Terms of Use for FreshMail.com (Until 29-07-2020)

FreshMail is an innovative company committed to providing the highest standard of service. These Terms of Use have been created for you and are meant to clearly define the use of FreshMail services for purposes directly related to business, professional or statutory activities. The nature of FreshMail services is such that they are not intended for consumers.

Before you use the FreshMail Portal in any way, please read the full Terms of Use.

These Terms of Use are for you, so FreshMail wants them to be as clear as possible. For easy reading and navigation, the Terms of Use are broken down into sections, each provided with a commentary. Remember that the breakdown into sections is indicative only and no section shall be interpreted separately from all other sections of these Terms of Use.

If you have any questions or concerns about the content of these Terms of Use, feel free to contact us. You can find our contact details at the end of this document (Section 92).

Keeping things organised for you – definition of terms

  1. FreshMail likes to keep things organised. That is why we’ve put together a short list of definitions used in these Terms of Use.
Group Email Address A single email address, e.g. office@domain.pl, used for the distribution of emails to other email addresses.  
Pricing The FreshMail App is not free, and the payment criteria and pricing of individual services have been established in the Pricing.  
Documentation After logging in to the FreshMail Portal, you can download any of the available files. FreshMail calls them Documentation for short. Documentation includes materials to help you use the FreshMail App, or reports you can generate with the App.  
Personal Data This means any personal data of the Subscribers or other third parties as defined in the GDPR and which you import to the FreshMail App or which you generate in the FreshMail App while using FreshMail services.  
FreshMail That’s us. FreshMail is a limited liability company with its registered office in Kraków, entered into the commercial register of the National Court Register (KRS) by the District Court of Kraków-Śródmieście in Kraków, 11th Commercial Division of the KRS, under KRS number: 0000497051.  
Campaign Campaigns are the primary task of the FreshMail App. A Campaign is a single mass delivery of one marketing email or text message, based on a single template, and made by you via the App. A single message is also considered to be a Campaign. Note that transaction emails sent from the FreshMail App are not a Campaign.  
Account It’s yours and yours alone. After signing up to the FreshMail Portal, you will have a personalised profile generated for you to use the FreshMail App functionalities and resources.  
Trial Account This is an Account that you set up for a trial period of 14 days (‘Trial Period’), and therefore you do not pay any fees to FreshMail during the Trial Period. Your Trial Account lets you create mailing lists with a maximum total of 100,000 Subscribers, expressed as the number of unique email addresses or phone numbers. You can send a maximum of 5,000 messages during the Trial Period. The Trial Account is missing some features of the FreshMail App and access to technical support is limited.  
Moderation The Campaigns and the Landing Page are subject to moderation by FreshMail before delivery or publishing. FreshMail reserves the right to verify the compliance of the content with the Terms of Use, the Anti-Spam Policy, and good email marketing practice.  
Landing Page A simple website which you can create in the FreshMail App, mainly with a view to obtaining Personal Data of your Subscribers. The Landing Page content is created and managed by you according to these Terms of Use.  
Subscribers You send your Campaigns to them. These are the individuals the email addresses and/or phone numbers you import to the FreshMail App. Remember that the number of Subscribers in your Account is the sum of the numbers of email addresses in all your Subscriber Lists, even if individual email addresses or phone numbers are repeated in these Lists.  
Billing Period This means every 30 days to us. If you purchase access to any of the functionalities of the FreshMail App for one or several months in advance, FreshMail will bill you every 30 days. The Billing Periods for the different functionalities of the FreshMail App you have purchased do not have to coincide.  
Account Maintenance Fee An additional fee, which is dependent on the period in which your Account was not paid for. The Account Maintenance Fee is billed out of the need to store data on FreshMail servers (and the data may include the Subscribers’ activity, the Campaigns you create, the reports, or the Subscriber Lists) during the period of inactivity of your Account. The amount of the Account Maintenance Fee depends on the duration of your delay in paying for the upcoming plan. You will receive the notice of the Account Maintenance Fee amount in the purchase order for each new plan purchased. Read more about the Account Maintenance Fee in our FAQ.  
Anti-Spam Policy FreshMail wants all use of the FreshMail App to be in compliance with mandatory provisions of law and generally accepted Internet practices. Therefore, FreshMail has created the Anti-Spam Policy, which brings together all the foregoing regulations and rules. If you wish to read the Anti-Spam Policy, click here.  
Privacy Policy FreshMail is committed to protecting your privacy. That is why we have created the Privacy Policy, a set of practices and rules according to which we process your Personal Data. If you wish to read the Privacy Policy, click here.  
FreshMail App This is where you import the databases of email addresses or phone numbers of the Subscribers and send your Campaigns through it. The FreshMail App lets you use other functionalities which are detailed here. The FreshMail App is an online application accessed at app.freshmail.com and provided as Software as a Service (SaaS). You do not have to install it on your computer.  
Recurring Payment A method of collecting payments from your Account. Once you agree to have your payments charged from the credit card you have added to your FreshMail Account, FreshMail will do it every Billing Period. The amount of your Recurring Payment is regulated by the Pricing and will depend on the number of Subscriber email addresses / phone numbers you store on your FreshMail Account.  
Report Would you like to know how many Subscribers have received your Campaign? The Report functionality lets you view the statistical data of your Campaigns.  
Terms of Use

