Conditions relating to Hotello
General conditions for the use of Mingus Software platforms – SAAS, Cloud and Web products
- «Anomaly» means, according to the subscribed maintenance services, a malfunction of the platform, reproducible by Mingus Software, preventing its use in accordance with the documentation.
- «Contract» means these general Conditions, the contract, the specifications, and any annexes.
- «Service agreement contract» means this service agreement and includes all attached schedules and forms an integral part thereof.
- «Destination» means the conditions of exercise of the right of use granted by Mingus Software.
- «Documentation» means the description of the features and instructions for the platform. It is provided in electronic form in english. All other documentation is excluded from this agreement, including commercial documentation and training documentation.
- «Malfunction» means any difficulty in accessing the operating platform found by Mingus Software.
- «Information» means the information provided by the client.
- «Operating platform» means the hardware, platforms, operating systems, databases and environments provided by Mingus Software on which the operation of the products and services will be carried out.
- «platform or software package» means a set of features of one or more programs and their documentation designed to be provided to multiple users for the same purpose. Within the framework of these general conditions, the platform corresponds to:
- the version diffused by Mingus Software at the time of the signature of the proposal.
- to its updates.
- «Services» means the services offered by Mingus Software and the related services as described in the schedule hereto.
It is the responsibility of the customer to ensure:
- that he has read the documents entitled “Minimum Equipment requirement” which are still available on the Mingus Software website and agrees that his computer equipment respect the information contained therein without which Mingus Software may claim additional fees on support requests or during initial installation, it is understood that these requirements are subject to revisions as technology and software programs evolve.
And furthermore, if the contract is about email products and services
It is the client’s responsibility to verify, in accordance with the practices of his profession, the results obtained using the platform used in this context.
The client must confirm the date of the training with the Mingus Software project manager within thirty (30) days following the date of signing the proposal. Once this date has been established, the customer may modify this date at no charge, with written notice of 20 calendar days. However, if within 20 calendar days, the customer requests to change the confirmed date, the travel expenses already incurred (plane ticket, car rental, …) will be charged to the client, from Mingus Software reserves the right to bill any outstanding fees associated with this delay. Only one change is allowed.
The client must designate a project coordinator responsible for the following activities:
- Equipment installation meeting the minimum hardware requirements specified by Mingus Software.
- Internal scheduling of customer resources availability for configuration, installation and training of staff.
- Respect the installation schedule coordinated with Mingus Software.
- Provision of preconfigured and fully functional premises, workstations and any equipment required to enable staff training.
- Availability of all peripheral product suppliers that are functional at the client and that must interface with software provided by Mingus Software.
- All other activities required and stipulated by Mingus Software before and during the installation, configuration and training process.
The customer agrees not to hire Mingus Software personnel, as an employee or contractor, either during the term of their employment with Mingus Software, or within one (1) year of the end of their employment by Mingus Software. The client also agrees to pay the sum of $ 300,000.00 to Mingus Software for each employee hired contrary to this policy. Failure to do so within 20 days of notice hereunder is a violation of this Agreement giving Mingus Software the right, in its sole discretion, to terminate this License Agreement. Such sum is agreed by the parties to be a reasonable amount of damages for the loss of an employee for whom Mingus Software has spent a great deal of money to increase the knowledge of the employee’s particular skills and expertise in the said activity. and at the level necessary to perform these functions.
The purpose of this contract is to define the conditions under which Mingus Software grants the customer, who accepts it, the limited, personal, non-transferable and non-exclusive right to access and use the platform, and the exploitation platform; provides the hardware and hosting infrastructure of the exploitation platform; provides assistance and maintenance service for the exploitation platform to the customer.
Entry into force – Duration
The Contract is concluded for a minimum period of one year from the date of the signature of the proposal sent to the customer, unless otherwise specified in the proposal. These rights are tacitly renewed for successive periods of the same duration on each anniversary date, unless one of the parties denounces it by registered letter with acknowledgment of receipt at least three (3) months before the expiry of the current period. . The termination or termination for any reason whatsoever of this contract does not give rise to reimbursement of the amounts collected by Mingus Software. Without limiting the generality of the foregoing, if you are domiciled in Québec, or if the Civil Code of Québec otherwise applies to the contract, you hereby expressly agree that the right of cancellation conferred on a ” client “under article 2125 of the Civil Code of Québec, as well as the restrictions applicable to the subsequent restitution by the” contractor “or the” service provider “under article 2129 of the Civil Code of Québec , will not apply to the Contract, and you hereby expressly waive such rights and restrictions.
Access to the operating platform
Each user logs in for the first time with their personal login and personal password. It is his responsibility to maintain the confidential nature of this information.
2. Access to the platform or software package
Access to the Exploitation platform by users is done remotely by the address (es) provided by Mingus Software.
3. Availability of the Exploitation platform
The platform is accessible to users permanently (24 x 7). However, Mingus Software may, if necessary, discontinue its services as part of the maintenance range (such maintenance operations to take place between 23:00 and 07:00, your local time), in particular to perform any data backup operations and / or maintenance of its own hardware and software used to provide hosting services. Mingus Software undertakes to inform the client in advance of any scheduled interruption of services outside the maintenance range. Exceptional maintenance operations, including the application of critical security updates, are excluded from this information measure.
Mingus Software ensures for the platform, within the framework of the physical and logical security rules in force on the day of the signature of the proposal, the protection of the whole of the Exploitation platform, the results, the treatments and the transmitted transmissions. as well as backups made on the Exploitation platform. These safety rules are available upon request from Mingus Software.
All client data created or modified using the platform is stored in databases or any medium defined by Mingus Software; on one or more servers located on a secure site. The volume of accessible stored data may be limited to thirty-six (36) months plus the current month depending on the type of software package. Beyond this period, Mingus Software will make available to the customer, said data on a computer support, at the option and expense of the customer.
Rights of use
The right to use the platform is granted by Mingus Software to the customer for the duration of the Agreement. The platform must be used in accordance with the provisions of this Agreement, as well as the instructions and instructions for use, safety and proper functioning contained in the Documentation provided to the customer. The platform must be used according to its Destination; for the sole needs of the customer and, unless otherwise stated, excluding any office service, within the limit of the number of users authorized by the proposal. The customer undertakes to immediately inform Mingus Software if the number of users of the platform exceeds the maximum number of users included in the proposal. In this case, the customer will immediately become liable to Mingus Software for an additional fee, the amount of which will be defined in a supplementary proposal. Any use not expressly authorized by Mingus Software under the Contract is unlawful, in accordance with the Intellectual Property Code. It is forbidden to customer conduct:
- Any representation, dissemination or commercialization of the platform, whether free of charge or onerous.
- Any use of the platform or Documentation in any way for the purposes of design, production, distribution or commercialization or of a similar, equivalent or alternative platform.
- Any direct or indirect provision of the platform or the Documentation for the benefit of a third party, in particular by rent, assignment or loan, even free of charge, or to entrust it to any provider in the context of outsourcing, except case of prior written agreement of Mingus Software.
- Any use for unauthorized treatment by Mingus Software.
Mingus Software declares to hold all the rights necessary for the conclusion of the Contract. The right of use granted by Mingus Software by the Agreement does not imply transfer of intellectual property for the benefit of the customer. Accordingly, the customer shall refrain from any act, any act, which may directly or indirectly infringe the copyright on the platform, which are notably protected by the Code of Intellectual Property.
In the event of a claim relating to the infringement by the platform of an intellectual property right in Canada, Mingus Software may, at its option and at its expense, either replace or modify all or part of the platform, or obtain for the client a license to allow it to use the platform, provided that the customer has fulfilled the following conditions:
- That the customer has accepted and performed all of its obligations under this document.
