Terms and Conditions for the provision of Mailkit services
(hereinafter the “Terms”)
Member company from the Mailkit group that concluded the Agreement (hereinafter the “Provider”) is the Provider of Mailkit service, consisting in provision of software and other direct marketing tools by which natural or legal persons (hereinafter the “Users” or “User”) may within the framework of marketing strategy electronically on the Internet using direct communication specifically address their existing and potential customers (hereinafter the “Customers”) and evaluate the success of these actions (hereinafter the “Mailkit Service”). The Provider also provides, on the basis of individual User's orders approved by the Provider, consultation support services (hereinafter the “Consultation Support Service” and jointly the Mailkit Service and the Consultation Support Service the “Services”). The Services are described in detail in the Specification.
User Registration and conclusion of the Agreement
- The condition for initiation of the Services provision to the User is the conclusion of the Agreement and the expression of the User's consent to these Terms.
- The Agreement between the Provider and the User is concluded by signing the Agreement by both contracting parties at the moment of signing the Agreement by the second contracting party.
- When the Agreement is concluded, the User chooses his username and password for the use of the Services. The Provider assumes no responsibility for the misuse of the username and password by a third person.
Conditions for provision of Mailkit Service
- The User undertakes to comply in all material respects with all applicable laws, rules, regulations, orders and decrees of all governmental authorities (i) of the state in which the Provider is physically located, (ii) of the state whose national the User is or in which the User physically resides and/or (iii) the state whose national the Customer is or in which the Customer is physically located or with good manners (the so-called "boni mores") in the mentioned states, governing the provision and use of the Mailkit Service (hereinafter collectively the “applicable laws”).
- The User undertakes to ensure that the content of the communications sent through the Mailkit Service to the Customers (hereinafter the “Communication”) does not contravene the applicable laws (in particular statutes on advertising regulation and statutes on protection of public order, public health, state security, consumers, minorities, personal data and privacy rights).
- If the images, text or other elements protected by rights of third parties, in particular copyright, industrial and moral rights, are used by the User in the Communication, the User is obliged, in cases where provided by the applicable laws, to obtain at the latest on the commencement of the distribution of the Communication to the Customers at its own expense and in accordance with the law an appropriate consent of authorized persons (e.g. authors of works, trademark owners, publishers and other authorized persons). At the Provider's request, the User is obliged to provide such consent to the Provider for inspection.
- The User undertakes to ensure that the Communications used for the direct or indirect promotion of the products, services or image of an enterprise of a natural or legal person (hereinafter the “Commercial Communication”) sent to its Customers are not in a form of a spam (hereinafter the “Spam”). For the purposes of these Terms, the Spam is considered to be any unsolicited Commercial Communication sent to the recipient without prior consent obtained through the double opt-in method, i.e. by completing the form on the web and then confirming the interest in sending of such Communications e.g. by clicking on a unique link in the e-mail or sending verification SMS. However, the Commercial Communication is not considered Spam if it is sent to the Customer with whom the User is in a prior commercial relationship, provided that the User has obtained an e-mail address of the Customer in connection with the sale of the product or service and the Customer hasn’t originally refused the usage of this address for sending the Commercial Communication, even though the User enabled the Customer to perform this rejection. The Spam is also considered to be any Communication that does not contain the mandatory content of Communication, referred to in the Article "Compulsory Content of Communications".
- The Commercial Communication sent to the Customer is also considered to be the Spam in cases where the Customer has refused to have its data used for the purpose of sending the Commercial Communication or after the Customer has withdrawn a consent with usage of his electronic contact for the purposes of sending the Commercial Communication or the Customer has informed the User that he does not wish to receive any further Commercial Communication from this User.
- The Commercial Communication sent to the Customer are also considered to be the Spam in cases when these relate to products or services that are not provided by the User or are not similar to products or services in connection of which sale the User has obtained the Customer’s e-mail address or telephone number, unless the Customer has not expressed his prior consent with such Commercial Communication.
- In addition, the Communications sent to the Customer are also considered to be the Spam if they contravene the applicable laws governing the sending of unsolicited commercial communications or the protection of personal data or when their content contravenes the applicable laws according to this Article.
