Last changed on 27.09.2012
Sendsmaily OÜ (from here on Smaily)
Estonian business registry code 12837097
Address Paldiski mnt 29, 10612 Tallinn, Estonia
email address email@example.com
Billing address firstname.lastname@example.org
1. Object and Purpose of Contract
1.1. The object of the Contract is the service offered by Smaily emanating from the wish / request of the Customer to provide the service.
1.2. The purpose of the Contract is to establish the terms and conditions of the service.
1.3. On the basis of the Contract, Smaily provides a self-service network marketing software for the use of the Customer to provide the service.
2.1. Contract – the given terms and conditions to provide the service.
2.2. Data protection legislation
2.2.1. In EU countries – General Data Protection Regulation (EU Regulation 2016/679; GDPR) or other relevant legislation of the EU or the Member States.
2.2.2. In countries outside the EU – similar or equivalent laws, regulations, or rules pertaining to personal data.
2.2.3. Guidelines and codes of practice to be adhered to, issued by a local regulatory authority responsible for the management of data protection legislation.
2.2.4. Amendments, corrections, or updates from time to time to the documents described in the aforementioned points.
2.3. Service – a self-service network marketing software in connection with the compilation, management, and mailing of e-mails, e-invoices, and registration and payment forms and the measurement of these results, export, and analysis, etc., offered by Smaily for the Customer to use pursuant to the Contract.
2.4. Smaily – a legal person that provides and develops the service and manages its use, incl. a cooperation partner, a reseller, other representative or a consultant, an employee or a similar related person acting on its behalf and authorised by it; a party to the given Contract.
2.5. Customer – a legal person using the service provided by Smaily, a party to the given Contract.
2.6. Data controller and data processor – a data processor within the meaning of the respective data protection legislation. The data controller sets the purpose and means of the processing in accordance with the applicable data protection legislation. The data processor processes personal data on behalf of the data controller.
2.7. Receiver – the owner of personal data disclosed to the Customer and Smaily; a contact related to the e-mail address.
2.8. Personal data – synonymous to the meaning in data protection legislation.
2.9. Monthly fee – a prescribed resource according to the service package, by which it is possible to use the service to mail to the capacity of the agreed upon list in the agreed upon volume and to the extent of the possibilities of the software.
2.10. Credit points – a limit ordered according to necessity, up to which it is possible to use the service (to mail).
2.11. SLA – a specifically agreed upon paid monthly (or other periodical) guaranteed contextual and / or technical support service in the Contract, which can be provided outside the usual order and / or operating hours of the usual provision of support services.
2.12. Violation in connection with personal data – pursuant to the definition stipulated in the General Data Protection Regulation, the violation of security requirements, which causes accidental or illegal destruction, loss, change, or unauthorised disclosure or access to the personal data being transferred, stored, or processed in any other way.
2.13. Junk mail – the use of service to transfer data the contact addresses have not given their consent for and / or it is impossible for them to withdraw from it without reasonable efforts (e.g. by clicking on the „unsubscribe from the list“ link).
2.14. Emanating from the context, if applicable, a word in singular means also plural and vice versa.
2.15. The definitions and headings outlined in the Contract are meant to convey the content of the Contract. In case there is a discrepancy between the definition or the heading and the content, the content shall prevail.
3. Rights and Responsibilities of Customer
3.1. The Customer undertakes to provide Smaily with all the information necessary to provide the services, and all the data and materials pursuant to the terms and conditions of the Contract and the order of the service.
3.2. The contact addresses and the telephone numbers in the customer database shall be directly connected with the Customer and obtained on a legal basis (e.g. on a prior consent of the receivers).
3.2.1. It is not permitted to mail to purchased and rented lists (even if the receivers have given their consent in another way).
3.3. The Customer is fully responsible for the content, form, and technical accuracy of its posts.
3.4. All the posts and materials used in the posts must conform to the data protection legislation, the copyright law as well as other laws and local requirements.