- That the client has notified to Mingus Software, in a week, in writing, the action for infringement or the statement preceding this action.
- That Mingus Software is able to defend its own interests and those of the customer, and to this end, that the customer collaborates loyally with Mingus Software by providing all the elements, information and assistance necessary to carry out such a defense.
- In the event that none of these measures is reasonably possible, Mingus Software may unilaterally decide to terminate the Agreement and reimburse the customer the fees paid over the last twelve (12) months of the use of the platform.
- The provisions of this article define the entirety of Mingus Software‘s obligations with respect to patent infringement and copyright due to the use of the platform.
Assistance and maintenance
During the term of this Agreement, the customer benefits from the provision and installation of the corrective and technological updates of the Exploitation platform. In addition, Mingus Software will provide the customer with telephone support and maintenance services (hereinafter “the Services”) relating to the platform.
As part of this contract, Mingus Software provides the customer with a team of Support Consultants to provide technical and functional support for the platform. Except for public holidays and special days of closure of Mingus Software, and except in case of force majeure as defined herein, the hours of intervention of this support team are from 8:00 to 18:00 Monday to Friday, time of Montreal, QC, except on the statutory holidays Mingus Software publishes annually. Mingus Software reserves the right to modify its schedules and will, by any means, at its discretion, warn the customer of new time slots.
To benefit from the assistance, the customer contacts, during the hours of assistance, by telephone, by email or by the platform on line the team of Support Consultants of Mingus Software with the phone number, address or site which will have been previously communicated to him . Maintenance of the platform includes the following services:
access to assistance provided exclusively to support the use of the platform or for the treatment of Anomalies. The number of requests is not limited. Remote handling may be considered depending on technical availability and following the verbal authorization of the client;
The provision of updates to the platform subject to the provisions of this article. The need to update is unilaterally decided by Mingus Software in light of legal and technological developments. The updates are directly implemented by Mingus Software on the platform and can integrate, as the case may be:
- Correction of anomalies in the form of patches, transmitted by Mingus Software at the customer’s request, the modifications made necessary by the changes in the laws or regulations applicable to the functions handled by the platform, unless these changes require a substantial modification of the platform which will then be notified by Mingus Software to the customer.
- Improvements to existing functions.
Annual calling appointment by request of the customer, set by Mingus Software, in agreement with the customer. It makes it possible to review the product for optimisation, and improve the use of the platform.
Subscription to the Newsletter: The customer benefits, after having communicated his email address of a subscription to the Mingus Software Newsletter, that he will receive regularly by email. These Newsletters are intended to inform the customer of commercial and technical news relating to Mingus Software products.
Excluded from Services performed by Mingus Software under this Agreement:
- Use of the platform that does not comply with the Documentation, the instructions for use or its Destination, or any abnormal use, for any reason (including negligence, mishandling, accident …)
- Any work or supplies not explicitly mentioned in this contract, including telephone training of customer’s staff
- A compatibility issue between the hardware provided by Mingus Software and any other customer hardware or failure of the latter
- The provision of a telecommunications network allowing access to the platform
- A compatibility issue between the telecommunication networks and the platform
- A failure of one of the elements constituting the client’s software environment (operating system, other software or platforms, network systems, etc.)
- Generally, the client’s non-compliance with his obligations under the Contract, and any other contract with Mingus Software.
The Contract does not cover the additional services recommended by Mingus Software or solicited by the customer to meet his specific needs. For example, consulting, training and consulting services will be the subject of a separate contract between the client and Mingus Software.
To enable the realization of this service, the customer will include:
- Refer to the Documentation before each request for intervention
- To make available to Mingus Software all necessary information requested by Mingus Software for the understanding and resolution of the anomalies encountered
- Designate a competent contact person in charge of handling the Anomalies, and that it be available during the entire intervention of Mingus Software
- To facilitate the access of Mingus Software staff to all its facilities should this be necessary and to ensure that Mingus Software staff have free access to the premises and to provide an appropriate correspondent
- To install and administer its equipment and applications not provided by Mingus Software, as well as its networks.
The amount of the fee defined in the proposal is constant over the initial period, subject to any changes in the scope of use. Mingus Software reserves the right to revise the amount of the fee on each or during the renewal period by applying the new tariff in force.
The annual fee is payable annually, in instalments, by bank or post-dated check. The monthly fee is payable quarterly at the beginning of the term, by direct debits, direct deposit, credit card or post-dated check. Credit card processing fees may be charged at the sole discretion of Mingus Software and may not exceed the cost of such processing
In addition, the services performed under the preparatory period are subject to invoicing and payment in accordance with the terms and conditions set out in the specifications.
Notwithstanding the provisions of the civil code, it is expressly agreed that in the event that several invoices are due and that the customer makes a partial payment, Mingus Software will be free to impute the said settlement as it sees fit.
Delay in payment
Any delay in payment will result, without prior notice, in the application of late payment penalties at the rate of three times the legal interest rate or 28% per annum, calculated per day of delay, as well as the billing of a lump sum payment of forty (40) $ per invoice concerned by the aforementioned late payment.
In the event of non-payment of an invoice upon its expiry, Mingus Software may, without prior notice, demand the immediate payment of any sums owed to it by the customer, and suspend the services.
No compensation can be made without the formal agreement of Mingus Software. This suspension does not entail any change in the amount of the fee that remains due for the entire period in progress.
The service will resume as soon as the cause of suspension has been removed without extending the current period.
The customer declares familiar Internet, its characteristics and its limits, especially recognizes:
- That data transmissions on the Internet only benefit from a relative technical reliability, which circulates on heterogeneous networks with characteristics and various technical capacities which are sometimes saturated at certain times of the day
- That some specific networks may depend on particular agreements and be subject to access restrictions that will not allow access to the platform.
- That users of the platform are likely to be located anywhere in the world, and that the content of the platform can be reproduced, represented or more generally distributed without any geographical limitation.
- That the data circulating on the Internet are not protected against possible diversions and that thus the communication of passwords, confidential codes and more generally of all sensitive information is carried out by the customer at his risks and dangers
- That the provision of the content of the platform to users may be subject to unauthorized third party intrusions and be, therefore, corrupt despite the issuance by Mingus Software of access protected by a password.
The Parties acknowledge that only the customer has the ability to control and know the content transiting through the operating platform.
The customer guarantees that he has all the authorizations for use and / or distribution on the territory, information and data of any kind, hosted by Mingus Software and is solely responsible for the consequences of making them available to the public, it is restricted on the Internet. In particular, he is solely responsible for the damages suffered or supported by Mingus Software, due to the presence of illegal data on the customer’s pages, such as defamatory and racist statements.
In case of failure to comply with the provisions of the law established by a judicial authority within the meaning of this same law, or in the case of an injunction issued by the judicial authority to remove disputed content, Mingus Software may take any necessary measures to delete this content. or prevent access. He informs the client. In the event of an amicable complaint or a formal notice from a third party addressed to Mingus Software that the content is illegal or causes him harm, Mingus Software will inform the customer without delay. In the absence of removal of the Contentious Content by the customer or by Mingus Software – because of the customer’s refusal or the latter’s silence – the customer guarantees Mingus Software of any recourse and condemnation to damages and interests to which Mingus Software could be exposed to reason for this claim. However, by way of derogation from the foregoing, Mingus Software may take any useful measure to remove access to the disputed content or to make access impossible, if the content appears clearly unlawful and inform the customer. In the latter case, Mingus Software will inform the customer as soon as possible. The suspension or interruption of the content for the reasons mentioned above will not entitle the customer to any compensation from Mingus Software. In addition, the customer shall be liable to Mingus Software for the entire agreed price throughout the period of suspension or interruption.
