Terms and conditions for use of Ecomail service

CONTRACT FOR PROVISION OF ECOMAIL SERVICE AND TERMS AND CONDITIONS FOR USE OF ECOMAIL SERVICE

(hereinafter referred to as “Contract”)

issued by ECOMAIL.CZ, s.r.o., Company ID No.: 027 62 943, with its registered office at Na Zderaze 1275/15, 120 00 Prague 2, represented by Jakub Stupka, Executive, incorporated in the Companies Register kept by the Municipal Court in Prague, Section C, Insert 223183 (hereinafter referred to as “Provider” or “Ecomail”),

These Terms and Conditions for Use of Ecomail Service, including URL links, represent the complete agreement between you and Ecomail with respect to the provision of the Ecomail Service.

TERMS AND DEFINITIONS

Unless indicated otherwise in the Contract or unless the context clearly dictates otherwise, capitalized terms used in this Contract (including annexes) both in singular and plural shall have the following meaning:

@userdomain.com the domain in whose name the User carries out mass distribution of Emails via the Application
Admin Access access to the Application which allows for keeping records of accounts and their management, including an overview of the number of emails sent by individual Users;
Agency Account a User’s account for the Application, set up by the User in accordance with the conditions of this Contract for the purposes of using the Ecomail Service which allows the User to keep records of and manage individual User Accounts;
Application the software service which is available electronically on the website https://ecomail.app and run by the Provider for the purposes of providing the Ecomail Services; the Application is solely owned by the Provider;
Sensitive Data information on national, racial or ethnic origin, political opinions, membership in trade union, religion and philosophical beliefs, criminal conviction, health and sex life of data subjects, or any biometric data which enable direct identification or authentication of data subjects;
Pricelist specifies the amount of the Fee for the Ecomail Service provided to the User under the Contract; it forms part of the Contract and is published on the Provider’s website https://ecomail.app/price;
GDPR Regulation (EU) 2016/679 of the European Parliament and of the Council;
User’s Database a list or lists of Personal Data relating to User’s Subscribers, in particular electronic contact details for electronic mail (email addresses);
Email a text, voice, audio or video message sent via a public electronic communications network, which may be stored in the network or in the terminal equipment until collected by the recipient;
Billing Period is a time period chosen by the User for payment of the Fee; the choice of Billing Period affects the due date of the Fee;
Required Maintenance means regular maintenance required to maintain the features of the Service, it is carried out at the initiative of the Provider, it is not a response to any Defect and it represents a period of time for which the Service is not available, in whole or in part;
Personal Data any information on a data subject on the basis of which the data subject can be directly or indirectly identified;
Civil Code Act No. 89/2012 Sb., the Civil Code, as amended;
User Content means in particular all materials, information and works (including copyright works) used by the User in connection with the use of the Ecomail Service, such as texts, pictures, videos, fonts etc.; it may also include works of third parties;
Provider Content means in particular all materials, information and works (including copyright works) which are presented by the Provider as part of the Ecomail Service and create a functional framework of the Ecomail Service, including its material content;
Subscriber a customer of the User or an entity which granted the relevant consent and is addressed via the Application within the framework of the User’s marketing strategy;
Fee a collective term for the fee paid by the User to the Provider for provision of the Ecomail Service as well as the fee for services of the basic Service Support, all in the amount determined in accordance with the valid Price List;
Subscription Scheme the Ecomail Service is provided as a subscription model, with the possibility of Business or Ecommerce tariff. The price of the Subscription varies not only according to the package selected but also according to the scope of the Tariff Option which depends on the number of active unique Subscribers registered by the User in its database. The price for each Tariff Option of the Subscription Scheme is indicated for one month or for 12 consecutive months;
Service Support means the services of the Provider which are part of the right to use the Application and are provided on business days, at the level of basic user support for the Application;
Ecomail Service also referred to as the Service, consists in the provision (for consideration) of electronic tools for creating, conducting, sending and managing marketing campaigns, in particular, but not exclusively, for mass dissemination of newsletters via email and SMS by which the User addresses its Subscribers as part of its marketing strategy, and for monitoring and recording the marketing campaign results in electronic form on the Internet;
Spam any unsolicited communication sent by Email to a recipient without the recipient’s prior consent or to a recipient with whom they have never had a contractual relationship before. Spam shall include any communication directly or indirectly promoting goods or services which is not clearly and distinctly marked as newsletter, disguises or conceals the identity of the sender, or is sent without a valid address to which the addressee can effectively and directly send information that it does not wish to receive any further newsletter from the sender; or concerns the sale or promotion of prescription drugs, sale of alcohol and tobacco products, drugs, firearms, online gambling (online games of chance), pedophilia and similar medically recognized deviations and disorders;
Consumer any natural person who enters into this Contract (for the provision of the Ecomail Service) with us outside that person’s business or self-employment profession;
Controller determines the purpose, methods and means of the processing of Personal Data; in the case of Annex 1 to this Contract (Processing Agreement), it shall mean the User;
Data Subjects natural persons to whom the Personal Data relate; most often they are the Subscribers, Users or potential Users who are still considering the use of the Ecomail Service;
Tariff Option the number of email addresses in the User’s Database; the dividing line between Tariff Options is the number of email addresses in the User’s Database according to the Price List published on https://ecomail.app/price;
User Account an account for the Application set up under the terms of this Contract solely for the purpose of using the Ecomail Service;
User a registered customer of Ecomail for whom a User Account for the Application has been set up upon successful registration (also referred to as “you”);
Defects error conditions which prevent the proper provision and use of the Ecomail Service;

