SERVICE PROVIDER CONDITIONS APPLICABLE TO THE SERVICE INCLUDED ON THE MDirector PLATFORM
Last update on 07/02/2025
1. CONDITIONS APPLICABLE TO THE SERVICE
1.1. MDirector, (hereinafter, “MDirector” or the “Platform”) is a technological platform the objective of which consists of managing, facilitating and optimizing tasks and operations of digital marketing for the client (hereinafter, the “Client”) through the use of the Platform, its services and features of which are in accordance with the terms and conditions described in the Particular Conditions (hereinafter, “Particular Conditions”), if the case, and the general service provider conditions that are set forth in this clause (hereinafter, “Service Provider Conditions” or “SPC)”.
1.2. The contracting of the services offered by MMSM is subject to the acceptance of the Service Provider Conditions and if the case, the Particular Conditions (hereinafter, together, the “Contract”) that shall be fulfilled in function with the services contracted by the Client (hereinafter, the “Services”).
1.3. In the event of a contradiction between the Particular Conditions and the Service Provider Conditions, the Particular Conditions shall prevail. The non-contradictory clauses are to continue in effect, and the Contract is to be deemed valid between the Parties.
1.4. The owner of MDirector is Marketing Manager Servicios de Marketing, S.L.U. ("MMSM"), with N.I.F. B-84459791, registered in the Mercantile Registry of Madrid at Volume 21786, Book 0, Sheet 70, Section 8, Page M-388107 with registered offices at Calle de Apolonio Morales 13C, 28036 Madrid.
1.5. The contracting of the Services of MDirector on the part of the Client (hereinafter, together, the “Parties”) may be performed as MMSM determines (i) through the contracting process proposed for being completed on the Platform or (ii) by means of the signing of the Contracting consisting of the Service Provider Conditions and, if the case, the Particular Conditions, both by written signature as well as by telematics means, considering both options valid by the Parties. In the event of continuing the contracting process of section (ii), the Client shall have to equally perform the contracting process provided on the platform in order to be able to enroll their account, although that subscribed to between the parties shall prevail upon execution of option (ii).
1.6. In any case, the acceptance or the subscription of the Contract, including the Service Provider Conditions (standard or negotiated) and, if the case, the Particular Conditions shall be performed by the person with sufficient authority to bind the Party which it represents in regard to the commitments set forth in said Contract.
2. SERVICES OFFERED BY THE PLATFORM
2.1. MMSM permits the Client to contract various Solutions or Services offered by MDirector through the Platform: E-mail and SMS Marketing, Landing Optimizer and/or Marketing Automation. Each one of these solutions shall have the functions described on the Platform.
2.2. In addition to the Solutions described, MMSM may offer another type of Service to the Client, that will be identified in the Particular Conditions. Both the standard Services offered through the Platform as well as the rest of the Services are to be deemed in any case “Services”.
2.3. The Services may incorporate new features in the future which, in any case, shall be governed by the conditions set forth in the Contract. MMSM reserves the power to modify the features of the Services, whether adding, eliminating or modifying a characteristic or feature of each mode. In the event that any of these additions, modifications or deletions constitute a substantial change of the Contract, the Client may request the termination of the Services under the terms described in Clause 3 of the Contract.
2.4. The Services of E-mail Marketing and SMS Marketing permit communication of the Client with the recipients included by the latter on the Platform through e-mail and/or SMS whether in a massive or transactional manner. Through a technological configuration, the Platform permits the automatic exchange of data with the information systems owned by the Client. The services of e-mail Marketing and SMS Marketing produce detailed reports that contain relevant information regarding the deliveries. The Platform permits the uploading of a creativity, its edition and modification or the select of some of the existing templates for their subsequent personalization. Likewise, the Platform permits the segmentation of recipients in the Client Databases.
2.5. The Landing Optimizer Service offers the possibility of creating landing Pages (pages of landing or destination) accessible through a web navigator (hereinafter “Landing Pages”) with the objective of collecting personal data. The Client is responsible for ensuring that the collection of such data is in conformity with the applicable regulation. Likewise, the Landing Optimizer service permits managing Landing Pages previously designed by the Client or those created making use of provided standard models as well as obtaining complete statistics and analysis of origins by means of the uses of metrics analytics and reports.
2.6. The Service of Marketing Automation permits automatically performing certain marketing actions and optimizing the communication with their users. Through the knowledge of data related to the behavior of the users and other data that the Client has, by means of the use of the features contracted of the Marketing Automation services, the latter may personalize the communication with them (via email or SMS)
2.7. In the event of contracting or a discrepancy between the Services described at any time on the Web Site of the Platform https://www.mdirector.com/ and that set forth in the Service Provider Conditions and/or if the case, the Particular Conditions, which are set forth on said Web site, shall prevail. The latter is where the more detailed and updated description of the services are set forth that results from the updates, improvement, new features, adaptation to trends, etc. In the event that the contracting or discrepancy involves a substantial change in the Contract that set forth in Clause 3 shall apply.
