If the legal entity you represent or act on behalf of is incorporated in the USA, Canada, Australia or New Zealand, the following terms are applicable to you: eMailBase Inc. Terms of Use

I. General Conditions of Use

Preamble

eMailbase, a simplified joint-stock company registered with the United States Trade and Companies Register under number 765 019 645 with its registered office at 858 Production Pl Newport Beach, CA 92663 (hereafter “eMailbase“) operates a solution relating to marketing and/or transactional email and/or SMS via its website www.eMailbase.net (“the Site“).

The purpose of these General Conditions of Use is to define the terms of use of eMailbase Services. They constitute a legal and binding agreement between eMailbase and any user of the www.eMailbase.net platform (the “User”).

To access, browse, or use our Services, the User must agree to be unconditionally bound by these Terms. The User can accept the Terms by clicking to accept or by agreeing to the Terms where this option is made available in any agreement, electronic form, or the user interface for any Service eMailbase offers, or by actually using the Services. By subscribing to or using the Site, the Platform or the Services, the User will be deemed to have read and accepted without reservation the current version of these General Terms of Use and the User represents and warrants that its representative is at least 18 years of age and that this representative possess the legal right and ability to enter into these Terms of Use. As the Users are accessing the Services on behalf of a legal entity, the User represents and warrant that its representative is authorized to act on behalf of the legal entity and to bind such legal entity to these Terms of Use. The User warrants that the organization the User represents is not be based in Cuba, Iran, North Korea, Syria, or any other territory that is subject to a U.S. government embargo or international sanction and that it is not listed on any U.S. government list of prohibited or restricted person.

Any special conditions potentially negotiated between eMailbase and the User shall prevail over these General Conditions of Use.

The terms used in this document are defined as follows:

The “User” means any natural or legal person authorized to use the eMailbase Services.

The “Services” provided by eMailbase are the features made available to Users via the Site, in accordance with the applicable Version of the Software, such as sending SMSs and emails, providing reports or optimizing the deliverability of messages sent, as detailed on the Site (at the following address: https://www.eMailbase.net/features/) or in a purchase order if the User subscribed to the eMailbase+ offer.

The “data processor” is the company that performs data processing at the request of a data controller. Thus, eMailbase acts as a data processor to make its Services available to Users, who define the purpose and the means of the processing. eMailbase may also use secondary processors (“sub-processors”) to carry out data processing on its behalf.

The “User’s data” is understood as data processed by eMailbase on behalf of the Users within the framework of the performance of the Services subscribed.

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

“Software” shall mean the suite of software owned and/or operated by eMailbase or its affiliates and/or delivered under the business name eMailbase and necessary to provide the Services.

“Version”: shall mean all the releases of the Software developed by eMailbase. All releases shall apply to the User as part of eMailbase’s standard software and Services. A release may create, modify or discontinue one or several feature(s) of the Service.

The “Parties” shall mean eMailbase and the User.

1) Purpose of eMailbase Services

eMailbase provides solutions relating to marketing and/or transactional email and/or SMS, through its sending platform, marketed via the Site.

2) User account management

The use of eMailbase Services requires the creation of an online account.

The Users are responsible for the accuracy of the information they provide and undertake to update the information concerning them or to notify eMailbase without delay of any change affecting their situation.

The Users shall take all useful measures to maintain the confidentiality of access to their account.

In the event of fraudulent use of their account, the Users undertake to immediately notify eMailbase and change their access password without delay.

Any costs resulting from such unauthorised use shall be borne by the Users until eMailbase has been notified by them of such use.

eMailbase shall in no event be liable for material or immaterial damages resulting from the use of the account by a third party, with or without the Users’ permission.

eMailbase shall store messages sent through its platform on behalf of the Users. Distribution lists shall be maintained as long as the Users correctly set up and update their account. eMailbase shall protect the integrity, confidentiality and administrative, material and technical security of the Users’ personal information.

3) Financial conditions

3.1 General

By subscribing to eMailbase Services, the Users agree to pay the price corresponding to the Services selected and to their country of residence.

Unless specifically otherwise stipulated, the prices of the Services subscribed shall be paid at the time of subscription and in the currency in which they were invoiced, in accordance with the financial conditions detailed here: https://www.eMailbase.net/pricing/.

The prices displayed on the Site are exclusive of charges, and they do not include VAT. Additional charges shall be applied on the invoice according to the Users’ country of residence and applicable legal and regulatory provisions. If the User’s organization subjects invoicing and/or payment to the creation or update by eMailbase of an account on a specific invoicing platform, and/or if the User’s organization only accepts payment via wire transfer, eMailbase reserves the right to charge an annual additional fee of 100 euros.