(the Provider and the User hereinafter jointly referred to as “Parties” and individually as “Party”)

  1. REPRESENTATIONS, SUBJECT MATTER OF THE CONTRACT, CONTENT OF THE SERVICE
    1. Representations of the User. The User represents and warrants that
      1. it has full legal capacity,
      2. all data which the User provides about itself are true, complete, accurate and correct,
      3. it will not use the Ecomail Service in a manner contrary to the applicable Czech legislation,
      4. it will use the Ecomail Service only for the purpose for which it is intended, in particular for Email editing, mass distribution of Emails or SMS messages and evaluation of campaigns,
      5. before starting to use the Ecomail Service, it carefully studied the terms of this Contract, unconditionally agrees to those terms and will not use the Ecomail Service in a manner contrary to the applicable terms of the Contract.
    2. Obligations of the Parties. The Provider shall provide the Ecomail Service to the User under the terms specified in this Contract. The User shall accept the Ecomail Service under the terms specified in this Contract and the Provider the Fee for the use of the Ecomail Service according to the Price List.
    3. Content of the Service. Provision of the Ecomail Service shall mean in particular: 6. the right of the User to use the Ecomail Service; 7. the right of the User to have a User Account set up for the Application and to use the User Account; 8. the right of some Users to have an Agency Account set up for the Application if approved by the Provider in advance; 9. the obligation of the User to pay the agreed Fee according to the current Price List.
    4. Age of the User. The Provider declares that the Ecomail Service is not intended for persons under 16 years of age.
    5. Consumers. The Provider declares that the Ecomail Service is not primarily intended for Consumers but for entrepreneurs or self-employed persons. Where the User is a Consumer, it shall inform the Provider before registration so that the Provider can advise the Consumer of its rights.
  2. INTELLECTUAL PROPERTY
    1. Application. The Application as well as any related software are the intellectual property of the Provider.
    2. Content. When using the Service, the User shall respect the rights of the Provider and third parties, in particular in the handling of copyright works and other objects of intellectual property rights. This applies to the Application, Provider Content as well as User Content.
    3. Responsibility for User Content. The User shall be fully responsible for the User Content, which can be uploaded to the Application only if it complies with the legislation in force and this Contract and, in particular, does not interfere with third party rights. It shall not be a breach of the Contract if the Service is not provided properly due to poor, incomplete or even illegal User Content.
    4. Terms of using the Service thanks to individual Application solutions. No provision of this Contract can be interpreted as an assignment or granting of a license, sublicense or other right of use within the meaning of Act No. 121/2000 Sb., the Copyright Act, to those parts of the Application solutions which the Provider provides to the User as a service. The User is entitled to use the Ecomail Service which is provided thanks to those parts of the Application solutions. However, the User does not have the right to make copies of those software solutions, download, install or disseminate them in any way. The User is not entitled to incorporate the Application into any other software without the written consent (provision of the API key) of the Provider.
    5. Infringement of intellectual property rights by the User. If the User violates the obligations laid down in this Article, the Provider is entitled to withdraw from this Contract and claim compensation for damage from the User.
    6. Responsibility for User Content. The Provider is on principle not responsible for the User Content in accordance with Sections 3, 4 and 5 of Act No. 480/2004 Sb., on Certain Information Society Services (Act on Certain Information Services).
  3. USER REGISTRATION
    1. User registration as a condition for using the Service. Registration is a precondition for proper use of the Service; the User takes this precondition into account and undertakes to complete a proper registration.
    2. User registration method. Registration shall be carried out by filling in the form on the website https://ecomail.app which contains confirmation of the fact that the User has studied the terms of use of the Ecomail Service arising from this Contract and agrees to them.
    3. Data accuracy and completeness, updates. The User hereby undertakes to enter correct and complete Personal Data about itself in the registration form as well as in the Application. The User shall update those data according to the current situation. The User is also entitled to amend and supplement the registration data in the course of using the Service.
    4. Obligation to report any misuse of access credentials. The User shall without delay report to the Provider any misuse or attempted misuse of access credentials and, at the same time, it shall without delay choose new access credentials for the User Account. The User shall choose a safe password.
    5. Inviting a new User. The User has the right to invite other Users to the User Account. In that case the User shall provide correct identification details of the new User.
  4. FEE FOR THE SERVICE AND METHOD OF PAYMENT
    1. Consideration for the Service. The Service is provided for consideration. The User hereby undertakes to pay the Provider the Fee for provision of the Service.
    2. When the Service is provided free of charge. An exception is made for provision of the service under a Tariff Option specified in the Price List, which may determine when the Service is provided free of charge to the User. As soon as the conditions for provision of the Service free of charge are exceeded, the User is informed and, at the same time, the User Account is blocked.
    3. Amount of the Fee. The amount of the Fee is determined in accordance with the valid Price List which is published on our website https://ecomail.app/price All prices in the Price List are indicated net of VAT which will be charged in addition to the indicated price of the Service at the statutory rate.
    4. Changes to the Price List. The Price List may be unilaterally changed by the Provider. Information on any planned changes to the Price List will be always available on our website. Any planned change to the Price List shall be notified at least 15 days prior to the effective date of such change in the form of a notification in the User Account. Where the User disagrees with the change to the Price List, it has the right to withdraw from the Contract.
  5. SUBSCRIPTION SCHEMES
    1. Lump-sum payment. The User shall pay the Provider a lump-sum payment in the amount determined according to the Tariff Option selected by the User.
    2. Exceeding the original Tariff Option. When the number of contacts in the User’s Database exceeds the limit of the Tariff Option, the Provider is entitled to prevent further distribution by blocking the User Account until the User tops up the Tariff Option.
    3. Minimum term of the Subscription Scheme. The minimum term of the subscription scheme is 10. 12 consecutive calendar months; in this case, the Fee shall be payable once a calendar year; 11. 3 consecutive calendar months; in this case, the Fee shall be payable once a calendar month.
    4. Suspension of the Subscription Scheme. The Subscription Scheme can be suspended once a year for a maximum of 6 calendar months.
    5. Fee payment methods. The User is entitled to choose the method of payment of the Fee for the Ecomail Service and settle the payment exclusively:
      1. by electronic payment instruments which are available to the User via the User Account provided that that User chooses the payment method called “online card payment”;
      2. and, at the express request of the User (if the User chooses the “by transfer” method in the Application), by transfer to the Provider’s bank account in accordance with the advance invoice payable within 14 days of the date of issue. The invoice shall be sent to the User by Email on the date of issue and shall be considered delivered upon sending.
    6. Due date of the Fee. The User shall pay for the provision of the Ecomail Service for each commenced Billing Period:
      1. In the case of online card payment, the Provider has the right to automatic payment of the Fee via an online card on the first day of the next Billing Period and the User shall pay the Fee;
      2. In the case of payment “by transfer”, the User shall pay the Fee no later than on the first day of the Billing Period.
    7. Time of payment of the Fee and activation of the Service. The Fee shall be considered paid and the Service shall be activated for the User once the funds in the agreed amount credited to the Provider’s bank account.
    8. Default of the User and temporary blocking of the User Account. In the event of any delay in payment of the Fee or any part thereof for more than 5 days of the due date of the Fee, the Provider is entitled to deny the User the right to use the Application (User Account blocking) in accordance with this Contract and restore the right only once the due Fee has been settled.
    9. Overview of payments and invoices. If the Provider is obliged to issue an invoice, the invoice shall be issued by the Provider in electronic form in PDF format to which the User will have access in its User Account. An overview of payments is available to the User in its User Account.
  6. RIGHTS AND OBLIGATIONS OF THE USER
    1. Commitments of the User relating to the use of the Application and the Ecomail Service. The User undertakes:
      1. not to perform any action which might disrupt or damage the Application and jeopardize the provision of the Ecomail Service or make it impossible;
      2. not to use or attempt to use for access to the Ecomail Service any interface other than the interface provided for this purpose by the Provider;
      3. not to disclose any identification details and passwords required for User’s access to the Ecomail Service to any third party and to immediately report to the Provider any misuse of User’s identification details and passwords by a third party of which the User becomes aware;
      4. to select a password for the Application which corresponds to a high level of security of the User Account.
    2. Domain verification. The User undertakes to verify the domain that will be used for mass distribution of Emails; the User shall in particular apply settings of DNS records in accordance with the Provider’s instructions.
    3. Content of Emails and SMS messages. The User further undertakes that the content of Emails or SMS messages which the User will distribute via the Application will comply with the legislation and this Contract; the User shall in particular ensure that:
      1. they do not contain any parts encouraging or aiming for non-compliance with an obligation imposed by or on the basis of law or a criminal offence, or condoning a criminal offence or publicly praising the perpetrator for a criminal offence,
      2. they do not contain any parts inciting abuse of addictive or life-threatening substances or promoting or encouraging the abuse of such substances,
      3. they do not contain any parts threatening other people or population groups with death, bodily harm or damage,
      4. they do not contain any parts denigrating any nation, its language, any ethnic group or race or population group because of their political beliefs, religion or because they are non-religious,
      5. they do not contain any parts inciting hatred of any nation, ethnic group, race, religion, class or other group of persons, or curtailment of rights and freedoms of their members,
      6. they do not contain any pornographic performances, especially those depicting children or showing violence or disrespect for humans,
      7. they do not allow persons under the age of eighteen to access any pornographic performances,
      8. they do not contain any false or misleading information about others which is capable of considerably jeopardizing the person’s respect with fellow citizens, in particular to cause harm to the person at work, disrupt the person’s family relations or cause other serious harm,
      9. they do not support movements which clearly aim to suppress rights and freedoms of human beings or propagate national, racial, religious or class hatred or hatred of other groups of persons, or which publicly sympathize with such movements,
      10. no intellectual property rights (copyrights, rights related to copyright, industrial property rights etc.) of other persons, in particular the Provider, are violated,
      11. no trademarks, trade names and protected designations of origin the exclusive right to which is vested in a third party or any designations capable of being confused with them are used without authorization,
      12. illegal products and services are not promoting;
      13. escort services and dating sites are not promoting,
      14. would not be contrary to accepted principles of morality in any other respect.
    4. Breach of the Contract by the User. It shall not be a breach of the Contract if the Service is not properly provided because the User violated any of the terms hereof. Where the User breaches his obligations under Section 7.3 of the Contract and/or where the User Content is contrary to the rules laid down in this Contract, the Provider is entitled, without prior notice, to immediately discontinue the provision of the Service, refuse access to the Application and withdraw from this Contract.
    5. Compensation for damage incurred by the Provider as a result of breach of User’s obligations. Where the User breaches its obligations under the Contract, it shall reimburse the Provider for any costs and expenses incurred as a result of third-party claims made against the Provider on the ground of breach of any of the aforementioned obligations of the User. This shall be without prejudice to the right of the Provider and third parties to compensation for any loss (damage as well as non-material loss) incurred as a result of breach of the aforementioned obligation; the User undertakes to pay such damages to the Provider and/or third parties.
    6. Compensation for damage incurred by the Provider in connection with Subscriber complaints. Where the Provider incurs any damage or loss in connection with Subscriber complaints (Spam or removal from the User’s Database) about the User, the User shall compensate for the damage.
    7. Technical equipment of the User The User shall ensure appropriate technical equipment which will allow the User to use the features of the Service under this Contract.
  7. RIGHTS AND OBLIGATIONS OF THE PROVIDER
    1. Use of @userdomain.com The Provider has the right to use the domain @userdomain.com solely for the purpose of performing this Contract, i.e. distributing newsletters in the form of Emails.
    2. Service outages and liability of the Provider. The Provider shall not be liable for any accidental outage of the Service but it shall make every effort to ensure that the Service is brought back into operation in the shortest possible time.
    3. User Account control. The Provider may check the User Account and suspend the Service via the Admin Access if it finds that the terms of this Contract have been violated; the Provider shall immediately notify the User thereof.
