General conditions of sale and provision of addresses
The customer is a company wishing to have a database to carry out mailings, emailings, faxes mailings or telemarketing by better targeting potential customers with regard to the characteristics of the product in question. DIRECT BUSINESS CONSUMERS, hereinafter DBC is a brokerage firm in BtoC lists and customers knowledge allowing the companies to meet their needs in term of business development. In this sense, the customer acknowledges taht he made his choice as to the customers that he wish to target and expressing all his needs to DBC, the latter is not responsible for the options selected by the customer .
The present general conditions of provision of addresses prevail, without exception, on any other general terms and conditions specific to the client.
These terms and conditions are intended to define the conditions under which a non-exclusive right to use the postal addresses, emails or telephone numbers of the owner of the list may be granted by DBC to the client in accordance with the conditions laid down on the order form.
4. DURATION OF THE CONTRACT.
This contract attached to the General conditions of sale comes into effect from the date of the signature of the order form by both parties and for the duration necessary for the operation of direct marketing specified on the purchase order.
5. ORDERS – PRACTICAL MODALITIES – PRICE
Any order will be accepted after signature by the customer of the order form as well as present general terms of sale. It implies the unconditional acceptance of the present general terms of sale. The order form specifies the name of the customer, the desired services, the rent or the sale, selection criteria corresponding to the ordered list, the volume, the channel of prospecting used (mailing addresse – telephone numbers – email addresses – coupling etc ..), the indicative deadlines, the place and the support of provision of the file, any supplementary services (deduplications), the corresponding price to the service.
6. PROPERTY OF FILES – CONDITIONS OF USE – NON EXCLUSIVITY
DBC company or the company having entrusted to DBC the exclusive marketing of his list, holds property rights of the aforementioned list in application of the measures of the code of the Intellectual Property established by the law N92-957 of 1st July 1992, as well as that on the data protection n°98-536 of 1st July 1998. DBC provides no exclusivity and reserves the right to conclude a similar contract with any other client. The customer, thus, sees grant on a one-time right to use the list within the framework of the present general terms of sale. In the case of the sale of this file, the mentioned customer makes a commitment to use the addresses sold by DBC for his exclusive use and refrains formally to exchange, lend, rent or sell the aformentioned file to other companies (in France or abroad) and in particular those whose main or secondary activities are the routing, or the trade of lists.The client agrees not to infringe directly or indirectly to the right of ownership of DBC or the company havin entrusted to DBC the exclusive marketing of his list.
7. CHOICE OF LISTS.
The list selection is made by the customer alone, under his sole responsibility. In the event that the client does not feel able to make one choice of the list corresponding to his needs, DBC will endeavor to assist him in such a choice. Such assistance may involve the selection of a file, or on the development of a media plan files, including assistance in selection of multiple lists. In any case, it is up to the customer to formulate in a most exhaustive possible way his objectives, requirements and constraints, so that DBC has precise information. On no account shall the responsibility of DBC may be sought for assistance in choosing the selections, the adequacy of personal messages and references, and in a general way,the adequacy of lists to the objectives that the customer wishes to achieve. The company cannot be held responsible for returns to an operation conducted from documents developed by the Client and sent using the addresses made available in respect of the present conditions of provisions of addresses.
8. CONTENT OF THE MESSAGE
It is up to the customer to draft or to make draft the message which he wishes to send to the people represented on the given lists. The customer thus assumes the total responsibility of the message. It is thus both the content and formal requirements (mailing, emailing, telephone survey). In no event shall the responsibility of DBC be instituted in connection with the said message. The customer agrees already not to send messages that can directly or indirectly affect the image of DBC, and not to address a message, to the prospects represented in the datalist, against law and order and against morality. During the purchase order of the datalist, the customer commits to communicate the message which he intends to send to the people appearing on the datalist, to DBC. However the communication of the message to DBC by the customer, does not release the latter from liability in respect of the content and the form of the said message.