 

 This is what you are reading right now. It is a FreshMail policy document in which FreshMail has defined the terms of your paid use of the FreshMail Portal and App. If you have already used a Trial Account, the text in blue highlights the provisions different from the Trial Account Terms of Use.  
Trial Account Terms of Use Before you decide to use the full version of the FreshMail App against a fee set out in Pricing, you can test it free of charge with a Trial Account. FreshMail’s relations with you during the free Trial Period are regulated in a separate document, the Trial Account Terms of Use which you can read [here].  
GDPR (General Data Protection Regulation) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, published in the Official Journal of the EU.  
Portal This is how you access your Account and use the FreshMail App. It is a website available at freshmail.pl.  

 
Spamtrap An address which was created and published on the Internet intentionally or transformed from an email address that had not been used for at least 2 years. A Spamtrap detects instances of sending email messages to the email addresses which exist in databases created illegally or not in compliance with good email marketing practices (examples: read Sections 2.ii and 2.iii of the Anti-Spam Policy). The presence of Spamtraps on your Subscriber List can also mean poor maintenance of the Subscriber database.  
Content Any graphic, text and audio-visual elements that you upload to the FreshMail App during any Campaign, in a Landing Page or to deliver transactional emails. You are solely responsible for their compliance with the law.  
Contract You conclude the Contract with FreshMail for the paid use of the FreshMail App by accepting these Terms of Use and making the payment as regulated in Sections 24 to 35 of the Terms of Use. If you do not wish to pay for your use of the FreshMail App with an electronic wallet or by Recurring Payment charged from your credit card, you can conclude a written non-exclusive licence agreement with FreshMail. The Terms of Use of the non-exclusive licence agreement are not unlike these Terms of Use.

If you have previously used a Trial Account, you have 30 days after the end of the Trial Period to conclude the Contract with FreshMail for a paid use of the FreshMail App. After that time, your Trial Account and all its data will be deleted by FreshMail.

  
     
     
     

Unless otherwise stated in these Terms of Use, the terms listed above in capital letters shall always have the foregoing definitions.

What is the FreshMail App and how do I use it?

  1. FreshMail provides email marketing services through the FreshMail Portal. These services are provided by supplying you with the tools and functionalities of the FreshMail App. 
  2. You can use other functionalities available in the FreshMail App, such as:

(i) sms marketing;

(ii) transactional emails (learn more in Section 81 of the Terms of Use);

(iii) Landing Pages.

  1. By accepting these Terms of Use and making the payment, you conclude the Contract with FreshMail. Under the Contract, FreshMail provides you with a paid and non-exclusive license to use the FreshMail App with a single individual login (an email address), at one time and at one workstation. You can create access credentials on your Account for other users. Note, however, that you are solely liable for how your FreshMail Account is used, especially for any act in violation of the Contract, the Terms of Use, or the Anti-Spam Policy. You can use the FreshMail App and Documentation you download from the FreshMail Portal for your purposes only and as regulated by the Contract.
  2. Under the Contract concluded, you are entitled to a license for the FreshMail App in the fields of exploitation specified in Articles 74 and 75 of the Copyright Act; however, you shall not:

(i) permanently or temporarily duplicate the FreshMail App in whole or part with any means or in any form;

(ii) translate, adapt, modify the layout or otherwise change the FreshMail App;

(iii) make backup copies of the FreshMail App;

(iv) duplicate the source code or translate its form as construed under Article 74(4)(1 and 2) of the Copyright Act.

The license granted to you enables unobstructed sending of Campaigns and use of other functionalities available in the FreshMail App.

  1. The license granted to you and its related rights to use the FreshMail Portal, Documentation and App will expire when the Contract is terminated, expires or is withdrawn from.