    4. Procedure in the event of failures for which the Provider is not responsible. The Provider reserves the right to limit or temporarily suspend the provision of the Service in justified cases of technical failures for which the User is responsible or technical failures of the Internet network, and the Provider shall inform the User about such limitation or suspension without undue delay. The failures shall include, in particular, Internet disruptions or circumstances that require cooperation from third parties.
    5. Temporary loss of access to the User Content. It shall not be a breach of the Contract if the User temporarily loses access to the User Content as a result of limitation or suspension of the Service.
    6. Access via API. The Provider may give the User access to the User’s data, including Personal Data of Subscribers, via the so-called API. In such a case, the User shall ensure that only authorized persons have access to the API. The Provider shall not be liable for any loss of data or security breaches compromising Personal Data in cases where this access to the API is abused or where those data are misused after they have been made available via the API.
    7. Ensuring the distribution of Emails. The Provider shall ensure distribution of Emails and/or SMS messages by means of the Service but it shall incur no liability for their delivery to Subscribers. The Provider shall not be held liable for delivery of a damaged or incomplete Email or SMS message.
    8. User’s Database. The User shall be the sole maker of the User’s Database. The Users grants the Provider its consent to the use of the User’s Database containing data in accordance with the provision of Section 90(2) of Act No. 121/2000 Sb., the Copyright Act, as amended, but only for the purpose of performing this Contract.
  8. LIMITATION OF THE PROVIDER’S LIABILITY
    1. Failure to deliver an Email or incomplete delivery of an Email. The Provider shall not be liable for any damage or loss incurred by the User and/or Subscribers in relation to the use of the Service, especially in the case of a failure to deliver an Email or SMS message or incomplete delivery of an Email or SMS message.
    2. Exclusion of Provider’s liability. The Provider shall not be liable for completeness and correctness of the data delivered to the Provider by the User in the context of the provision of the Service. In addition, the Provider shall not be liable for any loss, breach, or destruction of the delivered data. It shall be solely up to the User to ensure sufficient backup of all data and systems prior to their delivery to the Provider for processing in the context of the provision of the Service so that no harm is caused to anyone.
    3. Software integration. The Provider shall not be liable for any features, functions, or flawlessness of individual software which the Provider integrates or configures for the User so that the software is compatible with the Service. This liability shall be borne by the suppliers of other software and the User shall enter into a contract with them.
    4. Exclusion of Provider’s liability for damage caused as a result of Required Maintenance. The User acknowledges and agrees that the Provider is not liable for any financial loss of the User caused by suspension of the Service for the purposes of its updating or Required Maintenance.
    5. Limitation of the Service or rendering the provision of the Service impossible beyond the control of the Provider. The Provider shall not be liable for rendering the provision of the Service to the User impossible or for limitation of the Service due to any circumstances of technical nature which are beyond the control of the Provider or the addressing of which requires cooperation from third parties.
    6. Limitation of damages. Where the Provider is obliged to pay compensation for any damage or any loss which might be caused in connection with the damage, it shall be liable up to a maximum amount equal to the Fee paid by the User for the last 6 months. Any damage incurred after termination of this Contract shall be counted towards the limitation of damages.
  9. FORCE MAJEURE
    1. Conditions for relying on force majeure. Unless the Contract provides otherwise, the Parties shall not be liable for any breach of obligations arising from this Contract which was caused by force majeure. Force majeure shall mean any obstacle beyond the control of the obliged Party which prevents the Party from complying with its obligation provided that the obliged Party cannot be reasonably expected to avert or overcome the obstacle or its consequences and to have foreseen the obstacle at the time when the obligation arose. The liability shall not be excluded by obstacles that arose only at the time when the obliged Party was in default in fulfillment of its obligation, or which arose from the economic situation of the obliged Party. The effects of exclusion of liability shall be limited only to the period of time for which the obstacle involving those effects lasts.
  10. REQUIRED MAINTENANCE
    1. Required Maintenance. It shall not be a breach of this Contract if the Service is not provided as a result of Required Maintenance. Required Maintenance shall be usually notified in advance via the User Account.
    2. Notification of Required Maintenance. The User shall tolerate short-term shutdowns of the Service in the form of limitation or suspension of the Service. The User shall be usually notified thereof by notification in the Application interface or via an email at least 12 hours in advance. In the notification, the Provider shall specify the type of maintenance to be performed and the estimated time of commencement and completion of works.
    3. Updates. In addition to the Required Maintenance, the Provider shall carry out free updates of the Application. Those updates aim to improve the provision of the Service and make the operation of the Service in the User Account easier. The Provider is entitled to limit or suspend the provision of the Service for the time necessary to carry out an update. The Provider shall usually inform the User about the updates via the User Account interface or by Email.
    4. Accidental Service outages. The Provider shall not be liable for any accidental Service outages. The Provider shall, however, make every effort to ensure that the Service is brought back into operation in the shortest possible time.
  11. DEFECTS OF THE SERVICE
    1. Right arising from Defects. Where the Service is provided with defects or where it is not provided to the User in accordance with this Contract, the User has the right to complain about the defect in the provision of the Service.
    2. Deadline for filing a complaint. Complaints about Defects shall be made in writing to the email address support@ecomail.app no later than within two (2) days of the moment when the User becomes aware of the deficiency of the Service but within 24 hours from bringing the Service back into operation at the latest. No complaint made later will be accepted by the Provider and the User will lose the right to any compensation.
    3. Complaint requirements. In its complaint, the User shall specify its identification details, detailed description of the complaint grounds and the date of occurrence of those grounds or, where appropriate, the date when the Service was brought back into operation.
    4. Complaint handling. The Provider shall handle the User’s complaints no later than within thirty (30) days of the receipt thereof. Where the complaint is justified, the User is entitled to compensation for the Service provided with defects. No complaints filed shall affect the due date of the Fee.
  12. LIMITATION OR SUSPENSION OF THE PROVISION OF THE SERVICE