Responsibility of Mingus Software
Mingus Software executes the contractual obligations to which it is liable with all the care possible in use in its profession. Mingus Software is under an obligation of means and will not be held responsible for any delay in the execution of the aforementioned services. In addition, the responsibility of Mingus Software can not be engaged in case of inconsiderate application or lack of application of the advice of use provided in the framework of assistance or advice not emanating from Mingus Software itself. even. In no event shall Mingus Software be liable either for third parties or for indirect damages such as, in particular, operating losses, commercial losses, loss of customers, loss of control, any commercial disturbance, loss of profit, damage to Branding. Except in cases of infringement action, any action against the client by a third party constitutes indirect damage and therefore does not give rise to compensation. If the liability of Mingus Software were to be recognized, by the present terms, by a final decision of a competent court, the compensation that could be claimed from it would be expressly limited to the amount of the fee collected by Mingus Software, under the service, for the period of two (2) months in progress upon the occurrence of the damage. It is expressly agreed between the parties, and accepted by the customer, that the stipulations of this clause will continue to apply even in the event of a resolution of the present ones established by a court decision that has become final.
These provisions establish a risk distribution between Mingus Software and the customer. The price reflects this breakdown as well as the limitation of liability described.
Technical protection measures
The customer is informed and accepts that, in accordance with applicable law:
- The Mingus Software platforms include technical devices (cookies or other technologies) which, in particular, during an Internet connection, and for the platforms concerned, allow the customer via a web service, either automatically or, where appropriate, on the initiative of Mingus Software, to send to Mingus Software information on the identification of the customer (IP address, location, etc.)
- The information obtained by Mingus Software through these technical devices are also likely to be used by Mingus Software in the fight against counterfeiting, to identify and prevent any illegal or improper use of platforms concerned.
The responsibility of the parties will be entirely released if the non-performance by one or the other of a part or the totality of the obligations placed on his load results from a case of absolute necessity.
As a first step, cases of force majeure suspend the performance of the Contract and the parties meet to determine how to continue their relationship. If the cases of force majeure have a duration of existence greater than one (1) month, the Contract will be automatically, unless otherwise agreed between the parties.
Expressly are considered as cases of force majeure or fortuitous cases, besides those usually retained by the jurisprudence of the Courts and Tribunals of Quebec: blocking, disruption or congestion of the telecommunication networks, the bad quality of the electric current, the blocking of the means of transportation or supply for any reason whatsoever, inclement weather, epidemics, earthquakes, fires, storms, floods, water damage, governmental or legal restrictions, as well as legal or regulatory changes forms of marketing.
Termination at the customer’s initiative
In the event that the customer wishes to terminate all or part of the Service during the period, the latter will pay to Mingus Software, on a fixed basis, no later than the day of the expiry of the Contract, final and final financial compensation corresponding to the amount still to be paid. In addition to this allowance, Mingus Software reserves the right to charge customer for charges related to service interruption, migration and / or data recovery.
Termination for fault
The parties may, pursuant to this Agreement, have access to confidential information of the other party. Confidential information is the terms and prices of this contract, the platform or software package and any other information indicated as such. Confidential information is not one which, in the absence of fault, is in the public domain; those of which the receiving party was in possession before their communication, without having received them from the other party; those communicated to the parties by third parties, without conditions of confidentiality; and those that each party develops independently. The party to whom a confidential information will be communicated will preserve the confidentiality with care not inferior to that which it brings to the preservation of its own confidential information, and will not be able to communicate them or to divulge them to thirds, if it does not is with the prior written consent of the other party or as otherwise required by law. The parties agree to take all reasonable steps to ensure that confidential information is not disclosed to their employees or contractors in violation of this agreement. The terms of this obligation are valid throughout the validity of this contract and for two (2) years following its end.
All documents communicated by Mingus Software under this document will remain its exclusive property and will be returned to him upon request.
The fact that one of the parties does not rely on a breach by the other party of any of the obligations referred to herein shall not be construed for the future as a waiver of the obligation under cause. The customer irrevocably waives any request, claim, right or action against Mingus Software relating to the performance of this contract and that is made more than twelve (12) months after the event, and therefore, irrevocably waives any action in any jurisdiction on this basis against Mingus Software or any of the companies in the group to which it belongs.
Assignment of the Contract
The agreement between the client and Mingus Software is concluded intuitu personae. Accordingly, the rights of the customer arising from the agreement may not be assigned, licensed, sold or otherwise transferred by the customer, except with the prior written consent of Mingus Software.
The contract expresses all the obligations of the parties. In case of difficulties of interpretation between any of the titles appearing at the head of the clauses, and any of the clauses, the titles will be declared non-existent. No general or specific conditions contained in the documents sent or delivered by the parties may be incorporated into the contract, with the exception of the customer’s additional orders accepted by Mingus Software. Unless specifically stipulated otherwise, the contract may only be modified by an amendment duly signed by the persons authorized or mandated by the client and Mingus Software.
If one or more stipulations of the Contract are held to be invalid or declared as such pursuant to a law, regulation or following a final decision of a competent jurisdiction, the other stipulations will retain their full force and their reach.
Mingus Software will be able to state the name of the customer for the promotion of the platform, the customer can ask Mingus Software to withdraw his name in writing at the address email@example.com, Mingus Software will have to comply with them in the 45 days following the request.
All notifications, to be valid, must have been made to the address of domiciliation by registered letter with acknowledgment of receipt. The signatories of the estimate are deemed competent to represent the parties.
Law and jurisdiction
The Parties agree that this contract is governed by the laws applicable in Quebec. In the event of litigation and after an attempt of amicable procedure, any legal recourse resulting from it will have to be instituted in the judicial district of Montreal notwithstanding plurality of defendant or call in guarantee, including for the procedures on request or urgency. In case of opposition by the client to a request for an order to pay, express jurisdiction is also attributed to the judicial district of Montreal.
Last Updated: January 2022
- (a) “Application” means any software application, product, service, or website that you develop, own or operate to interact with any API.«Contract» means these general Conditions, the contract, the specifications, and any annexes.
- (b) “Hotello Marks” means the name and related marks of any of the Services for which APIs are made available by Hotello.«Destination» means the conditions of exercise of the right of use granted by Mingus Software.
- (c) “Confidential Information” means any information including, but is not limited to, nonpublic information regarding the APIs or Hotello applications, products, services, data, ideas, inventions, features, software, techniques, technology, trade secrets, and business and financial information, or any other information relating to Hotello that becomes known to you through disclosure, observation or otherwise, and that either is designated as confidential by Hotello, by its nature would be generally deemed to be confidential information, or that is not generally known or readily ascertainable to the public.«Malfunction» means any difficulty in accessing the operating platform found by Mingus Software.
- (d) “Registration Data” means limited information about you collected by Hotello during the online registration process.«Operating platform» means the hardware, platforms, operating systems, databases and environments provided by Mingus Software on which the operation of the products and services will be carried out.
- (e) “Services” means the Hotello software-as-a-service offerings and other services offered by Hotello.
In order to access or use an API, you must: (i) complete the applicable registration process; (ii) electronically accept these Terms; and (iii) complete the registration for the Application utilizing the API you wish to access. Hotello may reject your Application registration in its sole discretion.
- (a) Registration Data. You represent and warrant that all Registration Data provided by you is current, complete, and accurate, and you are solely responsible for updating your Registration Data as necessary. Hotello reserves the right to terminate your license to use the APIs immediately if your Registration Data is found to be inaccurate, incomplete, or not current at any time.
