Last changed on 31.01.2023
Sendsmaily OÜ (hereinafter Smaily)
Registry code: 12837097
Address: Paldiski mnt 29, 10612 Tallinn, Estonia
1.1. Contract – these terms and conditions for the provision of the Service.
1.2. Credit Points – a limit, which can be purchased as required, up to which the Service can be consumed, i.e. Mailings can be sent (to send one Mailing to one Recipient, 1 credit point must be purchased).
1.3. Customer – a legal or natural person using the Service provided by Smaily, party to this Contract.
1.4. Customer Support – advising customers, answering their questions and solving their problems in writing.
1.5. Data Protection Legislation:
1.5.1. in EU countries – the General Data Protection Regulation (Regulation (EU) 2016/679; GDPR) or other relevant EU or national legislation.
1.5.2. in countries outside the EU – similar or equivalent acts, regulations or rules relating to Personal Data.
1.5.3. enforceable guidelines and codes of conduct issued by the local regulatory authority responsible for administering the data protection legislation.
1.5.4. amendments, corrections or additions that are made from time to time to the documents described in the foregoing paragraphs.
1.6. Mailing – content sent to a Recipient in a single email.
1.7. Monthly Fee – a payment made once during the Billing Period, which guarantees the Customer an access to the Service according to the subscription plan chosen by the Customer.
1.8. Personal Data – any type of information relating to a natural person which makes it possible to identify that person.
1.9. Personal Data Breach – a breach of security, as defined in the General Data Protection Regulation, which results in the accidental or unlawful destruction, loss, alteration or unauthorised disclosure of, or access to, Personal Data which is transmitted, stored or otherwise processed.
1.10. Recipient – the owner of the Personal Data disclosed to the Customer and Smaily, the contact person associated with the e-mail address.
1.11. Service-Level Agreement (SLA) – separately made agreement for fee-based, monthly (or other periodic) guaranteed content and/or technical support service that may be provided outside the regular Customer Support queue and/or business hours.
1.12. Service – self-service email marketing software related to the creation, management, posting, measurement, export, analysis, etc. of emails, e-invoices, sign-up and landing pages, which Smaily provides to the Customer for use in accordance with the Contract.
1.13. Billing Period – the period starting at the beginning of each new calendar month and running until the end of the month, on the basis of which settlement is made.
1.14. Smaily – the legal entity providing, developing and administering the Service, including any affiliate, reseller, intermediary, other representative or consultant, employee or other such related person, party to this Contract.
2. Subject matter and purpose of the Contract concluded by means of a long-distance communication
2.1. The subject matter of the Contract is the Service provided by Smaily based on the Customer’s request for the provision of the Service.
2.2. The purpose of the Contract is to confirm the terms and conditions of the Service.
2.3. For the provision of the Service under the Contract, Smaily provides the Customer with self-service email marketing software.
3. Customer rights and obligations
3.1. The Customer undertakes to provide Smaily with all information, data and materials necessary for the provision of the Service in accordance with the terms of the Contract and the Service order.
3.2. Contact email addresses in the Customer’s database must be directly related to the Customer and must have been obtained lawfully (i.e. with the prior consent of the Recipient).
3.3. The Customer is responsible for the accuracy of the Recipients’ details added to the Smaily Account.
3.4. The Customer shall ensure that the Mailings sent to Recipients contain relevant content related to the Customer’s business.
3.5. It is prohibited to send Mailings to Recipients whose contact addresses have been purchased, rented or otherwise collected.
3.6. The Customer shall be fully responsible for the content, form and technical correctness of the Mailings sent to Recipients.
3.7. All Mailings made by the Customer and the content used therein must comply with applicable laws.
3.8. The Customer shall be responsible for the legal compliance of the content transmitted by the Mailings.
3.9. The Customer is prohibited from sending Mailings to persons who have not given their consent to receive marketing emails.
3.10. The Customer is prohibited from sending any Mailings that do not contain a reference, or a way for the Recipient, to refuse or opt out of receiving future Mailings.
3.11. Smaily shall have the right to decide on the removal of any Mailings made by the Customer that contain messages or offers with the following content or undertone:
3.11.2. Narcotics and food supplements, including prohibited foods and beverages.
3.11.3. Other goods, products and services prohibited by law.
3.11.4. Escort and dating services.
3.11.6. ‘Get-rich-quick‘ and ‘work-at-home‘ schemes etc.
3.11.7. Gambling, lotteries, stocks and shares, quick loans, etc.
3.11.8. Racist, hostile or incitements to hatred.
3.12. The Customer shall indemnify Smaily in full for any and all damages (purchase of server IP addresses from blacklists, third party claims against Smaily, legal costs, etc.) resulting from the sending of Mailings that do not comply with the Contract and/or the law.