Everyone’s been through this – Signing up

You have already signed up for FreshMail by creating your Trial Account. Just in case, FreshMail will run you through this process again.

  1. To use the FreshMail App, create an email account or use an email account you already have.
  2. To sign up for FreshMail and use the FreshMail Portal and App, you need a terminal with Internet connectivity. The terminal must have a software application installed for browsing Internet resources (web browser). The web browser must accept cookie files and have JavaScript support enabled.
  3. If you already have an email account and your terminal meets the foregoing criteria, the next step is to sign up for FreshMail. Without signing up, you cannot access any functionalities of the FreshMail App. The Sign-up Form is available at freshmail.pl. You will need to fill it with your real personal data:

(i) your first name;

(ii) your email address;

(iii) your phone number.

You will also need to set up and confirm a password for your Account. Your password should be very secure and include at least 8 characters: different letters and digits or special characters. The FreshMail App will verify your password and tell you if it meets the criteria.

  1. Note that the FreshMail App is operated on the Internet. That is why all information and documents related to the FreshMail Portal and the use of the FreshMail App will be sent to you over the Internet only. If you wish to stay up to date with all the innovations in email marketing, such as new functionalities added to the FreshMail App or the latest marketing trends, do not forget to give your consent to the processing of your personal data for marketing purposes by FreshMail, which includes direct marketing, especially for the transmission of FreshMail’s commercial information to you.
  2. You are signed up once you have clicked Create Account or another on-screen button to create the Account, filled in the Sign-up Form and confirmed the entry. This will create your Trial Account. The Trial Account Terms of Use regulate how you can use the Trial Account. The paid Account is regulated by these Terms of Use. 
  3. Remember that the email address you have signed up with is your login to the FreshMail App and you need it to sign in for the first time. You can always request a change of your login by contacting the FreshMail Customer Support.

What can I upload to the FreshMail App?

  1. By now, you should have a very good understanding of Article 10 of the E-Services Act and Articles 4(7) and 6(1) of GDPR. To manage your email and sms marketing, you can upload email addresses and phone numbers owned by Subscribers who have been verified as having granted you their consent to receive commercial information by electronic channels of communication. To use other functionalities of the FreshMail App (e.g. transactional emails), you need to secure a correct legal basis for the processing of Personal Data. To do this, you must become a Personal Data Controller as construed under GDPR (or act as a Personal Data Processor for and on behalf of the Personal Data Controller). This, in turn, requires you to conclude a personal data processing outsourcing agreement with FreshMail. You can find more details about what you can upload to the FreshMail App in the Anti-Spam Policy.
  2. If you do not know Article 10 of the E-Services Act, read it here.
  3. If you do not know Article 4(7) or 6(1) of GDPR, you can read both here.
  4. When creating a Landing Page, you can upload any graphical and text Content to the FreshMail App. Note that you are solely liable for the Content uploaded by you. Read more in Sections 63 to 67 of the Terms of Use about Moderation and the ‘notice and take down’ procedure.
  5. Note that you are solely and fully liable for the data and Content you upload to the FreshMail App. You shall indemnify and hold FreshMail harmless from any liability for the data you have uploaded to the FreshMail App. FreshMail has set up a default limit of 100 (one hundred) Subscriber Lists. If you need more lists, contact the FreshMail Customer Support.
  6. FreshMail has the right to verify all email addresses imported to its System and will use dedicated IT tools to verify if any risks may arise from your sending of Campaigns to toxic (potentially dangerous) email addresses. If any such risk is found during the verification, such a Campaign will not be sent by FreshMail. If a large number of toxic email addresses or Group Email Addresses is found on any Subscriber List, FreshMail may suspend the sending of the Campaign to the entire Subscriber List concerned or block your Account according to Sections 69, 70 and 73 of these Terms of Use.
  7. If you have previously used a Trial Account and conclude the Contract with FreshMail for the paid use of the FreshMail App, your Subscriber Lists and Contents will be automatically imported from the Trial Account to the paid Account.

How do I send my first Campaign?

  1. The FreshMail App has been designed for easy and intuitive use by everyone eligible. FreshMail enables you to design your Campaign from scratch or by applying predefined solutions. If you need any help, read FreshMail’s ‘How to plan an email campaign’. You can find it here. Remember that it is you who creates your Campaigns and their content. FreshMail only provides you with the right tools to so.
  2. Remember that Campaigns sent through a paid Account are released only when the Account has no outstanding payments. FreshMail automatically posts all fees credited and made by you online. You need to be patient, however, as the payment processing can take anywhere from a few minutes to a few days.
  3. You can find the results of each sent Campaign in the Report, which is updated on an ongoing basis. The Report is where FreshMail logs all activity of your Subscribers for six months from the day your Campaign is sent. The Subscriber activity after the six-month period will not be listed in the Report.
  4. The photographs featured in the templates from the FreshMail Template Library are indicative only, and you should not use them in any actual Campaign.