- (b) Account Password/Security. You are responsible for maintaining the confidentiality of your password and account and for all activities that occur under your account. You agree to notify Hotello immediately of any unauthorized use of your account or any other breach of security. Hotello is not liable for any loss that you may incur as a result of a third party using your password or account, either with or without your knowledge.
Licenses and Restrictions
- (a) API License. Subject to these Terms, Hotello grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the API: (i) to develop, test and support your Application; and (ii) to enable end users of your Application to connect to and communicate with the applicable Services. You are not permitted to access or use the API beyond the scope of the description provided in the Application registration that has been accepted by Hotello. By using the API, you agree not to: (i) modify, prepare derivative works of, or reverse engineer, our API, Services, or technology; (ii) use our API or Services in a way that abuses or disrupts our networks, security systems, user accounts, or the Services, as determined by Hotello; (iii) access or use the API for fraudulent or illegal purposes, or for any purpose that may be harmful to Hotello or its Services; (iv) market, sell, or resell the API or the Services to any third party; (v) use the Services in violation of our policies, applicable laws, or regulations; (vi) use the API in any application, product, or service that competes with any application, product, or Service offered by Hotello, or to otherwise divert Hotello customers or potential customers from the Services; (vii) harvest, collect, divert, or gather customer, user, or end-user data of either Hotello or the service/offering to which this API is connected without lawful basis and written consent from Hotello; (viii) transmit through the API or Services any material that may infringe the intellectual property or other rights of third parties, or (ix) remove any proprietary rights notices on any API and any other materials you receive in connection with your use of the API; (x) make any representations with respect to Hotello, the Services, or these Terms; (xi) display the Hotello Marks in a manner that could reasonably imply an endorsement, relationship, or affiliation with or sponsorship between you or a third party and Hotello; and/or (xii) access or use the APIs in a manner that exceeds a reasonable request volume or constitutes excessive or abusive usage, as determined by Hotello.
- (b) Security and Privacy-by-Design. You agree to implement appropriate, industry standard, secure coding, privacy-by-design, and other appropriate recognized security methodologies when designing your Application in a manner intended to protect any information accessible, processed, hosted, or transferred from either Hotello Services or any third-party service/product to which this API connects. Hotello reserves the right to test, validate, and/or inquire about your API use consistent with the requirements herein.
- (c) Rate limit. You agree to follow the rate limit and burst limit assigned within the agreement, all over usage will be invoiced monthly.
- (d) Cost of usage. You agree to pay the API usage cost as defined in the agreement.
Proprietary Rights and Hotello Marks
You acknowledge that we or our licensors retain all proprietary right, title, and interest in the API, the Services, and the Hotello Marks, and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part the Hotello Marks or is similar to any of these.
Hotello reserves the right, in its sole discretion, and at any time, to change, suspend, or discontinue any API or suspend or terminate your rights to access or use the API or display the Hotello Marks. You may stop use of the API and terminate these Terms at any time by closing your account and ceasing all access and use of the APIs. Upon termination of these Terms, you will immediately discontinue all access and use of the API and cease to display the Hotello Marks, if applicable. Neither party shall be liable for any damages resulting from a termination of these Terms in accordance with this Section; provided, however, the termination of these Terms shall not affect any claim arising prior to such termination. Sections 4 through 12 shall survive termination.
You understand and acknowledge that Hotello may from time to time independently create applications, products, or services that are similar to or competitive with your applications, products, or services, and nothing in these Terms will be construed as restricting or preventing Hotello from doing so, and that such activity will create no obligation to you.
Unless expressly authorized in writing by Hotello, you shall not disclose to any third party any Confidential Information of Hotello or use such Confidential Information in any manner other than to perform your obligations under these Terms. The foregoing restrictions do not apply to any information that: (i) is publicly disclosed through no fault of your own; (ii) is already lawfully in your possession and not subject to a confidentiality obligation to Hotello; (iii) becomes known to you from a third party having an apparent bona fide right to disclose the information; or (iv) is Confidential Information that you are obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, provided you supply Hotello with timely notice of such court order or subpoena. Furthermore, you will keep in confidence all passwords and/or other access information related to the API.
You hereby warrant to Hotello that you have all necessary authority to enter into and perform your obligations under these Terms without the consent of any third party or breach of any contract or agreement with any third party, and that the use by others of your applications, products, or services shall not violate the rights of any third party (e.g., copyright, patent, trademark, or other proprietary rights) or any applicable law or regulation. You hereby acknowledge and agree that the APIs are provided by Hotello on an “AS IS” and “AS AVAILABLE” basis. Hotello EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Hotello MAKES NO WARRANTY THAT ANY OF THE APIs WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE APIs WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE; NOR DOES Hotello MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APIs OR THAT ANY DEFECTS IN THE APIs WILL BE CORRECTED. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Hotello OR THROUGH THE APIs SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN
Limitation on Liability
IN NO EVENT SHALL Hotello BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THESE TERMS, WHETHER DIRECT OR INDIRECT, INCLUDING BUT NOT LIMITED TO: (i) LOSS OF DATA; (ii) LOSS OF INCOME; (iii) LOSS OF OPPORTUNITY; (iv) LOST PROFITS; OR (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND WHETHER OR NOT Hotello HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Hotello’s LIABILITY HEREUNDER IS LIMITED TO $100.00.
You agree to defend, indemnify, and hold harmless Hotello and its affiliates, and their respective directors, officers, agents, employees, consultants and partners, from and against any third party claim arising from or in any way related to your use of the API, any violation of these Terms by you, or any other actions related to your use of the API, including any liability or expense arising from claims, losses, damages (actual or consequential), suits, judgments, litigation costs and reasonable attorneys’ fees, of every kind and nature.
Choice of Law and Location for Resolving Disputes
This Terms shall be construed, interpreted and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Québec and the federal laws of Canada applicable therein (excluding any conflict of law rule or principle of such laws that might refer such interpretation or enforcement to the laws of another jurisdiction). The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Québec, judicial District of Montreal, with respect to any matters arising pursuant hereto
- (a) Relationship of the Parties. You and Hotello are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
- (b) Assignment. You may not assign your rights or delegate your duties under these Terms either in whole or in part, by operation of law or otherwise and any such attempted assignment or delegation shall be void.
- (c) Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform under these Terms due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a party.
- (d) Notice. Hotello may provide you with notice via email, regular mail, and/or postings on the Hotello website.
- (e) Compliance with Laws. Both parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable export and import laws and regulations, in connection with their performance, access and/or use of the APIs under these Terms.
- (f) No Third Party Beneficiaries. No person or entity not a party to these Terms will be deemed to be a third-party beneficiary of these Terms or any provision hereof.
- (g) Entire Agreement. These Terms set forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of these Terms shall be valid or binding on either party unless agreed to in writing by both parties. If any provision of these Terms is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from these Terms and the other provisions shall remain in full force and effect and the parties agree to comply with the remaining terms in a manner consistent with the original intent of these Terms. In the event of any conflict between the content of this document and the documents incorporated by reference, this document shall control with respect to your use of the API.
- (h) Remedies. You acknowledge that your breach of these Terms may cause irreparable harm to Hotello, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which Hotello may be legally entitled, Hotello shall have the right to immediately seek injunctive relief in the event of a breach of these Terms by you or by any of your officers, employees, consultants or other agents.
Questions and Comments
If you have any questions regarding these Terms or your use of the Site, please contact us at firstname.lastname@example.org.
Conditions relating to the Marketing Module
Marketing Module terms and conditions
You recognize that you have no other right to online services on the website except the rights of use specifically granted under this agreement.