3.2 Prepaid Credits

Once logged in the platform, or by subscribing via our Pay as you go page (https://www.eMailbase.com/pricing/pay-as-you-go/), the User can also purchase SMS or WhatsApp messages on a pay-as-you-go basis. To send SMS and/or WhatsApp messages via the eMailbase Services, the User must purchase an amount of credits in advance. One credit allows the User to send a certain number of SMS or WhatsApp messages in a given country or geographical area (hereinafter the “Ratio”). Each credit is prepaid and remains valid for a duration of twelve (12) months from its date of purchase by the User (the “Validity Period”). At the time of purchase by the User, the Ratio is indicated in the Platform for informational purpose only. During the Validity Period, the Ratio of both SMS and/or WhatsApp messages depends on the exchange rates applied to eMailbase when purchasing the credits and on the market prices, applied by eMailbase’s suppliers and third parties, and may therefore evolve during the performance of the contract. When an applicable exchange rate is updated or when a change of price is notified to eMailbase by its suppliers or WhatsApp, eMailbase might immediately apply with retroactive effect the new Ratio and price increase to the User. Users can request the communication of the current price list relevant to the destination countries for which they purchased SMS and/or WhatsApp messages at support@eMailbase.com. When using WhatsApp messages, the User might benefit from a fixed monthly volume of free WhatsApp messages, as described as the case may be on our Pay as you go page: this offer is only valid as long as (i) the User owns a verified WhatsApp Business account and (ii) WhatsApp provides those messages for free. The monthly volume of free WhatsApp messages resets at the end of each month.

3.3 Contact limit and fair use

When the User subscribes to a Starter or Business plan that is subject to a contacts limit and the User exceeds this contacts limit, eMailbase reserves the right to automatically increase the contacts limit in the User account and upgrade the User’s plan without prior notice.

If the User subscribes to a Starter or Business plan that is not subject to a contacts limit, the use of the Service shall be subject to fair use. Fair use means a limit of 500.000 contacts for the Starter plan and of 2 millions contacts for the Business plan.

In any case, eMailbase reserves the right to set a limit to the overall number of contacts allowed in the User account on Starter or Business plans.

4) Use of the Services

4.1 Compliance with applicable regulations

Each Party declares that it shall respect the regulations applicable to its activity.

In general terms, the Users shall guarantee that the information sent via the eMailbase Services does not contravene any legal or regulatory provision or a provision resulting from an international agreement applicable to them and in particular the provisions in force in France, in the State in which the User carries out their activity and in the State in which the persons appearing on the distribution lists reside, nor the rights of third parties.

The sending of email and SMSs to customers and prospects is subject to the applicable data protection and digital marketing laws and regulations, in particular, without this list being exhaustive:

United States: Telemarketing Sales Rule, Federal Telephone Consumer Protection Act, Can-Spam-Act.

In France: Articles L.34-5 of the French Post and Electronic Communications Code (Code des postes et des communications électroniques) and section L.122-8, L122-9 and L122-10 of the French Consumer code.

In Italy: Italian Code on Data Protection (Codice in materia di protezione dei dati personali).

In Spain: Law 34/2002, of 11 July 2002, on company information services and electronic commerce (Ley 34/2002, de 11 de julio, de servicios de la sociedad de la información y de comercio electrónico) and Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y garantía de los derechos digitales.

In the United Kingdom: The Privacy and Electronic Communications (EC Directive) Regulations 2003.

User’s intellectual property rights

The Users authorise eMailbase to use their name, brand and visual identity solely for the purpose of executing the Services.

The Users guarantee to eMailbase:

that they have full power and authority to exploit and grant intellectual and industrial property rights and that these rights are in no way assigned, hypothecated, encumbered or in any way vested in a third party;

that they have not and will not, by assignment to a third party or by any other means, do anything likely to compromise the use of intellectual and industrial property rights;

that they have not nor will not introduce into their campaigns any sequence, reproduction or reminiscence likely to infringe on the rights of third parties;

that no litigation or proceedings are pending or about to be brought in relation to the intellectual property rights.

In addition, the Users shall undertake to guarantee eMailbase against any claim by third parties as well as any penalty that eMailbase may find itself imposed against it resulting from any non-compliance with this article.

4.1.2 eMailbase’s intellectual and industrial property rights

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

The Users shall undertake not to use, in any way whatsoever, the Site, the Services or any of the elements set out above for purposes other than those provided for herein.

4.2 Protection of the personal data of third parties

For the purposes of providing the Services, eMailbase has access to information contained in email distribution lists created by the Users via their personal account, as well as to the subject and content of emails sent to their distribution lists through the Services. This information contains personal data concerning third parties.

4.2.1 Responsibility of the Users in relation to personal data

As creators of the distribution lists, the Users are responsible for the processing of the personal data appearing in those lists within the meaning of the applicable regulations. As such, if the Users are domiciled in the European Union, or if their distribution lists contain personal data of citizens of the European Union, the User guarantees to eMailbase that they shall comply with the provisions of Regulation No. 2016/679 of 27 April 2016 (the “GDPR”) as well as those of Law No. 78-17 of 6 January 1978 Information Technology, Data Files and Civil Liberties, and in particular:

that the personal data contained in the files transmitted have been collected and processed in compliance with the applicable regulations;

that the Users have informed the data subjects in accordance with the applicable rules;

where appropriate, that the collection and processing have been consented to by the data subjects;

that the data subjects shall be allowed to exercise their rights in accordance with the applicable rules;

that the Users undertake that the information will be rectified, completed, clarified, updated or deleted if it is inaccurate, incomplete, ambiguous or out of date, or if the data subject wishes to prohibit its collection, use, communication or storage.