Payment

  1. If you want to enjoy the paid features of the FreshMail App to send a Campaign, you need to choose a payment plan that is right for you: “Pay as you go” or “Unlimited”. You can pay for access to all other functionalities according to the Pricing.

 

  1. To send a Campaign as regulated by the Payment plan you have chosen and/or use other functionalities of the FreshMail App, the following conditions must be met:

(i) the due fee has been credited to and posted in the FreshMail account via e-payment services (so-called electronic wallets) or collected from the credit card added to your Account, OR

(ii) you have concluded the agreement as specified in Section 28.iii of the Terms of Use); AND

(iii) you have provided some additional data required, which includes your surname and mailing address, as defined in the Privacy Policy.

  1. When the Payment plan you have chosen expires, you will still be able to sign in to your Account; however, you will only be able to send another Campaign (and/or publish another Landing Page) when FreshMail receives another payment, either via electronic payment services or from your credit card, or by bank transfer against VAT invoices issued by FreshMail, as applicable. As soon as FreshMail receives the required payment, the FreshMail App will automatically credit your Account. Remember that you can purchase a plan for more than 30 (thirty) days.
  2. The payment forms accepted by FreshMail are specified in the General Terms of Use of Contracts, see here and the Pricing, see here. Note that FreshMail does not warrant the proper performance of any online payment system you may choose; the online payment services are third-party services and beyond any reasonable control of FreshMail.
  3. Remember that the payment method you choose is important:

(i) if you choose an online payment method, you choose an online payment service which will credit your funds to FreshMail according to the terms of use of the provider of that service. You need to read and understand the terms of use of the online payment service, as the payment processing time may vary between the online payment service providers.

(ii) if you choose to add a credit card to your Account to make your payment, FreshMail will charge it periodically with the amount of funds to be credited to FreshMail until your Account is suspended or you terminate your cooperation with FreshMail. Your funds will be credited to FreshMail according to the terms of use of this payment form. You need to read and understand those terms of use.

(iii) if you choose to make a payment against VAT invoices issued to you by FreshMail, FreshMail will send the relevant agreement in writing for you to sign and send back in two (2) original copies. Both original copies will be signed by FreshMail, with one sent back to the mailing address which you have provided when signing up.

  1. Your payments via online payment services (including electronic wallets) are managed by third-party websites of online payment service providers. You can find the links to these websites in the Payments tab. According to FreshMail’s best knowledge, the third-party online service providers warrant and represent that every transaction you may make through their services will be secure. However, if you have any questions or doubts concerning the operation of third-party online payment services, make sure to read the Privacy Policy of the service provider you wish to choose. Remember that no data you submit to make an online payment will be collected or stored by FreshMail. You can track the history of your payments in the Payments > Payment History tab.
  2. The payments you may make to FreshMail will be increased by the Value Added Tax (VAT) at the rates established in the Pricing. After each payment you make, FreshMail will submit an electronic VAT invoice to the email address you have provided when signing up.

 

  1. For email Campaigns, your choice of the billing form is important:

(i) if you choose the “Pay as you go” plan, you will pay for the number of messages you wish to send, and the following conditions will apply:

  • the credit package you purchase under the plan is valid for 2 years from the date of purchase; your plan will expire afterwards, and all unused credits will be lost.
  • if you reach the credit limit of the purchased plan, no more Campaigns will be sent until you make another prepayment.
  • every month, your Account will have to feature at least enough credit to send one Campaign a month to your whole Subscriber database kept on your Account.
  • if you use all the credit on your Account or go below the credit limit contemplated above, FreshMail will remind you about the necessary prepayment. If you fail to pay for more Campaigns to be sent for a period of 90 days in succession, your Account will be blocked and deleted according to Section 77 of the Terms of Use.

(ii) if you choose the “Unlimited” plan, you will pay a single flat-rate fee for the Subscriber database you have uploaded to the FreshMail App, and the database can feature up to 100,000 (one hundred thousand) Subscribers. For each flat-rate fee paid to FreshMail, you can send an unlimited number of Campaigns in a single Billing Period (which is 30 days after the flat-rate fee is credited to FreshMail).

