netmail s.r.o., with its registered office in Prague 1, Klimetská 1, Id. No.: 25082159, Tax Id. No.: CZ25082159, registered in the Commercial Register kept by the Municipal Court in Prague, Section C, Inset 48026, (hereinafter referred to as the “Provider“) is an entrepreneur - trading company established under the Czech rule of law whose business activities include providing software, consultancy in the field of information technologies, data processing, hosting and related activities, web portals, advisory and consultancy activities, elaboration of expert studies and opinions, and brokering of business and services.
The Provider, besides providing the Netmail Services, is authorized based on legal relations with certain Third Parties, to mediate certain services of Third Parties for its Customers.
The relation between the Provider and Customer abides by these General Contract Terms and Conditions (hereinafter also referred to as the “Conditions“) unless the Provider and Customer agree upon otherwise in writing for a particular case.
These General Contract Terms and Conditions apply to (i) all brokering of the Third Party Services by the Provider for the Customer, and (ii) providing the Netmail Services by the Provider.
The Provider is neither an operator nor a provider of the Third Party Services themselves. The conditions for using the Third Party Services and other related rights and obligations are dealt with in a separate legal relation between the Customer and the Third Party which provides or operates the relevant Third Party Service
Provider. The Provider means trading company netmail s.r.o., with its registered office in Prague 1, Klimetská 1, Id. No.: 25082159, Tax Id. No.: CZ25082159, registered in the Commercial Register kept by the Municipal Court in Prague, Section C, Inset 48026.
Customer. The Customer means a user of the Third Party Services and/or Netmail Services based on a contractual relation with the Provider.
Third Party. A Third Party means any entity other than the Provider or Customer.
Contractual parties. The Contractual Parties mean the Provider and Customer.
Third Party Services. The Third Party Services mean services provided by a Third Party which the Provider brokers for the Customer based on a legal relation with the Third Party. A detailed specification of individual Third Party Services is on the Provider’s website: cloud.netmail.eu.
Netmail Services. The Netmail Services mean services provided directly by the Provider.
Use of Services. The Use of Services is understood to include all usage of the Third Party Services or Netmail Services performed by the Customer.
Personal Data. The Personal Data shall have the meanings ascribed to them in the EU Directive. The parties agree and acknowledge that the Data Protection Legislation applies to the processing of Customer Personal Data.
EU Directive means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.
Contract. The Contract means a contract concluded by the Provider and Customer dealing with the brokering of the Third Party Services and/or providing the Netmail Services for the purpose of determining the Contracting Parties’ rights and obligations. The Contract may be concluded both in a documentary form and online, or be based on an order of services and acceptance of the order by the Provider.
Conditions. The Conditions mean these netmail s.r.o. General Contract Terms and Conditions.
Third Parties’ Contractual Conditions. Third Parties’ Contractual Conditions mean the conditions resulting from the legal relation between the Customer and a Third Party which provides or operates the relevant service of the Third Party Services. The Customer can obtain Third Parties’ Contractual Conditions from the relevant providers/operators of the Third Party Services unless the Provider refers to them directly on its website: cloud.netmail.eu.
This part of the Conditions (Art. IV.) only applies to using the Third Party Services.
Third Party Service operation. The Customer understands that the Provider is neither an operator nor a direct provider of the Third Party Services themselves, but it only mediates the Third Party Services for the Customer. The conditions for using the Third Party Services and other related rights and obligations are stated in Third Parties’ Contractual Conditions.
Consent to Third Parties’ Contractual Conditions. The Customer understands that the Provider is neither an operator nor a direct provider of the Third Party Services themselves, but it only mediates the Third Party Services for the Customer. The conditions for using the Third Party Services and other related rights and obligations are stated in Third Parties’ Contractual Conditions.
Administration and setting of the Third Party Services. All administration and setting of the Third Party Services must be carried out solely by the Customer with its own means and at its own responsibility unless agreed upon otherwise by the Contractual Parties. Agreed technical and operational support will be provided to the Customer by Netmail Services at current prices unless the relevant price of the Netmail Service is stated in the Contract.
Quality and availability of the Third Party Services. By signing the Contract, the Customer undertakes and agrees that the responsibility for the quality and availability of the Third Party Services is borne solely by the relevant provider/operator of the Third Party Services unless agreed upon otherwise by the Contractual Parties. The quality and availability of the Third Party Services and the settlement methods and claims resulting from the responsibility for defects in the Third Party Services abide by the relevant
Third Parties’ Contractual Conditions.
This part of the Conditions (Art. V.) only applies to using the Netmail Services.