- The Provider is authorized to review the content of the Communications in order to verify compliance with applicable laws and the Terms.
- The User is not allowed to send e-mail Communications to e-mail addresses obtained from purchased or leased e-mail address lists, to randomly generated e-mail addresses or to e-mail addresses obtained from the Internet or to obscure origin of these addresses or subject, source e-mail address or content of the Communications.
- The User is obliged to ensure that the Communications sent through e-mail will be in compliance with the current best-practice in the field of mailing and to fulfil the following statistical parameters, which will be evaluated by the Provider for each calendar month after the end of such calendar month:
< 5 %
Number of undeliverable addresses from the total number of messages sent within the distribution
< 1 %
< 15 %
Number of addressees in the list of recipients blocked during validation of addresses
< 0.1 %
The number of spam complaints for the completed distribution with at least 1000 recipients
Disposable addresses and Spam traps
< 1 %, max 250
Number of recipients imported within 24 hours identified as disposable addresses or spam traps
Number of messages delivered to spam traps
In the event that the Communication sent via e-mail fails to comply with the statistical parameter “Spam Traps”, the User is obliged to pay to the Provider a contractual penalty in the amount specified by the Specification and in the manner in which the User pays for the Service. In the case of the first non-fulfilment of this parameter and demonstrable remedy by the User, the Provider is entitled to waive the right to payment of this contractual penalty. The User is obliged to pay this contractual penalty together with the invoice for the provision of the Service or in cases where the Services are paid through a pre-purchased credit, within 30 days of delivery of the Provider's call, unless these have been paid by a reduction of the credit in the appropriate amount by the Provider. Payment of this contractual penalty shall not affect any further claims of the Provider, including any claim for damage.
- The User is obliged to ensure that the Communication in the form of an SMS message will be sent to the Customers only on working days from 9:00 AM to 5:00 PM of the Customer's local time; the User is also entitled, subject to the prior consent of the Provider, to send the Communication in the form of an SMS message outside of this time period (this exception applies to SMS messages that do not contain the Commercial Communication).
- If the User breaches his obligation or rule under this Article of the Terms, he will be liable for all legal consequences which arise from the breach of this obligation. In this case, the User is also obliged to pay to the Provider all costs and expenses incurred as a result of third party claims against the Provider arising from a breach of the above obligation of the User. This does not affect the right of the Provider and third parties for compensation of damage (material and non-material) incurred as a result of breach of the above-stated obligation, which the User undertakes to pay to the Provider and/or third parties.
- If the Provider discovers that the Communications or their content is, according to the opinion of the Provider, inconsistent with the rules contained in this article, it is entitled, even without the prior consent of the User, (i) to remove such Communications, (ii) to remove such content from the Communications, or (iii) to completely stop providing Mailkit Services to the User.
- With regards to the Mailkit Service, the Provider is authorized to set a limit for the volume of data contained in one e-mail and/or the number of characters contained in the SMS message.
- The User acknowledges that by conclusion of the Agreement the User did not obtain any other right to software used by the Provider during the operation of the Mailkit Service (hereinafter the “Software”), except for the right to use the Software for its own use in connection with the proper use of the Mailkit Service, for the duration of the Agreement and for the purpose for which the Service was created. The User undertakes not to disclose the Software in any way to third parties and not to perform reverse engineering of the Software or attempt to do so.
- The Provider is required to send e-mails and / or SMS messages through the Mailkit Service, but does not assume any responsibility for their delivery to Customers.
- All limitations and prohibitions on sending Commercial Communications contained in this Article “Conditions for provision of Mailkit Service” apply also to any commercial communication sent directly by the User or by any third party on behalf of the User.
- In case the User runs an affiliate or a partner programme, the User is obliged ensure that terms of this programme expressly prohibit promotion of the brand, business, website or goods and services of the User by sending commercial communications by electronic means/e-mail.