  • Once this plan expires, you need to pay for another Billing Period. If you purchase this plan after the date on which your Account expires, you will be charged the Account Maintenance Fee, which is an amount due for the storage of your data on FreshMail servers while your Account was inactive. Learn more here.
  • If there are more than 100,000 (one hundred thousand) Subscribers on your Account, you will be charged PLN 12.00 (twelve Polish zlotys) up front for every 1,000 (one thousand) Subscribers added to your Subscriber database above the 100,000 limit. This payment package allows you to send a number of messages which is equal to fifteen (15) times the number of all Subscribers in your database.
  • You need to pay PLN 12.00 or its multiple, as applicable, immediately when due. If you have chosen the Recurring Payment, the payment will be automatically charged from the credit card added to your Account. If you have chosen a different payment option, you will not be able to send any Campaigns until you make the foregoing payment when due.
  • If you want to send more messages than the foregoing limit of fifteen (15) times the number of all Subscribers in your database, you will be charged PLN 1.20 (one Polish zloty and twenty groszy) up front for every 1,000 (one thousand) messages above the limit in the same Billing Period. Once the 30-day Billing Period expires, no messages will be automatically sent until you make the next payment due.

 

  1. The terms of payment for all other functionalities, including Text Campaigns, are specified in the Pricing. The Billing Periods for the different functionalities of the FreshMail App you have purchased do not have to coincide.
  2. All billing is electronically processed by FreshMail, which is why you agree to have all VAT invoices generated and submitted to you in an electronic format. You can always revoke this consent. To do this, you need to notify FreshMail in a message sent from the email address used to sign up.
  3. Whenever reasonable to do so, you may suspend your Account for no more than 6 months. If you want to use this option, you need to contact the FreshMail Customer Support. FreshMail will respond by suspending your Account only if no payment is overdue, including your Account Maintenance Fee.
  4. If you have concluded a written non-exclusive licence agreement with FreshMail, the provisions of the Pricing attached to the agreement have priority in all matters related to your payments.

By using the FreshMail Portal and App, you warrant and represent the following:

  1. You will be fully and solely liable for every Campaign you send and every Landing Page published with your Account, and for their Content. Every Campaign and every Landing Page you create are your liability only, and you need to mind your liability for all users for whom you have created additional access credentials to your Account.
  2. You will not use any Accounts of other users or share your Account with anyone other than the users you have authorised to use the FreshMail App and process the Personal Data featured in the FreshMail App.
  3. You will not resale or otherwise dispose of your Account to any third party. Remember that you can always sign up for more than one Account. However, if you attempt to circumvent the Terms of Use, the Privacy Policy and/or the Anti-Spam Policy with any of your Accounts, FreshMail has the right to block all these Accounts and terminate your Contract.
  4. You will not use the Account, the FreshMail Portal, the FreshMail App or the Documentation for purposes other than required to perform your Contract.
  5. You will protect FreshMail’s intellectual property rights and trade secrets.
  6. You have read, understood and accepted to comply with the prevailing regulations of law and FreshMail’s Terms of Use, Privacy Policy and Anti-Spam Policy.
  7. You will keep confidential all information obtained in relation to the Contract, especially the provisions of the Contract unless made public by FreshMail.
  8. You will notify FreshMail in seven (7) days of each change of your contact email address. Your contact email address is the email address you have used to sign up. You can change it in your Account Settings → Contact. Note that your contact email address is NOT your login. To change your login, contact the FreshMail Customer Support here.
  9. You will assist FreshMail in processing every claim or complaint filed by any of your Subscribers or third parties against any of your Campaigns, Landing Pages or other breaches of FreshMail’s Terms of Use, Privacy Policy or Anti-Spam Policy.
  10. You agree that you use the FreshMail Portal and App voluntarily.
  11. All the data you have provided to sign up for FreshMail is true.
  12. All Personal Data, Content and other information which you may upload to the FreshMail App will be uploaded in compliance with FreshMail’s Anti-Spam Policy, the prevailing regulations of law and social conduct, and no upload will infringe on any rights of any natural person or organisation.
  13. You are a Personal Data Controller of the Personal Data processed in the FreshMail App according to GDPR, or you are a Personal Data Processor, an entity which processes Personal Data under a personal data processing outsourcing agreement concluded with a third party or third parties.
  14. The Content you upload to the FreshMail App shall not violate the prevailing regulations of law and third-party rights.

