Mailnjoy Terms and Conditions of Sale and Service Use

Version dated June 1, 2024

Preamble

MAILNJOY, a simplified joint-stock company (SAS) registered with the Toulouse Trade and Companies Register under No. 882433030, with its registered office located at 6B rue de la Gravette, 31830 Plaisance du Touch, France (hereinafter “MAILNJOY”) provides email and/or transactional solutions through its website www.mailnjoy.com (“the Site”).

The purpose of these Terms of Use is to define the terms and conditions for using MAILNJOY’s Services. They constitute a legally binding agreement between MAILNJOY and any user of the www.mailnjoy.com platform (“the User”). By subscribing to or using the Site or the Services, the User declares that they have read and accepted without reservation the current version of these Terms of Use.

Any special terms and conditions negotiated between MAILNJOY and the User shall take precedence over these General Terms of Use.

The terms used in this document are defined as follows:

“User” means any individual or entity that uses MAILNJOY’s Services.

The “Services” provided by MAILNJOY are the features made available to Users through the Site, including, but not limited to, the provision of reports and the optimization of the deliverability of sent messages.

A “processor” is a company that processes data at the request of a data controller. Thus, MAILNJOY acts as a processor to provide its Services to Users, who determine the purpose and methods of the processing. Similarly, MAILNJOY may engage processors (“sub-processors”) to process data on its behalf.

“User Data” refers to the data processed by MAILNJOY on behalf of Users in connection with the provision of the subscribed Services.

“Personal data” refers to information relating to an identified or identifiable natural or legal person.

The “Parties” refer to MAILNJOY and the User

1) Purpose of MAILNJOY Services

MAILNJOY provides solutions in the field of email and/or transactional communications through its email address processing platform, which is marketed via the Website.

2) User Account Management

To use MAILNJOY Services, you must create an online account, with the exception of the single-item demo service.

The User is responsible for the accuracy of the information provided and agrees to update their personal information or to notify MAILNJOY immediately of any changes affecting their circumstances.

The User shall take all necessary measures to ensure that access to their account remains confidential.

In the event of unauthorized use of their account, the User agrees to notify MAILNJOY immediately and to change their password without delay.

Any charges resulting from such unauthorized use shall be the responsibility of the User until the User notifies MAILNJOY of such use.

MAILNJOY shall in no event be liable for any direct or indirect damages resulting from the use of the account by a third party, whether or not authorized by the User.

MAILNJOY protects the integrity, confidentiality, and administrative, physical, and technical security of the User’s personal information.

3) Financial terms

By subscribing to MAILNJOY Services, the User agrees to pay the price corresponding to the selected Services and the User’s country of residence.

Unless otherwise specified, payment for the Services must be made at the time of subscription in euros or U.S. dollars.

The prices displayed on the Site by default include French VAT at the rate in effect at the time of billing. Once logged into their customer account, customers will see prices that reflect the VAT rate applicable to their billing country.

Additional charges may be added to the invoice depending on the User’s country of residence and applicable laws and regulations.

3.1 Refund Policy: Exercising the Right of Withdrawal

When the User makes their first purchase after buying credits, they expressly waive their 14-day right of withdrawal.

If the product has not been used, the User may exercise their right of withdrawal within 14 calendar days of purchase. To exercise this right, the User must notify MAILNJOY of their decision to withdraw by sending an unambiguous statement via email to support@mailnjoy.com.

To ensure compliance with the withdrawal period, the User need only submit a notice regarding the exercise of the right of withdrawal before the expiration of the 14-calendar-day withdrawal period. The refund will be issued no later than 14 days after the date on which the User notified MAILNJOY of their decision. This refund will be issued via the payment method used for the original transaction.

4) Use of the Services

4.1 Compliance with applicable regulations

Each Party declares that it complies with the regulations applicable to its business.

In general, the User warrants that the information sent via MAILNJOY’s Services does not violate any legal or regulatory provisions or provisions arising from international agreements applicable to the User, including those in force in France, in the country where the User conducts business, and in the country where the individuals on the distribution lists reside, nor does it infringe upon the rights of third parties.

4.1.1 User’s Intellectual Property Rights

The User authorizes MAILNJOY to use their name, brand, and visual identity solely for the purpose of providing the Services.

The User warrants to MAILNJOY:

  • that he has full authority and capacity to exploit and grant intellectual and industrial property rights, and that such rights have not been assigned, mortgaged, encumbered, or otherwise transferred to any third party;
  • that he has not taken, and will not take, through a transfer to a third party or by any other means, any action that could compromise the use of intellectual and industrial property rights;
  • that he has not included, nor will he include, in his campaigns any footage, reproduction, or reference that could infringe on the rights of third parties;
  • that no litigation or legal proceedings involving intellectual property rights are currently pending or about to be initiated.

In addition, the User agrees to indemnify MAILNJOY against any claims by third parties and any judgments rendered against the User arising from a breach of this section.

