Terms of Service

eMarketeer 

Version 2018-05-21

These general conditions regulate the relation between eMarketeer AB (org. nr 556631- 4497) and the Customer, and constitute an integrated part of the agreement reached between the parties with respect to software concept eMarketeer (“Agreement”). Note that this includes Data Processing Agreement (DPA) Appendix A, which is an integrated part of this agreement.

1. eMarketeer AB

eMarketeer AB hereafter called “eMarketeer” is a leading provider of tools to make marketing and sales work smarter. We believe that tools for marketing and sales communication should be more effective, more powerful, more fun and a lot easier to use. eMarketeer provides tools to automate the distribution of information, response and follow-up processes to optimize customer communication and customer service.

Business Concept
eMarketeer provides software for automation of customer care and communication to optimize your time, revenue and relations with your customers.

Our Vision
eMarketeer vision is to create the leading system platform and to be the logical choice for companies that want to optimize customer care and communication.

Our Mission
eMarketeer’s mission is to help companies around the world become experts at communicating with and learning from their customers.

2. eMarketeer

In the terms of service set out in this agreement with appendices (the ‘agreement’), eMarketeer offers the customer a SaaS-service, hereafter called “Service”, that allows the customer to create, carry out and follow up its activities within marketing, sales, training and internal communication. Examples of such activities are newsletters, campaigns, marketing automation, mobile apps, customer satisfaction reviews, invitations, questionnaires, evaluations and event administration.

eMarketeer is responsible for hosting, support and maintenance (HSM) of the Software.

Hosting
The operating environment of the eMarketeer service provided by eMarketeer is being hosted by Amazon Web Services (AWS). AWS handles hosting in a manner certified by external parties, including FBI’s Criminal Justice Information Service, Cloud Security Alliance, Cyber Essentials Plus, The Department of Defense (DoD) Cloud Security Model (SRG), Federal Risk and Authorization Management Program, The Family Educational Rights and Privacy Act (FERPA), The Federal Information Processing Standard (FIPS) Publication 140-2, ISO 9001.
AWS maintains certification with robust security standards, such as ISO 27001, SOC 1/2/3 and PCI DSS Level 1. Their commitment to providing a secure hosting covers physical access to used hardware as well as handling catastrophic events like power outage and internet outage.

More details on all aspect of our hosting can be found here: https://d0.awsstatic.com/whitepapers/compliance/AWS_Risk_and_Compliance_Whitepaper.pdf

Storage of customer data
Data is stored within EU.

Backup and restore
The database is backed up daily, and old backups are kept for 30 days. This backup is intended to be used to restore services in case of a catastrophic event, e.g. server crash.More details about security and data protection can be found in eMarketeer Information Security Policy.

3. Training

Training for users of the Service is provided by video and manuals online. eMarketeer provides additional training and consultation services in accordance to the current price list.

4. Support

eMarketeer provides support for the Service via e-mail and telephone. The support is available Monday-Friday 09.00 to 17.00 CET, excluded public holidays, and 09.00 to noon CET on the day before holiday. The support is available to registered users. The following topics are covered by support obligations:

  • Advise in administration of eMarketeer
  • diagnosis of problems or performance deficiencies of the Service
  • resolution of the problem or performance deficiencies of the Service

The following topics are not covered by support obligations:

  • Production of activities in the Service
  • Use of other applications that are integrated to the Service
  • Due to the nature of the Internet, eMarketeer cannot guarantee the continuous and uninterrupted availability and accessibility of the Service.

In the event that eMarketeer deems that the need for support for customer cannot be met in an acceptable and practical manner over phone or e-mail, eMarketeer will offer consultancy services in accordance with current price list.

5. Scope of the service

5.1 eMarketeer shall provide the Service in accordance with the agreement including any supplemental agreements.

6. Rights of customer

By signing this agreement, the Customer gives his or her full consent to receive communication from eMarketeer in forms of email, SMSs and/or phone. The Customer has ‘the right to be forgotten’ and can be withdrawn the consent at any time by contacting eMarketeer.
6.1 The Customer is hereby granted a non-exclusive, non-transferable right to use the Service in accordance with the agreement.
6.2 The usage of the Service by the staff of the customer requires personal registration and log-in. In connection with the registration of each user, each user shall accept and approve an undertaking in accordance with the main agreement (End User License Agreement).
The Customer is fully responsible for the staff that is offered access to the service.
6.3 eMarketeer owns or holds through the license from rights holders, all rights to the Service and any new versions thereof.
6.4 The Customer shall not make or permit sale transfer or service bureau use of the Service or the making of any modifications, additions or enhancements to the Service, or cause or permit the reverse engineering, disassembly, or de-compilation thereof. Copyright and all other rights concerning modifications of the service shall inure to eMarketeer without any separate compensation.

7. System requirements and access to the Internet

Access to the Service is obtained over the Internet from the computer equipment of the customer. Customer shall at its own cost and expense maintain updated web browser software and Internet connection to use the Service. Recommended system requirements can be obtained from eMarketeer.