Netmail Service operation. The Netmail Services are provided by the Provider directly, i.e. on its behalf and at its own responsibility. The Provider will meet its obligation to provide the Netmail Services by rendering the services in the scope under the Contract. The place of providing the Netmail Services involves either the Provider’s place (i.e. the registered office or another place where it carries out its activities) or the place determined by the Customer if this is necessary for rendering the services.
Conditions for providing the Netmail Services. The providing of the Netmail Services which are, with respect to their character, non-recurring services (i.e. the services are not provided repeatedly during a certain period) is not affected by Art. VII.2, VII.3, VII.5, X.2, X.3, XI.3, possibly by other parts of the Conditions if they are non-applicable with respect to the character of the relevant services.
Term and scope of rendering the Netmail Services. The terms agreed for providing the Netmail Services, if they are non-recurring services, and their scope, are determined in the Contract.
Customer’s cooperation. The Customer undertakes to provide the Provider with necessary cooperation in a requested scope during providing the Netmail Services. The Customer further undertakes to provide the Provider with statements, opinions and information necessary for the proper provision of the Netmail Services under the Contract.
Invoicing of the Netmail Services. If the provision of the Netmail Services is non-recurring, the services will be invoiced after the proper provision of the services by the Provider based on an invoice complying with the requirements under these Conditions, and issued by the Provider, unless agreed upon otherwise in the Contract. Other services of the Netmail Services will be charged in the standard way under Art. VII. of these Conditions.
Cooperation. The Provider and Customer are obliged to provide each other with all necessary cooperation to fulfil the purpose of the Contract. In particular, they are obliged to communicate, without undue delay, all significant facts which could affect the performance under the Contract, number of end user accounts, and technical aspects related to access to the Third Party Services or Netmail Services if this is possible with respect to their character.
Limitation of Liability.In view of the scope and character of the provided services, circumstances under which the Contract was concluded, the Contracting Parties’ positions, and the expected amount of the loss, the Contractual Parties have agreed that the responsibility for a loss is limited, in case of a claim for damages, to the amount of the Customer’s payment for the Third Party Services or Netmail Services in the past 12 months.
Price for the Third Party Services and Netmail Services. All charges for the Use of Services are determined in the Contract. If the charges are not determined in the Contract, all services will be charged in accordance with the current prices stated on the website. The Customer is obliged to pay the charges at the amounts given in the Contract, or at the current prices for the services, unless agreed upon otherwise by the Contractual Parties in the Contract.
Payment terms. All payments due are in the currency indicated on the order or invoice (as applicable). Customer will pay for the Services by one of the methods below:
a) Credit or debit card. It the Customers chooses payment by credit card, debit card or another payment method, the charges for the services under the Contract will be due at the end of the month during which the Customer used the relevant services. Fees shall be considered immediately overdue if the Provider does not receive such payment within 5 days of attempting to charge Customer’s credit card or debit card.
b) Payment by bank transfer. Provider may, in its absolute discretion, allow Customer to pay for the Services by bank transfer. If Customer chooses to pay by bank transfer, Customer shall pay for the Service within 21 days of the date of the relevant invoice sent by Provider to Customer. Fees shall be considered immediately overdue in the event that Customer fails to pay within 21 days of the date of the invoice.
c) Other payment methods. The Customer may choose another payment method based on an agreement with the Provider.
Delayed payment. If the Customer is in delay with payment under the Contract, the Provider is entitled to claim late payment interest from the Customer at the highest rate permitted by law of the outstanding amount from the due date to the date of full payment of the outstanding amount. In this case, the Customer bears all cost (including fees for legal representation) which the Provider suffers upon collecting those outstanding amounts.
Suspension of services because of delay. If the Customer is in delay, the Provider is entitled to suspend the Customer’s access to the Third Party Services or Netmail Services on the following conditions:
a) Automatic suspension. Customer will have 30 (thirty) days to pay Provider overdue Fees. If Customer does not pay Provider overdue Fees within 30 (thirty) days from the overdue date, Provider will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays Provider all outstanding Fees.
b) Restoration of services. The Provider is obliged to give access to the selected Services not later than on the first working day following the day of crediting the whole outstanding amount to the Provider’s account. The Provider will notify the Customer of opening the access to the selected Services electronically by sending a message to the e-mail address stated in the Contract or an order.
c) If the Customer is in delay for a period longer than 60 (sixty) days, the Provider may withdraw from the Contract for the reason of its substantial breach by the Customer. This does not affect the Provider’s right to getting the outstanding amounts, and possibly other rights connected with the Customer’s delay.