3. MODIFICATION OF THE SERVICE PROVIDER CONDITIONS
3.1. MMSM reserves the right to update the Service Provider Conditions at any time by giving a minimum notice of FIFTEEN (15) days through communication on the Platform itself or any other manner that permits its communication to the Client.
3.2. In the event that the updating of the Service Provider Conditions performed by MMSM involves some substantial change in the Contract, the Client may terminate the relationship early. They must communicate unequivocally their decision to MMSM within a period of TEN (10 days following the reception of the communication.)
3.3. In the event that this scenario takes place, MMSM shall repay the Client the amount that corresponds proportionally to the consideration paid with regard to the Service not used by the Client as of the date of the effective termination of the Contract.
4. CONDITIONS OF ACCESS AND USE OF THE SERVICES
4.1. In order to access the Services, the Client itself shall create an account by means of the registry through https://www.mdirector.com/ . The access and management of this account shall be performed by means of a username and password (hereinafter the “Credentials”) of access in accordance with the procedure described on the Platform.
4.2. Each client may be the holder of a unique account. In the event that additional accounts are created MMSM reserves the right to eliminate them.
4.3. The Client shall be solely responsible for maintaining the confidentiality of their Credentials. This responsibility applies to each and every one of the activities that take place through their credentials.
4.4. The Client shall immediately inform MMSM of any non-authorized use of their account or any other security breach. MMSM shall not be responsible for the losses that the Client may incur as a consequence of another person using their Credentials whether or not it occurred with their knowledge. In addition, the Client states and guarantees that all the information that it provides upon creating an account as well as for accessing or using the Service is and shall continue being complete and truthful.
4.5. The Client may only use the lists of e-mail addresses or telephone numbers of recipients that have given their express consent for receiving communications from the Clients (when said consent is a necessary requisite) and in any case, shall fulfill the terms and the applicable regulatory regime applicable in each case for the protection of personal data and/or the sending of commercial communications by electronic means.
4.6. MMSM prohibits the use of the Services for sending unwanted advertising messages (or SPAM messages), performing actions constituting phishing or other illegal uses, thereby being able unilaterally to end the Service under the terms established in a Clause of these Service Provider Conditions or take other appropriate measures against the Client who violates the policies of MMSM on this subject.
4.7. For technical purposes, for the correct operation of the Services, it is necessary that the Client has installed a browser and Internet connection.
4.8. The contents offered on the Platform are protected by different technological measures designated for guaranteeing that uses, which have not been authorized by MMSM, are not performed by MMSM.
4.9. For the resolution of claims, complaints and incidents that the Client wishes to propose in regard to the Services, the Client shall communicate to MMSM by means of an email to soporte@mdirector.com / support@mdirector.com or help@mdirector.com the motive of their complaint or claim, thereby submitting proof of their identity as the claimant. Once the claim in question has been received, MMSM shall proceed to respond as soon as possible.
4.10. In any case, the Client, may resolve their concerns through the channels established at any time (for purposes of example, but not limited thereto: the chat MDirector Tool, available through the portal; by means of WhatsApp at the telephone +34914149194; through the form available on https://www.mdirector.com/soporte/ ; by means of an email to the aforementioned email address support@mdirector.com or by telephone in the event that the option contracted by the Client includes this mode).
4.11. MMSM may monitor the use of the Services that the Client performs in order to detect potential breaches of the Service Provider Conditions.
5. OBLIGATIONS AND RESPONSIBILITIES OF THE CLIENT
Upon executing the Contract, the Client hereby undertakes to fulfill the obligations and guarantees set forth in the following sections:
5.1. To pay the price corresponding to the Services contracted under the terms provided in Clause 8.
5.2. To rely on the technical and information equipment necessary for the use of the Platform under the terms communicated by MMSM at any time.
5.3. To comply at all times with all the applicable regulatory, legal and reglamentary rules, thereby guaranteeing in addition that it does breach any law, regulation or third-party rule through the use that it makes of the Services.
5.4. To act during and subsequent to the use of the Services with absolute good faith.
5.5. In the event that at any time it has knowledge of any violation that directly or indirectly affects MMSM, it shall communicate it within a period not to exceed 24 hours.