FreshMail warrants and represents the following:

  1. FreshMail will keep confidential all the databases you upload to the FreshMail App.
  2. FreshMail will advise you of every actual or suspected violation of your trade secrets or the prevailing regulations of law which occur or might have occurred during the discharge of the Contract.
  3. If you have agreed to, FreshMail will notify you of novel solutions created in relation to the FreshMail Portal and/or App. Note that you will receive these notifications only if you have agreed to receive electronic commercial information (see Section 10 of the Terms of Use).

Privacy Policy – to protect the secrets entrusted to us

  1. When you do business with FreshMail, you and FreshMail are like connected vessels. This means that you and FreshMail must protect every information entrusted to one another. By concluding the Contract, you warrant and represent that together with FreshMail, you will protect all information exchanged between you and FreshMail. The Terms of Use of information security are established in the Privacy Policy, which you can read here.
  2. Your compliance with the Privacy Policy is not always mandatory. If you are required to disclose any information under the prevailing regulations of law, you must comply with all obligations arising therefrom.
  3. If you allow FreshMail in prior by email or letter to do so, FreshMail may use your Campaigns and/or Landing Pages and their delivery results in part or whole as case studies for industry meetings, conferences, published papers or research work. Remember: if we ask for this permission, a “No” is also a good answer.
  4. FreshMail continues to improve its Portal and App and strives to improve the effectiveness of your Campaigns. That is why you agree for FreshMail to use the statistical data generated from your Campaigns for statistical analysis and research, and the statistical data includes:

(i) number;

(ii) frequency;

(iii) effectiveness;

and for FreshMail to publish the results of its statistical analysis and research of your statistical data at industry meetings and conferences and in published papers or research work. FreshMail warrants and represents that no use of your statistical data will enable any identification of you or your Subscribers.

  1. If you are satisfied with the services provided by FreshMail, let us boast about it! FreshMail may ask for your consent to publish information about FreshMail’s business with you, including by publishing your logo on FreshMail’s website. Remember: if we ask for this permission, a “No” is also a good answer.

Outsourcing of personal data processing

  1. When you create an Account in the FreshMail App, a document titled “Personal Data Processing Outsourcing Agreement” is generated for you to sign, which is obligatory.
  2. Note that you are a Personal Data Controller (or, as applicable, you act as a Personal Data Processor on behalf of a Personal Data Controller) and you are required to conclude an agreement with FreshMail to specify the extent and purposes of outsourcing of personal data processing by FreshMail. You can do this in one of four ways:
  3. Click the “Accept the Agreement” button below the Personal Data Processing Outsourcing Agreement generated in the FreshMail App, which is equivalent to signing the Agreement electronically.
  4. Download, print, sign by hand, scan and upload the Personal Data Processing Outsourcing Agreement back to the FreshMail App.
  5. Download, print, sign by hand, and send the Personal Data Processing Outsourcing Agreement by mail to the corporate headquarters of FreshMail.
  6. Conclude a separate non-exclusive license agreement on paper and with the Personal Data Processing Outsourcing Agreement as its attachment.
  7. Unless you sign the Personal Data Processing Outsourcing Agreement with FreshMail, FreshMail may block:

(i) you from uploading any database to your Account (also when uploading via any Landing Page or other services provided by third parties); 

(ii) you from sending any Campaign;

(iii) you from publishing any Landing Page you may create.

  1. FreshMail is outsourced for and manages the processing of Personal Data on your behalf against your payment for the FreshMail App which you use.
  2. You can download Personal Data from the FreshMail App (if any Personal Data has been uploaded and potentially modified to and in the FreshMail App) into a CSV (comma-separated values) file. The CSV file will include the Personal Data of your Subscribers uploaded to the FreshMail App and the contents of the additional fields stored in the FreshMail App. This way FreshMail discharges its obligation imposed by Article 20(1) of GDPR.

Moderation

  1. Prior to sending, each Campaign is moderated by FreshMail for compliance with the highest standards of mass delivery of email and mobile text communications. The FreshMail Customer Support screens each Campaign for compliance with FreshMail’s Terms of Use, Anti-Spam Policy and Privacy Policy; this includes checking that a resignation link is included in the Campaign, and if no resignation link is provided in the Campaign, the Campaign is suspended from sending. FreshMail may also suspend any Campaign from sending if it features any offensive, illegal or immoral content, or the Campaign is otherwise in violation of FreshMail’s Terms of Use, Anti-Spam Policy and/or Privacy Policy. If your Campaign is suspended, you are not entitled to a refund of any payment already made to FreshMail.
  2. Landing Pages are moderated not unlike Campaigns, see Section 63 of the Terms of Use, although no Landing Page is required to feature the resignation link.
  3. Campaigns and Landing Pages sent or shared from all types of FreshMail Accounts are subject to moderation, irrespective of the Payment plan in effect.
  4. Moderation by FreshMail does not release you from your liability for the content and management of your Campaigns and Landing Pages.
  5. Aside from Moderation, FreshMail has the right to remove certain Content which you may have uploaded to the FreshMail App; this applies especially to the content published on Landing Pages and reported beyond any doubt by any third party or officials to be in violation of anyone’s rights and/or the prevailing regulations of law.