8. Updates and new functionality

8.1 eMarketeer carries out the ongoing development of the Service and the Service will be upgraded with new functionality from time to time. eMarketeer has the right to upgrade the Service without notice, provided that the modified functionality does not diminish performance or accessibility. General modifications are provided as part of eMarketeer hereunder. Major upgrades are made available as soon as general availability is at hand.
8.2 The Customer has the option to enhance the Service with additional functions from eMarketeer. Once delivered to the customer, such functions are thereafter included to the Service.

9. Maintenance, support and availability

9.1 eMarketeer shall use reasonable efforts to ensure that the Service is available over the Internet without interruptions. Errors under the Service control shall be corrected by eMarketeer. Customer reports deviations in the functionality of the Service in the eMarketeer designated system. eMarketeer shall always be allowed to rectify errors within a reasonable time before a breach of contract is at hand.
9.2 eMarketeer shall have the right to take actions that affect the availability of the Service provided that such effect is justified from a technical or security perspective. eMarketeer informs the customer in advance of any scheduled maintenance on eMarketeer Status page.

10. Data Protection

10.1.1. The Customer owns the rights to its data as data controller, and eMarketeer acts as a data processor on
the Customer’s behalf. All processing by eMarketeer of the personal data and other data provided by the Customer shall be in accordance with the applicable laws. eMarketeer ’s processing of personal data on behalf of the Customer shall therefore only be done in order to provide the service and shall be subject to the Customer’s written instructions.
10.1.2. As eMarketeer is a data processor and the Customer is a data controller, the parties obligations regarding
the processing of personal data are regulated in the data processor agreement attached as Appendix A. With signing this document, the Customer accepts both this terms of service and the data processor agreement.
10.1.3. The Customer is obligated to keep user logins and passwords to the Product secret from any unauthorized
users or third parties.
10.1.4. The Customer is obligated to ensure that the personal data provided by the Customer and used in the
Product is processed by the Customer in accordance with all applicable laws. The Customer is obligated to ensure that the Customer’s data provided in the Product, including personal data, do not violate any third party intellectual property rights and/or any applicable legislation. eMarketeer is entitled to delete any data that in the sole discretion of eMarketeer constitutes a breach of the aforesaid undertaking by the Customer, and the Customer will not be entitled to any compensation in that respect.

11. Liability

11.1 eMarketeer is not liable for any data provided by the Customer in the Service.

11.2 With the limitations pursuant to this agreement, eMarketeer is liable for direct damages due to willful misconduct or gross negligence by eMarketeer.

11.3 in no event eMarketeer shall be liable to the Customer or any party related to the Customer for any indirect, incidental, consequential, special, exemplary, or punitive damages(including, without limitation, damages for loss of business profits, business interruption, loss of business information, loss of data or other indirect losses, such as lost profits, diminished production, costs of retaining a consultant, costs of equipment and similar costs or losses.

11.4 eMarketeer’s obligation to pay damages in the case of breach of contract is, in the absence of intent or gross negligence by eMarketeer, limited to an amount equal to the accumulated HSM-fees paid by the customer during the preceding 6 month-period from the point in time when the breach of contract was claimed.

11.5 eMarketeer hereby warrants that eMarketeer does not infringe upon any right held by a third party. Customer shall without delay and in writing notify eMarketeer of claims presented by third parties concerning infringements of copyright or other intellectual property right on account of the customer’s use of the service.

11.6 In the event that a third party presents claims purely on account of the customer’s use of the service, the customer shall keep eMarketeer indemnified from such claims.

12. Sub-consultants and third party products

12.1 eMarketeer is entitled to freely appoint sub-consultants. eMarketeer is responsible for work performed by the sub-consultant, however not for any errors or defects caused by third-party software.

12.2 eMarketeer shall not be liable for defects in the equipment for Internet access of the Customer. 

13. Secrecy

13.1 All business information disclosed by one party to the other in connection with this agreement, shall be treated as confidential information unless such information is part, or later becomes part, of the public domain through no fault of the other party or it was later obtained by the other party from independent sources free from any duty of confidentiality. Each party’s confidential information shall be held in strict confidence by the other party, both for the duration of this agreement and thereafter, exercising the same standard of care as it uses to protect its own confidential information, and shall not be used or disclosed by the other party for any purpose except as necessary to implement or perform this agreement, or except as required by law.

13.2 eMarketeer undertakes to ensure that its staff has signed the confidentiality agreement(compliant with GDPR) in relation to the information of the customer included in the Service.

13.3 The Customer is responsible for ensuring that usernames and passwords are guarded safely, are used only by the intended users and do not come into the hands of any unauthorized users. Furthermore, the Customer is responsible for any unauthorized use of the Service through its equipment or systems.

