General Terms & Conditions

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Swiss Marketing Systems GmbH (called “Mailflatrate” in the following) offers a web-based independent email marketing system on its website address A contract is thus concluded directly between the user and Swiss Marketing Systems GmbH, the operator of the email marketing system Mailflatrate, called “Mailflatrate” in the following, according to the following provisions.

§ 1 Scope of application

  1. The General Terms and Conditions in their current version apply to all present and future legal relationships between Mailflatrate and the user (Customer) utilising Mailflatrate.
  2. Extensions or restrictions of the GTC on part of the user are excluded.
  3. Using Mailflatrate without acknowledgment of these General Terms and Conditions is likewise inadmissible as well as any use by bypassing of the access methods intended for this purpose.
  4. Mailflatrate grants all registered users of Mailflatrate a non-exclusive right to use Mailflatrate. The user expressly agrees to these General Terms and Conditions at registration. The user shall be informed appropriately at a suitable place.
  5. The user does not acquire any copyrights to Mailflatrate. The user is accordingly also neither entitled to decompile Mailflatrate nor parts of Mailflatrate nor the underlying source code or to make this otherwise readable or utilisable.

§ 2 Services of Mailflatrate

  1. Mailflatrate operates the web-based email marketing system Mailflatrate. Mailflatrate is offered as an ASP service.
  2. ASP This means: Mailflatrate provides the technical platform for carrying out email marketing activities to the user. Mailflatrate carries out delivery attempts for all emails to be sent, however cannot guarantee successful delivery. Mailflatrate is only the transmitter of the emails and does not examine the legal, substantial or other criteria of their contents. Mailflatrate is therefore also not responsible for contents of the emails despatched via Mailflatrate.

§ 3 Registration

  1. The user must have registered himself/herself, in order to use the services of Mailflatrate.
  2. The user is obligated to fill out all fields of the registration form truthfully and correctly. Successful registration is only possible, if all mandatory fields have been completed.
  3. Only persons with full legal capacity or those acting in agreement with their legal representatives are entitled to use the services.
  4. The users are obligated to keep their password secret and not to pass it on to third parties. The user will notify Mailflatrate immediately, if he/she obtains knowledge of the fact that third parties have come to know or are using the password.

§ 4 Fees

  1. The fees to be paid for the use of Mailflatrate result from the respectively applicable price list.
  2. The fees specified in the respectively applicable price list are quoted without value added tax. In addition, the legal value added tax of currently 19% is applied.
  3. A separate fee agreement must be concluded for individual services of Mailflatrate, which are not specified in the price list.
  4. Mailflatrate shall issue a proper invoice to the user of Mailflatrate for the services to be provided that becomes due immediately after receipt. The services of Mailflatrate will be suspended immediately, if the user is in default of payment. At the same time default interest of 3% above the applicable discount rate accrues immediately.

§ 5 Participation rules

  1. With his/her acceptance, the user declares bindingly to want to use Mailflatrate. There is however explicitly no general right of use to Mailflatrate. Mailflatrate reserves the right to decide on acceptance of the registration for the use of Mailflatrate. A contract is concluded with acceptance by Mailflatrate and by the choice of a rate by the user and following activation by Mailflatrate.
  2. Mailflatrate reserves the right to specify the name and if necessary the logo of the registered user as reference on the website of Mailflatrate and to establish a link to the website of the registered user.
  3. The Mailflatrate user declares bindingly that the emails are only mailed to recipients of the user, who have also previously agreed to receive these emails (so-called Double-Opt-In procedure).
  4. On request of Mailflatrate, the Mailflatrate user must state in writing, in which manner the email addresses have been collected.
  5. The user must agree to the private policy, in order to conclude a contract.
  6. The user is obligated to specify in the email why the recipient is receiving the mailing.
  7. The use of Mailflatrate is forbidden for providers of Internet offerings with legally prohibited (goods /cracks offers, links to such offers or illegal MP3 files), radical, racist, pornographic, violence glorifying, insulting or other non-permissible contents.Furthermore, the use of Mailflatrate is prohibited for users with verifiably improper business practices.Moreover, Mailflatrate reserves the right to delete or close accounts at any time without giving reasons and to initiate criminal and civil measures against the user. This applies in particular, if Mailflatrate has reason to assume that the contents of mailings are grossly offensive, violate legal prohibitions, or are inadmissible. This includes for example mailings with the following contents:a) Mailings with contents violating legal regulations of the Federal Republic of Germany and/or European Community law
    b) Mailings, which infringe the rights of third parties, such as e.g. industrial property rights (trademark rights, copyrights, etc.) or general personal rights (including the right to informational self-determination)
    c) Mailings of pornographic contents and in particular news, which breaches the regulations of the Law for the Protection of the Youth.
    d) Mailings with racist, slanderous, insulting, violence glorifying and/or discriminating contents.
  8. Mailflatrate reserves the right to examine the contents of the mailings dispatched via Mailflatrate randomly.
  9. Mailflatrate is entitled to save the IP-address of the user at each mailing.
  10. Users, who use Mailflatrate, must be clearly recognizable as senders of a commercial message. They are obligated to specify their name/company name together with the complete address in the mailing. Furthermore, each recipient of an email dispatched by the user must be given the possibility to have himself/herself unsubscribed from the database. The user must point this out explicitly in each email. Unsubscribing emails must always be possible for the recipient without knowledge of access data (for example login and password). Acting in opposition to the above obligations is considered to be improper business practice in terms of § 5 subsection 7 of these terms of use and leads to the deletion of the Mailflatrate account.
  11. The user acknowledges that Mailflatrate is obligated for legal reasons to remove email addresses from the database and to put these on a black list, if an email addressed to a specific and same email address returns three times in succession as undeliverable (so-called hardbounces) or if recipient complaints have been received.
  12. The user acknowledges that dispatching mailings could be subject to the legal systems of the respective recipient countries and undertakes to observe the valid laws or other regulations applicable in these countries with regard to the dispatched mailings.
  13. The user undertakes furthermore not to dispatch any mailings by means of the software provided by Mailflatrate, whose contents are subject to a legal prohibition in a country in which the recipient has his place of residence or registered office.
  14. The user must notify Mailflatrate of a contact person with telephone number and email address for complaints. The response time on workdays must be 24h at the most.

