TERMS AND CONDITION

GENERAL TERMS AND CONDITIONS OF SERVICE License to use

Value of the General Conditions

These general terms and conditions shall serve the purpose as the Commercial Contract for Provision of Services and Software License (defined below and from now on referred to as the contract only) stipulated in Italy
your Company which accepts this Contract drawn up online and/or off-line
Your Company also agrees that access to the service will be in ASP (Cloud) mode via username and password (Account) and will be communicated upon full acceptance of this contract.
These general terms and conditions (General Terms and Conditions) govern, together with any related commercial offers, the performance by Smtpmailers and in favor of its customers (the Customers), of the products and services (the Services) included in smtpmailers’s commercial offers, whether acquired directly through the website or agreed upon with Smtpmailers through other channels. These Terms and Conditions shall be deemed effective and in force from the date of acceptance and with reference also to contractual relationships arising or modified after that date.

Scope of Smtpmailers products and services

Smtpmailers is active in the field of Email Marketing and more generally is a Technological platform used to send e-mail messages, newsletters. The Platform also offers the use of statistical analysis services for messages in individual and aggregate form.
Services and products of Smtpmailers covered by this contract are in the scope of the provision of Information Technology services: the provision of software in the SAAS (APPLICATION AS A SERVICE) mode as well as consulting or assistance via chat or video chat, ticket or e-mail will be provided by Smtpmailers and usable by the Customer via Internet connection.

Definitions

  • SMTPMAILERS platform, is defined as the system of software and hardware devised, developed and managed by Smtpmailers that enables the management of information delivery services by e-mail;
  • Customer/Partner is defined as the party using SMTPMAILERS and the services of Smtpmailers for itself or its customers;
  • Recipients, is defined as the subjects, natural or legal persons, recipients of messages and, more generally, the Customer’s communications;
  • Routine Maintenance, is defined as the scheduled maintenance operations of the Systems;
  • Extraordinary Maintenance, is defined as the unscheduled Smtpmailers Systems maintenance work that is necessary to carry out and events beyond TurboSmtp’s reasonable control;
  • Technical consulting services, is defined as the services provided in different ways depending on the purchased business plan and delivered by the technical staff to assist the customer in solving any problems in sending and using the platform;
  • Contract, the contract includes terms of use, privacy policy (DPA), cookie policies, use of add-ons, terms for payment for services, and order attachments;
  • Activation date, is defined as the date of acceptance of this contract by the customer or user of the Platform from which the use and provision of functional resources will start;
  • Closing date, is defined as the date on which the account was closed and the user name is no longer working;
  • Suspension date, is defined as the date on which the account was temporarily disabled from submissions;
  • Personal Data is defined as any information that identifies or can be used to identify a customer, contact, or visitor, directly or indirectly. Examples of personal information include, but are not limited to, first and last name, date of birth, e-mail address, gender, occupation, or other demographic information;
  • Website, is defined as any website, any Web page, interactive features, applications, widgets, blogs, social networks, social network “tabs” or other Smtpmailers owned online mobile site;
  • List, is defined as a list of e-mail recipients (Contacts) that a Customer can view and/or manage on the SMTPMAILERS Platform with associated information related to mailings to those Contacts (e.g., e-mail addresses, part of the subject line, date and time of the individual mailing, status);
  • Plans, Smtpmailers offers different (commercial) pricing plans with different features for the SMTPMAILERS Platform. Features are listed at www.serversmtp.com;
  • Spam policy is defined as the rules and regulations that all our users must adhere to. The policy is available onthe website
  • Dashboard, is defined as the interface for viewing items and managing your SMTPMAILERS account.

