Subscription, (ii) Flexmail suspends the Subscription or (iii) access to the Services ceases in accordance with these General Terms and Conditions. For more information on prices and subscription types, go to the prices page on Flexmail’s website (https://flexmail.be/pricing).
   3. You can also choose to buy email credits to use the Services. Email credits for ‘Pay As You Go’ and ‘Prepay’ accounts expire 12 months from the date they were ordered. Any unused email credits expire after this period and can therefore no longer be used after the aforementioned 12-month period.
   4. If you have not logged into your account for twelve (12) months or more, Flexmail may deem your account inactive and delete the account and all related data and email credits.
   5. Prices can be found on the prices page on the websit (https://flexmail.be/pricing). Prices in offers are valid for the period specified in the offer or, if no period is specified, a period of fifteen (15) working days.
   
   
2. Transactional Services
   1. You can pay for Transactional Services through a monthly Subscription. When you take out a Subscription for Transactional Services, you agree to monthly recurring billing starting on the day you take out the Subscription. The Volume of Transactional Services under your Subscription shall be billed monthly on a ‘use it or lose it’ basis. Unused emails shall never be carried over to the next month.
   2. When you sign up for a Subscription, you confirm and expressly agree that:
      a) Flexmail is authorised to charge you a monthly fee for your Subscription (in addition to any applicable taxes and other charges) for as long as your Subscription continues, and;
      b) your Subscription shall continue until you cancel the Subscription or until Flexmail suspends the Subscription or access to the Services ceases in accordance with these General Terms and Conditions. For more information on prices and subscription types, go to the prices page on Flexmail’s website (https://flexmail.be/pricing).
   3. Given the nature and potential critical importance of the content of transactional emails, you can exceed the Volume of Transactional Services under your Fee Plan. It is your responsibility to monitor this limit. If you have not correctly estimated your usage of your Fee Plan, overruns will be automatically charged for an additional cost per bundle of 1,000 emails. These blocks shall be calculated and invoiced at the end of the billing month.
   4. Your Subscription will not be automatically adjusted to a Fee Plan with a higher Volume of Transactional Services. You yourself are responsible for adjusting your Subscription to avoid exceeding your limit.
   5. You can change your type of Fee Plan for Transactional Services at any time to increase or decrease your Volume in your account settings. Any such adjustment will take effect immediately and result in a new invoice and new renewal date. When making a change to your Fee Plan, you will lose the remaining Volume under the original Fee Plan. You are responsible for choosing the most ideal time for this change. A reduction in the Volume will take effect from the next renewal.
   6. Subscription prices and the associated charges for exceeding limits can be found on the prices page on the website (https://flexmail.be/pricing). Prices in offers are valid for the period specified in the offer or, if no period is specified, for a period of fifteen (15) calendar days. Unless stated otherwise, all prices are in euros and exclude Belgian VAT.

6. Payment terms

1. Invoices shall be paid within thirty (30) calendar days from the invoice date.
2. By using a credit card or other payment method accepted by Flexmail, you declare and warrant that you are authorised to use the designated payment method. You also authorise Flexmail (or a third-party payment processor) to collect the full subscription fee (and applicable taxes and other charges) through your chosen payment method. If the payment method cannot be verified, is invalid or is otherwise not acceptable, your account may be suspended until your payment has been processed. Defaults of outstanding amounts must be rectified before your Subscription can be continued.
3. Payment of an invoice, or part of it, implies acceptance of the entire invoice and acceptance of the Services invoiced.
4. If an invoice is not paid by the due date:
   a) starting on the due date for payment, the Customer shall automatically and without prior formal notice be liable to pay interest under the Law of 2 August 2002 on combating late payment in commercial transactions. The aforementioned interest will be capitalised;
   b) the Customer shall also be liable to pay an additional fixed fee for administration costs in the amount of ten (10) percent of the invoiced amount, with a minimum of seventy-five (75) euros and a maximum of two hundred and fifty (250) euros;
   c) the Customer shall owe judicial and extrajudicial costs in connection with the collection of outstanding invoices exceeding the amount in b);
   d) Flexmail shall have the right to exercise its rights under Article 7.
   