Compulsory Content of Communications
- The User undertakes to ensure that all Communications sent through the Mailkit Service to its Customers include the following:
- designation of the User who has ordered the distribution of the Communications in the manner prescribed by the applicable laws and the Customer to whom the Communication is sent, including the business name, company registration number, VAT number (if assigned);
- information that the Commercial Communication is sent; the User is not obliged, with prior consent of the Provider, to state in the Communication that it is the Commercial Communication (this exception applies to the Communications that are not the Commercial Communications);
- in case of the Communications sent by e-mail, the e-mail address from which the e-mail was sent and which is functional;
- a valid contact of the User, to which the Customer may directly and effectively send a message that he does not wish to receive the Commercial Communications from the User any further and on which the Customer may contact the User (in case of the Communications by e-mail an e-mail address, in case of the Communications by SMS message a telephone number, if the number is different from the number from which the SMS message was sent, etc.), instructions for using this contact and, if applicable, a link to the User's website with contacts. This contact must be clear and legible; the User is not authorized to alter, delete or disable this contact in any way, and ascertaining of such contact may not require any activity on the part of the Customer. The User is not required, upon the prior consent of the Provider, to provide the contact for un-subscription in the Communications (this exception applies to the Communications that are not the Commercial Communications);
- in the case of the Communication sent by e-mail, a visibly placed un-subscription link, in the form provided by the Provider or previously approved by the Provider, for automated un-subscription by the Customer, by which the Customer may withdraw the consent to the use of its electronic contact for sending of the Commercial Communications. This link must be usable for the Customer for at least 30 days after sending the e-mail. The User is not required, with the prior consent of the Provider, to provide an un-subscription link in the e-mail (this exception applies to e-mails that do not contain the Commercial Communication);
- in the case of the Communication containing information on the prices of goods or services, a clear definition of whether or not the prices are inclusive of value added tax and other charges or not, and the amount of such taxes and charges;
- all other information and content required by the applicable laws for specific cases.
The above information for the User must be clear and legible and their reading must not require any activity on the part of the User (e.g. loading the image, opening the linked page, etc.).
- If the Provider discovers that the User's Communications do not contain the compulsory content listed above, it is entitled, without the prior consent of the User, (i) to suspend the further sending of the Communications or (ii) to completely suspend the provision of the Mailkit Service to the User. If the User breaches this obligation, it bears all legal consequences that arise from the breach of this obligation. The User is also obliged to pay to the Provider all costs and expenses incurred as a result of third party claims against the Provider arising from a breach of the above obligation of the User. This does not affect the right of the Provider and third parties for compensation of damage (material and non-material) incurred as a result of breach of the above obligation, which the User undertakes to pay to the Provider and/or third parties.
- The User undertakes to communicate to the Provider his address and telephone number, on which the User can be contacted personally/telephonically. The User agrees that the Provider may communicate the abovementioned contacts to the Customer upon the Customer's request.
- If the Customer informs the Provider, on the basis of the Communications received from the User, that he does not wish to receive the Communications any further, or if the Customer withdraws the consent to the use of his electronic contact for the sending of the Commercial Communications, the Provider is obliged without the prior consent of the User to remove the Customer from the list of recipients of the Communications. The Provider may proceed in the same way also if the Customer informs the Provider that the Communications received by him do not contain the terms stipulated by these Terms or in the Customer's opinion are the Spam.
Technical requirements for using Mailkit Service
- The User understands that the following technical requirements must be met for proper use of the Mailkit Service: web browser Internet Explorer 10 or higher, Mozilla Firefox 40 or higher or other Gecko-based browsers, Chrome, Konqueror or Safari and other WebKit-based browsers, Windows platform, MacOS, or UNIX. If an incompatible browser is used, system functionality may be limited and some features may not be fully available.
- The User acknowledges that for the purposes of higher compatibility of e-mail content, it is useful to use internal HTML editor or third-party editors, which generate HTML code fulfilling the W3C standard.
- The User acknowledges that the terms of delivery of the Communications may vary from one provider to another for the duration of the Agreement, which the Provider cannot influence in any way. The Provider will not be liable for any damage (material or non-material) or any other harm incurred by the User in connection with the different delivery terms of the individual providers or in the context of changes in these conditions.
- The User also acknowledges that for some Mailkit Services, detailed delivery statistics are not available due to their characteristics of these Mailkit Services.
- The User may ask the Provider to assign the so-called “SMS sender ID” in SMS messages (therefore, the User will not be identified in the SMS messages by a phone number, but by text mark - name of his choice). The User acknowledges that he is not legally entitled for assignment of this SMS sender ID.