Account and sending block

  1. FreshMail may temporarily block your Account if:

(i) you have not signed into your Account for more than 30 (thirty) days. If your Account is blocked and you attempt to sign into the Account, FreshMail will send you an activation email message with a link you need to click to remove the block.

(ii) you are in actual or reasonably suspected breach of these Terms of Use, the Privacy Policy, the Anti-spam Policy and/or the prevailing regulations of law. If your Account is blocked because of this, the Account will be unblocked once you have provided reasonable and necessary clarification of the actual or suspected breach. Nevertheless, FreshMail may continue to block your Account despite your clarification. If FreshMail deems that the breach was committed to use any functionality of the FreshMail App against their intended use, especially to generate and distribute spam, the Account will remain blocked, and you will forfeit all the rights to have your payments refunded.

(iii) you have failed to pay for the use of the FreshMail App for at least 30 (thirty) days from the due payment date.

  1. If FreshMail discovers a Campaign or a Landing Page which has been sent or published, respectively, against FreshMail’s Anti-Spam Policy or the prevailing regulations of law, or Spamtraps are found by FreshMail on any Subscriber List you have (including abuse@domain email addresses and/or postmaster@domain email addresses), FreshMail can permanently block you from sending any Campaigns to the Subscribers on the List.

Termination of the Contract

  1. You may terminate the Contract at any time by sending FreshMail a notice of termination by email or letter. Once served, your notice of termination will be effective at the end of the month following the month in which the notice of termination is submitted.
  2. FreshMail may terminate your Contract at any time by sending you a notice of termination by email or letter. Once served, your notice of termination will be effective at the end of the month following the month in which the notice of termination is submitted.
  3. FreshMail may terminate the Contract with you at any time, without disclosing the reason of the termination to you, with immediate effect and a refund of the up-front payment made by you, where the refund will be prorated by the number of days remaining to the end of your subscription or credits used in the FreshMail App, and without any liability on part of FreshMail for the termination.
  4. FreshMail may also terminate the Contract with you with immediate effect without refunding you any payment you have made to FreshMail when any of the following occurs:

(i) you are or have been in breach of the Terms of Use, the Privacy Policy and/or the Anti-Spam Policy;

(ii) you are or have been in violation of the prevailing regulations of law;

(iii) you have failed to conclude a Personal Data Processing Outsourcing Agreement with FreshMail;

(iii) you have failed to pay for the use of the FreshMail App for at least 60 (sixty) days from the due payment date;

(v) you have cancelled an order for Personal Data processing outsourced from FreshMail;

(vi) you have requested the removal of your own Personal Data in whole or in any part which renders FreshMail unable to perform the Contract, or you have objected to the processing of your Personal Data by FreshMail.

  1. In the event of termination of the Contract, you should download the databases and Content which you have uploaded with your Account; you will have a grace period of 30 (thirty) days to download the data after the Contract expires. Once the grace period for your data to be downloaded expires, FreshMail will delete all databases and Content you have uploaded to the FreshMail App without notice. Once your databases and Content have been deleted, you can only recover the data as provided for in Section 78 of the Terms of Use.

Deleting your Account

  1. Due to FreshMail’s commitment to provide superior Personal Data protection standards to your Subscribers, the FreshMail Portal allows you to delete your Account and all the data collected in the Account, which includes your Subscriber Lists, Contents, sent Campaign reports, autoresponders, draft unsent Campaigns and draft autoresponders, and all contact and invoicing data which you have submitted to FreshMail. Your Account will be deleted according to the criteria established in the Terms of Use.
  2. You may delete your Account on your own with the Delete Account feature in your Account Settings. This will delete your Account and all its data.
  3. FreshMail shall have the right to delete your Account if any of the following circumstances occur:

(i) The Contract has expired or has been terminated for any reason;

(ii) You have not signed in for more than 12 months in succession;

(iii) You fail to make payments due to FreshMail for more than 6 months after your Account was suspended;

(iv) You fail to make payments due to FreshMail within 30 days from the last unsuccessful attempt to debit the credit card added to your Account;

(v) You fail to make payments due to FreshMail within 30 days following the expiry of your last plan, or you continue to have insufficient credits for one Campaign to be sent to all Subscribers in your database for more than 90 days.