5. If an invoice is not paid on time, Flexmail reserves the right to suspend the ability to provide Transactional Services for your account pending payment.
6. Partial payments will always be accepted with all reservations, without any acknowledgement and without any obligation and will be offset as follows: firstly, against any outstanding legal costs in connection with the recovery of outstanding amounts; secondly, against interest due; thirdly, against the reimbursement of administrative costs; and, finally, against the principal sum.
7. Objections to an invoice must be made in writing within a period of fourteen (14) calendar days from the invoice date. After the expiry of this period, the Customer shall be deemed to have accepted the invoice.
8. The Customer may only suspend a payment if it has demonstrated that Flexmail has failed to fulfil a contractual obligation and if it has given Flexmail prior written notice thereof. The amount of the suspended payment may only relate to that portion of the Services related to the (alleged) non-compliance.

7. Duration and termination

1. Your Subscription will remain valid for a period of 1 month. After the expiry of this initial period, the Agreement shall be automatically and tacitly renewed for successive periods of 1 month each, subject to prior notice of termination by either Party.
2. For Marketing Services, you can also take out a Subscription for a period of 1 year. After the end of this initial period of 1 year, your Subscription shall be automatically and tacitly renewed for successive periods of 1 year each, subject to prior cancellation by either Party.
3. This termination can be done by contacting Flexmail at info@flexmail.be. This type of message must be sent by the designated owner of the account or an authorised signatory. Without prejudice to Article 5.1.4, inactivity does not count as an automatic cancellation. Therefore, unless you have cancelled your account in accordance with this clause, you will continue to owe a fee for the Subscription to the Services.
4. Cancellations will only take effect at the end of the then current period in which the cancellation took place, and you will be responsible for all fees and any applicable taxes and other charges due up to and including the end of that subscription period. You are not entitled to any refund or compensation by virtue of your cancellation of your account, including in respect of previous payments.
5. Either party may, without prior appeal to the court and without any further notice of default, with immediate effect, suspend the Services or terminate the Agreement if the other party (i) is in material breach of its obligations under this Agreement and such breach is not materially remedied within twenty (20) working days after written notice of default by the defaulting party by the other party, which notice shall reasonably specify the nature of the breach or (ii) becomes involved in bankruptcy, insolvency or similar proceedings or otherwise goes into liquidation or ceases its operations.
6. Either party may, without prior appeal to the court and without any further notice of default, with immediate effect, suspend the Services or terminate the Agreement if the other party (i) is in material breach of its obligations under this Agreement and such breach is not materially remedied within twenty (20) working days after written notice of default by the defaulting party by the other party, which notice shall reasonably specify the nature of the breach or (ii) becomes involved in bankruptcy, insolvency or similar proceedings or otherwise goes into liquidation or ceases its operations.
7. For restoration of the connection to the Services after suspension, a reasonable additional fee may be payable by the Customer.