14. Protecting and handling personal information

14.1 The Customer is using both manual and automatic processing of personal data that exists in eMarketeer. The processing of personal data is regulated by privacy laws and the customer is responsible for the correct management of such data in accordance with current local as well as international legislation. eMarketeer will never share personal data with any third party in other circumstances than what will be needed to comply with the agreement.

14.2 eMarketeer reserves the right to review, process and store the personal data and customer information that the customer stores in the Service otherwise eMarketeer has no right to use the customer information beyond what is necessary to comply with the agreement.

14.3 To prevent unauthorized access and/or use of the Service, eMarketeer uses secure login via HTTPS (Hypertext Transfer Protocol Secure), a protocol for encrypted transport of data via the HTTP protocol as well as personal user credentials and acceptance of end user license agreement for all users.

15. Fees and payment

15.1 Customer shall pay fees and expenses in accordance with the agreement. All amounts are exclusive of VAT and other taxes and duties.

15.2 Payment for ‘pre-paid subscription’ (yearly subscription), monthly subscription or ‘pay as you go’ shall be made ten (10) days from the day of invoice. Thirty (30) day payments are possible but require a credit evaluation. eMarketeer may apply a late charge on overdue invoices at a rate allowed by applicable law, whichever is less, from the day after the due date until the outstanding invoice has been paid in full. Card payment is paid in advance.

15.3 Additional services offered by eMarketeer, such as consulting, are invoiced monthly in arrears.

16. Term and termination

16.1 Terms
This agreement is valid once the Customer has agreed to the terms of the agreement or started using the Service. Said electronic copy of the terms is presented to the customer the first time the customer uses the service.

16.2 Subscription: Monthly
The notice period is three (3) months from the date that eMarketeer receives written termination notice of the agreement.

16.2.1 Subscription: Pre-paid
The agreement applies to a period of twelve (12) months. Initial period (1st year) starts from the day of the purchase order or the date the agreement is signed and will be charged from that start date until the last day of December. Thereafter (year 2), yearly contract period applies from January 1st to December 31st, with annual billing in January. SMS text messages are billed monthly in arrears. Unless notice of termination of the agreement is provided no later than three months prior to the end of the contract period, the agreement will be prolonged by one (1) year at a time with a notice of a termination period of three months.

16.2.2 Pay as you go
eMarketeer reserves the right to terminate this agreement if the account has not been active for a continuous period of twelve months

16.3 Each party is entitled to rescind the agreement in the event that the other party is in material breach thereof and does not rectify the breach within thirty days from obtaining written notice thereof. Each party is entitled to rescind the agreement in the event that the other party is declared bankrupt, enters into composition proceedings or liquidation or can in order ways be assumed to be insolvent.

17.4 eMarketeer shall have the right to terminate the Customer’s account to access the Service with immediate effect if the customer uses the service:

  • In a way that constitutes a criminal act or contrary to applicable law (especially personal data protection legislation and anti-spamming legislation);
  • In a way that constitutes a risk of damage to eMarketeer or a third party;
  • In a way that constitutes a breach of eMarketeer safety instructions;
  • In the case of non-payment of fees or costs pursuant to the agreement

17. Consequences of termination

17.1 Upon termination of the agreement, it is customer’s responsibility to copy and save previously stored information. eMarketeer is responsible for customer data to be erased from the Service database/s.

18. Relief

18.1 A party (including its sub-contractors) is relieved from liability for a failure to perform an obligation under the agreement if such failure is due to a circumstance of the type stated below (Relieving circumstance) and the circumstance prevents or makes substantially more difficult the timely performance of such obligation. A Relieving circumstance shall be deemed to include inter alia acts or omissions of authorities, new or amended legislation, leaving of personnel, illness or other reduction of work capacity, death, conflicts on the labor market, blockade, fire, flood, loss or destruction of property or data of major significance or a major accident.
18.2 If a party wishes to claim relief pursuant to the above provisions, then he shall without unreasonable delay inform the other party thereof in order to be able to invoke such a claim.
18.3 Notwithstanding the above (with regard to relief from liability), a party may under the stated circumstances rescind the agreement if the other party’s performance of a certain obligation has been delayed by more than three months.

19. Assignment

19.1 Customer may not in wholly or partly assign its rights and/or obligations under this agreement to any third party without the prior written approval of eMarketeer.

20. Changes

20.1 eMarketeer reserves the right to change prices with a 30-day notice in addition to general changes in the price list on a yearly basis.

20.2 Notwithstanding the above, eMarketeer shall always have the right to with immediate effect carry out changes (including price) that are caused by acts or omissions of authorities or new or amended legislation.

21. Disputes and governing law

21.1 Any dispute arising out of or in connection with this agreement shall be finally settled by arbitration in accordance with the provisions of the Swedish Arbitration Act (SFS 1999:116).

The arbitration proceedings shall be conducted in English and take place in Stockholm.

21.2 This agreement shall be construed in accordance with and be governed by the laws of Sweden.