This agreement contains the terms and conditions applicable to the following matters :
1) How do I access the Marketing Module service?
The H-Emailing service is only accessible to you upon registration in the appropriate form or by receiving a quote from Mingus Software. If your registration is approved by Mingus Software, you will receive a username and password that will allow you to access the H-Emailing service and functionalities provided in this website. Once registered, you may change your password by using the procedure to this end. You shall be responsible to maintain the confidentiality of your password.
Accuracy of the Information
Mingus Software reserves the right to refuse registration as a client to its H-Emailing service to any person under the age of majority that is 18 years of age for any resident of a Canadian province, and 21 years of age for a resident of the USA. Also, no bulk emailing shall be made to any internet user of less than 13 years of age without the written consent of his\her parents or legally acknowledged tutors. In case of any doubt on the evidence provided by a potential client upon registration, Mingus Software reserves the right to request additional proof of identity or age.
2) What are client’s commitments with respect to the Marketing Module service?
You undertake, subject to any applicable sanction or right, not to accomplish or authorize the accomplishment of any of the following acts in connection with the use of the H-Emailing service :
- Reveal your password to a third party or be replaced by a third party not registered with the H-Emailing service
- Post, link to or otherwise publish or transmit any information that is unlawful, threatening, abusive, harmful, libelous, pornographic or indecent or that infringes copyright or other rights of third parties or that contains any other form of illegal content or affect the use and reputation of Mingus Software or its affiliate corporations
- Post, link to or otherwise publish or transmit any information or claim with respect to drugs, medication, surgeries or treatments for recreational sex purposes or essentially non therapeutic uses
- Disguise the origin of any information transmitted
- Impersonate any person or entity or misrepresent any affiliation with any person or entity
- Post or transmit any information that contains software viruses, files or codes designed to interrupt, destroy, corrupt or limit the functionality of any website or computer software or equipment
- Promote the sale of pirated products or services or considered contrary to any law in Canada
- Transmit any false advertising implying extortion of a user or unauthorized advertising with respect to an individual or enterprise
Identification of the Sender
You undertake to clearly display your trade name or your logo and address in your emails as sender of your electronic commercial message to your Recipients. To this effect, you undertake to use the system as conceived by Mingus Software, which allows identifying you as sender of your bulk emails. Moreover, you undertake not to act as an intermediary for the purpose of transmitting emails on behalf of another company (for your clients, for example) through the use of Mingus Software.
No email sent by the H-Emailing service shall contain in the “subject line” or in its content false or misleading information.
3) What are the terms of payment?
The cost of the H-Emailing service is payable by the client on a monthly basis upon receipt of a bill for services. The H-Emailing service shall only be activated upon receipt of the initial subscription fee and first monthly payment. Late payment charges of 2 % per month shall be payable. If payment is not received within thirty (30) days from billing, access to the service shall be interrupted until payment is received and late payment penalties as shown of the bill shall be charged. Mingus Software reserves the right to take all necessary measures in case of late payment, including definitive interruption of service, without further notice.
Failure to Pay
If a payment is returned with the notice “insufficient funds”, fees of $25 shall be payable to Mingus Software. In case of failure to pay, Mingus Software shall be entitled to suppress without notice all of the client’s files from its server and close the client’s account to allow use of the space by another client. If the client wishes to reactivate his account, configuration fees shall be charged to the client in addition to any payment due.
4) How is protected content treated?
Mingus Software‘s Intellectual Property
The website’s content and services, the website’s conception and layout together with the trade-marks displayed on the website are owned by Mingus Software and/or its partners and are protected by the laws on copyright, trade-marks, unfair competition and by all other applicable laws, as the case may be, and may not be copied or retransmitted, in whole or in part, without Mingus Software’s express authorization.
Limited Use Licence
5) What are the remedies and indemnities in case of contravention?
Sanctions in case of Default
In any situation where Mingus Software has good reasons to believe that you have failed to meet anyone of your obligations as provided herein, Mingus Software reserves the right, in its sole discretion, to temporarily or definitely suspend your access to the website and/or the H-Emailing service or some of its features, and to take any measure deemed appropriate in the circumstances.
Such measures may include, without limitation, cancellation of your H-Emailing service contract and transmission of any illegal content to proper authorities. Mingus Software, without any obligation on its part, reserves the right to give you notice of your default, by e-mail or by any other means, and provide you with the opportunity to correct it. In the event of rules of ethics and conduct governing the H-Emailing service or in case of default on your part, Mingus Software will keep you last payment made for the H-Emailing service and you shall not be entitled to reimbursement of any amount paid in relation to the service.
6) What is the compensation payable by the customer in favor of Mingus Software?
Anti-spam law violation
WITHOUT LIMITING THE FOREGOING, YOU ASSUME RESPONSIBILITY TO ADOPT PRACTICES AND BEHAVIORS COMPLIANT WITH C-28: CANADIAN ANTI-SPAM LAW (“CASL”) OR ANY OTHER LAW OR REGULATION APPLICABLE TO ONLINE MARKETING OR CONTENT OF COMMERCIAL MESSAGES.
Accordingly, you agree to defend and hold harmless Mingus Software, its directors and officers of all claims, demands, losses, costs and expenses (including reasonable attorneys’ fees that may be incurred by Mingus Software), damage, judgment, penalty, fine or liability of any nature arising directly or indirectly, of any claim, complaint or recourse undertaken i) by recipients arising from unsolicited commercial electronic messages sent by the client while using the Mingus Software service. or ii) by any governmental authority arising from non-compliance with casl or any other law or regulation applicable to online marketing or content of commercial messages.
Notice of Third Party’s Default
n addition, you undertake to give notice to and collaborate with Mingus Software if you should be made aware of any illegal or forbidden activity as described herein.
7) What are the effects of termination or cancellation of the agreement and can I recover my data?
- The Customer’s account will be blocked for a period of 30 days and sending of commercial emails is not possible
- The Customer must have paid any amount due to Mingus Software to qualify for the export of its data relating to members (email address, subscription profile history)
- The Customer has 30 days to export its data, download using the “export” function, said data being then provided in an Excel file
- The unsubscribe links on recently sent emails remain valid for 60 days after termination or cancellation of the client’s agreement
- In case of unsubscription by a Recipient during this follow-up period, Mingus Software will send to the Customer a copy of the email that the unsubscribed person has received and Customer shall amend and remove himself this recipient from the address list. The customer assumes full liability for his updated list of addresses after receipt of the unsubscribe email from Mingus Software.
- The customer agrees to defend and hold harmless Mingus Software and its directors and officers of any claim, demand, loss, cost and expense (including reasonable attorneys ‘fees which may be incurred by Mingus Software), damages for judgment , penalty, fine or liability of any kind resulting directly or indirectly, for any claim, action, complaint or undertaken by i) recipients due to unsolicited electronic messages transmitted by customer after the receipt of an email from Mingus Software confirming the unsubscription by the recipient or ii) by any government agency such as the crtc or the competition bureau arising from the sending of unsolicited commercial emails sent by the customer after the receipt of email from Mingus Software confirming the unsubscription of the recipient
- On expiry of the retention of 30 days to recover data, remove Mingus Software will delete and suppress from its systems customer data. customer acknowledges that Mingus Software has no other obligation to keep or save the customer data except expressed above terms and Mingus Software assumes no liability for the suppression of customer data in accordance with the present agreement.
8) What are the guarantees offered through the Marketing Module service?
Mingus Software‘s commitment
Mingus Software commits to make its best efforts and act in conformity with state of the art rules as recognized in the information technology industry so as to ensure suitable operation of its website and continuous access to the H-Emailing service.