3.4.1. The Customer bears the responsibility for the conformity of the content sent by mail to the law.
3.5. The Customer is categorically prohibited to send junk mail.
3.5.1. The Customer shall fully cover all the costs of sending junk mail intentionally (buying out server IP-addresses from blacklists, claims against Smaily by third parties, legal expenses, etc.) in full.
3.6. The Customer has no right to mail posts which entail messages or offers with the following content:
3.6.2. Drugs and food supplements, incl. forbidden food and drinks.
3.6.3. Other goods, products, and services prohibited by the law.
2.6.4. Escort and dating services.
3.6.6. “Get rich now” and “work from home” schemes.
3.6.7. Gambling games, lotteries, stocks, express loans, etc.
3.6.8. Posts with racist, hostile, or hateful content.
3.7. The Customer may not act in the name of a third person, except if there is a written consent by the third party.
3.8. The Customer may not use the resources supplied by Smaily unreasonably and for an unsuitable or not prescribed purpose.
4. Rights and Responsibilities of Smaily
4.1. The service is provided "as is" and "without quarantees". Nevertheless Smaily undertakes to take all the steps to ensure the continuous and undisturbed functioning of the service.
4.2. Smaily undertakes to notify the Customer in writing at least three (3) days in advance about planned interruptions of the work of the server, which result in the interruption of the provision of services.
4.3. Smaily is not responsible for the provision of services if the availability of the service does not depend on the activity or inactivity of Smaily (communication errors, technical failures outside the server and communications network of Smaily, errors in the applications or services of third parties, etc.).
4.4. Smaily is not responsible for the success of the posts and does not guarantee their efficiency.
4.5. Smaily treats junk mail senders with utmost seriousness, meaning it immediately terminates the provision of services and closes or locks the user account(s) in connection with the Customer until a respective claim is solved and, if necessary, submits the materials compiled by the Customer to law enforcement authorities.
4.6. Smaily has the right to suspend the user account(s) of the Customer, if the invoice(s) have exceeded (their) due date(s).
4.7. Smaily shall be notified about at least one (1) calendar month in advance about the termination of packages based on a monthly fee.
5.1. The Parties undertake to keep all the data disclosed to them about each other and the receivers in the fulfilment of the Contract secret—such as the financial condition, financial activities, internal operations and other indicators of the other Party, which is not deemed as public information pursuant to the law, and information on the terms and conditions and the conclusion of the Contract.
5.1.1. The disclosure of the aforementioned data is permitted to an extent required by the fulfilment of contractual obligations, or if the obligation to disclose confidential information emanates from the law.
5.2. The disclosure and transfer of confidential information to third persons is not permitted without a written consent by the other Party except in case the obligation to disclose confidential information emanates from the law.
5.3. The Parties do not deem enterprises belonging to the same group as third persons.
5.4. The Parties undertake to notify all the employees, subcontractors, or cooperation partners in connection with the fulfilment of the Contract about the confidentiality requirements.
5.5. A Party undertakes to notify the other Party about all the violations of the confidentiality requirements and circumstances which made or might make the violation possible.
5.7. Confidential information is among other things the information submitted by the Customer to Smaily (incl. lists of receivers, mail templates, mailing results, data of user accounts, etc.). Smaily will not to use these for any other purpose but to carry out the postings of the Customer, or to provide user support to the Customer, and not to share these with third parties in any case, except upon a written request submitted by the Customer itself.
6. Processing of Personal Data
6.1. The processing of personal data is any activity with the data of a person identified or identifiable (i.e. with data that are possible to connect with a specific natural person), incl. the collection, storage, use, amendment, and transfer of personal data, providing access to the data, its cross-use, and erasure.