3.13. The Customer may not act on behalf of a third party unless the written consent of the third party has been obtained.
3.14. The Customer shall not use the resources provided by Smaily in an unreasonable and inappropriate or unintended manner.
3.15. In the event of termination of a monthly subscription plan, Smaily must be notified at least one (1) calendar month in advance.
4. Smaily’s rights and obligations
4.1. Except provided in the Contract, Smaily provides the Service “as is” and gives no warranties of any kind, express or implied, in relation to the Service. The foregoing includes, but is not limited to, warranties as to the suitability of the Service for the purpose for which it is required by the Customer, the retention of data and the accuracy of the information provided by the Service.
4.2. Smaily undertakes to use its reasonable endeavours to ensure the continuous and uninterrupted operation of the Service.
4.3. Smaily informs the Customer in writing at least three (3) working days in advance of scheduled server downtimes, which will cause interruption of the Service.
4.4. Smaily shall not be liable for any disruption in the provision of the Service in cases where the availability of the Service is not due to Smaily’s actions or omissions (communication failures, technical failures outside Smaily’s server and communication network, failures of third party applications or services, etc.).
4.5. Smaily shall not be liable for the success of the Mailings and does not guarantee their effectiveness.
4.6. Smaily will immediately terminate the provision of the Service to a Customer who is in breach of this Contract and close or lock the user account(s) associated with the Customer upon pending resolution of any complaint and, if necessary, submit any content prepared by the Customer to law enforcement authorities.
4.7. Smaily has the right to suspend the Customer’s user account(s) if the Customer has any overdue invoices.
5.1. The parties to the Contract undertake to keep confidential all information about each other and about the Recipients that they become aware of in the course of the performance of the Contract, including information about the other party’s financial position, financial activities, internal affairs and other indicators that are not public information according to the law.
5.2. Disclosure of the above data is permitted to the extent that it is required for the performance of obligations under the Contract or if the obligation to disclose confidential information is required by law.
5.3. Disclosure and transfer of confidential information to third parties is prohibited without the prior written consent of the other party, unless the obligation to disclose confidential information is required by law.
5.4. The parties do not consider as third parties the companies belonging to the same group of companies or companies affiliated with themselves.
5.5. The Parties undertake to inform all employees, subcontractors, cooperation partners, etc. involved in the performance of the Contract of the confidentiality requirements.
5.6. The party undertakes to inform the other party of any breach of confidentiality and of the circumstances that made or may make possible such breach.
5.7. Confidential Information includes, but is not limited to, information entrusted to Smaily by the Customer (including Recipient lists, letter drafts, results of Mailings, user account information, etc.). Smaily undertakes not to use such information for any purpose other than to enable the Customer to send the Customer’s Mailings or to provide the Customer with Customer Support, and not to share it with third parties, except at the Customer’s written request.
6. Processing Personal Data
6.1. Processing of Personal Data is any operation which is performed on data relating to an identified or identifiable natural person (i.e. data which can be associated with a specific natural person), including collection, storage, use, modification, disclosure, access, cross-use, erasure, etc. of Personal Data.
6.2. Smaily processes Personal Data for the following purposes:
6.2.1. provision of the Service;
6.2.2. customer-relationship management and communication with the Customer;
6.2.3. compliance with legal obligations;
6.2.4. database organisation;
6.2.5. database segmentation and filtering;
6.2.6. correction of data.
6.3. In the course of performing the Contract, the following Personal Data will be processed:
6.3.1. Recipient’s email address;
6.3.2. other Personal Data uploaded by the Customer to the self service environment.
6.4. The Customer shall not upload any sensitive Personal Data of the Recipient.
6.5. The Customer as a data controller within the meaning of the GDPR (hereinafter Controller) confirms that:
6.5.1. The Customer has a sufficient legal basis for processing Personal Data;
6.5.2. The Customer has the right to use Smaily to process Personal Data;
6.5.3. The Customer is responsible for the correctness, integrity, content, reliability and legality of the Personal Data;
6.5.4. The Customer complies with the applicable Data Protection Legislation and the relevant instructions, guidelines, orders, etc. of the related authorities;
6.5.5. The Customer has informed the Recipient as a data subject in accordance with applicable law;
6.5.6. The Customer shall respond to the requests of the Recipients regarding the processing of Personal Data in accordance with the Data Protection Legislation.
6.6. For the processing of Personal Data provided or made available to Smaily by the Customer in the course of the performance of the Contract, Smaily shall act as an processor, within the meaning of the GDPR (hereinafter Processor), of the Personal Data. Smaily shall ensure that the processing of Personal Data complies with all legal requirements, including the implementation of adequate technical and organisational measures to ensure the security of Personal Data transmitted or made available to Smaily by the Customer and to prevent unauthorised access to the aforementioned data.