- The User may to ask the Provider to assign dedicated IP addresses. The IP addresses assigned by the Provider will be solely intended to be used by the User during the use of the Mailkit Service. The User acknowledges that he is not legally entitled for assignment of IP addresses and that after termination of the use of the Mailkit Service, the assigned IP addresses remain with the Provider.
Payment for Services and Payment Terms
- The amount payable for provision of the Services will be determined on the basis of the Specification.
- The Provider will base the calculation of the amount payable for the use of the Mailkit Service on the records of the Provider on the usage of the Mailkit Service. The number of delivered Communications does not have an impact on the payment calculation. In case of SMS messages and possibly other messages according to the Specification, the calculation will be based on the billing from the respective providers.
- The User acknowledges that Communications sent through the SMS messages are divided into multiple SMS messages according to the conditions of the respective operator; calculation will always be based on the billing from the respective operator.
- The User pays for provision of the Services either through a pre-purchased credit that will be drawn on by the User on or on the basis of an invoice (tax document), issued by the Provider and sent to the User, either by a wire transfer or through a payment system. The due date of the invoice issued by the Provider is always stated on the relevant invoice and is at least 14 days after the invoice was issued.
- The credit can be purchased by transferring funds from a bank account or using the payment system by electronic payment instruments (credit card, etc.). The Service will be activated to the User after the funds have been credited in the agreed amount to the special account of the User established by the Provider. On the basis of the funds transferred, the Provider will issue to the User the electronic invoices - tax documents in the PDF format, to which the User will have access in the Services interface.
- In addition to the payment for the Mailkit Service, the User may also be required to pay the Mailkit Service initiation fee, as defined in the Specification; in such cases, the Mailkit Service will be activated only after receiving this fee.
- The Specification may define the number of previews of e-mails that the User intends to send to Customers, the display of which is included in the price of the applicable Mailkit Service. The displaying of any number of additional previews is charged according to the Specification.
- The Provider is entitled to block access of the User to his account in the event of a User's default with any payment payable by the User to the Provider in connection with the use of the Services. The Provider is entitled to block access to the account if the User is in default with the payment for the provided Services for more than 45 days. The User may request unblocking of access to the account, after the settlement of all payable obligations, within three calendar months of the date of blocking access to the account, but no later than until expiry of the Agreement. For the unblocking of the access to the account, the Provider is entitled to charge the initiation fee (or fee for setting up the Service) according to the Specification. Blocking the access of the User to his account does not affect the User's obligation to pay the agreed price for the provision of the Services.
- In case of default with any payment that the User is obliged to pay to the Provider in connection with the use of the Services, the User undertakes to pay to the Provider late payment interest of 0.1% of the amount due for each commenced day in default, but in no event higher than the maximum legal rate permissible under applicable law. The Provider's right to damages (material or non-material damages) is not affected thereby.
- The User is entitled to raise any objection against the invoices issued by the Provider only in writing and within 10 days from the date of delivery of the relevant invoice to the User. In the event that the User does not raise any objection within this time period, it is deemed that no objections against the issued invoice or the invoiced amount were raised. If the User's objections sent to the Provider in accordance with the provisions of this section of the Terms are justified, the Provider undertakes to issue to the User a corrected invoice without an undue delay.
Term for provision of Services and term of Agreement
- The Agreement is concluded for a fixed-term or for an indefinite-term, as agreed by the Provider and the User. The Mailkit Services are provided throughout the whole term of the Agreement. The Consultancy Support Services are provided on the basis of individual orders of the User approved by the Provider.
- The Consultancy Support Services may be terminated separately in accordance with the agreed term of their provision. The Mailkit Service cannot be terminated separately as in case of termination of the Mailkit Services provision, the term of the Agreement terminates automatically on the same date. In the event of termination of the term of the Agreement, the provision of the Mailkit Services and the Consultancy Support Services is terminated.