9. RESPONSIBILITY of DBC
DBC is subjected by the present general terms of sale to an obligation of means. In any event, the liability of the company is limited to the provision of alternative addresses. DBC cannot be held responsible for indirect damage such as commercial prejudice, loss of clientele, any disturbance to business, loss of profits or brand image suffered by the customer or a third party, resulting from the inadequacy of the file to the customer’s needs. Any action managed against the customer by a thrid party is understood as an indirect damage and consequently, no entitlement to compensation payable by DBC. If, however, the responsibility of DBC were to be established and commited, the amount of damages and interests that may be ordered to pay the client would expressly be limited to the amount paid by the latter in conformance with the provision of the file being at the origin of the damage.
DBC ensures that the amount of addresses made available to the client will correspond to the amount of addresses under the purchase order with a tolerance of plus or less 5% for postal addresses and 15% for telephones and emails. DBI does not guarantee that files are exempt from errors, from inaccurate or out-of-date references.
11. POSTAL RETURNS AND EMAILS
Any claim relating to postal returns or emails must be notified by registered letter with acknowledgement of receipt within a period of one month from the date of provision of the file containing the relevant addresses. Subject to compliance with the above requirements and in the case where the rate of postal returns would be higher than 5% and the rate of returned emails over 15% on the same file, DBC undertakes to indemnify the customer of the amount corresponding to amount of the price paid by the latter for addresses that have been said back. This compensation will result in the establishment of credit note credited to the next invoices from DBC to the client. This compensation is the only compensation due by DBC. To enable the customer to benefit from this refund, he necessarily has to deliver to DBC, the addresses with the passcode posting it, in the best possible, and in any event, within less than three months after deadline of the provision of addresses.
12. IT REGULATIONS AND FREEDOM – SECURITY OF THE FILE
DBC draws to the attention of the client on the obligations entrusted to bodies or persons performing automated processing of data directly or indirectly registered under the law of January 6,1978, and in particular: The obligation of prior declaration to the CNIL (National Commission For Information Technology and Civil Liberties) of any automated processing of personal data, The need to respect the rights of data subjects, in particular the right to access and correct information about themselves and their right to object to the marketing of information about them. Compliance with the security and confidentiality of the file. The customer is also informed about the fact that a file: – Cannot in any case be an enhancement by all or part of the other files, – Cannot be the object of any sort or selection of personal data that would directly or indirectly appear the racial origins or political, philosophical or religious opinions or the Trade Union memebership of persons in application of the provisions of the law of January 6,1978. In law enforcement of January 6th, 1978, the customer would be held responsible, if necessary of the non compliance with the measures of this law.
The Parties agree to report confidential elements hereof and the transactions hereunder. DBC commits to the fact that files entrusted by the customers to realise his operations are covered by the seal of confidentiality and reserved for this use.
In case of breach by one of the parties to an obligation in respect of the contract not repaired within a period of ten fifteen from the registeres letter with acknowledgement of receipt notifying the breaches in question, the other party may enforce the termination of the contract by registered letter with acknowledgement of receip subject to any damages and interest which it could claim. The contract will be terminated immediately and without notice automatically in the case of beginning and occurence of any event of insolvency, bankruptcy, dissolution, liquidation or any other proceedings or similar legal action concerning the customer.
15. TERMINATION OF CONTRACTUAL RELATIONS
In the event of failure of the client to any of its obligations, it is expressly agreed that no later than eight working days from the termination of the contract, the customer should have returned the file to DBC, as far as possible, taking into account media and delivery of the said list formats.
16. PARTIAL NON VALIDITY
If one or more provisions of this Agreement are held to be invalid or declared as such under any law, regulation or following a final decision of a competent court, other provisions shall remain in full force and scope.
In case of difficulty in interpretation between any of the titles at the head of clauses and any clauses, the titles will be declared nonexistent.
18. APPLICABLE LAW AND JURISDICTION
This contract is subject to French Law.In case of dispute between the parties and after an attempt to seek an amicable solution was unsuccessful, jurisdiction is assigned to the count of Nanterre notwithstading plurality of defendants or guarantee, even for emergency procedures or protective procedures referred or request.
19. CHOICE OF RESIDENCE
The parties take up residence in their places of residence or respective head offices.