Limitation of Warranty
Given the unpredictability of the Internet network and to the extent allowed under applicable laws or regulations, Mingus Software offers no guarantee whatsoever in regards to the technical or commercial performance of this website. More precisely, Mingus Software offers no guarantee that the services offered via this website will respond perfectly to your expectations or will be exempt from interruptions, safe or deprived of any error and that any defect identified in the features offered or the software used, as the case may be, will be corrected. You shall be solely responsible for any damages to your computer or any loss of data resulting from the download of any material through this website.
Limitation of Liability in case of Damages
To the extent allowed under applicable laws or regulations, Mingus Software shall in no event be held liable for any indirect damages, resulting from the use or impossibility to use the website, including damages associated to the loss of profits, lost opportunities, business interruptions or loss of data, and this, whether or not Mingus Software has received prior notice of potential damages.
The user expressly agrees that Mingus Software shall not be liable-for any damage-interests regardless of the cause of action, whether contractual or extracontractual which would exceed fees paid by the user for the current annual period in relation with the H-Emailing service. user acknowledges that the present provision constitutes his exclusive remedy for any cause of action arising out of the present agreement.
Limitations with respect to content and other matters
Mingus Software shall in no event be held responsible, in any manner whatsoever, in regards to the content of any email transmitted, business results achieved or potential client’s problem with the use of the H-Emailing service.
9) What is Mingus Software’s responsibility towards external websites?
Hyperlinks to External websites
Mingus Software is not liable for the content of other websites available through hyperlinks from this website (hereinafter “Linked Sites”), such Linked Sites having been created by third parties. Mingus Software does not act as an editor or publisher of the material contained in these Linked Sites. Mingus Software is not affiliated with and does not endorse the Linked Sites, the owners or operators of the Linked Sites or the products and/or services made available on these sites. This website is not sponsored by the Linked Sites or their owners or operators. Your navigation to these Linked Sites and their marking as bookmarks are your sole responsibility.
Hyperlinks to this website
Mingus Software reserves the right to forbid the use of hyperlinks to this website if the surrounding context in which the hyperlink is used is harmful to the honor, reputation or commercial interest of Mingus Software.
10) What are the applicable laws and jurisdictions?
11) Where can I file a complaint or report abuses?
301-4035 rue Saint-Ambroise
Canada H4C 2E1
Canadian Anti-Spam Law (CASL)
The Canadian Anti-Spam Law (CASL) comes into force on 1 July 2014. Here is an outline.
However, you assume the responsibility to take notice by yourself of the requirements of the casl, particularly to identify situations of implied consent and required deadlines, with the understanding that Mingus Software assumes no liability or damage relating to the accuracy or completeness of the online informational content with respect to the requirements of CASL.
The law designates spamming, or sending unsolicited commercial electronic messages as an offense. It forbids sending a commercial electronic message unless the person to whom the message is sent has provided an express or implied consent to receive it.
The message must also comply with the regulation prescribed form; therefore it must include the information identifying the person who sent it or on behalf of whom it was sent, and the information to communicate easily with either of these people.The recipient must be able to easily unsubscribe from the communication and the sender must respond within ten working days.
Express consent requires explicit and informed adhesion – there can be no business communication with a person or corporation unless consent has been provided.
In case of implied consent, consent is assumed unless there is explicit refusal – there can be commercial communication with a person or a corporation in circumstances where it can be assumed that they might be interested, but interested parties should be able to refuse the communication.
In the case of CASL, implied consent can be assumed in some cases, particularly when there is an “ongoing business relationship” or a private relationship. You must refer to CASL to inquire about other exceptions specified, such as family relationship, personal relationship and others. Moreover, except for the exceptions provided in the CASL, express consent must be requested if you wish to send to a person one or several unsolicited commercial electronic messages.
Those who can assume implied consent because of an ongoing business relationship must meet one of the following criteria :
- They conducted the sale, lease or barter of a product, a good, a service, land or a right or interest in land in favor of the message recipient within two years prior to sending the message.
- They have offered a business opportunity, investment or gaming opportunity which has been accepted by the recipient in the preceding two years.
- They have spent, with the recipient, for one reason or another, another type of written agreement which is still in effect or which has expired within the preceding two years.
- They received any request for information from the recipient within the previous six months.
Those who can assume implied consent because of a private relationship must meet the following criteria :
- The recipient has made a donation or gift to the sender or his organization during the two years preceding the date of the message and the sender or organization is a registered charity, political party, organization or candidate.
- The recipient has done work as a volunteer for the sender or his organization or attended a meeting organized by him or his organization during the previous two years and the sender or his organization is a registered charity, a political party, organization or candidate.
- The recipient has been a subscriber to the organization during the two years preceding the date of the message and it is a club, association or voluntary organization, as defined in the regulations.
Another interesting case, if the recipient has conspicuously published its email address, for example on a commercial Website, without specifying that it should not be used to receive unsolicited commercial electronic messages, the address may be used to send messages relevant to the person’s business, role, functions or duties in a business or official capacity. This exception also applies where the recipient has provided their email address to the sender without indicating he does not want to receive any unsolicited commercial electronic message and the message is relevant to the person’s business, role, functions or duties in a business or official capacity.Even if one consents one way or the other to receive any unsolicited commercial electronic message, the recipient must be able to unsubscribe from the communication.
Proof of consent
Proof of the consent rests with the person who alleges the existence, that is to say the sender. You must keep the information relating to consent: date of request, information about the applicant, a copy of proof of the business relationship.
Even if one consents one way or the other to receive unsolicited commercial electronic message, CASL requires that the recipient must be able to unsubscribe at no charge to the sending of commercial electronic messages or certain categories of them, using the method that was used to send the message, or in case of impossibility, other electronic method that allows him to express this will. Also, all communications sent by email through the H Emailing Service, whether a first communication or follow-up, must contain an unsubscribe option by the recipient, which is clearly visible and remain functional for a minimum of sixty days.
According to CASL, the sender of the message must ensure that effect be given to the will of unsubscription of the recipient, without delay and in any event no later than ten working days after this will has been communicated to him day and without requiring any further action by the recipient.
Preservation of proof of withdrawal
As sender, you must be able to demonstrate that you have responded to a will of unsubscription from the Receiver within the legal deadlines. We expect you to keep evidence of unsubscribe requests that have been submitted and the process time to which they gave rise.
As of July 1 2014, sending unsolicited emails will be punished by fines of up to 1 million $ in the case of an individual and 10 million $ for a corporation or other organization.
Effective July 1 2017, a recipient who feels prejudiced by the sending of unsolicited emails may apply to a court to request compensation equal to the loss or damages and expenses incurred, in addition to $ 200 per violation to the CASL, up to one (1) million $ per day, depending on the type of violation. The maximum penalty is a million dollars for one person and ten (10) million $ for a corporation or other organization.
Transitional provisions state that implied consent for business or private relationship that existed before the CASL will be valid for three years following the entry into force thereof so until 1 July 2017. It will be necessary that you seek express consent during this transitional period of three years for there to be consent after the deadline.
How to prepare yourself for this legislation?
We changed H Emailing Service to make this easy. Thus, unsubscription, incorporation of your address and your email allowing your customers to easily communicate with you will be done simply.
In terms of express consent, all those who register from the application form from your website comply with the law. Thus, your client will receive a confirmation email, you will receive a copy and we will keep all the information in the database.
We also added templates consent requests that will able you to get all the necessary information to prove that the person did indeed provide his express consent to receive your email communications. We suggest you over the coming weeks to send an email requesting permission to any person in your mailing lists.