Taxes. Customer is responsible for any Taxes, and Customer will pay to Provider for the Services without any reduction for such amounts. If Provider is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to Provider, Customer must provide Provider with an official tax receipt or other appropriate documentation to support such payments.
Personal data protection. If the Customer hands over any personal data to the Provider in connection with the performance of the Contract, the Provider shall protect the personal data as much as possible by means of advanced technologies corresponding to the level of technology development. The Provider declares that it has taken all possible measures to protect the data against unauthorized interferences of third persons. However, the Provider is not responsible for possible unauthorized interferences of third persons through which those persons get unauthorized access to the Customer’s and individual users’ personal data, and will use, utilize or misuse the data, or make them available to third persons. The Customer declares that it is aware of risks resulting for the Customer from the above-mentioned unauthorized interferences of third persons.
Restriction on handling the data. The Provider will not, without the Customer’s prior consent, process, share, sell or use the provided personal data in such a way that would contradict these Conditions or the Contract.
Personal data processing. If personal data are handed over to the Provider in connection with the Contract, the Customer understands that the Provider is entitled to process and gather the personal data for its own needs (i.e. for the purpose of providing services under the Contract), and for statistical purposes.
Customer’s consent to personal data processing. If personal data are handed over to the Provider under the Contract, by concluding the Contract the Customer gives consent, in accordance with Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data and amendment of certain acts, as amended, to processing the personal data provided under the Contract to the Provider as the administrator for the purpose of meeting its obligations under the Contract.
Term of the given consent. The Customer gives the above-mentioned consent to the personal data processing for the period of 10 (ten) years, or rather until full settlement of the rights and obligations resulting from the Use of Services unless it takes back its consent sooner. This does not affect the Provider’s obligation to process the personal data during the period determined in relevant legal regulations or in accordance with them.
Personal data processing by Third Parties. The Provider does not take any responsibility for processing the personal data included by the Customer or on its behalf in the Third Party Services. All personal data processing arranged by the Customer through the Third Party Services, if this occurs under the Contract, abides by the conditions for personal data processing of the relevant Third Party. The Customer is obliged, prior to providing the personal data, to acquaint itself in time with the conditions for personal data processing of Third Parties, and assign the identical obligation to all users of the Services within the Customer’s domain.
Access to personal data within the Netmail Services and Third Party Services. The Customer is fully responsible for arranging the setting of access to the data entered by the Customer when using the Netmail Services and Third Party Services.
Confidential information protection. The Contractual Parties are obliged to maintain confidentiality regarding all facts they get to know in connection with performing the Contract, regardless of the form in which such information is made available to the other party, if any of the Contracting Parties marks it as confidential, or if it is possible to assume, by law or by the character of the information, that the Party which made the information available is interested in its secrecy (confidential information). The same protection applies to information of a business character, e.g. prices, conditions for performance, existence of the contractual relation between the Provider and Customer, contents of the Contract itself, the Provider’s marketing or business information not intended for the public. However, the protection does not apply to information publicly known at the time of its provision, or information that became known without breaking the confidentiality obligation under the Contract, or information which the Provider handed over to a Third Party for the purpose of meeting the obligations under the Contract.
Termination of personal data protection and confidential information protection. In case of termination of the Contract each Contracting Party is obliged, if requested by the other Contracting Party, to return or destroy all personal data and information under Art. X. 8 of these Conditions related to the other Contracting Party (except for the information which the Parties are obliged to keep based on relevant legal regulations).
Consent to the Conditions. The Customer and each of the Customer’s users (i.e. an end user of the relevant service) are obliged to acquaint themselves with these Conditions prior to starting the Use of Services. The consent, besides concluding the Contract, is in fact also expressed when the Customer, possibly directly the Customer’s user, begins to use any of the Netmail Services or any Third Party Service. If the Customer or the Customer’s user does not agree to these Conditions, it is obliged to refrain from the Use of Services.