This being the case, the following is hereby agreed upon and stipulated

The preamble must be considered an integral part of this contract
Smtpmailers agrees to provide the service in accordance with the terms of the aforementioned contract and with the functionality and features published on the website
The customer agrees to accept and follow the lines of use expressed in these general conditions of service. Failure to fully accept the terms or deviating from the guidelines outlined in these Terms of Service will result in Smtpmailers discontinuing the service

1. Account: User ID and Password

1.1 In order to use the service, Smtpmailers will assign the Customer a User ID and Password to be used for online remote access to the SMTPMAILERS Platform and as configuration parameters for sending e-mails. The Customer undertakes to provide their personal data correctly and truthfully with the contents and in the manner indicated and mandatorily requested by Smtpmailers during the telematic registration procedure such as personal details, billing details. The Customer will always be entitled to verify the data entered and correct any errors. It is the Customer’s responsibility to update their personal information in a timely manner if it changes during the term of the contractual relationship. Updating data and passwords, excluding User ID changes, will always be made possible by accessing “Settings” within the Dashboard.
1.2 Change of user ID will be made available by making a request to technical support via the ticket service
1.3 The Customer agrees to maintain the secrecy of the User IDs and Passwords assigned to it and to guard them with due care and diligence. The Customer acknowledges and agrees that they are solely responsible for their User IDs and Passwords and agrees and understands that all acts performed through the use of such User IDs and Passwords shall be attributed to them and shall be binding upon them. If the customer believes that the secrecy of their user IDs and Passwords is, or may have been, violated by a third party, they shall promptly notify Smtpmailers, and they will request new ones via the “ticket” section for the user id and change password of the dashboard by canceling the previous ones.
 
In any event, the customer agrees that the computer and/or telematic records made by Smtpmailers and/or its suppliers may be produced before any competent Authority for evidentiary purposes and pursuant to or for the purposes of the subsistence of these General Conditions may form the basis of suitable civil evidence as to the existence of the relationships and/or acts that are the subject of any dispute.

2. Subscription and prepaid business plans

2.1 The monthly, annual and prepaid plans are defined, described and differentiated by features and price on the website https://smtpmailers.com/
All contractual references to the plans are to be understood in relation to the plans listed on the website unless otherwise commercially agreed or customized.
2.2 Subscription plans are 1-month plans renewable every month or annual plans. The volume not used by the end of the agreed period cannot be reused
2.3 Prepaid credits are additional volume packages of mailings with a duration of 1 year at the end of which the unused volume cannot be reused.
2.4 Monthly, annual plans and credits are accessible to the Customer only with an active account.

3. Delivery of the Services

3.1 The service provided through the SMTPMAILERS Platform is identified in Simple Mail Transfer Protocol (SMTP) is a standard protocol for e-mail transmission. The SMTPMAILERS server takes care of the delivery of sent e-mails, acting as a digital letter carrier and is on duty 24 hours a day.
3.2 The SMTPMAILERS Platform is made available for access and use by Customers in SAAS (software as a service) mode, through online and remote excess. Smtpmailers grants to the Customer, who accepts, an onerous, non-exclusive and non-transferable license to access the SMTPMAILERS Platform to the extent strictly necessary for this purpose.
3.3 Technical Consulting Services will be provided by Smtpmailers with due diligence and professionalism and delivered in accordance with the various plans on the website via ticket, email, chat, telephone.
3.4 The Client is expressly prohibited, unless otherwise agreed in writing, from reselling and/or otherwise assigning for any reason to third parties access to and/or use of the SMTPMAILERS Platform.
3.5 The license to use the SMTPMAILERS Platform includes the technical support service in favor of the Customer in accordance with the delivery methods and timing described in each plan. In customized plans, technical assistance will follow additional agreements.
3.6 Smtpmailers reserves the right, in whole or in part, to access the SMTPMAILERS Platform for Routine Maintenance and/or Extraordinary Maintenance needs. Smtpmailers will give notification of Regular Maintenance work with due notice. Smtpmailers will, however, undertake to notify the Customer of the performance of Extraordinary Maintenance work and to minimize the inconvenience resulting from such work to the extent that it is possible, but will make no commitment in this regard
3.7 Smtpmailers guarantees that the SMTPMAILERS Platform will be accessible and usable by the Customer on a monthly basis for a time equal to 99% of the theoretical time available during the relevant referenced month. It is expressly understood that the time shall be not counted for this purpose:
  • the necessary time allocated to Routine Maintenance or, as the case may be, Extraordinary Maintenance;
  • periods of down time due to unforeseen circumstances or, otherwise, beyond the control of Smtpmailers, including cases of failed connection due to telecommunications malfunctions;
3.8 The Customer declares that they are aware that the personal data processed by means of the SMTPMAILERS Platform may be used exclusively for the purposes for which such data were collected and with respect to which the relevant consent has been, if necessary, provided by the data subject. Specifically, the Customer ensures, in the case of bulk mailings, that the express consent given by the data subjects is collected and documented in accordance with Regulation 2016/679/EU for European customers.