6.1.1. Smaily processes personal data for the following purposes:
18.104.22.168. database organisation;
22.214.171.124. database segmentation and filtering;
126.96.36.199. data amendment;
6.2. The following personal data shall be processed in the course of the fulfilment of the Contract:
6.2.1. Receiver’s e-mail address.
6.2.2. Other data connected to the individual the Customer uploads to the self-service environment.
6.2.3. The Customer may not upload delicate personal data about the receiver.
6.3. As the data controller, the Customer confirms the following:
6.3.1. The Customer has sufficient legitimate grounds to process personal data;
6.3.2. The Customer has the right to use Smaily to process personal data;
6.3.3. The Customer is responsible for the accuracy, completeness, content, reliability, and legality of the personal data;
6.3.4. The Customer adheres to the applicable data protection legislation and the permits of the respective authorities;
6.3.5. The Customer has notified the data subject in accordance with the applicable legislation.
6.3.6. The Customer replies to the requests of receivers in connection with the processing of personal data pursuant to data protection legislation;
6.3. In the processing of personal data forwarded or made available to Smaily by the Customer in the course of the fulfilment of the Contract, Smaily acts as the data processor of the Customer. Smaily ensures that all the requirements stipulated in the law and other legislations are adhered to in the processing of personal data, incl. sufficient technical and organisational measures to ensure the security of personal data forwarded or made available to Smaily by the Customer; and the access of persons without a respective authorisation to the aforementioned data is restricted.
6.4. Smaily is forbidden to process the personal data disclosed in connection with the fulfilment of the Contract (incl. the contact details of natural persons) for any other purpose but solely for the fulfilment of the Contract.
6.5. As the data controller, Smaily is obliged to restrict access to the personal data processed by, so that the data could only be accessed by the employees of Smaily to whom it is necessary to have access to the data to fulfil the Contract.
6.6. Smaily undertakes the following obligations in the processing of personal data, inter alia:
6.6.1. to process the personal data at its disposal in compliance with the purpose of the processing of specific personal data and the terms and conditions of the Contract;
6.6.2. taking into consideration the nature of the processing of personal data, to enable the Customer to fulfil the obligation of the data controller by the respective technical and organisational methods to respond to the request(s) of the receiver(s) to exercise the rights of the receiver(s) as the data subject(s);
188.8.131.52. The Customer compensates Smaily for the assistance provided pursuant to the Contract and for the assistance in connection with the execution of the specific orders and instructions imposed on the data controller in accordance with the usual terms and prices of Smaily.
6.6.3. taking into consideration the nature of the processing of personal data and the information available to Smaily, to enable the Customer to fulfil the obligations in connection with the security of personal data (incl. the security of the processing of personal data, notifying the supervisory authority about a violation in connection with personal data, informing the receivers about a violation in connection with personal data, performing an impact assessment related to data protection;
6.6.4. to make sure that the personal data given to its disposal for processing are stored, i.e. the personal data shall be protected from accidental or intentional violation or destruction and / or from unauthorised organisation, transfer, or any other method of processing;
6.6.5. to prevent third persons from accessing the personal data submitted to Smaily for processing, i.e. to prevent unauthorised reading, copying, amendment, or transfer of data media, to prevent unauthorised storage of personal data and the amendment or erasure of personal data, to prevent the unauthorised use of the data processing system for the transfer of personal data by data communication equipment;
6.6.6. not to transfer the personal data it processes to third persons, except in case it is prescribed otherwise by legislation or an agreement between the Parties;
6.6.7. not to store the personal data at its disposal for processing longer than it is necessary to fulfil the Contract;
6.6.8. to keep the personal data disclosed to it in the fulfilment of the Contract secret, which has not been submitted for public use. The given requirement shall remain in force during the validity of the Contract and without a term after the termination of the Contract;
6.6.9. to notify the Customer immediately about finding out the personal data is processed in any way by persons who do not have the respective right;
6.6.10. the latest on the day of the termination of the Contract, to hand the Customer all the documents that contain personal data given to Smaily for processing in writing and in a form that enables written reproduction, and to erase all the electronic data media containing the aforementioned data, except in case it is prescribed otherwise by legislation or an agreement between the Parties.