5.6. The Client undertakes to use the Platform solely for the purposes set forth in the Contract. More specifically, the Client shall diligently use the Platform and undertakes to:
5.6.1. To not grant access to the Platform to third parties or employees of the Client who, due to their position in the company, do not have justified access to it;
5.6.2. To not use the information, rules or instructions contained on the Platform for purposes other than those established in the Contract;
5.6.3. To not permit the use of the Platform to a third party without the prior authorization of MMSM;
5.6.4. To not permit the public to access or use the Platform (including, but not limited thereto, through the Internet);
5.6.5. To not copy and/or distribute the Platform in its entirety or in part by any means;
5.6.6. To not circumvent the measures of technological protection incorporated on the Platform.
5.7. The undue use of the Services is the total and absolute responsibility of the Client. The Client shall assume all the responsibility and maintain MMSM harmless and free of any liability due to the use of the Services and Platform, including that arising from an act or omission of the Client.
5.8. The Client undertakes to not design or create contents that, for purposes of example but not limited to, constitute a crime, incite or promote criminal actions or illegalities, the moral and/or public order or make available or permit accessing services aimed at their perpetration, including violent, pornographic and racist contents that incite hatred or the harassment or that may in a reasonable manner be deemed to promote discrimination based solely on race, ethnicity, nationality, sexual orientation, gender, religious affiliation or disability that infringe on the intellectual property rules, advertising and/or secrecy of communications; or that violate on third party policies.
6. AGREEMENT ON THE LEVEL OF SERVICE:
6.1. The access to the Platform is available 24x7, 365 days a year, but at no time is this availability guaranteed; the client expressly accepts that MMSM solely has an obligation of means and not of results.
6.2. The Client recognizes and accepts in regard to the availability of the platform (i.) the idiosyncrasies and limits of Internet, (ii.) that the confidentiality of the data transferred by the Internet is guaranteed until the limit that the https protocols permits and/or other protocols in effect at any time permit; (iii.) that the response times of the service may be affected by the malfunctioning of the network (iv.) that the Platform placed at the disposal of the Clients uses complex features that may cause incidents in its operation.
6.3. The Client expressly accepts that MMSM cannot guarantee the uninterrupted and errorless operation of the Services and/or of the Platform to the degree that both depend on third parties that may interrupt the services provided to MMSM or their providers, thereby being capable of causing interruptions and errors due to the provision of connection, servers, payment services, mobile communication networks, intermediary servers or the APIs of service providers. Likewise, the use of the Platform on the part of the Client may be interrupted due to the time necessary for carrying out those one-time tasks of maintenance and improvement of the platform that MMSM deems necessary to perform. Similarly, some of the emails sent with the Platform may be blocked by the mail servers of the recipients, an incident beyond the correct operation of the Services. Likewise, the Client knows and accepts that MMSM shall not assume any responsibility for the interruptions and/or errors that may occur in the operation of the Platform and/or in the rendering of the Services. In any case, the mere performance of one-time maintenance tasks and improvements shall constitute cause for the termination of the contractual relationship between the Client and MMSM or for the demand of any type of liability.
6.4. MMSM reserves the right to suspend the Services in the scenarios set forth below (with a non-stringent nature) (i) for executing maintenance, security and developments tasks for the Platform, (ii) for the improvement and installation of new features of the platform, (iii) for the verification and auditing of the operation of the Platform, (iv) in the event of a breakdown or the possibility of breakdown.
6.5. MMSM does not guarantee the Client that the Platform complies with their requisites or that satisfies all their needs, including those related to compliance with the requisites of any regulations. Except as expressly provided in the Contract, MMSM provides the Client Platform "as is" and without a guarantee of any type.
7. RESPONSABILITIES AND GUARANTEES OF MMSM:
Upon signing the Contract, MMSM undertakes to fulfil the obligations and guarantees set forth in the following sections:
7.1. MMSM guarantees the Client the correct execution of the Services in conformity with that established in the SPC
7.2. MMSM does not assume any obligation insofar as controlling the use of the Services on the part of the Client. Therefore, it is not obligated to verify the identity of the users, nor the veracity, effectiveness, comprehensiveness and/or authenticity of the data that the Client provides nor its use of the Platform in conformity with that established in the Service Provider Conditions or the Particular Conditions, if the case.
7.3. MMSM does not guarantee the quality, exactitude, accuracy, correction or availability of the data and/or contents that the Client may use during the use of the Platform and/or Services since the Client is responsible for the data (personal and/or professional) managed through the Platform. Consequently, MMSM shall not responsible for either the violation in which the Client may incur, with the latter thereby assuming the consequences, damages or actions that may arise from the use of the data, contents or images employed during the use of the Platform, including the acts that affect third party rights such as intellectual property rights, brands, patents, confidential information, data protection or any other.