4. Use of Services

4.1 The Customer agrees to use the Services only for lawful purposes, in accordance with applicable regulations and the specifications of the systems used and with reference to the documentation related to them.
As an example, and only to the extent applicable, the Customer agrees to:
  • comply with administrative and technical, conduct as well as service use rules;
  • not to send or otherwise transmit or disseminate through the SMTPMAILERS Platform content and/or involving the infringement of patents, trademarks, trade secrets, copyrights or other industrial and/or intellectual property rights of third parties;
  • not send or otherwise transmit or disseminate through the SMTPMAILERS Platform content that is obscene, offensive, or otherwise contrary to public order and morality;
  • not to disseminate through the SMTPMAILERS Platform advertising, promotional material, junk mail, spam, chain letters, or any other form of unauthorized or unsolicited “communication” and, specifically, not to put in place activities that may cause harm to other users of the network, not to put in place phishing activities or other activities that, in any case, lead to the inclusion of the domains and technical IPs used by the SMTPMAILERS Platform in black lists and/or other similar barrier systems;
  • not send and disseminate through the SMTPMAILERS Platform any material that contains viruses or other codes, files or programs created to interrupt, destroy or limit the operation of software, hardware or telecommunications equipment;
4.2 Detailed data related to shipments made by, or on behalf of, the Client (e.g., page openings, link tracking, campaign analysis, etc.) via the SMTPMAILERS Platform will be retained for a maximum period of 12 months and after that aggregated in an anonymous form and, therefore, no longer available except in aggregate form and in any case in accordance with the attached DPA.
4.3 Data from dispatches made by or on behalf of the Customer (anonymized, aggregated, and, in any case, such that it cannot be traced back to a specific party, whether the Customer or not) may be used by Smtpmailers for statistical purposes (non-exhaustive example: deliverability and/or trend analysis).

5. Email Format

In accordance with our sender policy and rules, the following criteria should be observed in order to optimize delivery scores:
5.1 The company carrying out business correspondence must be clearly identifiable. In every e-mail sent, an easily recognizable legal notice must be included as full text. The legal notice should contain the following details:
  • The name and address that identifies the sender; for legal entities also the legal structure, chamber of commerce (REA) registration, and VAT number.
  • The option to revoke permission to send e-mails, which must be indicated in each e-mail.
  • The option to unsubscribe from e-mails, which should always be possible without the recipient having to know any login information (e.g., login and password or any other form of registration).
5.2 Exceptions may be granted in individual cases and only when different management is required due to certain special features of the service provided.
5.3 The sender and the commercial nature of the message cannot be obfuscated or hidden in the header and subject line of the e-mail. Obfuscation or concealment occurs when the header and subject line are intentionally designed in such a way that the recipient, before viewing the content of the communication, does not receive misleading information or information with respect to the actual identity of the sender or the commercial nature of the message.
5.4 When using e-mail addresses that the sender or their customer has acquired from third parties, the sender and/or their customer are obliged, before carrying out advertising or promotional activities, to ensure that the recipients have actually been contacted and have consented to the data processing. This consent must refer not only to dispatch by a third party but also by the sender and/or its customer.
5.5 Obtaining address data for third parties (e.g., through co-sponsorship) should be a transparent activity for the user