It is specified that the Users are solely responsible for managing the retention periods of personal data that they upload onto the eMailbase platform, and that it is incumbent on them to delete the data as and when its retention period expires. eMailbase is responsible only for deleting this data at the end of its contractual relationship with the Users.

Without prejudice to eMailbase’s obligations to retain data, eMailbase reserves the right to delete the User’s account including its content if the User has not logged in the Software for a period of ninety (90) days. Unless the period of inactivity has exceeded 18 months, eMailbase will notify the User via email of the imminent deletion of the account. Following the notification, the account and its content will be automatically and permanently deleted If the User has not logged in the Software before the end of the inactivity period. Following such deletion, no restoration of the account or associated data shall be possible.

4.2.2 Protection of the User’s personal data

eMailbase has taken all the necessary precautions to preserve the security of personal data and, in particular, to prevent it from being distorted or damaged or from unauthorised third parties having access to it.

These measures include the following:

Multi-level firewall

Proven anti-virus and detection of intrusion attempts

Encrypted data transmission using SSL/https/VPN technology

Tier 3 and PCI DSS certified data centers

In addition, access to processing by eMailbase Services requires authentication of the persons accessing the data, by means of an individual access code and password, sufficiently robust and regularly renewed.

Data transmitted over unsecured communication channels shall be subject to technical measures designed to make such data incomprehensible to any unauthorized person.

4.2.3 Conditions of the processing relationship

eMailbase acts as a data processor on behalf of the Users, and undertakes to respect the obligations described in the Annex “Agreement on the processing of personal data“.

In this context, it is specified that:

The Users can retrieve their distribution lists at any time by clicking on the “export button” from their personal eMailbase account.

Personal data contained in the distribution lists may only be disclosed to third parties in the following cases:

4.2.4 Use of the data by eMailbase

To enable eMailbase to anticipate and avoid the risks of spam, phishing or fraud on its platform, the Users are informed that eMailbase reserves the right to transmit information related to the User’s representative to third party providers domiciled outside the European Union, for the purpose of establishing a reliability score. Any transmission of this data will be carried out by eMailbase in compliance with applicable laws and EU guidelines.

Finally, the Users expressly accept that the behavior of the recipients of these emails may be processed by eMailbase (tracking opening rates, click rates and bounce rates at the individual level) to improve the efficiency of the emailing campaigns.

eMailbase reserves the right to regularly delete the data generated by the use of the platform and Services from the User’s account, including events and logs (the “Logs”), the statistics and reports that rely on the Logs, and the email previews. The deletion of Logs will be performed at least every 24 months following each Log creation and the deletion of email preview every 30 days. These data deletions may affect the availability of the statistics and reports generated by the Services up to the date of deletion. eMailbase advises the User to regularly download such data.

4.3 : Limitation of Use of the Service

The User expressly understands and agrees that the Services are provided on an as-is-and-as-available basis with all faults and defects. eMailbase makes no warranties regarding the Service whatsoever,  for itself and on behalf of its affiliates, licensors and service providers, other than the above and expressly disclaims any and all implied warranties, including any warranties of merchantability, fitness for a particular purpose, and non-infringement. eMailbase makes no representation of any kind that the services will meet the User’s requirements, achieve any intended results, be compatible, or work with any other software, applications, systems, devices or services, operate without interruption, meet any performance or reliability standards, or be error free, or that any errors or defects can or will be corrected. eMailbase makes no warranty that the Services will be uninterrupted, timely, secure, error free or virus free.

The User acknowledges and accepts that its use of the Services shall comply with the guidelines detailed in the help center available at: https://help.eMailbase.com/hc/en-us (hereinafter the “Documentation”). The Documentation shall be updated from time to time and it is advised that the User consults the Documentation on a regular basis. The User acknowledges and accepts that any use of the Service disregarding, non complying and/or breaching the guidelines provided in the Documentation might affect the performance of the Service and/or modify its pricing.

4.4 Prohibited uses

The use of the eMailbase Services resulting from the subscription to the said Services is strictly personal and may not be rented or transferred free of charge or for a fee to a third party. In the absence of prior authorization, the use of eMailbase is limited to only one account per User.

Any use of the Services that may damage, disable, or overload eMailbase’s infrastructure or networks connected to eMailbase’s servers, or interfere with the enjoyment of the Services by other Users, is prohibited.

Any attempt to access, without authorization, the Services, any other accounts, computer systems or other networks connected to a eMailbase server or any of the Services via 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 encouraging such activities and, in particular, without this list being exhaustive, activities related to illegal drugs, hacking programs, instructions for assembling or creating bombs, grenades or other weapons, materials containing violence against children or which encourages violence is prohibited.

Any use of the Services contrary to the applicable rules relating to telemarketing, email marketing, anti-spam, anti-phishing or personal data protection and/or contrary to the anti spam policy and/or the privacy policy is prohibited.

Any use of the Services in violation of the rights of third parties is prohibited.