§ 6 Liability

  1. Mailflatrate assumes no liability for the function of the provided systems. Mailflatrate and the user agree that it is not possible to develop computer programmes in such a way that they are error free for all application conditions. In particular, no liability is assumed for the transmission, completeness of the transmission and/or timeliness of the transmission of mailings.
  2. Mailflatrate is not obligated to maintain, not to interrupt or change existing information, data and services. Mailflatrate will however strive to inform the user in good time of the cancellation or suspension of an electronic service.
  3. Only the user, never however Mailflatrate, is responsible for the consequences caused by the contents and dispatch of a mailing.
  4. It is the responsibility of the user to save the information, data and other messages forwarded by other users or Mailflatrate immediately. Liability for a loss of data caused by neglect of this obligation is excluded.

§7 Data security

  1. The data of the customers are hosted on the servers of Mailflatratein a data container specially reserved for the user, so that neither other customers of Mailflatrate nor third parties have access to the customer data.
  2. Mailflatrate only uses state-of-the-art technologies to maintain data security. Mailflatrate will maintain this technological standard on one hand with regard to the ongoing advancement of information technology and on the other hand of the Internet. Moreover, competent subcontractors according to the aforementioned state-of-the-art technology will provide all services bought in by Mailflatrate.
  3. Mailflatrate is able to monitor the operation of the system around the clock precisely and to react to operational disturbances immediately. The customer data stored on the servers of Mailflatrate are backed up every 24 hours.
  4. The user acknowledges that confidentiality of the data hosted by Mailflatrate can only be guaranteed, if the user also considers the communicated access data as confidential. In the case of loss or if there is the possibility that an unauthorized person has come to know the access data, the user must inform Mailflatrate immediately in writing by fax or by email, so that Mailflatrate can arrange for deactivation of the Mailflatrate access.
  5. Only the user, never however Mailflatrate, is responsible for the consequences caused by the contents and dispatch of a mailing.

§ 8 Termination of the user rights

  1. The user can terminate his/her Mailflatrate account at any time without stating reasons at the end of a month. There is no minimum contract period.
  2. Mailflatrate expressly reserves the right to exclude certain users subsequently from using Mailflatrate without stating reasons.

§ 9 Invalidity clause

If one of the provisions of these General Terms and Conditions should be or become partially or completely invalid this does not affect the validity of the other provisions. Rather, the place of the ineffective provision is taken by a regulation, which comes closest to the intended purpose.

§ 10 General

  1. Baan is agreed as place of jurisdiction, as far as legally permissible.
  2. The user shall indemnify Mailflatrate following the first request from all claims asserted against Mailflatrate in connection with actions caused by the user. This applies in particular to all claims asserted in the context of an email with illegal contents sent or forwarded by the user.
  3. The user assures that the information made in the context of registration for a Mailflatrate account is correct. He/she will immediately notify Mailflatrate of changes.
  4. These terms of use are subject to the laws of the Federal Republic of Germany.

§11 Data protection

It is planned that the Mailflatrate system will regularly carry out mailings for the user. For this purpose, the user will provide his/ her customer data to Mailflatrate. Mailflatrate carries out mailings by means of its EDP systems and databases. This formal obligation should guarantee that the user enjoys data protection by Mailflatrate in terms of the Federal Data Protection Act to the full extent.

  1. For the period of co-operation and after, Mailflatrate undertakes to observe strictest confidentiality concerning all known or become known business and operational affairs of the user.
  2. We are obligated to data secrecy according to § 5 Federal Data Protection Act (BDSG) due to the assignment of tasks in our company. Accordingly, we are not allowed to collect, process or use personal data without authorization. Accordingly, we are likewise obligated to maintain data secrecy in our company also after termination of our activities for the user.
  3. We know that offences against data secrecy according to §§ 44 and 43 para. 2 BDSG and other penal provisions can be punished with prison sentence or monetary penalty.

§12 User declaration

  1. After termination of the co-operation in terms of the aforementioned sections, the user can demand that the data stored in the Mailflatrate database during the co-operation are deleted immediately.
  2. The user declares that Mailflatrate when complying with and observing the aforementioned declarations fully complies with data protection with regard to the user.
  3. The user assures that he/she owns the email addresses and that he/she has the permission of the respective recipients to write to them.
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