4.1.2 MAILNJOY’s Intellectual and Industrial Property Rights

All programs, services, processes, designs, software, technologies, trademarks, trade names, and inventions appearing on the Site, accessible via the Site, or via MAILNJOY’s Services are the property of MAILNJOY or its licensors.

The User agrees not to use the Site, the Services, or any of the elements listed above in any manner for purposes other than those set forth herein.

4.2 Protection of Third-Party Personal Data

For the purpose of providing the Services, MAILNJOY has access to the information contained in the email address lists created by Users in their personal accounts. This information contains personal data relating to third parties.

4.2.1 User Responsibility Regarding Personal Data

As the creator of the email address list, the User is responsible for the processing of the personal data contained in that list in accordance with applicable regulations. Accordingly, if the User is established in the European Union, or if the User’s mailing list contains personal data of citizens who are members of the European Union, the User warrants to MAILNJOY that they comply with the provisions of Regulation No. 2016/679 of April 27, 2016 (the “GDPR”) as well as those of Law No. 78-17 of January 6, 1978 on information technology, files, and civil liberties, and in particular:

  • that the personal data contained in the transmitted file has been collected and processed in accordance with applicable regulations;
  • that the User has informed the individuals concerned in accordance with the regulations;
  • where applicable, that the collection and processing have been based on the explicit and informed consent of the individuals concerned;
  • that it enables the individuals concerned to exercise their rights in accordance with the regulations;
  • that it undertakes to ensure that information is corrected, supplemented, clarified, updated, or deleted when it is inaccurate, incomplete, ambiguous, or outdated, or when data subjects wish to prohibit its collection, use, disclosure, or retention.

It is specified that the User is solely responsible for managing the retention periods of the personal data they upload to the MAILNJOY platform, and that it is their responsibility to delete the data as their retention periods expire. MAILNJOY’s sole responsibility is to delete this data upon the termination of its contractual relationship with the User or upon the expiration of a maximum period defined by MAILNJOY (one year).

Furthermore, the User agrees not to include in the distribution lists shared on the MAILNJOY platform any personal data classified as “sensitive” within the meaning of Article 9 of the GDPR, including, but not limited to, health data, as well as data relating to criminal convictions and offenses, Social Security numbers, or credit card numbers. MAILNJOY shall in no event be held liable for the presence of such personal data on its platform or for any consequences that may arise therefrom. In the event of a breach of this clause, the User shall be solely liable for any consequences and agrees to indemnify MAILNJOY.

4.2.2 Protection of the User’s Personal Data

MAILNJOY has taken all necessary precautions to ensure the security of personal data and, in particular, to prevent it from being altered or damaged or accessed by unauthorized third parties.

These measures include the following:

  • Multi-level firewalls,
  • A well-established antivirus program,
  • Intrusion detection,
  • Encrypted data transmission using SSL/HTTPS/VPN technology
  • ISO 27001-certified data centers

In addition, access to MAILNJOY Services requires users to authenticate themselves using an individual access code and password.

4.2.3 Terms and Conditions of the Subcontracting Relationship

MAILNJOY acts as a data processor for the User and undertakes to comply with the obligations set forth in the Appendix titled “Agreement on the Processing of Personal Data.”

In this context, it is specified that:

  • Users may retrieve their email address lists at any time (before the maximum retention period expires and provided they have not previously deleted them) by clicking the “Export” button from their personal MAILNJOY account.
  • Personal data contained in email address lists may only be disclosed to third parties upon request by legally authorized authorities, pursuant to a court order, or in connection with legal proceedings.

4.2.4 Use of Data by MAILNJOY

The User is hereby informed that MAILNJOY reserves the right to process data in order to pursue its legitimate interests, including risk management and the optimization of the Services.

4.3 Prohibited Uses

Use of MAILNJOY Services resulting from a subscription to such Services is strictly personal and may not be rented, transferred to a third party, or assigned to a third party, whether for free or for a fee. Unless prior authorization is obtained, use of MAILNJOY is limited to a single account per User.

Any use of the Services that could damage, disable, or overload MAILNJOY’s infrastructure or the networks connected to MAILNJOY’s servers, or that could interfere with other Users’ ability to use the Services, or that involves the transmission of incoming data whose values deviate abnormally from standard norms, is prohibited.

Any attempt to gain unauthorized access to the Services, other accounts, computer systems, or other networks connected to a MAILNJOY server or any of the Services through hacking or any other method is prohibited.

The use of the Services for the purpose of selling products or services related to illegal or fraudulent activities, or of promoting such activities—including, but not limited to, activities related to illegal drugs, pirated software, or instructions for assembling or creating bombs, grenades, or other weapons, as well as materials depicting violence against children or promoting violence—is prohibited.
Any use of the Services that violates applicable regulations regarding telemarketing, email marketing, anti-spam, anti-phishing, or personal data protection is prohibited.