    1. Limitation or suspension of the Service. The Provider reserves the right to limit or suspend the provision of the Service to the User if the Provider considers that a breach of the terms of this Contract or legal conditions has occurred. Such a decision shall be sent to the User when the limitation or suspension of the Service takes effect at the latest in the form of an email attachment or it shall be delivered on any type of durable medium (usually 15 days in advance). The Provider is not obliged to give any reasons for its decision, in particular where it is able to prove that the User has repeatedly breached this Contract and this fact has resulted in termination of the provision of the Service.
    2. Exceptions from the notification obligation. The User acknowledges that the Provider is not obliged to inform the User about the Provider’s decision to limit or suspend the provision of the Service at least fifteen (15) days in advance provided that: 34. the Provider is subject to a legal or regulatory obligation which requires the Provider to terminate the provision of the Service to a User who is a business operator in a way which prevents the Provider from complying with the deadline for serving the notification; 35. the Provider exercises the right to terminate the provision of services for reasons of urgency under Czech law which complies with EU law, or 36. the Provider is able to prove that the User who is a business operator has repeatedly breached the applicable conditions for the provision of the Service which has resulted in discontinuation of the provision of the Service.
    3. Termination of the provision of the Service. The Provider reserves the right to make the Service definitively inaccessible at any time. In such a case, the Provider shall give reasons for its decision at least thirty (30) days before the decision takes effect. The reasons shall be sent as an email attachment or delivered on any type of durable medium. At the same time, the Provider shall allow access to any data of the User or Personal Data which were created in the context of the provision of the Service.
  13. TERM AND TERMINATION OF THE CONTRACT
    1. Term of the Contract. This Contract is concluded for an indefinite period of time upon registration of the User for the Service.
    2. Termination of the Contract. The Provider and the User are entitled to unilaterally terminate this Contract without giving any reason. The Contract shall be considered terminated on the last day of the Billing Period in which the notice of termination was served on the other Party.
    3. Fiction of termination of the Contract. The Contract shall be considered terminated upon the expiry of two (2) years from the last login to the User Account. In such a case, the Provider is entitled to delete the User Account, including its Content and Database.
    4. Loss of capacity to provide the Service. The User agrees that where the Provider, through no fault of its own, loses its capacity to provide the Service, i.e. due to any changes to legislation, the Contract shall be considered terminated at that moment, and this shall not be considered a breach of the Contract.
    5. Serious breach of the Contract. The Provider has the right to limit or not to provide the Service or to block the User Account, including the User Content, and withdraw from the Contract with immediate effect when the Provider ascertains a serious breach of the Contract. Especially the following shall be considered a serious breach of the Contract:
      1. any action of the User which is capable of endangering in any way the software necessary for the provision of the Service;
      2. any action of the User by which the User tries to circumvent the Price List (e.g. divide the Database so that more User Accounts are set up free of charge, or divide the Database so as to lower the Tariff Option);
      3. the User has imported a Database which contains more than 5% of non-existing electronic contacts;
      4. the User has used any Personal Data of Subscribers for the processing of which it has no legal ground;
      5. more than 0.05% of the newsletters disseminated by the User are described as Spam by Subscribers;
      6. the User has set up a User Account which might cause offense to others or is otherwise contrary to moral or ethical rules laid down in the Provider’s Code of Conduct;
      7. the User fails to comply with this Contract;
      8. the User has used the Service in such a way that it may cause damage to the Provider, or has made an attempt to misuse, block, modify or otherwise change any part of the Service being provided;
      9. the User has made an attempt to obtain usernames and/or passwords of other Users of the Service;
      10. the User has made an attempt to use the Service or the User Account to share or exchange data via a Peer To Mail technology (e.g. peer2mail, OpenP2M, etc.);
      11. in the course of the provision of the Service, the User makes an attempt to use a User’s Database for which the User has no legal ground for the processing of Personal Data of Subscribers.
    6. Fee already paid and a serious breach of the Contract. Where this Contract is terminated in accordance with Section 14.5 hereof, the User is not entitled to proportional reimbursement of the Fee already paid for the use of the Service.
  14. PROTECTION OF PERSONAL DATA
    1. Processing Agreement. Protection of Personal Data is provided for in the Processing Agreement which forms Annex 1 and is an integral part of this Contract.
    2. Principles Relating to Processing of Personal Data. Protection of Personal Data by the Provider is further described in the Principles Relating to the Processing of Personal Data.
  15. FINAL PROVISIONS
    1. Representations of the Parties. Neither Party is the weaker party in relation to the other Party, the Parties fully understand the content of this Contract and fully agree with all risks, including the risk of changed circumstances, changes to the price level, exchange rate, and interest rate changes, accept the obligations agreed herein, do not consider their mutual rights and obligations unreasonably unbalanced and assume the risk of changed circumstances.
    2. Severability clause. Should any provision hereof be invalid, ineffective, or void, the Parties shall take every action necessary to replace the invalid, ineffective, or void provision with a provision that will be valid, effective, and enforceable and that will correspond to the purpose of the provision being replaced and the Contract as a whole.
    3. Governing law. Any issues not specifically provided for in this Contract shall be governed by generally binding legislation. The Contract shall be governed by and interpreted in accordance with the laws of the Czech Republic, in particular Act No. 89/2012 Sb., the Civil Code, as amended. The Parties agree that no usage of trade shall take precedence over legal provisions, including those legal provisions which have no coercive effect.
    4. Settlement negotiations. The Parties undertake to resolve any dispute which may arise between them from the performance or interpretation of this Contract by negotiations aimed at reaching a mutual agreement.
    5. Requirements for amendments to the Contract. This Contract may be amended or canceled only in writing unless otherwise provided herein.
    6. Legal succession. The Parties declare and agree that if the Parties cease to exist or if any other event resulting in a transfer of rights and obligations occurs, their rights and obligations arising from this Contract shall pass to their legal successors.
    7. Force and effect. The Contract shall come into force and take effect on the date on which it is concluded. The Contract is entered into via the Internet network, upon submitting the User registration or clicking the “I agree” button in the User Account.