7.4. To the maximum degree permitted by Law, MMSM is not liable to the Client and third parties for any negligence or contractual liability or of any other type. MMSM shall not be responsible for any damage whether it arises directly or indirectly from any loss of data, profits, foreseen savings, earnings, goodwill, reputation, business opportunities or any other purely economic loss; or indirect losses or damages of any type or nature regardless of whether in each case it arises from breach of contract, breach of a legal obligation or any other, including if it has been informed of the possibility of those damages or if the damages could have been reasonably foreseen.
7.5. MMSM reserves the right to suspend or cancel the Services or terminate the contract with the Client under the terms set forth in Clause 9 without the Client being entitled to any type of indemnification for said termination.
7.6. The liability of MMSM by virtue of these Service Provider Conditions and the Particular Conditions or in relation to the Services (including damages) whether arising from extra-contractual liability (including negligence), breach of contract, breach of a legal obligation or another type shall be limited to the Consideration received by MMSM from the Client during the TWELVE (12) months prior to the date of the claim.
7.7. MMSM is not responsible for the contents of the electronic mails sent, creativities or landing pages created by the Client while using the Services.
7.8. Except for that established in Clause 12.12, MMSM is not responsible for the personal data that the Client uses or decides to develop, according to its own and sole criteria, through the Service.
7.9. The limitations of liabilities mentioned in the preceding paragraphs shall not affect or undermine the rights that could legally be applicable in favor of the Client.
8. CONSIDERATION
8.1. The Client shall pay MMSM the amounts agreed in the Particular Conditions or those available on the Platform at any moment in regard to each one of the Services contracted.
8.2. In the event that MMSM proceeded to modify the economic conditions, the Client may, in the event it is not in agreement, terminate the Contract without any penalty under the terms provided in Clause 3 of the Service Provider Conditions.
8.3. In the event that the Client has contracted bundled services (for example: delivery number of e-mails, support service hours, bundled duration of any service, etc.) the Services shall be paid in advance and the Client shall not be entitled to the total or partial refund of the amount paid under any circumstances, except for termination provided under the terms in Clause 3 of the Service Provider Conditions. In that regard, even if there was a remainder or the Client had not fully consumed the Service options contracted at the moment in which the relationship between the Parties was terminated for any reason if the Client decided unilaterally to cease using such services, MMSM shall not be obligated to refund any amount to the Client.
8.4. Any promotion and/or discount on the part of MMSM regarding the Consideration is limited to the specific circumstances for which it was granted, which shall be set forth in the Particular Conditions subscribed by the Client or in any other binding instrument designed for such purpose, such as advertising offers. Under no circumstances shall it constitute a precedent in favor of the Client.
8.5. The amounts established shall be, in any case, net for which the Client shall pay the taxes, withholding, duties and tax levies that legally correspond.
8.6. The total or partial non-payment as well as the breach of the period for proceeding to payment of the amount due for the use of the Services shall involve the obligation of the Client to pay late interest equal to the legal monetary interest in effect at any time under the terms established in the regulation in effect as well as the reasonable expenses caused by the refund regardless of the other consequences that could arise from its breach.
8.7. From the day following the last day on which the amount had to be paid or it was returned without any notice, request nor demand of any type, MMSM may file a judicial procedure to seek the total amount due or any other action that it is afforded under the law. The Client is responsible for any reasonable expense (including fees and expenses of lawyers and procurators) incurred by MMSM in the collection of any amount due and payable that is pending.
8.8. The general form of payment shall be by means of advance payment or “pre-payment” by the refilling of a balance using the payment system implemented on the Platform at any time when the Particular Conditions do not indicate the contrary. Nevertheless, certain Services shall be invoiced monthly to the Client when it is indicated as such in the Particular Conditions, for purposes of example but not limited thereto, the number of electronic mails that exceed the contracted monthly amount.
8.9. In regard to the invoicing of the Services that must be paid prior to their use, the Client shall receive a proforma invoice prior to payment (except in the case of Services contracted on or through the Platform itself) and once the payment has been made, the corresponding invoice. This shall be sent to the Client through the Platform or the electronic mail at the contact address that has been provided.
8.10. The Invoice shall be issued electronically regardless of the fact that MMSM may send the Client, in its judgement, a copy of the paper invoice in the case that the Latter requests it at the domicile indicated by the Client.
8.11. MMS may demand the immediate collection of the amounts accrued when: (i) the temporary or definitive deactivation of the Services occurs at the time in which it occurs; or (ii) the Client breaches any of the conditions set forth in the Service Provider Conditions at the moment in which MMSM has knowledge of said breach; or (iii) in the cases of risk of fraud of non-payment at the moment in which MMSM has knowledge of any presumably fraudulent conduct or risk of non-payment.