6. Privacy – GDPR

6.1 The Customer undertakes to collect and process the personal data of End Users in compliance with the requirements provided for in the legislation, including regulations, on the processing and protection of personal data.
6.2 ln accordance with the agreement between the parties, the customer agrees that in the course of the performance of the Contract, the data will be processed pursuant to the rules set forth in the DPA on the site

7. Discipline and Anti-Spam Rules

7.1 In the event that the work undertaken by the Customer through use of the SMTPMAILERS Platform leads to:
  • the inclusion of IP addresses or second level domains linked to the SMTPMAILERS Platform or made available by Smtpmailers (and/or its suppliers) in blacklists of primary importance and specifically in the following international Relay Block Lists and Blacklists (for example, but not limited to): URIBL, SURBL, SORBS, SPAMCOP, SPAMHAUS, MAILPOLICE, CBL, SYMANTEC, HOSTKARMA, AHBL, SPAMCANNIBAL, DNSBL, FIVE-TEN.BG, INPS.DE, NIXSPAM, INTERSIL, x1GHBL, OUTBLAZE, LEADMON.NET, NJABL, NOMOREFUNN, PSBL SURRIEL, RRBL (RANGERS), TQMCUBE, TORDNSBL, UNSUBORE, VIRBL, WPBL
  • a Blacklisting or Relay Block list using an ISP (Godaddy, Register, Aruba, Fastweb, Alice) or
  • to portals that provide free e-mail boxes (Hotmail, Gmail, Yahoo! Email, …),
  • the Customer will be required to follow TurboSmtp’s instructions to remedy the incident without delay and with the utmost diligence and promptness, including by suspending mailings, cleaning up the lists responsible for the blacklisting, or relinquishing the use of such lists. In cases that are especially serious, Smtpmailers may apply a forced suspension of account use.
    7.2 However, Smtpmailers reserves the right expressly to claim compensation for any damages.
    7.3 Smtpmailers, as an organization committed to combating the abuse of messaging systems, adheres to established “best practices” and self-regulatory codes in the industry and requires its customers to know and abide by them on an ongoing basis.

8.Applicable Discipline – Indemnification Clause

8.1 The Customer acknowledges that Smtpmailers does not either manually or mechanically control the content that is directly managed by the Customer. Therefore, Smtpmailers shall in no event be liable to any third party or with respect to the fact that the same has acted in violation of any applicable statutory, including regulatory or contractual provisions.
8.2 The Customer further acknowledges that, any rights granted to Smtpmailers under contract and applicable laws and that Smtpmailers in order to:
  • Prevent the transmission of the Customer’s emails if requested by the Authority;
  • Suspend and disable access if requested by the competent authority;
  • Complete the act of informing the competent Authorities.
8.3 Smtpmailers shall have the right to immediately and without notice suspend the provision of the Services if the Customer is found to be acting in violation of the provisions set forth in these General Terms and Conditions, the rules present in the DPA, the Antispam rules, therein expressly including, to the extent it may be necessary, the non-payment of the fees due.
8.4 The Customer agrees to indemnify and, in any event, hold Smtpmailers harmless, at its first, sole and simple request and remove as of that moment any and all exceptions, claims, demands, actions, costs, (including legal claims) or charges arising out of the Customer’s failure to comply with the provisions of the articles on the use of services and anti-spam rules.

9. Fees – Invoices and payment terms

9.1 The fees due by the Customer to Smtpmailers, as well as the terms and procedures for making payments by the Customer and in favor of Smtpmailers, shall be as stipulated in this contract and supplemented or modified in individual business agreements.
9.2 All fees are subject to taxation. All tax charges arising from the use of the products and services by the Customer will be borne exclusively by the latter.
9.3 Where fees provide for the sale of message (e-mail) plans on a subscription or credit basis in connection with a given reference period, any messages not transmitted by the end of that period shall not thereafter be usable or be subject to refund in any capacity.
9.4 For the use of the services provided by Smtpmailers, the Customer is required to pay a periodic fee (monthly or annual) at the time and in the manner specified in the order contract, or in the order “online” if the purchase is finalized through the Internet site.
  • for subscription plans, the monthly fee starts from the date of plan activation for 30 days: 8 days before, 5 days before, and the day before the due date the system will send notice of the required payment. After 5 days have passed since the due date, the unpaid plan will be terminated.
  • The system accepts automatic recurring payments for subscription plans if expressly chosen by the customer.
     