DATA PROCESSING AGREEMENT

ANNEX 1 TO THE TERMS AND CONDITIONS FOR USE OF ECOMAIL SERVICE

(hereinafter referred to as “Processing Agreement”) concluded between:

  1. You, who have decided to use the Ecomail.cz service;
    (hereinafter referred to as „Controller“ or “you”)

and

  1. ECOMAIL.CZ, s.r.o., ID No.: 027 62 943, with its registered office at Na Zderaze 1275/15, 120 00 Prague 2, represented by Ing. Jakub Stupka, executive director, registered in the Commercial Register maintained by the Municipal Court in Prague, ID No. C 223183,
    (hereinafter referred to as „Processor“, “Ecomail.cz”, or “we”)
    (Processor and Controller hereinafter jointly referred to as „Parties“ and each individually as „Party“).

If you use the Ecomail.cz service (the "Service"), then Ecomail.cz will be the processor of the Personal Data you entrust to us. The Service is provided on the basis of the Terms and conditions for use of Ecomail service (the "Terms"). By entering into the Agreement, you confirm that you have read and agree to the Processing Agreement and it is legally binding on you. This Processing Agreement applies to all users who access or use the Service.

Please read this Processing Agreement carefully, as it sets out the terms and conditions for processing Personal Data under which the Service is provided. If you have any questions regarding the processing of Personal Data, you may contact us at any time at support@ecomail.cz.

The Parties process Personal Data in connection with the Agreement in accordance with the law, in particular in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council ("GDPR"). Under the GDPR, the Parties must set out the processing rules in writing, which they do by this Processing Agreement.