It is clear that it is not all your customers who will provide their express consent first time. We suggest you make periodic reminders by the entry into force of the law.
For people who will not provide you their express consent, it will be important for you to keep in your records the information necessary to show that implied consent applies. So you can add a note in the customer record on H Emailing.
The Canadian Anti-Spam Act is primarily intended to reduce the amount of spam and spammers. It requires making some adjustments to the ways of doing email marketing. However, because you already follow best practices by relying in H Emailing, these adjustments may be minor for you.
We suggest you promptly contact your mailing list in order to obtain a maximum of express consent before the entry into force of the law.
This document informs you on the Anti-Spam policy (the “policy”) set up by Mingus Software Inc. (“Mingus Software” or “us”), as owner and operator of the H Emailing service for the transmission of emails (the “H Emailing Service”) offered on this site (“website”), to ensure that the H Emailing Service be used in accordance with a spirit of respect for others and professional ethics.
This policy applies to Mingus Software‘s conduct in regards to individuals or businesses which have subscribed to H Emailing Service (the “clients” or “you”) and also to clients’ conduct in regards to recipients of bulk emails transmitted through the H Emailing Service (the “recipients”).
What is meant by “spam”?
The new Canadian anti-spam Act (CASL) defines “spam” as unsolicited commercial electronic messages” and prohibits the sending of a commercial electronic message unless the person to whom the message is sent has provided an express or implied consent to receive it.
The message must also comply with the prescribed form and must therefore contain the information identifying the person who sent it and on whose behalf it was sent, along with information allowing to communicate easily with one or the other of these persons. The recipient must be able to easily unsubscribe from the communication and the sender shall respond within ten working days.
For more information, please see our section: Details on Canadian anti-spam Act (CASL)
We adopt a zero tolerance approach towards the transmission of unsolicited emails or spam via our network. The transmission of unsolicited emails or spam is strictly prohibited. We require from our client the voluntary subscription (opt-in) of Recipients to their e-mail transmission lists before any bulk transmission of emails to Recipients via the H Emailing Service can take place, except in cases of implied consent as provided under CASL.
Outside those contingencies, any email transmitted by a client to a Recipient shall be considered by Mingus Software as “spam” or unauthorized email. Violation to this policy leads to serious penalties. Mingus Software may suspend or put an end to the service immediately upon being informed that a violation of this policy took place. Depending on the nature and extent of the prejudice caused by the illegal conduct, court action may be taken against the client.
1) What are the applicable rules?
Mingus Software abides and, requires that its clients comply with the requirements of CASL and any other law or regulation applicable to online marketing or content of commercial messages. In particular Mingus Software complies and demands from its customers to abide to the following basic rules regarding the Recipients:
- Preliminary Subscription Step: An express, informed and prior consent of each Recipient shall, wherever possible be sought by the client of the H Emailing Service before proceeding with a bulk e-mail transmission containing commercial messages (e.g. information bulletin, participation in a contest, promotional offers for products or services, etc.).
- For example, the consent given by a Recipient via an electronic form plainly visible on your website, may constitute an express consent. The electronic subscription form shall feature a check box to be checked by the Recipient to express his voluntary adherence to the transmission list and not display a box already checked.
- Except seeking an express consent, an implied consent of the Recipient to receive commercial messages may be sufficient within the specific cases and time period provided by CASL.
- For example, CASL provides that an implied consent by Recipient can be assumed in cases where there is an “existing business relationship” as the sale of goods or services between the sender and Recipient, for which implied consent is presumed to continue for a subsequent period of two years. Similarly, the Act assumes an implied consent for a period of six months following a request for information by the Recipient to the sender, even if no sale or business relationship follows.
- Other specific exceptions are provided by law. Thus, if the Recipient has conspicuously published its email address, for example on a commercial Web site, without specifying that it should not be used to receive unsolicited commercial electronic messages, the address may be used for messages related to his work or his business. This exception also applies when the recipient has provided his email address to the sender without any statement indicating that he does not want to receive unsolicited commercial electronic message and the message is related to his work or his business. An implied consent may also result from a « private relationship » as defined under the Act.
- We recommend that you visit our section: Details on C-28: Canadian anti-spam Act (CASL) which shows the various cases of implied consent. However you remain responsible to read for yourself CASL requirements especially to identify situations of implied consents and their applicable conditions as Mingus Software does not bear any liability nor damage regarding the accuracy or completeness of the informational content posted online regarding the requirements of CASL.
- Preservation of proof of consent: CASL requires that the sender must be able to demonstrate that he had obtained an express consent of the Recipient to send commercial messages or that the sending was part of a case of implied consent. So you must keep the proof of any express consent obtained electronically or in paper form, at any time.
- For Recipients who will not provide their express consent, it is important that you keep for your records the information necessary to show that an implied consent applies. Also, you should take advantage of the time period that an implied consent is presumed by the Act to require the Recipient’s express consent to the continuation of your electronic mailing otherwise you shall remove such Recipient from your mailing list at the end of the statutory period.
- Sources and Nature of Transmission: Any bulk transmission of emails must identify the sender. To this end, our system is designed so as to display the name and email address of the client in every electronic message heading sent to Recipients via the H Emailing Service. The nature of the subscription shall be clearly mentioned by the client in all his communications (news bulletin, contest, general transmission lists, etc.). The message may not cause confusion and contain a hidden subscription. For example, a subscription to a news bulletin may not be considered as acceptance of a promotional subscription transmission list.
- Unsubscribe Option: Even if Recipient agrees one way or another to receive any unsolicited commercial electronic message, CASL requires that the Recipient must be able to withdraw, at no charge, from the sending of commercial electronic messages or certain categories of these, by using the same mean that was used to send the message, or, if impossible, by any other electronic means that allows him to express his will Thus, all communications sent by email through the Service Mingus Software, whether a first communication or a follow-up, must contain an unsubscribe option by the Recipient, which is clearly visible and must remain functional for a minimum of sixty days and must remain functional for a minimum of sixty days.
- Under CASL, sender must ensure that effect is given without delay, to an indication of withdrawal and in any event, no later than 10 business days after the indication has been sent, without any further action being required on the part of Recipient.
- In the event that you receive unsubscribe requests by phone, fax or mail, client undertakes to proceed with the withdrawal within seventy-two (72) hours from receipt of the request.
- Preservation of proof of withdrawal: CASL requires that sender must be able to demonstrate that he responded to a withdrawal demand from Recipient, within the legal deadline. So it is your responsibility to preserve the proof of the unsubscribe requests you received and the processing time to which they gave rise.
- Subsequent Use of E-mails and Transmission Lists: No e-mail address may be reactivated after withdrawal of a Recipient. The client may not under any circumstances resell the lists of Recipients compiled via the H Emailing Service. Also, a list may not be used by other enterprises or partners than those specifically mentioned by the client in his communications with the Recipient.
- Complaints and Abuses: clients must set up a system for the treatment of complaints that shall be fair, efficient and easy to use in regards to problems related to the transmission of emails via the H Emailing Service. Moreover, all messages transmitted must include a link entitled “Report an Abuse” leading directly to the website.
2) How are abuses treated?
When abused Recipients click on the link “Report an Abuse” incorporated in e-mail messages sent to them, or if Mingus Software is, in any manner, informed of an actual or potential abuse by a client, Mingus Software reserves the right, without being obliged, to verify the nature of said abuse, transmit to the faulting client a notice to correct the default and, as the case may be, suspend the services or terminate them.
3) Indemnification of Mingus Software
client assumes responsibility to adopt practices and behaviors consistent with CASL or any other law or regulation applicable to online marketing or content of commercial messages.