6.7. Smaily is prohibited from processing Personal Data (including the contact details of natural persons) obtained in connection with the performance of the Contract other than for the sole and exclusive purpose of performing the Contract.
6.8. Smaily, as the processor on behalf of the Customer, is obliged to restrict access to the Personal Data processed by it in such a way that it is accessible only to those Smaily employees whose access to the data is necessary for the performance of the Contract.
6.9. When processing personal data, Smaily is, among other things, obliged to:
6.9.1. process the Personal Data provided to it for processing in accordance with the specific purpose of Personal Data processing and the terms of the Agreement;
6.9.2. having regard to the nature of the processing of the Personal Data, enable the Customer, by means of appropriate technical and organisational measures, to comply with the obligation of the Controller to respond to the requests of the Recipient(s) to exercise the rights of the Recipient(s) as data subject(s);
6.9.3. taking into account the nature of the processing of Personal Data and the information available to Smaily, enable the Customer to fulfill obligations related to the security of Personal Data (including notifying the supervisory authority of a Personal Data Breach, notifying Recipients of a Personal Data Breach, performing a data protection impact assessment, etc.);
6.9.4. to ensure that the preservation of the Personal Data provided to it for processing is ensured, i.e. that the Personal Data must be protected against accidental or intentional violation or destruction and against unauthorized arrangement, transfer or other processing;
6.9.5. prevent third parties from accessing the Personal Data provided to Smaily for processing, including preventing the unauthorized reading, copying, modification or carrying of data, prevent the unauthorized saving of Personal Data and the modification or deletion of stored Personal Data, prevent the unauthorized use of the data processing system to transfer Personal Data using data communication tools;
6.9.6. not to hand over the Personal Data processed by it to third parties, unless otherwise stipulated by the legislation or the agreement of the Parties;
6.9.7. not to keep the Personal Data allowed for processing for longer than it is necessary to fulfill the Contract;
6.9.8. to keep confidential the Personal Data that became known to it during the execution of the Contract, which have not been made available for public use (the said requirement applies both during the validity of the Contract and indefinitely after the termination of the Contract);
6.9.9. inform the Customer immediately if it has become aware of any processing of Personal Data by persons not entitled to do so;
6.9.10. allow the Customer to download and delete all databases containing such data, unless otherwise required by law.
6.10. The Customer shall pay to Smaily the cost of any additional services ordered by the Customer from Smaily (e.g. design, database organisation, etc.), as well as for the service in connection with the execution of specific orders and instructions issued to the Controller in accordance with Smaily’s standard terms and conditions and prices, which are made known to the Customer in advance in the contract or in Smaily’s publicly available price list, which the Client may consult.
6.11. Any use of the information systems and Personal Data that is not in compliance with the established arrangements, the Customer’s instructions or applicable Data Protection Legislation, and any breach of security, will be treated as non-compliance.
6.12. Smaily shall establish practices and systematic processes for the control of nonconformities, which shall include the restoration of a state of normalcy, the elimination of the cause of nonconformity and the prevention of its recurrence.
6.13. Smaily shall promptly notify the Customer of any breach of the Contract or any accidental, unlawful or unauthorised access, use or disclosure of Personal Data or that the integrity of the Personal Data may have been breached or compromised.
6.14. Smaily will provide the Customer with all information necessary to enable the Customer to comply with the applicable Data Protection Legislation and to enable the Customer to respond to any requests from the relevant data protection authorities. In accordance with the applicable legislation it is the responsibility of the Customer to notify the relevant data protection authority of any non-compliance.
6.15. The Parties are obliged to cooperate with the supervisory authorities, if necessary, in connection with the provision of the Service and to respond to inquiries from the supervisory authorities.
6.16. Smaily may engage Processors to carry out specific processing of Personal Data on behalf of the Customer. If Smaily engages another Processor to carry out specific processing of Personal Data on behalf of the Customer, it must be ensured that the Processor fulfils all obligations set out in the Contract and that adequate technical and organisational measures are implemented to ensure the security of the Personal Data, as well as to prevent access to the aforementioned data by persons who are not authorised to do so. The list of Smaily’s authorised subcontractors is constantly updated at: https://smaily.com/subprocessors/.
6.17. Smaily does not transfer Personal Data to any party that does not meet the data protection regulations, which is located in a country outside the European Economic Area, and does not make Personal Data available to any party from a country that does not meet the Data Protection regulations without the Customer’s prior written approval.