6.7. Non-compliance with the requirements of the processing of personal data and reporting the violations in connection with the data:
6.7.1. The use of any information system and personal data not in compliance with the established orders, instructions by the Customer, or the applicable data protection legislation and any security violations are treated as non-compliance with the requirements of the processing of personal data.
6.7.2. Smaily shall establish practices and systematic processes to inspect the non-compliance with the requirements, which should include the recovery of a usual situation and the prevention of its reoccurrence.
6.7.3. Smaily informs the Customer immediately about any violation of the Contract or accidental, illegal, or unauthorised access to personal data, or their use or disclosure, or about the assumption that the integrity of personal data may be violated, or that the completeness of the personal data may be violated.
6.7.4. Smaily provides the Customer with all the information necessary to enable the Customer to adhere to applicable data protection legislation and to enable the Customer to respond to the requests of respective data protection authorities. It is the responsibility of the Customer to notify a respective data protection authority about the non-compliance with the requirements in accordance with applicable legislation.
6.8. Upon the request of the Customer, Smaily is obliged to submit information about the execution of the obligations stipulated in the Contract, incl. with the purpose to ensure the possibility for the receivers to have access to these data.
6.9. With regard to the provision of the services, the Parties are obliged to cooperate with supervisory authorities, if necessary, to respond to the inquiries of the supervisory authorities, and to guarantee access to rooms where the services are provided, upon the request of the supervisory authorities. Smaily is obliged to guarantee the supervisory authorities, the Customer, and the auditors of the Customer access to all the documents and information in connection with the provision of the service, incl. to enable an onsite inspection to be carried out, if necessary. In case Smaily uses third parties to provide the service, Smaily is obliged to ensure that the aforementioned third persons fulfil the given obligation to cooperate with the supervisory authorities, the Customer, and the auditors of the Customer to conduct the inspection of the provision of the service.
6.10. Smaily may involve data processors to engage in activities to process specific personal data on behalf of the Customer. Provided that Smaily involves another data processor to engage in activities to process specific personal data on behalf of the Customer, it shall be ensured that all the responsibilities stipulated in the Contract have been fulfilled with respect to the data processor, and that sufficient technical and organisational measures are implemented to ensure the security of personal data, and also that the persons who do not have a respective authorisation are prevented from gaining access to the abovementioned data. In case the other data processor involved by Smaily fails to fulfil its obligations, Smaily shall be held fully responsible for the fulfilment of the obligations of the other data processor involved by Smaily.
6.10.1. An updated list of the data sub-processors of Smaily can be found at the following address: http://help.smaily.com/en/support/solutions/articles/16000077521-subprocessors.
6.11. Smaily does not forward personal data to any party not fulfilling the terms of data protection that is located outside the European Economic Area and does not disclose personal data to any party from a country that does not meet the terms of data protection without a prior written approval by the Customer.
7. Cost of Contract
7.1. The cost of service per calendar month is calculated according to the working addresses of the whole database. Sending is not limited to the number of mails or the number of sending times.
7.1.1. The price list of Smaily can be found here: https://smaily.com/#pricing.
7.2. The monthly fee includes all the possibilities of software.
7.3. Credits expire 1 (one) year after the order.
7.4. The cost of an additional working hour in connection with maintenance, consultation, customer-specific development, or user support is € 60.
7.4.1. There is no extra fee for day-to-day user support.
7.5. VAT is added to prices.
9. Force Majeure
9.1 The nonfulfillment or inadequate fulfilment of obligations emanating from the Contract shall not be deemed as a violation of the Contract, if it was caused by circumstances the Parties did not and could not foresee in the conclusion of the Contract (force majeure). Force majeure is defined as a situation in which a given circumstance could not be influenced by a Party and emanating from the principle of reason the Party could not be expected to consider it at the time of entering into the Contract, to avoid it, or to overcome its consequences.