9.5 Any discounts granted to the Customer by Smtpmailers are intended to apply only for the single term of the contract.
9.6 In case of early termination of the contract due to service causes not attributable to the Customer, Smtpmailers will refund to the Customer the difference between what was paid and the cost of the unused service.
9.7 In the event that payment is not received, within the terms agreed upon between the parties, Smtpmailers shall have the right to suspend all services without any further notice than sent and require the immediate settlement of all installments and agreed upon values with additional charges for debt collection. The customer authorizes Smtpmailers to charge a bank fee, if required for deferred payments.
9.8 Payment of all sums due to Smtpmailers under these terms and conditions and the related order confirmation shall not be delayed or suspended for any reason whatsoever, and any exceptions thereto are expressly waived.
9.9 Once the limit of mailings under the plan is reached and the previously purchased credits are exhausted, no new mailings can be made unless an additional subscription package or credits are purchased. If the contract is terminated early, for any reason, or reaches its natural expiration date without being renewed, the Customer hereby forfeits the remaining credit and e-mail volume, which cannot be refunded, unless otherwise agreed between the Parties.
9.10 The contract shall have the duration indicated in the order form starting from the date of activation with the Order Confirmation sent to the Customer, or from the online purchase through the appropriate form on the website or in any other way and, in any case, from the acceptance of all the clauses of this document and the attached DPA.

10. Payment methods

10.1 Subscription installment payment: should you opt to pay the annual services in installments, Smtpmailers will issue a payment notice 8 days before the due date of the balance of the fee related to the prepaid plan. After the expiration of 5 days following non-payment, submission features will be temporarily suspended without restricting access to the Platform. Upon the expiration of the 30th day from the last reminder and the date of the first account suspension, the service will be permanently terminated and the contract termination clauses will be applied.
10.2 Debit/Credit Card Payment: Smtpmailers Smtpmailers does not directly handle credit card payments and does not collect such data. Transactions are conducted through a third-party service as specified in the attached “Privacy Policy” document. A customer with an active business plan who decides to pay by credit card will need to provide debit or credit card (“card”) information and authorizes Smtpmailers to deduct the amounts on that card also on a recurring basis.
10.3 The customer agrees to update the information of any card that expires or is replaced with the information of a valid card. Anyone who uses a card represents and guarantees that they are authorized to use that card and that any charges may be billed to that card and will not be rejected. If Smtpmailers is unable to process the card order, it will contact The Customer by email or phone and if there is no response, it may suspend the account as described in the General Terms and Conditions.