7. Service fees
7.1. Monthly fee is calculated based on the number of working email addresses (Recipients) in the entire database of the Customer’s account.
7.2. Mailings are not limited to the number of individual letters or Recipients.
7.3. Smaily’s price list can be found at https://smaily.com/pricing.
7.4. The Monthly Fee shall include all the Software options.
7.5. Credit points are valid for one year from the date of purchase.
7.6. The cost of an additional hour of maintenance, consultancy or customer support is EUR 75. The cost of customer-specific development is EUR 150 per hour.
7.7. The ongoing Customer Support service is free of charge in a reasonable capacity.
7.8. VAT will be added to the prices.
7.9. The free plan allows you to send unlimited amount of emails to up to 2,000 unique email addresses (of the Recipient) per month.
8. Force Majeure
8.1. Non-performance or improper performance of the obligations arising from the Contract shall not be considered a breach of the Contract if it was caused by circumstances that the parties did not foresee or could not have foreseen at the time of conclusion of the Contract (force majeure).
8.2. Force Majeure shall be deemed to exist in the event that the said circumstance could not have been influenced by the party and the party could not reasonably have been expected at the time of the conclusion of the Contract to take into account or avoid the circumstance or to overcome the hindering circumstance or its consequences.
8.3. The parties shall not be liable for non-performance of the obligations under the Contract, if the non-performance of the Contract is due to force majeure. Force majeure shall modify the time limits set out in the Contract by the period during which the force majeure prevents performance of the Contract.
8.4. Non-performance of the Contract for reasons caused by force majeure shall be excused only on condition that the parties make efforts to avoid this situation and on condition that measures are taken to perform the Contract.
8.5. The parties must resume the performance of their contractual obligations as soon as the force majeure has been eliminated.
8.6. A party whose performance of its obligations under the Contract is prevented due to force majeure shall notify the other party thereof in writing within three (3) calendar days.
8.7. If the force majeure is temporary, the breach of obligations is excusable only for the period during which the force majeure prevented the performance of the obligation. If the circumstances of force majeure persist for more than 30 calendar days, the parties shall decide in the course of negotiations on the possibilities of continuing the contractual obligations.
9. Amendment and termination of the contract
9.1. A party is not permitted to transfer its rights or obligations under the Contract to third parties without the consent of the other party in a form that can be reproduced in writing.
9.2. The Contract may be amended only by written agreement of the parties.
9.3. A party wishing to amend the Contract shall notify the other party in writing. The other party must notify the party proposing the amendment of the Contract of its position in writing no later than 10 (ten) calendar days after receipt of the proposal.
9.4. Either party has the right to terminate the Contract by giving at least 1 (one) month’s written notice to the other party.
9.5. Extraordinary termination of the Contract without giving notice is possible only on the following grounds:
9.5.1. The Customer may extraordinarily terminate the Contract if Smaily commits a material breach of the Contract or repeatedly (two or more times) fails to perform its obligations under the Contract.
9.5.2. Smaily may extraordinarily terminate the Agreement if the Customer commits a material breach of the Contract or fails to pay an invoice issued by Smaily to the latter, if the due date for payment of such invoice has exceeded 45 (forty-five) calendar days.
9.5.3. Either party may extraordinarily terminate the Contract if the termination is requested by a supervisory authority (Data Protection Inspectorate, Financial Supervision Authority, etc.).
10.1. The parties shall be liable for the property damage caused to the other party by non-performance or improper performance of the Contract in the cases provided for by the laws of the Republic of Estonia and this Contract.
10.2. In the event of late payment by the Customer of the Monthly Fee or any other amounts due under the Contract, Smaily shall be entitled to charge interest on late payment at the rate of 0.02% of the amount of the overdue payment for each day of delay from the due date until the date of receipt of the payment.
10.3. The party shall have the right to claim from the other party compensation for reasonable damage caused by the failure to perform the Contract properly.
10.4. The party shall be deemed liable for a breach of the Contract if the party’s representative and any other person used by the party to perform its obligations, including an employee, subcontractor, collaborator, customer, agent or any other person entrusted by the party with the performance of the Contract or any part thereof, is liable.
11. Final provisions
11.1. If the context so requires, a word in the singular form means plural and vice versa.
11.2. The terms and headings in the Contract are intended to convey the contents of the Contract. In the event of any inconsistency between a term or heading and the content, the content shall prevail.
11.3. All disputes arising out of or in connection with the Contract shall be settled by negotiation between the parties and the law of the Republic of Estonia shall apply. Any dispute, controversy or claim arising out of or relating to the Contract or the breach, termination or invalidity thereof which cannot be resolved by negotiation between the parties shall be settled by the Harju County Court.