8. Intellectual property rights and licensing

1. Flexmail’s performance of its obligations under this Agreement or orders pursuant to this Agreement shall not result in any transfer of intellectual, industrial or other property rights to the Customer or its affiliates, and the costs paid by the Customer to Flexmail under this Agreement or orders pursuant to this Agreement shall not include compensation for any transfer of intellectual, industrial or other property rights.
2. All intellectual, industrial or other property rights in respect of works created by Flexmail, its employees, consultants or subcontractors, whether during the performance of the Agreement or otherwise, such as software, the Documentation and all equipment, documents, drawing technology, skills, know-how and information related to the software, whether prior to the Effective Date of the Agreement or otherwise, shall be vested in or licensed exclusively to Flexmail and/or its respective licensors as the case may be.
3. If it is necessary to use software owned by Flexmail or licensed to Flexmail for the provision of the Services, Flexmail shall, only to the extent necessary to enable the Customer to use the Services, grant a non-exclusive, non-transferable licence to the Customer to use the software during the period Flexmail provides the Services to the Customer. This type of licence is included in the price as stated in the Agreement or order.
4. The licence does not entitle the Customer to (a) copy, sell, lend, provide, rent, trade, disclose, assign or otherwise make the software available to third parties; (b) reproduce, reconstruct or otherwise duplicate the software; (c) reverse-assemble, reverse-compile or reverse-engineer the Software or to attempt to do so; and (d) use the Software with the intention of developing or assisting in developing software or any other method or module to perform (or substantially perform) the same function as that performed by (part of) the Software in question.
5. All intellectual, industrial or other property rights relating to modifications, adaptations and updates of software or to materials, documents, technology, drawings, skills, know-how and information relating to the Services or the software that have been made using information, advice or know-how originating from the Customer or its affiliates shall belong exclusively to Flexmail. The Customer and its affiliates shall not claim any rights in relation to the above-mentioned intellectual, industrial or other property rights or similar protection, and shall not take any steps aimed at registering, filing or protecting any alleged rights in relation thereto.
6. If the performance of the Services involves the provision of licences for third-party software, the Customer undertakes to strictly comply with the licence conditions provided by the relevant third-party software suppliers.
7. Each of the parties shall indemnify the other party against third-party claims arising from non-compliance with the provisions of Article 7 by the former party.
8. The Services allow you and other users created in your account to create, post, store, share or otherwise distribute marketing messages or other messages, including emails, text or SMS messages, photos, files and other material (collectively referred to as ‘Marketing Content’). Apart from the licence described below, you retain all rights in and to your Marketing Content. You grant Flexmail a non-exclusive, royalty-free, worldwide, fully paid and sublicensable licence to use and reproduce, adapt, publish, translate, distribute and display your Marketing Content to recipients or audiences created by you or otherwise in accordance with the settings specified by you in the Services. You may not create, post, save, share or otherwise distribute content that violates these General Terms and Conditions, including our anti-spam policy, or for which you do not have the rights necessary to grant us the above-described licence.
9. Flexmail retains exclusive rights and full ownership of all code, text and graphics used in the Services (including goodwill). In the event of termination of the Agreement by either party, the Customer shall hold full rights to their own list data held in the Flexmail database, which can be transferred to the Customer free of charge, provided no outstanding amounts are owed to Flexmail. You acknowledge and agree that the Services and Flexmail’s company names, logos, all names of related products and services, design marks and slogans (collectively referred to as the ‘Trademarks’) are the property of Flexmail or its affiliates or suppliers. You are not authorised to use the Trademarks in advertising or publicity or in any other commercial manner without Flexmail’s prior written consent. Your use of the Services shall not entitle you to any claims or ownership rights in the Services, the software or the Trademarks, and your use of the Services shall not be construed as the sale of rights in the Services, the software or the Trademarks. All property rights, as the case may be, remain with Flexmail or its third-party suppliers.

9. Client data

1. If you make use of the Services, you can import data relating to your clients (‘Client Data’). Flexmail uses Client Data solely to provide the Services to you, and in accordance with your instructions, and does not provide Client Data to third parties, except in the following cases:
   
   • Flexmail may share Client Data with external service providers if necessary for the provision of the Services or the management of the website.
   • Flexmail may disclose Client Data if it is required to do so by law, court orders or administrative decisions.
   • Flexmail reserves the right to use, disclose and share your information and Client Data to investigate or take (preventive) measures in connection with possible or actual fraud, unlawful activities, circumstances endangering the physical safety of persons or violations of these General Terms and Conditions, or otherwise comply with legal requirements.
2. The Customer is responsible for adequately and correctly informing the persons to whom the data relates and for obtaining the required legal basis in relation to the use and transfer of Client Data as referred to above.

10. Confidential information

1. ‘Confidential Information’ refers to all information disclosed or made available in any form to the other party by or on behalf of a party under this Agreement or orders pursuant to this Agreement, which is reasonably to be considered confidential or which is designated by a party as confidential, except information that:
   a) is already in the public domain other than due to a breach of this Agreement;
   b) is lawfully received from third parties not in breach of obligations of confidentiality;
   c) is developed independently by employees or representatives of either party who do not have access to the Confidential Information of the other party;
   d) is demonstrated to have already been known to the receiving party at the time of its publication; or
   e) that was produced in accordance with an applicable law or court order, provided that the receiving party gives the disclosing party reasonable notice of such law or order and an opportunity to object to and/or seek to limit such disclosure.
2. Each of the parties shall treat Confidential Information as strictly confidential, may not disclose or make available such Confidential Information to third parties in any way without the prior written consent of the other party and may only use such Confidential Information in connection with the performance of this Agreement or orders pursuant to this Agreement.
3. Both parties may disclose and make Confidential Information available only to employees, representatives and subcontractors involved in the performance of this Agreement and provided that they are bound by that same confidentiality obligation described in this article. Such disclosures must always be made strictly on a need-to-know basis.
4. Article 11 shall remain in force after termination of this Agreement for a period of twelve (12) months.