  1. INTRODUCTION AND BRIEF OVERVIEW OF THE CONTENT OF THE AGREEMENT
    1. Subject and purpose of the Processing Agreement. By entering into this Processing Agreement, you, as the Controller, authorize the Processor to process Personal Data for you in connection with the provision of the Service. The purpose is to ensure the protection of Personal Data to the extent required by law. The extent of the Personal Data to be processed can be found in Annex A of this Processing Agreement.
    2. Ecomail.cz Service. Ecomail.cz Service consists mainly in providing electronic tools for creating, conducting, sending and managing marketing campaigns, as well as for monitoring and recording the results of marketing campaigns, as further defined in the Terms.
    3. What the position of Processor and Controller means. When using the Service, you provide us with Personal Data of which you are the Controller, which we then process under your instructions and to the extent you choose. When processing Personal Data, you are in the position of a Data Controller pursuant to Article 4(7) GDPR and Ecomail.cz is in the position of a Processor pursuant to Article 4(8) GDPR.
    4. Written form. Pursuant to Article 28 GDPR, the Parties regulate the processing rules in writing in this Processing Agreement.
    5. Definitions. The definitions in the Terms shall have the same meaning in this Processing Agreement.
    6. Duration of the Terms. This Processing Agreement is concluded for the duration of the Agreement in accordance with the Terms.
    7. Time of conclusion and termination of the Processing Agreement. The Processing Agreement is concluded at the moment of completion of registration for the purpose of using the Service (conclusion of the Agreement). Termination of the Processing Agreement is possible under the same conditions as termination of the use of the Service according to the Terms.
    8. Effects of termination. Termination of this Processing Agreement shall also result in the termination of the contractual relationship in the areas covered by this Processing Agreement, unless the Parties agree otherwise. Termination of the Terms shall also terminate this Processing Agreement. However, the termination of this Processing Agreement does not affect the obligations of the Processor to transfer (return) Personal Data to the Controller or to dispose of it and to maintain the confidentiality of the information.
  2. JOINT OBLIGATIONS OF THE CONTROLLER AND PROCESSOR
    1. Legality of processing. The Controller and the Processor undertake to comply with the regulations governing the protection of Personal Data.
    2. Cooperation. The Controller and the Processor undertake to assist each other to the extent necessary and reasonable in the performance of their obligations in the processing of Personal Data arising from their contracts and legal provisions, in particular in connection with responses to the exercise of the rights of data subjects, security incidents, as well as the preparation of impact assessments and dealings with supervisory authorities. The Parties undertake to provide the necessary documentation for the processing of requests relating to the processing of Personal Data pursuant to the Terms . The Party shall provide such documentation without undue delay and at the latest within 10 working days of receipt of the request for assistance by the other Party.
    3. Incident. A Party shall notify the other Party that it has become aware of a security breach within 48 hours of becoming aware of the breach. Breach shall be understood as any breach of security of Personal Data that may potentially lead to the accidental or unlawful destruction, alteration or unauthorised disclosure or access to Personal Data processed under the Agreement as amended by the Terms.
  3. RIGHTS AND OBLIGATIONS OF THE PROCESSOR
    1. Restriction of access. The Processor shall ensure that access to Personal Data is limited to (a) employees who process Personal Data as part of their job description, and (b) persons who cooperate with the Processor and may process Personal Data for the Processor as part of that cooperation, in accordance with the terms of this Processing Agreement and for the purpose of providing the Services under the Agreement as amended by the Terms. Unless such persons are subject to a legal obligation of confidentiality, the Processor shall ensure their contractual confidentiality.
    2. Commitment of the Processor regarding the measures taken. The Processor has adopted and undertakes to maintain throughout the duration of this Processing Agreement appropriate technical and organizational measures in accordance with the GDPR rules applicable to the Processor. An overview of the measures taken can be found in Annex B of this Processing Agreement.
    3. Obligations of the Processor. The Processor undertakes to:
      1. when processing Personal Data, comply with all obligations arising for the processor of personal data from the relevant legislation;
      2. process Personal Data solely on the basis of the instructions of the Controller made pursuant to this Processing Agreement, including with respect to the transfer of Personal Data to a third country or an international organization;
      3. notify the Controller without undue delay where an inspection or other administrative proceeding is initiated by the Personal Data Protection Authority or any other administrative authority in relation to the processing of personal data by the Processor and provide the Controller with all information about the progress and results of such inspection or the progress and results of such proceeding;
      4. assist the Controller in ensuring compliance with the Controller's obligations relating to the security of Personal Data under Articles 32 to 36 of the GDPR, taking into account the nature of the processing to be carried out by the Processor;
      5. to allow the Controller to conduct internal audits, including inspections, by the Controller or any other auditor appointed by the Controller, provided that the Controller is notified of such audits one month prior to their conduct; the Processor may object to any auditor appointed by the Controller if the auditor is not independent of, in competition with, or similarly situated to the Processor. Upon objection by the Processor, the Controller shall be obliged to appoint another auditor;
      6. notify the Controller of any Personal Data breach of which it becomes aware without undue delay, and no later than 48 hours after becoming aware of the breach. The minimum scope of such notification is set out in Article 33(3) of the GDPR;
      7. keep a record of any Personal Data breaches and the corrective measures taken to ensure an adequate level of security of processing. The Processor shall provide the Controller with all necessary cooperation related to the investigation of the breach and the fulfillment of the Controller's obligations under Articles 33 to 34 of the GDPR;
      8. assist the Controller in documenting processes or documents that demonstrate the Controller's compliance with the GDPR.
    4. Reimbursement of costs. The Parties agree that the Processor shall be entitled to reimbursement from the Controller for reasonable costs associated with providing assistance.
    5. Confidentiality of the Processor. The Processor undertakes to observe the obligation of confidentiality of all Personal Data transmitted by the Controller, and shall keep it secret, not disclose it, not make it available to a third party, neither as a whole nor in part, unless it is to be transmitted on the basis of an instruction from the Controller, or if required by law.
    6. Trade secret. All information and documents disclosed by the Processor to the Controller in connection with an audit or inspection shall form part of the Processor's trade secrets and, unless otherwise specified, shall be subject to the confidentiality requirements of this Processing Agreement. Such information and documents may only be disclosed to an authorized supervisory authority.
    7. Legality of processing. The obligations of the Processor regarding the protection of Personal Data shall be fulfilled by the Processor for the entire term of the Contract, unless the provisions of the Contract, this Processing Agreement or the relevant legislation imply that they should continue after the termination of the Contract.
    8. Processors involved and involvement of a new processor. The Processor has involved in the processing of Personal Data the following subprocessors: Amazon.com Inc., Google Ireland Ltd., MessageBird B.V., Twilio Inc., CyberPanda, s.r.o. (Email list verify), The Apache Software Foundation (SpamAssasin), Recombee s.r.o., ZooControl s.r.o. (Go Sms). If the Processor is going to engage other subprocessors, it will inform the Controller before such change via email or directly in the Application. If the Controller does not agree with the involvement of a new subprocessor, it may object within 5 days of receiving the Processor's notification. Filing an objection and thus not involving the new subprocessor may result in the impossibility of using the Service.
    9. Programmers and other professionals of the Processor. The Controller expressly agrees to the involvement of other subprocessors - programmers and other specialists (entrepreneurs) of the Processor, who provide services to the Processor on the basis of a cooperation agreement.
    10. Obligation of the Processor in case of termination of cooperation. The Processor undertakes to delete all Personal Data in the event of termination of the provision of the Services and to return it, including all copies, at the request of the Controller, unless EU or Czech law requires its retention. In such a case, the Personal Data will be returned within three months of receipt of the Controller's request via a secure storage facility specified by the Controller in its request and made accessible to the Processor. If, after three years from the end of the cooperation, the Controller has not instructed the Personal Data to be transferred, the Processor shall notify the Processor of the possibility of returning the data. If the Controller does not instruct the Controller to transfer the data within one month of the notification, the Personal Data will be deleted in order to comply with the legal obligations.
    11. Returning the data. The Controller may request the Processor to send the backed-up data according to the Terms, no later than 2 months after the deletion of the User Account. After this period, the Controller's data is irretrievably deleted.
  4. FINAL PROVISIONS
    1. Governing law. For matters not specifically covered in this Processing Agreement, generally binding legal regulations shall apply. The Processing Agreement shall be governed by and interpreted in accordance with the laws of the Czech Republic, in particular Act No. 89/2012 Coll., the Civil Code, as amended. The Parties agree that commercial custom shall not prevail over any provisions of law, even those that are not coercive.
    2. Force majeure. The Processor shall not be liable for situations in which it was unable to fulfill its obligation under the Processing Agreement due to an event referred to as force majeure (e.g. war, riots, terrorism, riots, strikes, fires, epidemics or natural disasters).
    3. Communication of the Parties. The Parties agree that their communications regarding the Processing Agreement (including notification of a security incident) will be conducted via email addresses: 9. Controller: the email address used by the Controller for registration for the Service; 10. Processor: support@ecomail.cz;
    4. Prohibition of assignment. Neither Party may assign or transfer in any manner the rights and obligations under or related to this Processing Agreement without the prior written consent of the other Party.
    5. Updates and changes. The Processor reserves the right to modify or update this Processing Agreement. If we make any changes that alter the rights and obligations under the Processing Agreement, you will be notified in a timely manner via an email that we will send to you. If you continue to use the Service, you agree to the updated version of the Processing Agreement. If you do not agree to the changes, please stop using the Service.
    6. Effectiveness. This Processing Agreement is effective as of 7 September 2023.
    7. Annexes. The following annexes are part of the Processing Agreement:
  • Annex A: The nature, extent,, duration and purpose of the processing of Personal Data,
  • Annex B: Technical and organizational measures