- In the case the Mailkit Service is provided or the Agreement is concluded for a fixed-term, then unless a contracting party communicates to the other contracting party by registered letter delivered no later than one month prior to the termination of the term of the Mailkit Service provision or the term of the Agreement that it does not agree with further provision of the Mailkit Services or with further duration of the Agreement term, the agreed fixed-term becomes, at the last day of the stipulated fixed-term, an indefinite term.
- The Service provided or the Agreement concluded for an indefinite-term may be terminated by both of the contracting parties, even without a cause. The notice of termination must be in writing and must be delivered to the other contracting party by registered letter. The notice period is three months and starts running on the first day of the month following the month in which was the notice of termination delivered to the other contracting party. The termination of the Mailkit Service is considered a termination of the Agreement.
- The provision of the Service or the term of the Agreement may at any time be terminated by the mutual agreement of the Provider and the User.
- If the Agreement is terminated by the User, this User is not entitled to a refund of the credit already paid and unused for the payment of the Services and is not entitled to use this credit to cover his other obligations towards the Provider.
- If the Agreement is terminated by the User who pays for the Services on the basis of invoices, this User is obliged to pay the Provider the invoice issued for the period from the date of the last invoice to the day of expiration of the notice period.
- The Provider is entitled to terminate immediately the provision of all Services and the term of the Agreement in the event of a material or repeated breach of the Agreement, these Terms or the Conditions for the processing of personal data by the User. The material breach of these Terms by the User is in particular the default of the User with any payment which the User is obliged to pay to the Provider in connection with the use of the Service for more than 60 days, sending the Communications through the Service to the Customers in violation of the applicable legal regulations, the Agreement, sending the Spam, failing to meet the required statistical parameters for sending a Communication, or sending any commercial communications in violation of the paragraph 17 of the Article “Conditions for provision of Mailkit Service” of these Terms. The notice of termination sent on this basis must be in writing and must be delivered to the other contracting party by registered letter or by e-mail.
Personal data and confidentiality of information
- In accordance with the laws on personal data protection, the Provider processes data about the User's actions within the Service, Commercial Communications sent by the User, User's payments for the Services, User’s identification and contact details provided during time of registration, conclusion or performance of the Agreement, records of mutual communication between the User and the Provider, and information otherwise communicated by the User. This information is processed by the Provider for the purposes of the provision of Services, the performance of the Agreement and the possibility of exercising the rights arising from the Agreement until the expiry of the limitation period relating to the obligations arising out of any breach of these Terms or the Agreement. The provision and processing of these data is necessary for the conclusion of the Agreement and the proper performance of the Provider's obligations. In the event of failure to provide such data, the Agreement will not be concluded. The data controller is the Provider.
- The User, who is a natural person, is entitled to request access to his personal data or their rectification, addition and erasure. Moreover, he is entitled to request processing limitation, explanation of processing and to raise objection against data processing. Such User has also the right to data portability, the right to lodge a complaint against the processing of personal data with the Office for Personal Data Protection and other rights stipulated in the laws for personal data protection, and any other right granted to him under the applicable laws.
- The User declares that on the date of conclusion of the Agreement and as a controller of Customers' personal data, he has fulfilled all his obligations under the laws on personal data protection and undertakes to perform these obligations throughout the term of the Agreement. If the Provider incurs damage (material or non-material) as a result of non-compliance of the User with its obligations under the laws on personal data protection, the User undertakes to fully compensate the Provider for this damage incurred. For the purpose of this provision, the damage incurred by the Provider is understood to mean, in particular: (i) damages (material and non-material damages) to data subjects as defined in the laws on personal data protection, and (ii) fines imposed by the Office for Personal Data Protection or other administrative authority.
- The Provider and the User, within the meaning defined in the laws on personal data protection, agree that the Provider as processor will process Customers' personal data for the User. The terms of this processing and more detailed information are contained in the Conditions for the processing of personal data, which form an annex to the Agreement.
- Contracting parties undertake that none of them will disclose to third parties the information they have obtained from the other party during the performance of this Agreement, in particular information on the price terms of the provision of the Services. The employees of the contracting parties and persons in a similar position, members of the contracting parties’ bodies and in relation to the confidential information of the User suppliers of the Provider are not considered third parties.