In the event of non-compliance with this article, eMailbase reserves the right to immediately block the Users’ access to their Services and to remove all information from their account without notice and without refund or any other form of compensation.

eMailbase reserves the right to refuse or limit service to accounts not complying with its General Conditions of Use or with laws regulating communications companies, or accounts distributing unwanted communications.

The following topics are prohibited on the eMailbase platform:

Exchange of currencies, fraudulent shares and stock market transactions

Home job offers making “get rich fast” promises, financial packages and pyramid schemes

Sexually explicit pornography or e-commerce

Remedies for erectile problems

Hiring solicitation

Lists of a political character (consular, government lists, etc.) containing addresses of individuals who have not given their explicit consent to receive communications from an identified advertiser. The fact that an email address was given to a Consulate or Embassy shall not be considered as proof of an undertaking to opt-in.

Initial Coin Offering (ICO)

Accounts with the following activities will only be validated under certain conditions:

Gambling and other money games

Dating services

Communications to contacts acquired from social networks like LinkedIn and Viadeo

5) Responsibilities and guarantees

5.1 Responsibilities and guarantees of eMailbase

Except in cases of force majeure, eMailbase is bound to due care in performing its service rendered in compliance with these General Conditions of Use. eMailbase shall in no way be held liable for the consequences of indirect damage and compensation for indirect damage is strictly excluded.Indirect damage shall include loss of data, time, profits, turnover, margins, orders, customers, operating loss, loss of revenue, business actions, as well as damage to brand image, loss of expected results and third-party action.

Any potential compensation due from eMailbase, to the User or to a third party, due to the liability of eMailbase, its subsidiaries or its partners, in respect of the performance of these conditions, shall not exceed the price paid by the User for the Services giving rise to the liability in the six (6) months preceding the first incident out of which the liability arose.

In no case shall eMailbase guarantee to the User the economic, image or information returns that the latter may expect from sending emails or SMSs in the context of these conditions.

eMailbase does not systematically control the content of messages sent by the Users to their distribution lists, which remains the responsibility of the Users.

In no case can eMailbase be held responsible in any capacity whatsoever in relation to third parties for any damage resulting from the sending of emails or SMSs on behalf of the Users.

5.2 Responsibilities and guarantees of the Users

The Users shall solely be responsible for the content of emails or SMSs sent to their distribution lists in the context of the performance of these conditions.

The Users may be held liable for non-compliance with these General Conditions of Use, with eMailbase’s privacy and anti-spam policies or with any legal or regulatory provision or with a provision resulting from an applicable international agreement.

The Users guarantee eMailbase against any damage, any claim and any recourse of third parties resulting from a violation, by the Users, of the present General Conditions of Use, of the privacy and anti-spam policies of eMailbase or of any legal or regulatory provision, or a provision resulting from an applicable international agreement.

6) Changes to the use conditions, to eMailbase policies and to the offer

eMailbase may modify these Terms of Use, its anti-spam and privacy policies and its offer.

In any event, the User’s continued use of the Services shall constitute acceptance of the changes.

The General Terms of Use, anti-spam and confidentiality policies and their changes, as well as eMailbase’s offer updated with the latest changes, can be consulted at any time on the Site.

In the event of a substantial change to these terms, eMailbase may decide to inform the User by email or directly on his eMailbase.com account.

As part of the eMailbase Enterprise offer, eMailbase reserves the right to revise the prices indicated in the purchase order (cost per mille/cost per mail, SMS/WhatsApp credit, and licence price) on an annual basis. In such a case, eMailbase shall notify the new applicable prices to the User at least thirty (30) days before the renewal date.

Only the English language version of these Terms of Use is binding between eMailbase and the User.

7) Duration – Termination

The present General Conditions of Use are in force for an indefinite period.

The Users may terminate their eMailbase account directly from the Site at any time.

In the event of termination by the Users, the sums paid in consideration of the eMailbase Services shall remain due to eMailbase even if the Users did not exhaust the acquired mailing quotas.

In the event of non-compliance by the Users with these General Conditions of Use, with eMailbase’s privacy and anti-spam policies or with any legal or regulatory provision or one resulting from an applicable international agreement, eMailbase reserves the right to terminate the Users’ account subject to 15 days’ notice.

The termination will occur without notice in the event of non-compliance with the article “Use of Services” of these conditions.

8) Force majeure

The Parties shall not be held liable if the non-performance or delay in the performance of one of their obligations described in these General Conditions of Use results from a force majeure event.

Force majeure means any external event which was impossible to prevent and which was unforeseeable as interpreted by the jurisprudence of the French courts, and which prevents one of the Parties from performing their obligations or makes the performance of the same excessively onerous.

Expressly, the following will be considered cases of force majeure, in addition to those usually considered by the jurisprudence of the French courts, and without this list being restrictive:

wars, armed conflicts, riots, insurrections, sabotage, acts of terrorism,

general or partial strikes, internal or external to the company, affecting a supplier or a national operator, lockouts, blockades of transport facilities or procurement for any reason whatsoever,

natural disasters resulting in the destruction of infrastructure, such as fires, storms, floods, water damage,

governmental or legal restrictions, legal or regulatory changes to forms of marketing, cases involving the suspension, cancellation or revocation of any authorization by any relevant competent authority,

interruptions of the network of eMailbase, its subcontractor or its supplier, as a result of computer breakdowns, blocking of telecommunications means, whether resulting from external attacks, interruptions to services by the access provider or other persons, and any other event not attributable to eMailbase, its subcontractor or its supplier, preventing the normal performance of the services rendered,

interruptions of the power supply of more than 48 hours.