Any use of the Services that infringes upon the rights of third parties is prohibited.

In the event of a violation of this section, MAILNJOY reserves the right to immediately block the User’s access to its Services and to delete all information from the User’s account without notice and without refund or any other form of compensation.

MAILNJOY reserves the right to refuse or restrict service to accounts that do not comply with its Terms of Service, laws governing communications businesses, or that distribute unsolicited communications.

5) Responsibilities and Warranties

5.1 MAILNJOY’s Responsibilities and Warranties

Unless prevented by force majeure, MAILNJOY guarantees to the User the proper performance of its services in accordance with these Terms and Conditions of Use.

Any compensation that MAILNJOY may owe to the User or a third party as a result of MAILNJOY, its subsidiaries, or its partners being held liable in connection with the performance of this Agreement shall not exceed the amount paid by the User in exchange for the Service(s) giving rise to such liability.

Under no circumstances does MAILNJOY guarantee the User the financial, reputational, or informational benefits the User expects to derive from sending emails under this Agreement.

5.2 User Responsibilities and Warranties

The User may be held liable for any failure to comply with these Terms of Use, MAILNJOY’s privacy and anti-spam policies, or any applicable legal or regulatory provisions or provisions under an international agreement.

The User shall indemnify MAILNJOY against any and all damages, claims, and actions brought by third parties arising from the User’s breach of these Terms of Use, MAILNJOY’s privacy and anti-spam policies, or any applicable legal or regulatory provisions or international agreements.

6) Changes to the Terms of Use, MAILNJOY policies, and the service offering

MAILNJOY may amend these Terms of Use, its anti-spam and privacy policies, and its services.

The User will be notified of any changes made directly to their account and asked to accept such changes in order to continue using the Services.

The Terms of Use, anti-spam and privacy policies, as well as the current version of MAILNJOY’s terms and conditions reflecting the latest updates, are available for review at any time on the Website.

7) Term – Termination

These Terms and Conditions of Use remain in effect indefinitely.

Users may cancel their MAILNJOY account at any time directly through the Website (if this feature is available) or by contacting support (contact@mailnjoy.com).

In the event of termination by the User, any amounts paid for any of the MAILNJOY Services remain due to MAILNJOY, even if the User has not used up the processing quotas purchased.

In the event that the User fails to comply with these Terms of Use, MAILNJOY’s privacy policies, or any applicable legal or regulatory provisions or provisions under an international agreement, MAILNJOY reserves the right to terminate the User’s account, subject to 15 days’ notice.

The agreement will be terminated without notice in the event of a breach of the “Use of Services” section of these Terms.

8) Force majeure

The parties shall not be held liable if the failure to perform or the delay in performing any of their obligations set forth in these Terms of Use results from a force majeure event.

Force majeure refers to any external, unavoidable, and unforeseeable event, as interpreted by the case law of French courts, that prevents one of the parties from fulfilling its obligations or makes the fulfillment of such obligations excessively burdensome.

In addition to the cases of force majeure generally recognized by French case law, the following shall be expressly considered as cases of force majeure, without this list being exhaustive:

  • wars, armed conflicts, riots, insurrections, sabotage, acts of terrorism,
  • total or partial strikes, whether internal or external to the company, at a supplier’s premises or involving a national operator; lockouts; disruptions to transportation or supply chains for any reason whatsoever;
  • natural disasters that result in the destruction of infrastructure, such as fires, storms, floods, and water damage,
  • government or legal restrictions, legal or regulatory changes to marketing practices, or the suspension, cancellation, or revocation of any authorization by any competent authority,
  • impacts directly or indirectly related to large-scale epidemics or pandemics
  • interruptions to the MAILNJOY network, or to that of its subcontractor or provider, resulting from computer failures, blockage of telecommunications systems, whether resulting from external attacks, service interruptions by the internet service provider, or other causes, and any other event not attributable to MAILNJOY, its subcontractor, or its supplier, preventing the normal performance of services,
  • power outages lasting more than 48 hours.

Each party shall notify the other party, by any means at its disposal, of the occurrence of any event of force majeure.

9) Protection of the User’s Personal Data

The information, including personal data, collected by MAILNJOY in the course of its business relationship with the User is subject to the data processing procedures described in MAILNJOY’s “Privacy Policy – Protection of Personal Data.”

10) Partial invalidity of the Terms of Use

The invalidity of any single provision of these Terms and Conditions of Use shall not render the entire agreement invalid, provided that the overall balance and structure of the agreement can be preserved.

11) Governing Law – Jurisdiction

These Terms and Conditions of Use are governed exclusively by French law.

Any dispute between the Parties arising from the validity, interpretation, and/or performance, termination, or breach of these Terms of Use shall be submitted by the Party taking the initiative to the Commercial Court of Toulouse, including in cases of summary proceedings, third-party claims, and/or multiple defendants.