Accordingly, the client agrees to defend and hold harmless Mingus Software, its directors and officers of all claims, demands, losses, costs and expenses (including reasonable attorneys’ fees that may be incurred by Mingus Software), damage, judgment, penalty, fine or liability of any nature arising directly or indirectly, of any claim, complaint or recourse undertaken i) by recipients arising from unsolicited commercial electronic messages sent by the client while using the service Mingus Software. or ii) by any governmental authority arising from non-compliance with casl or any other law or regulation applicable to online marketing or content of commercial messages.
4) Can we contact you?
If you have any questions with respect to this policy, its last updates or our practices in relation to the treatment of spam or to report an abuse by a third party, do not hesitate to communicate with us by e-mail at email@example.com or at the following mailing address:
301-4035 rue Saint-Ambroise
Canada H4C 2E1
What is meant by “Personal Information”?
“Personal information” is information concerning a physical person that allows identification of such person. For example, your name, residential address, personal phone number and e-mail address, date of birth, credit information and access code to the website.
This policy applies to Mingus Software conduct in regards to personal information of individuals and, based on circumstances, in regards to confidential or sensitive information of enterprises (collectively the “Information”) that subscribed to H Emailing Service (the “clients” or “you”) and also to clients’ conduct in regards to recipients of bulk e-mails transmitted through the H Emailing Service (the “recipients”).
This agreement contains the terms and conditions applicable to the following matters:
1) How is my information collected?
Mingus Software collects “personal information” (received from a physical person otherwise than as a representative of a company (or moral person) pursuant to the definition provided above) only insofar as is needed for execution of the H Emailing Service.
We collect Information upon your registration as client. More particularly, we collect your name, e-mail address, mailing address and phone and fax numbers. In order to complete your registration, we provide you with a username (that may or not reveal your identity, at your choice) and an access code. It is your responsibility to maintain the confidentiality of your access code. Once registered, you may modify your access code through the feature provided to this end.
Additional Information may be requested in the context of online payment of the Marketing Module Service.
2) What is my information used for?
Let us first assure you that in no event will Mingus Software sell, give or exchange your Information to third parties for commercial purposes without your consent. In addition, Mingus Software and its clients undertake not to rent, sell or share their lists of clients or Recipients to third parties without the consent of registered clients or Recipients except in exceptional circumstances as specifically described herein.
- Service Management
At a general level, we use your Information in the execution of the H Emailing Service, for billing purposes and, in specific cases, to resolve technical problems.
- Promotional Purposes
Mingus Software may occasionally use clients’ names and some statistical data as reference for promotional activities intended to potential clients. The client accepts that this information be used by Mingus Software for promotional purposes and waives all rights to any form of compensation with respect to such use. In all cases, Mingus Software shall conform to its Anti-Spam policy displayed on the website(see Anti-Spam policy).
- Services by External Suppliers
Mingus Software may from time to time call onto external service suppliers to enhance the quality of its services in specific areas. In this context, some of your Information may be transmitted to such suppliers. Those suppliers are tied by contract to the present policy together with the Anti-Spam policy displayed on this website and must use the Information solely in relation to services on behalf of Mingus Software.
- Legal Obligation
3) How si my information protected?
Mingus Software conforms namely to the Canadian Personal Information Protection and Electronic Documents Act together with the Act respecting the protection of personal information in the private sector of Quebec. Mingus Software uses various measures to ensure the integrity and confidentiality of your Information. These measures are aimed at preventing the loss or theft of your Information, as well as its unauthorized reproduction, modification, use, consultation and disclosure.
Our website is secured through the use of technology recognized in the industry.Access to your Information is provided to authorized personnel only, and this, solely for the purposes mentioned in this policy or dictated by the service offered. Agreements are also signed between Mingus Software and its employees and subcontractors so that your Information is used in conformity with the present policy and with any applicable law, rule or regulation.
However, no system being infallible, we cannot guarantee the absolute safety of your Information.
4) Is online payment secured?
When using the H Emailing Service online payment certain sensitive Information is requested (name, address, e-mail, credit card number, etc.). To ensure its protection, your Information, including our credit information, is encrypted using the SSL protocol (Secure Socket Layer), an industry standard, before being transmitted over the Internet.
Mingus Software may use the services of a third party to take charge of the payment process of the H Emailing Service. This intermediary is authorized to preserve data on transactions executed by our clients through the website, and this, with the sole purpose of ensuring a secured payment process and the filing of evidence on transactions so as to afford adequate protection and follow-up of clients of the H Emailing Service. Such transactional data may also serve for validation and follow-up of clients upon registration to the service.
5) Are there any exceptions?
In the event that we intend to use or disclose your Information for purposes other than those specifically described in this policy, we undertake to obtain your consent.
Depending on the nature of the information, your consent may be provided verbally, by means of a form or correspondence or, in certain circumstances, implicitly when your consent may be clearly inferred from your conduct.
What is a “cookie”?
A “cookie” is a small text file that contains a unique identification number and that is transmitted by a website server to a temporary memory feature located in your computer and that allows to follow certain of your activities on that website.
In our situation, we use a combination of technologies allowing us to obtain statistics on online behaviour. Among others, we use an invisible image that allows us to trace and identify recipients that view e-mail messages. These tools allow us to verify e-mail addresses together with the dates and time of receipt and viewing of messages. Such data allows us to optimize e-mail transmission in addition to ensure respect of bulk e-mail transmission rules by our clients.
Cookies are used in the operation of management interfaces of our website. Their only purpose is to provide our clients with a more personalized access to our products and services.
We use those technologies solely for the purpose of improving the quality of our website and service so as to provide you with relevant marketing information on Recipients of your e-mails, for example to gather statistics on viewing percentage of your e-mails. The anonymous character of visitors that browse through our website is preserved at all times.
7) How long is my information kept?
Mingus Software will preserve your Information only for the period essentially needed for use of the H Emailing Service for the purpose for which it has been designed.
Mingus Software undertakes to delete or destroy the Information in your account upon its closure, unless there is a legal obligation to the contrary.
The Information collected in the context of statistical analysis may be kept for an undetermined period but these shall not allow to identify you or to accede to other information that concerns you personally.
8) What are my obligations as a client?
You have the obligation to ensure the secrecy of your access code and not to disclose it to anyone.
In addition, you have an obligation to comply, in all respects, with the terms and conditions contained in this policy as well as the Anti-Spam policy that complements it (see the Anti-Spam policy), as regards to Recipients of e-mail messages that you transmit or wish to transmit via the H Emailing Service.
9) How do we assure accuracy and update of my information?
We wish to ensure that the Information kept in our clients’ files is accurate, complete and up to date. It is therefore important to inform us of any relevant changes in your personal Information or your business contact information. You may communicate with us by e-mail at firstname.lastname@example.org in order to correct or validate information submitted upon your registration. You are also authorized to consult your file in order to verify accuracy of your Information by any of the means offered to you for such purpose.
Recipients of e-mail transmission lists are invited to communicate directly with the client to correct or validate personal information related to their subscription to marketing e-mail messages.
10) Can this policy be modified?
This policy may be updated from time to time. Mingus Software reserves the right to modify this policy at its discretion, by adding or subtracting certain terms and conditions.
To assist you in identifying modifications to the policy, as the case may be, we will post the dates of modification visibly in a space to this effect on the website.
11) How can we contact you?
If you have any questions with respect to this policy, its last updates or our practices in relation to the collection, use, maintenance or disclosure of your personal Information, or for filing a complaint or report an abuse by a third party, do not hesitate to communicate with us by e-mail at email@example.com or at the following mailing address:
301-4035 rue Saint-Ambroise
Canada H4C 2E1