Each party shall notify the other party by registered letter with acknowledgement of receipt of any force majeure event.

9) Protection of personal data concerning the User

The information, including personal data, collected by eMailbase in the context of its business relationship with the Users is subject to computer processing detailed in eMailbase’s “Privacy Policy – Protection of Personal Data“.

10) Partial invalidity of the GCU

The annulment of either of the clauses of the General Conditions of Use may not entail the annulment of the same in their entirety, provided however that the balance and the general economy of the agreement can be safeguarded.

11) Applicable Law – Attribution of jurisdiction

The General Conditions of Use are governed solely by French law.

Any dispute between the Parties arising from questions as to the validity, interpretation and/or performance, termination or breach of the General Conditions of Use shall be submitted by the first-acting Party to the Commercial Court of Paris, including in the event of summary proceedings, guarantee claims and/or multiple defendants.

II. eMailbase Payment Terms and Conditions

These terms set forth the Parties respective rights and responsibilities when using the Payment Services provided to the Client by eMailbase and by the Payment Service Provider. The Payment Services are specific services that are separate from the eMailbase Services.

By accessing or using the Payment Services, the Client expressly and unreservedly agrees to: 

The eMailbase Terms of Service, available at https://www.eMailbase.net/legal/termsofuse/#generalconditions, to which these terms are incorporated to, and over which these terms shall prevail in case of contradiction, and 

These Payment Terms (or the “Agreement”), and 

The Payment Service Provider Terms available at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms, and  

The Adyen Prohibited and Restricted Products and Services list https://www.adyen.com/legal/list-restricted-prohibited, which is part of the Payment Service Provider Terms, and

The Card User Terms, only applicable and provided to Client in case Client subscribes to the Card Services).

This Agreement is effective as of the acceptance of the Payment Services by the Client (the “Effective Date”). The Client can accept the Agreement by clicking to accept or by agreeing to Agreement where this option is made available in any agreement, electronic form, or the user interface for the Payment Services’ offers, or by using the Payment Services. Before using the Payment Services, eMailbase recommends Client to carefully read the eligibility criteria of the Payment Services that are detailed hereafter. 

Definitions

The terms in capital letters that are not defined in this agreement have the meaning defined in the eMailbase Terms of Service. The terms mentioned below will have the following meaning in this document:

“Applicable Law” means any law, statute, regulation, rule, including Scheme Rules, ordinance, or subordinate legislation applicable to the relevant obligation, activity, or status of the relevant party in the relevant region, including as applicable, privacy laws, economic sanctions laws, embargoes, and any directive, policy, rule, guidance, or order that is binding on the relevant party for the relevant activity or obligation in the relevant region and that is made or given by a legislative or regulatory authority of any national, federal, commonwealth, state, provincial, or local jurisdiction.

“Card Program” means the intended use of the Card Service as agreed between Adyen and eMailbase, which may include applicable use limits, Card type (virtual and / or physical), regional use of the Card Service, order amounts, marketing, and Card design.

“Card Program Documentation” means the set of forma, sheets, documentation and / or questionnaires requested by PSP to determine the scope of the Card Program and use of the Card Service by eMailbase and the Client.

“Card Service” refers to the issuing by PSP of a virtual or physical Card to the Client to enable Client to make online or offline Payment Transactions in extension of their business conduct. Cards will be linked to the Client’s virtual account or, if enabled, a bank account issued by PSP. The use of a Card by Client may be configured by eMailbase e.g. to purchase specific products or services as well as to only allow Payment Transactions in certain countries. The configuration of the Card Service may be further determined between PSP and eMailbase as part of the Card Program. During onboarding and thereafter from time to time as reasonably required by PSP, the relevant Card Program will be determined based on separate documentation or questionnaires (“Card Program Documentation”). PSP may from time to time, and in its reasonable discretion and prior notification, amend the Card Program or Card Service to comply with Applicable Law or Scheme Rules.

“Chargeback” refers to the refund of an online payment made by the End Customer by credit card under certain conditions specified in the PSP’s general terms of use and in particular when the payment is not authorized. Chargebacks will be considered justified or unjustified depending on the policy of the End Customer’s Scheme Owner and/or bank. A Chargeback shall only be considered justified based on written evidence issued by the End Customer’s Scheme Owner or bank.

“Client” shall, for the purpose of this Agreement, mean the User as defined by the eMailbase Terms of Service. 

“End Customers” means Client’s customers.

“KYC” or “Know Your Customer” means the procedure for verifying the identity of the Client in accordance with the anti-money laundering and anti-terrorist financing regulations resulting from the French Monetary and Financial Code carried out by the Payment Service Provider, with the help of eMailbase.