Amendments and the effect of amendments to the Conditions.
a) Amendments to the Conditions. The Provider is entitled to make commercially reasonable amendments to the contents of these Conditions. The proposal of an amendment to the Conditions will be communicated by the Provider with the Customer.
b) Effect of amendments to the Conditions. In relation to the Customer that has concluded the Contract for a definite period of time, amendments to the Conditions will not come into effect before an end of the term for which the Contract was concluded. If the effective period of the Contract is extended to an definite period of time, amendments to the Conditions will come into effect on the day following the day on which the original effective period of the Contract should have ended. In relation to the Customer that has concluded the Contract for an indefinite period of time, amendments to the Conditions will come into effect not sooner than as of the beginning of a new accounting period. In relation to each Customer, amendments come into effect only if the Customer expresses consent to such amendments. The Customer’s consent is considered to be expressed either by clicking the relevant button expressing content to the amendment to the Conditions, or by carrying on the Use of Services by the Customer after the date determined by the Provider as the date on which the amendment to the Conditions comes into effect. If the Customer does not agree to amendments to these Conditions, it is obliged to refrain from the Use of Services after the amendments to the Conditions come into effect. Any amendments to these Conditions come into effect on the day determined by the Provider, however, not sooner than on the 15th day after being released on the Provider’s website.
Effective period of the Contract. Unless stated otherwise in the Contract, it is concluded for an indefinite period of time.
Termination of the Contract. The Contract may be terminated only as of an end of the determined period on condition that a notice will be provably delivered to the other Contracting Party not later than 15 days before the expiry date of the relevant period.
Withdrawal from the Contract. Any Contractual Party is entitled to withdraw from the Contract if the other Contracting Party substantially breaches the Contract. The substantial breach of the Contract by the Customer is considered to include particularly a breach of obligations under Art. VI.2, Art. VI.4.b) and Art. IV.7 of these Conditions, substantial breach of Third Parties’ Contractual Conditions in case of using the Third Party Services, and payment for the Services under the Contract delayed for more than 20 days. The substantial breach of the Contract by the Provider is considered to include particularly a breach of obligations under Art. III.1 and Art. VIII.8 of these Conditions.
The Provider is entitled to withdraw from the Contract
a) in case of insolvency proceedings initiated against the Customer under relevant legal regulations,
b) if the contract between the Customer and a Third Party ceases to exist, the Contract deals with the brokering of the Third Party Services, and the Contract is a necessary requirement for using the Third Party Services by the Customer. This condition does not apply to using the Netmail Services.
If the Contract ceases to exist, the Provider shall provide the Customer with necessary collaboration for the transfer/migration of the user accounts and information stored by the Customer within the Third Party Services, if possible, possibly also within the Netmail Services with respect to their character, from the infrastructure of the provider/operator of the Third Party Services, or the infrastructure of the Provider, back to the infrastructure of the Customer. For this purpose the Contractual Parties undertake to elaborate a plan for the transfer of services. This activity related to the migration of data will be remunerated to the Provider in accordance with the current prices of services.
Each Contractual Party is obliged to notify the other Party in writing of the withdrawal from the Contract. The notification on the withdrawal from the Contract must contain the reason for which the Contractual Party withdraws from the Contract, and a reference to the relevant provisions of the Contract (possibly the Conditions), otherwise the withdrawal will be void. Upon withdrawal from the Contract, the Contract ceases to exist on the day of delivering the notice to the other Contractual Party.
Alteration of rates. Regarding a new contractual period, the prices/rates corresponding to the current prices of services valid at the time of the beginning of a new contractual period will always be in force unless agreed upon otherwise by the Contractual Parties.
Alteration of the parameters of Services. The Customer may extend certain parameters of the Netmail Services or Third Party Services online through the Customer Portal if this is possible in the Provider’s system. Such alteration will be considered to be an amendment to the Contract.
Communication. All communication between the Provider and Customer may be done either in writing or by e-mail. Communication from the Provider related to one or more Customers may also be done by the Provider in the form of releasing a certain notification on the Provider’s website (for instance in case of a notification of an amendment to these Conditions). If any of the above-mentioned communication methods are used, a written form is held to be observed. Oral communication between the Provider and Customer may be done over the telephone or through similar services that enable a long-distance transmission of voice.
Governing law and collision regulations. These Conditions and the Contract, as well as all legal relations arising, or those that will arise in the future, between the Provider and Customer as the other party in connection with performing the Contract abide by the rule of law of the Czech Republic.
Settlement of disputes. All disputes arisen on the basis of the Contract or in connection with it will be finally decided in legal proceedings by ordinary courts of the Czech Republic.
Language version. These Conditions are executed in the English language. The English version of the Conditions is binding; possible other language versions of these Conditions are made only for information.
Severability clause. If any provision of these Conditions is, or becomes to be in the future, invalid or unenforceable as a whole or in part, it will be entirely severable from other provisions of these Conditions, and such invalidity or unenforceability will not affect the validity and enforceability of any other provisions of these Conditions. In this case the Provider will replace such invalid or unenforceable provision with another provision which will correspond to the contents of the original provision as much as possible.
Effective date. This version of the Conditions comes into effect on November 1, 2016.