11.Limitation of Liability – Rights

11.1 The General Conditions are intended to apply to all contractual relationships entered into between Smtpmailers and the Customer with respect to the Services provided.
11.2 Without prejudice Smtpmailers shall be entitled to terminate the contractual relationship with Customer as of right, by notice through PEC (certified email address) and pursuant to and for the purposes of Article 1456 of the Civil Code, in the event that the Customer is in breach of the provisions in the General Conditions.
11.3 Each Party shall retain full and exclusive ownership of the intellectual and/or industrial property rights belonging to it, or otherwise in its rightful possession, as of the date of stipulation of these General Conditions and/or each subsequent commercial agreement, for whatever reason, acquired and used in the context of the activities present in the General Conditions.
11.4 Except as provided in the preceding paragraph, the Customer, solely to the extent necessary for the performance of the activities contemplated in these General Terms and Commercial Agreements, grants Smtpmailers permission to reproduce its trademarks and distinctive logos.
11.5 The customer expressly authorizes Smtpmailers to use its distinctive names and logos on its website as well as on TurboSmtp’s promotional and advertising materials.
11.6 Limitations of TurboSmtp’s Liability: Smtpmailers cannot guarantee, as in fact it does not guarantee, that the operation of the Platform will be free from errors or failures, but it will make every effort to ensure that this is not the case. Smtpmailers does not assume any obligation or provide any warranty additional to those expressly provided for in these Terms and Conditions
11.7 Smtpmailers shall not be held liable for non-performance of the obligations provided against it in these General Conditions due to unforeseen circumstances otherwise beyond its reasonable control. Specifically, the Parties acknowledge that Smtpmailers shall not be liable in the event of Customer’s inability to access and/or use the SMTPMAILERS Platform caused by the improper functioning of and electrical and/or telecommunications lines such as, but not limited to, failures, overloads, interruptions, floods, due to events beyond TurboSmtp’s reasonable control.
11.8 Except in cases of willful misconduct or gross negligence, any liability, including compensatory liability, of Smtpmailers for prejudice suffered by Customer and/or End Users or third parties as a result of TurboSmtp’s breach of any of the provisions of these General Terms and Conditions is expressly excluded.

12. Account Suspension and Closure

12.1 The customer authorizes Smtpmailers to suspend the Service at any time, with or without cause, including if the account is suspended for causes such as a violation of the terms of these General Terms and Conditions, in the attached DPA, or any general violation of the Agreement.
12.2 The customer authorizes Smtpmailers to suspend service in the event of a report of “Abuse”.
12.3 If an account is inactive for 24 months or more, the account may be closed. Once the account has been closed, the Client acknowledges and accepts the provisions of the attached DPA

13. Duration and Dissolution of Contract – Express Termination Clause

13.1 The contract is valid for 12 months from the date of acceptance unless otherwise agreed upon commercially, and cannot be terminated for any reason before its natural expiration.
13.2 The contract of a paid and non-trial (free) account if terminated without justified reason by Smtpmailers, will be refunded in a pro-rated part of the advance payment.
13.3 These general conditions apply to all contractual relationships concluded between Smtpmailers and the Customer with respect to the services provided with reference to the SMTPMAILERS Platform
13.4 Smtpmailers shall have the right to terminate the contractual relationship with the customer by notice by e-mail and/or PEC (certified email address) in case the customer is in breach of the clauses of these General Terms and Conditions regardless of whether they are administrative, usage, and in violation of anti-spam policies. In the event that the account is terminated due to violation of the anti-spam policy, the amounts paid for use of the Service will not be refunded

14. General Provisions

14.1 Except where expressly provided otherwise, all communications between Smtpmailers and Customer including those provided for in or pertaining to these Terms and Conditions and/or their enforcement may be made by electronic mail. Communications to be made instead by e-mail or PEC (certified email address) may be sent in advance by e-mail, provided that they are confirmed within 24 hours thereafter by PEC.
14.2 The ineffectiveness, nullity, or inapplicability of any of the provisions of these General Terms and Conditions shall in no event result in the ineffectiveness, nullity, or inapplicability of the entire General Terms and Conditions document, the remaining provisions remaining in full force and effect. Should such a circumstance arise, the parties agree as of now to negotiate the replacement of the invalid or unenforceable clause with a similar clause that reflects its meaning as closely as possible: similar action will be taken by the court in the event of a court dispute.
14.3 This Contract constitutes the entire agreement between the parties with respect to the subject matter regulated herein and cancels and supersedes any and all agreements, representations or understandings of any kind previously made between the parties with respect to the subject matter of this Contract. Nothing in this Contract shall be construed to create a partnership or joint venture of any kind between the parties, or an ongoing agency relationship between the parties for any purpose whatsoever, and neither party shall have the authority or power to bind the other party, or to assume any commitment or responsibility on behalf of the other party in any way or for any purpose whatsoever.

15. Applicable Law and Jurisdiction

15.1 General and contractual terms and conditions are governed by the laws of California, for Eu Countries by italian laws.