“Outgoing Payment Flow“ means any payment transaction associated with the eMailbase Payment Account and aimed at withdrawing funds from said account (for example: outgoing transfer, withdrawal of funds, payment…).

“Payment Links” means the hypertext links generated by the Client on the Platform and allowing the Client to receive the amounts paid by the End Customers directly on the eMailbase Payment Account.

“Payment Pages“: means the web pages generated by the Client on the Platform, hosted by eMailbase which contain a Payment Link.

“Payment Services” means the payment services offered by eMailbase to the Client. The Payment Services are provided by the PSP. Payment Services include the Card Service.

“Payment Service Provider Terms“ or “PSP Terms” means the contract entered into by the Client and the PSP and available at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms, including the Adyen Prohibited and Restricted Products and Services list available at https://www.adyen.com/legal/list-restricted-prohibited.

“Payment Transaction” means a payment made by the User with the Card.

“Scheme Owner” means the party who regulates and provides a specific payment method (e.g. Visa, MasterCard).

“Scheme Rules”: the collective set of bylaws, rules, regulations, operating, regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which the Client and PSP must comply with when using the relevant payment method. 

“eMailbase Payment Account” or the “Payment Account”: means the payment account as defined in Article L. 314-1 I of the French Monetary and Financial Code provided by the PSP under the conditions set forth in the Payment Services Provider Terms. 

“eMailbase Payment Card” or the “Payment Card”: means the payment card as defined in Article L.132-1 of the French Monetary and Financial Code. The eMailbase Card is provided to the Client by the PSP upon request by eMailbase. The eMailbase Card is associated with the eMailbase Payment Account.

SECTION 1. Duration and termination

This Agreement starts from the Effective Date and for a monthly duration. This Agreement is entered into for a term of one (1) month from the Effective date.

The Agreement will then be renewed for additional one (1) month periods, unless terminated by either Party, giving at least one (1) month’ notice to:

For eMailbase: to support@eMailbase.com

For the Client: to the user email address assigned to the eMailbase account.

In case either Party is in material breach of its obligations stated in the Agreement and fails to remedy such breach within ten (10) days following the sending of a certified mail with return receipt giving notice of the breach at issue, the other Party may terminate the Agreement without prejudice to any damages it may be entitled to claim hereunder.

SECTION 1. Duration and termination

This Agreement starts from the Effective Date and for a monthly duration. This Agreement is entered into for a term of one (1) month from the Effective date.

The Agreement will then be renewed for additional one (1) month periods, unless terminated by either Party, giving at least one (1) month’ notice to:

For eMailbase: to support@eMailbase.net

For the Client: to the user email address assigned to the eMailbase account.

In case either Party is in material breach of its obligations stated in the Agreement and fails to remedy such breach within ten (10) days following the sending of a certified mail with return receipt giving notice of the breach at issue, the other Party may terminate the Agreement without prejudice to any damages it may be entitled to claim hereunder.

SECTION 2. Access to the payment services

2.1. To access and use the Payment Services, the Client must: 

Create an Account on the Platform, 

Subscribe to the Payment Services,  

Send the KYC information detailed below to eMailbase. eMailbase may ask the Client for any additional information in order to further verify its identity. The documents provided by the Client as part of the KYC process are hosted directly by the PSP who will verify and validate them, and

Accept the Agreement and the PSP Terms.  

2.3. Subscription to the Payment Services will only be effective if the subscription is confirmed by the PSP and/or eMailbase. The PSP and eMailbase reserve the right to cancel or refuse the Client’s subscription to the Payment Services at their sole discretion, in particular if the Client provides incorrect, incomplete or out-of-date information or documents as part of the KYC process.  

2.4. Access to the Payment Account and the Payment Card may require additional steps such as the definition of specific identifiers. These steps are described and governed by the PSP Terms. 

SECTION 3. Description of the payment services

3.1. General Provisions 

Subject to the Client’s eligibility, the Client may benefit from Payment Services enabling it to:  

Create and use a eMailbase Payment Account, 

Use a eMailbase Payment Card if they so request, and/or

Create Payment Pages and Payment Links that the Client may implement on its own website or send directly to the End Customers.

The Payment Service is limited to (eligibility criteria): 

Clients with their corporate seat in the European Economic Area and / or United Kingdom (“Territory”); 

Clients that are legal entities acting in the course of business or acting within the scope of an economic activity (i.e. non-consumer trade, business, craft, or liberal profession, non-profit organizations);

Clients who have a virtual account with the PSP or are issued a bank account from the PSP; 

Clients who have accepted the Payment Service Provider Terms and as the case may be the Card User Terms available online.

Notwithstanding anything to the contrary, PSP in its sole discretion may reject the provision of the Payment Service to the Client and update the Client eligibility criteria from time to time by providing reasonable prior notice to eMailbase. In this case, eMailbase shall make its best efforts to provide such information to the Client in due time and shall comply with PSP’s instruction.

3.2. eMailbase Payment Account 

3.2.1. Subject to the Client’s eligibility, the Payment Service allows the Client to access a eMailbase Payment Account. 

3.2.2. From its eMailbase Payment Account, the Client will be able to:

Receive the amounts collected through the Payment Links and/or Payment Pages, 

Consult the information relating to its eMailbase Payment Account including but not limited to the balance of such Payment Account,  

Issue transfers to third party payment accounts, 

Receive and use a eMailbase Payment Card associated to that Payment Account upon request.