9. INTELLECTUAL PROPERTY – LICENCE OF USE
9.1. MDirector authorizes the Client to use the intellectual property rights related to the Platform exclusively under the framework of the rending of Services in conformity with that established in the Contract. The Client does not acquire any right of intellectual property (including for purposes of example, but not limited to, copyright or related, patents, registered trademarks, commercial secrets, etc.) in relation to the Platform, other than the right of use of the Platform for the rendering of Services.
9.2. In exchange for the payment of Consideration, MMSM grants the Client a limited, non-transferable, non-sublicensable and non-exclusive license for the use of the Platform for commercial purposes during the period of duration of the Contract.
9.3. The Client shall maintain all the rights regarding the contents, data and information that it sends to MMSM during the Services, thereby granting MMSM permission to use or disclose their contents only to the degree necessary to provide it with the Service or as established in these Service Provider Conditions.
10. DURATION AND TERMINATION
10.1. This Contract has an indefinite duration and shall continue in effect while the Client pays the consideration regardless of whether any of the causes of termination of the Services result.
10.2. A cause of termination of this contract shall be the mere wish of any of the Parties who have been notified with a minimum ONE (1) month notice without it being necessary to express in such notice any cause or justification for the aforementioned termination.
10.3. The mere communication to the Client of the following cases suffices for MMSM to be able to cease rendering the Services: (i) the use of the Platform with very little ethics, or offensively or incorrectly in breach of the CPSs; (ii) the breach of any of the obligations assumed by virtue of these Service Provider Conditions and/or if the case the Particular Conditions; (iii) the reception or knowledge of reiterated complains of the recipients of communications sent by the Client or when the actions of the latter may affect the reputation of MMSM; (iv) when MMSM acquires technical knowledge of minimum opening ratios of the email sent and said ratio may consist of an illegal index due to the sending of unconsented commercial communications in place of the provision of the service and/or use of the Services; (v) inactivity of the account of the Client during a period greater than six (6) months in which case MMSM shall retain the pending economic amounts to be consumed that could exist which shall be either redeposited if the service is reactivated in the six (6) months subsequent to the moment of reaching the maximum period of inactivity or assumed by MMSM as a penalty in the event that such reactivation does not occur (vi) sanctioning resolution of a competent authority in the area of data protection and/or services of the information society and electronic commerce due to the violation of the Client or by any other third party related to the Client (companies of its business group, providers, partners, etc.) to which the client itself has communicated, under its responsibility the access data to the Platform so that they use it on its behalf and under its instructions; (vii) fraudulent or presumably fraudulent use of the Platform.
10.4. In any of these scenarios, the provision of the Services shall be suspended. MMSM will cease to receive payment for the Services from the moment of the suspension, thereby repaying the amount that proportionally corresponds to the Client in accordance with the amounts that have been paid out for the Services and that correspond to the period in which it could not enjoy the Services or to the number of services that could not be performed except in the case that the suspension is due to the knowledge or the suspicion of the commission of an illegality through or involving the use of the Platform, actions or omissions that contravene those set forth in the Service Provider Conditions or Particular Conditions, a sanction of an administrative nature or any other behavior that contravenes the applicable regulation or law that governs the relationship between the Parties. In the event that use is made of a service payment method once they are rendered (different form the prepayment mode) MMSM shall proceed automatically to invoice the Services rendered until the date of suspension.
10.5. In the event of a total or partial suspension of Services, MMSM shall be able at their complete discretion to eliminate all or a part of the contents of the Clients associated with the terminated service. In such a case, MMSM may require (without having the obligation) the Client to make a copy of its contents in order that after a period of thirty (30) days to proceed to their elimination from the MMSM systems without the Client being able to demand anything from the latter due to this reason.
10.6. The Client may prematurely terminate the relationship with MMSM in the case that a substantial change in the characteristics of the Contract occurred, provided that it is communicated within the period established in Clause 3 of the Service Provider Conditions. In this case, MMSM shall repay the Client the amounts indicated in section 3.3. that could correspond to it.
11. PRIVACY POLICY AND DATA PROTECTION REQUISITES
11.1. Each one of the Parties and if the case, their representative is informed that their personal data shall be processed by the other party for the purposes of permitting the development, compliance and control of the agreed relationship of service provision. The basis of the processing is the fulfillment of the contractual relationship. The identification of the Parties is a necessary requisite for the formalization of the Contract for which it cannot be carried out without said requisite concurring.