Do not worry, though; FreshMail will not delete your Account without notice. Before the time comes for your Account to be deleted, FreshMail will send you a request to make the necessary payment.

  1. Your Account can be restored in 180 days after it is deleted. This will require a manual intervention by FreshMail programmers and this service costs PLN 500.
  2. On your request, FreshMail will issue a Certificate of Personal Data Destruction for the Personal Data which have been uploaded to the FreshMail App via your Account if the Personal Data is to be destroyed.
  3. The deletion of your Account will not revoke your consent to receive electronic marketing communication from FreshMail or revoke your consent for processing your Personal Data by FreshMail for electronic marketing communication.

Extra services

  1. FreshMail is enjoying a dynamic growth and continues to implement new solutions. FreshMail enables you to send transactional emails. If you wish to use FreshMail’s full transactional email service, contact the FreshMail Sales Department here to conclude the relevant agreement. If you only want to test the functionality of the transactional email service, you can send a maximum of 25 transactional emails every day without any additional agreement.
  2. FreshMail may, upon your request, generate individual reports with a summary of your Subscribers’ data. An extra fee will apply for this service. The service fee will depend on the workload required from FreshMail to deliver your order. Contact the FreshMail Customer Support for more details.
  3. FreshMail provides other extra services managed by third-party providers, which are subject to separate terms of use. You can purchase these services by signing into the FreshMail Portal, which is where links to the applicable terms of use are hosted.

Modifications

  1. From time to time, FreshMail may:

(i) establish new fees for the use of extra services featured int the FreshMail Portal and/or in the FreshMail App. No such extra fees will affect the sending of your Campaigns.

(ii) amend the Terms of Use, the Anti-Spam Policy, the Privacy Policy and the Pricing.

  1. Every amendment to the Terms of Use and the Pricing will be notified to you at least ten (10) days in advance in an email sent to the email address which you have submitted while signing up or in a pop-up message which you will see once you sign into the FreshMail App.
  2. Each amendment or modification becomes effective on the date specified in the notice for you.
  3. All amendments to the Anti-Spam Policy and the Privacy Policy will be posted at freshmail.pl in the Anti-Spam Policy and Privacy Policy tabs. Each amendment posted in either tab becomes effective immediately when made. Please make sure to frequently read the Anti-Spam Policy and the Privacy Policy.

Liability

  1. The FreshMail App is just a tool you use. This is why you warrant and represent that you accept the following:

(i) FreshMail shall not be liable for any damage, including and not limited to loss of profits, or loss of data and/or information as a consequence of: failure to deliver certain data or information to the Subscribers or delivery of the data or information to other recipients than originally intended, delay in delivery, and/or interruption in operation of the FreshMail App or services, unless proven to be solely attributable to FreshMail;

(ii) FreshMail shall not be liable for any unlawful use of the FreshMail App;

(iii) FreshMail’s limit of liability to you is the average monthly payment made by you to FreshMail in the past 12 months;

(iv) You are solely liable for every database and Content you upload to the FreshMail App, and this includes your liability to FreshMail.

Personal Data processing

  1. FreshMail also processes various Personal Data, some of which is most precious to you – as it is your Personal Data.
  2. Learn more in the Privacy Policy. 

Final provisions

  1. FreshMail strives for excellence in everything it does. FreshMail continuously improves and develops its Portal and App for you. This is why FreshMail may, from time to time, launch a new version of FreshMail services.
  2. Unless anything in the foregoing provisions of these Terms of Use prohibits it, you may submit all your warranties and representations:

(i) by email to pomoc@freshmail.pl;

(ii) by letter to:

FreshMail sp. z o.o.

  1. 29 Listopada 155 C,

31-406 Kraków, Poland

  1. FreshMail’s warranties and representations will be submitted to either of the following which you have provided while signing up:

(i) by email to pomoc@freshmail.pl;

(ii) your mailing address.

  1. The prevailing regulations of law of the Republic of Poland shall apply outside these Terms of Use.
  2. Any disputes which may occur between FreshMail and you shall be settled in the court of jurisdiction over FreshMail.
  3. This version of the Terms of Use is effective from 8 November 2019; for FreshMail users who signed up before the date, the Terms of Use are effective from 17 November 2019.