3.2.3. The Client acknowledges that:  

The amounts are at no time held by eMailbase, 

The PSP and eMailbase implement organizational and technical security measures in order to secure access to the Payment Account as well as the transactions carried out via the Payment Account. 

3.2.4. The Client may also request from the PSP the conversion of the amounts held on the Payment Account into the currency of its choice. This conversion will be carried out, subject to a currency management difference of: 

1.2% if the conversion is between the PSP’s standard FX currencies or;

3% if the conversion involves a non-standard FX currency. An updated list of standard FX currencies can be provided upon request. As a reference rate for foreign currencies (FX), the PSP uses Oanda’s daily FX intermediate rate (as published on www.oanda.com). In case of Charge Back, the Client will be debited only with the initial settlement amount received, in the initial currency of settlement, and the remainder of the initial transaction amount paid by the End Customer (in the initial currency of the transaction and, therefore, including currency conversion differences and/or related costs) will be supported by eMailbase.

3.3. Payment Methods

3.3.1. The Client may request the creation of a eMailbase Payment Card by following the instructions on the Platform. 

3.3.2. The conditions of use of the eMailbase Payment Card are detailed in the PSP Terms. 

3.4. Payment Pages and Payment Links

3.4.1. The Client may create Payment Links and Payment Pages via the Platform following the instructions detailed on the Platform. 

3.4.2. The Payment Links may be integrated into the Client’s website or sent directly to the End-Customers. The Payment Links enable the End-Customers to pay with credit or debit card.

3.4.3. The Client acknowledges that eMailbase has no control over: 

The Payment Pages or Payment Links generated by the Client under the Client’s full control and sole responsibility, 

The conditions under which these Pages and/or Payment Links are transmitted to third parties by the Client.

3.5. Security

As part of the provision of its Payment Services, PSP implements specific security measures detailed in the Payment Service Provider Terms. 

Where relevant, each party will ensure adequate technical and procedural security measures are implemented with respect to their systems and in particular with respect to their interfaces to ensure system integrity and protection against unauthorized third-party access and use of data processed, expressly including payment transaction data and any personal data. Where PCI DSS or similar compliance standards are to be adhered to under applicable Scheme Rules, each party shall ensure it is and remains compliant and certified with respect to the relevant standards. Each party will indemnify and hold the other party harmless from third party claims including fines from payment Scheme Owners and acquirers resulting from a breach of the obligations under this clause. 

In accordance with the applicable laws on hacking and computer crime, Client shall only use the Payment Services for the purposes as agreed in the Agreement and shall specifically not perform or allow to be performed any actions detrimental to the security or performance of the Payment Services without eMailbase’s prior written consent.

When required by PSP or by Applicable Laws, the Client shall apply or implement Strong Customer Authentication (SCA) at its own costs and by its own means when required by Applicable Law.

3.6. Fees

eMailbase shall withhold a commission equivalent to the amount of one percent (1%) excluding VAT of any Outgoing Payment Flow (hereinafter the “Commission”). eMailbase shall reserve the right to (i) apply a license Fee (hereinafter the “Fees”) for the use of the eMailbase Payment Services and/or (ii) increase the percentage of the Commission during the performance of the contract. In such a case, eMailbase shall inform the Client of the application or increase of the Fees and/or Commission in writing (via email or via the eMailbase Payment Account) with one (1) month prior notice.

3.7. Chargeback

3.7.1. eMailbase might incur undue losses resulting from Chargebacks. In case of justified Chargebacks, eMailbase may be under the obligation to pay an administrative fee to the PSP. In case of unjustified Chargebacks, eMailbase will incur a loss equivalent to the amount of the Chargeback and to an administrative fee.

The Parties hereby agree that eMailbase shall under no circumstances bear any costs in case of a Chargeback. Client and/or its affiliate companies shall indemnify eMailbase and/or its affiliate companies against all financial losses in relation to or in connection with a Chargeback.

In case of Chargeback, eMailbase reserves the right (i) to set off any amounts from the Client’s Payment Account to cover such loss and/or (ii) to invoice the Client for the amount of the loss and/or to directly debit the amount of the loss from the Client’s bank account, in application of the direct debit mandate. The amount shall be due within thirty (30) days from the date of receipt of the invoice by the Client. The invoice shall either be sent by email or uploaded into

the Client’s eMailbase account.

By accepting these Payment Terms, the Client expressly authorizes eMailbase and/or PSP to send instructions to Client’s bank to debit Client’s bank account in accordance with the payment instruction. Client’s rights are explained in a statement that Client can obtain from its bank.

3.7.2. In case of one or multiple Chargeback(s), eMailbase reserves the right to:

Delay the possibility for the Client to perform an Outgoing Payment Flow after receiving payment(s) on the Payment Account;

Impose Client to keep a minimal reserve amount, at eMailbase’s discretion, on the Payment Account.