11. Liability

1. Your use of the Services is solely at your own risk – Flexmail has no control over, and is not responsible for, any content (third party or otherwise) available through or linked to its Services and does not endorse such content. The Services are provided in the actual state and subject to availability without any express or implied warranties, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, availability, accuracy, omissions, completeness, timeliness or delays with respect to the Services, information or products.
   1. Flexmail does not guarantee that the functions included in the Services shall be uninterrupted or error-free. Flexmail shall use all reasonable efforts to ensure that the Services are fully tested.
   2. Flexmail shall in no event be liable to the Customer or third parties for direct damage due to interruptions of the service as a result of circumstances beyond Flexmail’s control. Flexmail also shall not be liable for indirect damages, including but not limited to lost profits, lost savings or other incidental damages, consequential or special damages arising out of the operation or inability to use the Services, interference with service providers, telecommunications operators, the internet backbone, internet servers, computers or internet software of yourself or visitors to the website, even if Flexmail has been advised of the possibility of such damages occurring.
   3. Flexmail accepts no liability for consequential or indirect damages or losses suffered by Customer or its affiliates, such as, as the case may be, loss of data, loss of profits, revenues or turnover or other financial or commercial losses, whether such damages or losses result from breach of contract or tort.
   4. The total liability of each of the parties to the other party for any damage shall be limited to the total amount paid by Customer for the Services during the three (3) months preceding the event from which the damage arose, and in any event to a maximum amount of EUR 10,000 per calendar year.
   5. The above-mentioned limitations of liability do not apply in cases of wilful intent or gross negligence.

12. Indemnity

1. At Flexmail’s request, you agree to defend and indemnify Flexmail and its directors and employees from and against any third party claims against Flexmail arising from the use of the Services by or on behalf of the Customer, as a result of the Customer’s non-compliance with the General Terms and Conditions, including, without limitation, claims relating to copyright or patent infringement, misappropriation of trade secrets, defamation, libel, harassment, invasion of privacy or fraud.

13. Force majeure

1. ‘Force majeure’ shall be understood to mean the event or circumstance over which a party has no reasonable control, which has occurred without fault or negligence on the part of the party and which the party could not reasonably have prevented, as a result of which the affected party is temporarily or permanently prevented from performing all or any part of its obligations under the Agreement. In any event, a case of force majeure shall include: breakdowns or failures of the internet, network, electricity and telecommunications infrastructure and facilities, cybercrime, network attacks, (D)DoS attacks, power failures, internal unrest, government measures, mobilisation, war, terrorist attacks, strike, fire, the unavailability of one or more staff members (due to illness), epidemics, pandemics, import and export impediments and subcontractor failures.
2. Force majeure events shall exempt either party, for so long as such force majeure event continues, from its obligations under this Agreement, the performance of which has become impossible or impracticable, provided that the relevant party immediately notifies the other party in writing and describes the force majeure event and immediately resumes performance of the relevant obligations when and to the extent that the force majeure event ceases to exist. The parties are entitled to terminate this Agreement by providing notice if the performance of the Agreement remains suspended for a period of more than thirty (30) working days due to force majeure.
3. Neither party shall be entitled to claim damages in connection with the other party’s non-compliance with its contractual obligations due to force majeure.

14. Transfer

1. The rights under this Agreement cannot be transferred or allocated by you or your company.
2. Flexmail is entitled to transfer or allocate the rights under this Agreement to third parties.

15. Miscellaneous

1. If any provision of this Agreement is found by a court of competent jurisdiction to be definitively invalid, unenforceable or otherwise contrary to law and fairness, the parties agree that such provision shall be interpreted, limited, modified or, if necessary, nullified to the extent necessary to remove its invalidity or unenforceability, and that the other provisions of this Agreement shall remain in full force and effect.
2. Without prejudice to Article 2.2, waivers, amendments or modifications to the provisions of this Agreement shall only apply if agreed upon in writing by both parties. Non-exercise or suspension of the exercise of any rights, powers or remedies under this Agreement shall not be construed as a waiver of such rights, powers or remedies.

16. Applicable law and jurisdiction

1. These General Terms and Conditions and any dispute arising out of or related to this Agreement shall be governed exclusively by Belgian law.
2. All disputes arising from or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of Ghent.

17. Contact

For any questions related to the use of these General Terms and Conditions or the use of the Services, please contact info@flexmail.be.