9.2. The Parties to the Contract bear no responsibility for the nonfulfillment of the obligations emanating from the Contract, if the nonfulfillment of the Contract is contingent upon force majeure. Force majeure changes the deadlines set in the Contract by a time period that equals to the time the factors of force majeure obstruct the fulfilment of the Contract.
9.3. The nonfulfillment of the Contract due to a reason caused by force majeure is deemed as exempt from guilt only on the condition that the Parties make an effort to avoid such a situation and implement measures to fulfil the contract. The Parties shall continue the fulfilment of their contractual obligations as soon as the factors of force majeure have been eliminated.
9.4. The Party whose activities in the fulfilment of the contractual obligations is obstructed by circumstances of force majeure, is obliged to notify the other Party about it in writing in three (3) calendar days.
9.5. If the impact of force majeure is temporary, the violation of obligations is deemed as exempt from guilt only during the time force majeure obstructed the fulfilment of the obligation. If the circumstances of force majeure last for more than 30 calendar days, the Parties adopt a decision on the possibilities of continuing with the obligations during negotiations.
10. Amendment and Cancellation of Contract
10.1. The Parties are not permitted to transfer their rights and / or responsibilities emanating from the Contract to third persons without a written consent in a form that enables written reproduction by the other Party.
10.2. The Contract may be amended only upon a written agreement between the Parties. The Party who requests to amend the Contract informs the other Party about it in writing. The other Party shall present their statement about the amendment of the Contract in writing no later than in 10 (ten) calendar days as of the receipt of the proposal.
10.3. Each Party has the right to terminate the Contract by informing the other Party about it in writing at least 1 (one) month in advance.
10.4. It is possible to cancel the Contract extraordinarily only on the following grounds:
10.4.1. The Customer may cancel the Contract extraordinarily, if Smaily violates the Contract to a significant extent or does not fulfil its contractual obligations repeatedly (two or more times).
10.4.2. Smaily may cancel the Contract extraordinarily, if the Customer violates the Contract to a significant extent or has not paid the invoice issued to it by Smaily, if the due date of the invoice has exceeded 45 (forty-five) calendar days.
10.4.3. Each Party may cancel the Contract extraordinarily, if a supervisory authority requests the Contract to be terminated (Data Protection Inspectorate, Financial Supervision, etc.).
10.5. All disputes emanating from the Contract or in connection with it shall be solved between the Parties via negotiations and the laws of the Republic of Estonia shall be applied. All disputes, discrepancies and claims emanating from the Contract or its violation, termination, or invalidity, or are connected with the aforementioned and cannot be solved by the Parties via negotiations, shall be solved in Harju County Court.
11.1. The Parties bear fault-based financial liability for the damage caused to the other Party in connection with the nonfulfillment or inadequate fulfilment of the given Contract in cases prescribed by the laws of the Republic of Estonia and of the given Contract.
11.2. In case the Customer delays with the payment of the monthly fee or other sums payable according to the Contract, Smaily has the right to request interest on arrears in the amount of 0.02 % of the sum unpaid on time as of the due date for every delayed day up to the date the payment is received.
11.3. A Party has the right to request the other Party to compensate for the damages arising from the inadequate fulfilment of the Contract.
11.4. A Party is deemed as responsible for a violation of the given Contract, if a representative of the Party or any other person whom the Party used to fulfil its obligations (including an employee, a subcontractor, a cooperation partner, the Customer, a commissioned person, or any other person whom the Party trusted with the fulfilment of the Contract or a part of it) is responsible for the violation of the Contract.
11.5. A Party is deemed as aware of any circumstance whatsoever, or having anticipated it, or being in a situation in which the Party should have known it or anticipated it, if any person named in the Contract who is on the responsibility of the Party knew about the circumstance or anticipated it or should have known or anticipated it.