11.2. The data shall be saved during the entire time in which the latter exists and even afterwards until the end of the statute of limitations for all the possible liabilities arising thereof. The data of the Parties may be communicated to banks and financial entities for the management of collection and payments and the Public Administration in the cases foreseen under the Law for the purposes defined therein.
11.3. If during the commercial relationship, personal data of employees and other third parties were provided the party that provides them guarantees that the they are legally authorized for it and have communicated these facts to the affected parties.
11.4. The interested parties may exercise their rights of access, rectification, elimination and opposition, limits on processing, portability of data and to not be object of individual automated decisions, by addressing a written statement to the respective channels implemented by the parties for these purposes. Likewise, they may formulate a claim to the data protection authority of the country where the controller or processor is located or the place where located.
11.5. In order to access and/or use the Services it is necessary that the Client contribute to the Platform certain personal data (hereinafter, “Personal Data of Users”) that MMSM shall process for purposes that in every case that corresponds, principally the delivery of communications by technological measures, that may be commercial, transaction or any other type to the holders of the data and if the case, under the terms of the Privacy Policy published on the Platform at the moment of the first access and/or use. They shall be used equally for the management and the use of the Platform and all its Features.
11.6. For the effective use of the Services, the Client shall have the option and the corresponding feature (explained in Sections 1 and 2 of the present CPS to upload and load on the Platform the lists of contacts and/or recipients of their communications (hereinafter, the “Interested Parties” deemed as “Contacts” on the Platform.)
11.7. MMSM undertakes to fulfill all the requirements that Regulation (EU 2016/679 of the European Parliament and Council of April 27, 2016, related to the protection of natural persons with regard to the processing of personal data and the free circulation of this data (hereinafter, the GDPR) attributes to it as the data processor and with respect of the terms of the data protection regulation with regard to the rights and data protection of the Interested Parties.
11.8. The Client is the only data controller under the regulatory terms of the data protection regulation and in particular the GDPR, if applicable, and is obliged to explicitly respect, fulfil and ensure that the compliance of all the obligations that this and/or any regulation that is applicable at any time and/or place imposes on it.
12. DATA PROCESSING
12.1. MMSM may require access to certain data, for which the Client is responsible, for the purposes of executing the Services. For that reason and in compliance with that set forth in the GDPR, MMSM assumes its role as a data processor insofar as that which refers to services of storing personal data.
12.2. The Platform offers the function of uploading lists or databases with personal data of Interested Parties for the management of the delivery of email campaigns and SMSs.
12.3. On the other hand, the registries or leads that the Client generates through the Services shall be stored on data bases, housed in MMSM information systems until that organized set of data is required by the Client and sent by the channel or medium that the Client as the responsible party of the file, determines, thereby being able to choose a delivery via (i) electronic mail account, (ii) integration in the “MDirector” account (iii) webservice of the client itself and (iv) another option agreed between the parties, as for example Zapier.
12.4. In fulfillment of the obligations assumed as processor of the personal data owned by the Client, MMSM undertakes to respect and apply the rules in effect at any time in the area of personal data protection and data processing in all the direct or supplementary activities that it performs in the execution of the Contract or the Service and declares and guarantees the Client the following:
12.4.1. MMSM undertakes to process the personal data that it stores, solely for the execution of the Services.
12.4.2. MMSM shall maintain in writing a registry of all the categories of processing activities performed for the account of the Client, which contains the information required by Article 30 of the GDPR
12.4.3. The Client shall have a period of 30 days to download its data from the Platform once the Service ends for any reason. Once said period passes, the opportunity to access, download or request said data from MMSM is not guaranteed. Nevertheless, MMSM may conserve the time during the time in which some type of liability arising from the Contract or Service rendered may be required.
12.4.4. MMSM shall not communicate the data to third parties unless it has the express authorization of the Client or in the legally admissible scenarios.
12.4.5. MMSM may communicate the data to other data processors of the Client in accordance with its instructions. In this case, the Client shall identify previously and in writing, the entities that must communicate the Personal Data, the Personal Data to be communicated and the security measures to apply in order to proceed with the communication.
12.5. With regard to the subcontracting of the Services contracted by the Client, insofar as they involve data processing, the Client authorizes the sub-contracting and corresponding subcontracting of the following services (i) the Servers that store the data which is the responsibility of the Client, owned by ISPD NETWORK S.A.; likewise (ii) the services of storage, support and technology rendered by the entity, MAMVO PERFORMANCE S.L.U. Both companies belong to the same Business Group to which MMSM belongs, regarding which more information may be found at https://www.ispd.com/. Likewise, the Client authorizes MMSM so that it contracts Entities that it deems appropriate at any time, the activities of management of the delivering SMS messages.