ANNEX A

TO THE PROCESSING AGREEMENT

THE NATURE, EXTENT, DURATION AND PURPOSE OF THE PROCESSING OF PERSONAL DATA

Nature of processing. Personal data is processed automatically through the Processor's systems used by the Processor to provide the Service.

Purpose. The purpose of the processing is to enable the Controller to use the Service (performance of the Contract).

Legal title of the processing. The legal basis for the processing of Personal Data as part of the provision of the Service is the performance of the Agreement (as amended by the Terms).

Extent of the processing: Depending on how the Controller uses the Service, the following Personal Data may be processed in connection with the provision of the Service:

  • Contact details: Name, surname, email, telephone number, address, date of birth, academic degree, identification number, registered office;
  • IP address, gender, purchase history, Subscriber activity on the User's website (web tracking, click rate, open rate, emails delivered, unsubscribed users, spam complaints, browser type, mailbox type);
  • Additional Personal Data, processed solely on the instructions of the Controller, which the Controller considers necessary for the fulfillment of the purpose of the Agreement or other data attributable to the data subjects.

Special Categories of Personal Data. The Controller undertakes not to disclose to the Processor any Personal Data that falls within a special category of Personal Data within the meaning of Article 9 of the GDPR. Special categories of Personal Data may only be processed with the express prior agreement of the Processor. What are special categories of Personal Data? **This is Personal Data that reveals a person's racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, or sex life or sexual orientation. Genetic and biometric data are also considered to be a special category of data when they are processed for the purpose of uniquely identifying a natural person.

Data Subject. Generally, this includes Personal Data of the Controller's customers or clients, the Controller's employees and other cooperating persons, including suppliers, users of the Controller's website, business partners or their employees or representatives.

Duration of the processing. Personal data shall be processed for the period of time for which the Parties are bound by the Contract as amended by the Terms, unless the agreement of the Parties or a legal regulation provides for a longer period of time.

ANNEX B

TO THE PROCESSING AGREEMENT

TECHNICAL AND ORGANIZATIONAL MEASURES

Technical measures. Security is very important to us and we are constantly working to ensure that your Personal Data is protected. When choosing appropriate measures, we take into account the extent of processing, the risk involved in the processing, or the state of our technology.

  • we regularly back up data;
  • we update our antivirus software systems;
  • we encrypt data using SSL/TLS („secure sockets layer / transport layer security“) for all data transmissions;
  • we use secure https protocol;
  • our server data is encrypted;
  • we develop our technology with privacy by design in mind;
  • access passwords to information systems (where Personal Data will be processed) and access permissions are controlled at the individual level.

Organizational measures. We have adopted and are committed to the following measures:

  • our employees and our service providers are bound by confidentiality;
  • our employees are properly trained and also receive further regular training on GDPR and are familiar with the rules of safe working on work equipment;
  • in case of API key retention, we remove authorization data;
  • access to all systems including the IT system is personalized and covered by secure passwords;
  • Passwords in the operational environment are stored in a separate location (safe store), where logs are logged, so that we can control employee access to individual Users' Personal Data.