Quality of Service, Complaints and Complaints Handling
- The Provider does not guarantee the full availability of the Services and is entitled at any time to suspend the provision of the Services or access to the Services (i) for the purpose of performing the scheduled or unscheduled maintenance, modification or updating of the Services; (ii) in case of Internet malfunctions, power network failures or technical malfunctions on the part of the User, hardware failures as well as other circumstances of a technical nature which the Provider is incapable of influencing or whose solution requires third party cooperation; (iii) in order to minimize damage or prevent damage to Services or any equipment and systems on which of the provision of Services depends (hereinafter the “Allowed Downtimes”). The Provider will make reasonable efforts to ensure that the duration of the Allowed Downtimes is as short as possible, in particular by distribution of individual servers load, running servers in independent locations, redundant connections of servers to the Internet, etc. The Provider is not obliged to notify the User of any Allowed Downtime, but will always make reasonable effort to inform the User of any Allowed Downtime known in advance. The Services unavailability caused by the Allowed Downtime is not considered a Services defect.
- If due to the actions of the Provider (i) the Service is provided with defects or (ii) the Service is not provided, the User is entitled to make a complaint with regard to these defects with the Provider. The User may make this complaint with the Provider within 5 calendar days from the date when the User discovered or could have discovered this defect. The Provider undertakes to handle the complaint of the User pursuant to this paragraph of the Terms within a period of 10 working days from the delivery of the User's written complaint to the Provider and, as far as reasonably possible by the Provider, to remedy the defect without an undue delay. The User is obliged to provide the Provider with all the cooperation necessary for this purpose. If the complaint is legitimate, the User is entitled to a refund of the credit drawn. If the User pays the Service on the basis of an invoice, the defective or non-delivered part of the Service will not be charged. The provisions of the applicable law governing the rights arising from liability for defects are not applicable to relations between the User and the Provider as they are replaced by the provisions of this paragraph of the Terms.
- The Provider is not liable for any preclusion or limitation of the use of the Services by the User caused by the Allowed Downtimes and is not liable to pay for any damage (material or non-material damage) caused thereby.
- The Provider is not responsible for any damage or loss of data of individual Users and is not obliged to cover any damage (material or non-material) caused thereby; this does not exclude the liability of the Provider for the leakage of such data to a third party, unless this was caused in whole or in part by the User's actions. The Provider undertakes to make reasonable efforts, such as compliance with security policy, regular data backup etc., to protect the data and to prevent damage to this data or loss or leakage of this data.
- If the Provider incurs any costs in connection with Customer's complaints on the User, the User undertakes to compensate the Provider for such costs and for any damage (material or non-material) incurred by the Provider.
Special provisions for providing Mailkit Agency Service
- In case the Mailkit Agency Service is provided, the following provisions of this Article will apply.
- The Agreement for the provision of the Mailkit Agency Service is concluded between the Provider and the advertising agency or another company (hereinafter the “Agency”) which requires provision of the Services under this Agreement for its individual clients (hereinafter for the purposes of this article the “Client”). In cases where both the Agency and the Clients together form a single natural or legal person, the following provisions of this Article will not apply and the Agency (Clients) will, as the User, fully comply with the other articles of these Terms.
- The Agency is obliged to commit the Client to fulfil the User's obligations under the following Articles of this Agreement: (i) Conditions for Provision of Mailkit Service, (ii) Compulsory Content of Communications, and (iii) Personal Data and Confidentiality of Information, not later than at the first use of the Services by the Client. The Agency is liable to the Provider for the proper performance of these obligations by the Client.
- The provisions of the Agreement governing the relationship between the Provider and the User shall apply equally to the relationship between the Provider and the Agency and the Agency is directly liable for paying the cost for the provision of the Services under this Agreement.
- In the event of a breach of this Agreement caused by the Client's actions, the Provider is entitled to apply a measure specified in this Agreement to a particular sub-account of the Client. In the event of a continuous or repeated breach of this Agreement by the Client's actions or in case of a breach of this Agreement by the Agency, the Provider is entitled to apply the measure specified in this Agreement against the Agency account and to all its sub-accounts. The Provider's rights to apply any provisions against the Agency for breach of this Agreement which he would otherwise have against the User, are not affected.
- This current version of the Terms is valid and effective from 1 November 2018