12.6. Any subcontracting or subcontractors other than the former shall have to be communicated previously and in writing to the Client, thereby indicating clearly and unequivocally the processing that is sought to be subcontracted and identifying the subcontracting company and its contact data. The subcontracting may be carried out if the Client does not express its opposition within the period of FIVE (5) working days from which it was informed.
12.7. Except for these circumstances, MSMM undertakes to maintain under its control and custody all the files provided by the Client and to not reveal, transfer or in any way communicate them, not even for their conservation, to other persons without the prior written authorization of the Client.
12.8. The subcontract, who is deemed a sub-processor, is likewise obligated to fulfil the obligations established in the Service Provider Conditions for the data processing and follow the instructions that the data controller dictates. MMSM is responsible for regulating the new relationship with the sub-processor in such a manner that the new sub-processor is subject to the same conditions (instructions, obligations, security measures…) and with the same formal requirements as it is, insofar as that which refers to the appropriate processing of the personal data and the guarantee of the rights of the affected persons. In the event of a breach on the part of the sub-processor, MMSM shall continue being fully responsible to the Client regarding the fulfillment of the obligations.
12.9. MMSM does not perform international data transfers to third-party countries or international organizations beyond the territory of the European Union. Notwithstanding the aforementioned, if MMSM had to transfer personal data to a third-party country or an international organization beyond the territory of the European Union it shall inform the Client previously in writing and with sufficient notice of said circumstances and in any case, it shall adapt the appropriate safeguards in conformity with the applicable data protection regulation in order to guarantee that the personal data of the Client is adequately protected.
12.10. The Client, at its own cost, shall be entitled to inspect, by means of a 7 natural day notice, during working hours, the compliance by MMSM of the stipulations of this clause. If an inspection indicated a substantial breach by MMSM, the Client shall be able to demand that MMSM remedy it. The costs of remediation shall be the responsible of the latter.
12.11. MMSM guarantees that only that part of its personnel, whom it authorizes, shall have access to the personal data. The persons responsible for the MMSM services shall be informed by MMSM regarding the confidential nature of the personal data and their responsibilities. A similar obligation shall exist with regard to those persons that have access to any personal data under the terms of this Contract. In both cases, MMSM guarantees the necessary training of the persons indicated.
12.12. MMSM shall be responsible to the Client for the damages caused as a consequence of the non-fulfillment of the obligation contained in the data protection regulation in accordance with the functions and obligations of MMSM as data processor. In such a way, MMSM shall hold the Client harmless for any claim that may be lodged (in particular in the case of the initiation of any type of investigation by the data protection agency) for any non-compliance by MMSM of the regulation on personal data protection that arises from its activity.
12.13. MMSM, while undertaking data storage, is obligated to professional secrecy with regard thereto and the duty to conserve it. These obligations shall continue even after the termination of the contractual relationship.
12.14. MMSM shall support the Client in (i) the performance of the impact evaluation related to data protection when appropriate and (ii) the performance of the prior consultation with the supervisory authority, also when appropriate.
12.15. MMSM shall place at the disposal of the Client all the information necessary to demonstrate the fulfillment of their obligations.
12.16. MMSM provides the tools/services to automatically or manually process the requests of unenrollment from the commercial communications sent by the Client, if the latter so wishes. When the affected or interested persons request unenrollment from the commercial communications, whether by the tools provided by MMSM or by electronic mail, MMSM shall manage their unenrollment, including in the list of unenrollments of the Client on the Platform. When the affected or interested parties exercise the rights of access, rectification, elimination and opposition, limitation of processing, data portability and to not be object of individualized automated decisions to MMSM, the latter must communicate it by electronic mail to the contact persons designated for such purposes by the Client with a copy to the Data Protection Officer (hereinafter, “DPO”) of the Client if designated for such purposes and if the appropriate communication had occurred to MMSM.
12.17. To the degree that the means and resources applied to the execution of the Services depend on it, MMSM undertakes to adopt and respect the organizational, technical and security measures necessary in order to guarantee the security, integrity and confidentiality of the personal data, thereby impeding any alteration loss, processing, or access which is not authorized.
12.18. The determination of the necessary security measures have been carried out by MMSM by means of the corresponding risk analyses that have taken into consideration the means used (technologies, resources, etc.) and other circumstances such as the state of technology, the application costs and the nature, scope, context and the purposes of the processing as well as the variable risks of probability and seriousness for the rights and freedoms of natural persons.
12.19. MMSM has a description of the appropriate security measures in order to guarantee a level of security appropriate for the risk, which, if the case, may include among others: (i) The capacity of guaranteeing the confidentiality, integrity, availability and resilience of the systems; (ii) The capacity of restoring availability and access to personal data in a rapid manner in the event of a physical or technical incident; (iii) The process of regular verification, evaluation and valuation of the effectiveness of the technical and organization measures for guaranteeing the processing security.
12.20. MMSM has a Certification of Conformity of the National Security Scheme, which involves the adoption of a series of security measures that guarantee the security of systems, data, communications and electronic services, thereby ensuring the correct protection of the information systems to internal and external threats and incidents. The ENS is a national regulation of mandatory compliance for the public administrations and is framed within the legal system framework arising from Law 40/2015. The effectiveness of the certification may be verified at any time at https://ens.ccn.cni.es/es/certificacion/empresas-certificadas.
12.21. MMSM shall notify the Client without undue delay and in any case within the maximum period of SEVENTY-TWO (72) hours from which it has had knowledge, of the security breaches of Personal Data for which it is responsible for purposes of the documentation and communication of the incident.
The notification shall not be necessary when it is unlikely that said violation of the security constitutes a risk for the rights and freedoms of natural persons.
The information indicated in Article 33.3 of the GDPR shall be provided if it is available. It is to consist of at least: (i) The description of the nature of the security breach of personal data including when feasible, the categories and the approximate number of interested parties affected and the categories and the approximate number of registries of personal data affected (ii) An estimated description of the possible consequences of the security breach of the personal data; (iii) description of the measures adopted or proposals for remedying the breach of personal data including, if appropriate, the measures adopted in order to mitigate the possible negative effects.
If it is not possible to facilitate the information simultaneously and to the degree that it is not, it shall be provided gradually without undue delay.
12.22. MMSM has a Data Protection Officer (hereinafter, “DPO”) duly designated and communicated to the registry of the Spanish Data Protection Agency under the terms of Article 37 to 39 of the GDPR, the contact details of which for purposes of the requirements of the GDPR are dpo@MDirector.com, thereby addressing the DPO or even by post with the same heading at Apolonio Morales 13C, 28036 Madrid (Spain).
12.23. If the Client has a Data Protection Officer their identification and contact data shall be communicated to MMSM at the address dpo@MDirector.com
12.24. If the Client did not have a DPO it shall communicate to MMSM nevertheless at the address dpo@mdirector.com, the contact details to which they must address the Data Processor in order to fulfill the provisions set forth in this clause.
12.25. The Client is responsible for : (i) Delivering or facilitating the data processor with the access to the personal data to which this Contract refers; (ii) Performing, when appropriate, an evaluation of the impact on the personal data protection of the data processing operation to be performed by the data processor; (iii) Performing the prior consultations that correspond (iv) Ensuring compliance of the GDPR on the part of the data processor prior to and during the processing (v) Supervising the processing including the performance of inspections and audits, if the case; (vi) Complying with the right of information at the time of the data collection.
13. MISCELLANEOUS
13.1. The Client may not transfer, license, subcontract, delegate or transfer in any manner, the Contract or its rights and obligations without the prior written consent of MMSM. Any transfer, subcontracting, delegation or transfer without the prior written authorization of MMSM shall be deemed null and void.
13.2. During the period of effectiveness of this Contract, MMSM shall be entitled to use the name, logotypes and the commercial brands of the Client in any form or means of communication to the degree that it is necessary in order to indicate that the Client is the user of the Services. In addition, upon request of MMSM, the Client may authorize, if it wishes, the production and publication of a “success case” or a “use example” whether in the format of video, audio or text as well as the corresponding rights for their publication in any form or communication media for an unlimited period of time.
13.3. The total or partial, current or supervening nullity of any of the stipulations of this Contract shall not involve the nullity of the Contract since said stipulation shall be deemed null and void and the Contract shall continue in effect. It shall have to be interpreted in a manner that permits its survival without said stipulations having an effect on all the other aspects.
13.4. The services are not directed at consumers for purposes of the consumer regulation and users that could result applicable in function of the location of the Client for which if the Client has such consideration they shall not be able to use the Services or the Platform. For purposes of Article 27.2 a) of the Law of Services of the Information Society, the Client confirms that it has received sufficient information prior to the contracting, does not need to receive more and that it is not considered a consumer.
14. APPLICABLE LAW AND FORUM
14.1. This Contract shall be interpreted and governed by the law of the Kingdom of Spain.
14.2. The Parties agree to subject the disputes that may arise in the application of this contract to the jurisdiction of the Courts and Tribunals of the city of Madrid.
In witness whereof, the Parties subscribe to these Service Provider Conditions.