SECTION 4. Suspension and termination

4.1. General

eMailbase reserves the right to block all or part of the Payment Services, Payment Links and Payment Pages generated by the Client via the Platform and/or to suspend all or part of the Client’s access to the Payment Services, including access to the Payment Account, in the event of a breach of this Agreement by the Client and/or in particular:  

When the use of the Payment Services by the Client presents a risk of fraud, 

When the KYC documents provided by the Client are incomplete or incorrect or not up-to-date,

When the Payment Page displays illicit or restricted products as detailed by the PSP at the following address: https://www.adyen.com/legal/list-restricted-prohibited and/or when the transactions carried out by means of the Payment Services concern these products, 

At the request of the PSP in the event of a breach of its own general terms and conditions of use available at the following address: https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms and or of the Adyen Prohibited and Restricted Products and Services list available at https://www.adyen.com/legal/list-restricted-prohibited; 

In case Client does not refund eMailbase for one or several unjustified Chargeback(s);  

At the request of the competent authorities. 

4.2. Suspension criteria specific to the Card Services

eMailbase reserves the right to partly or fully suspend the provision of the Card Services  if, in eMailbase’s reasonable discretion and due diligence:

the stability, availability, or security of the Card Services or eMailbase’s or PSP’s system is at risk due to an act or omission of the Client that reasonably breaches Applicable Law or Scheme Rules;

the Card Services are being used by the Client or its users in breach of this agreement and no reasonable remediation is provided by the Client;

there is suspicion of unauthorized or fraudulent activity by the Client which cannot immediately be unfounded;

a Scheme Owner, law enforcement, regulatory authority or regulator formally requests eMailbase and/or PSP to partially or fully suspend the Card Services;

eMailbase and/or PSP does not have accurate or complete KYC information of the Client or the Client fails to pass the KYC review process, in which case the Card Services to the Client will be suspended; or

there is a material breach of the terms of this agreement, Applicable Law (including Scheme Rules) by the Client.

SECTION 5. Obligations

5.1. Lawfulness of the activity 

The Client warrants that it shall perform its activities and use the Payment Services in accordance with Applicable Law.

The Client agrees and warrants it holds and will maintain all governmental, regulatory, or exchange licenses, registrations, authorizations, approvals, and other permission required under any Applicable Law or Scheme Rules for it to lawfully perform its obligations under this agreement.

WARNING: For violations of certain key requirements under the Scheme Rules by eMailbase and/or the Client, some Scheme Owners can levy significant fines, ranging from 25.000 USD to over 1 million USD. The Scheme Owners do this to protect the paying customers, merchants and providers of the Payment Methods collectively against misuse, fraud, illegal activities, breach of applicable laws and excessive costs. Key examples of Scheme Rules which are subject to such fines: (i) using the payment method for other products and services for which the Client received no express authorization to use it for; (ii) using the payment method for products and services which are violating Applicable Laws; (iii) using the payment method for selling products and services for which the Scheme Owner explicitly prohibited its use (e.g. adult content, arms, drugs, counterfeit goods); (iv) Using the payment method for the benefit of a third party / reselling the use of the payment method to a third party (the authorization for the Client to use a payment method is strictly personal); (v) percentage of Payment Transactions of the Client which is subject to a Chargeback is above the applicable acceptable level; (vi) breaches of security and confidentiality obligations with respect to payment data and in particular details of credit cards used such as the CVC number or credit card number; (vii) fraudulent, misleading activities of which customers making payments are the victim. 

Where PSP or eMailbase becomes aware of and/or received any notice of a potential exposure to a fine from the Scheme Owners related to any Client’s behavior, Client will on first request provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of eMailbase in such situation as per the Agreement. If fines are applied for Client’s violations, these are invoiced by the PSP to eMailbase. Client shall fully indemnify and hold eMailbase harmless from any fines applied by the Scheme Owners as a result of Client’s breach of the terms of this Agreement and related incurred reasonable legal fees and other costs.

5.2. Monitoring 

eMailbase may monitor and/or verify Client’s procedures, processes and relevant other documentation relating to Client’s responsibilities pursuant to this agreement Client will reasonably cooperate with a request for information from eMailbase without undue delay and accommodate verification by way of on-site or off-site audits, as may be reasonably determined necessary by eMailbase. The Client will furthermore not limit or prevent a lawful or regulatory body, competent authority or Scheme Owner from exercising its rights under Applicable Law or Scheme Rules to conduct investigations, request information or perform audits in relation to the Payment Services.

5.4. Notification

Client must notify eMailbase immediately (via API, or alternative mutually agreed process) in the following circumstances:

(i)   any request by Client to block a Card or fund transfer;

(ii)  any unauthorized payment or (potential) fraud or illegal or suspicious activity;

(iv) upon the occurrence of any event, or Client becoming aware of any information, that might materially impact the Client’s ability to perform its obligations towards eMailbase or the PSP, or which might adversely affect eMailbase’s or PSP’s business or its reputation in relation to the Payment Services;

(v) any material non-compliance to any Applicable Law or Scheme Rules that Client has become aware of or should have been reasonably aware of; or

(vi)   a complaint or criticism from a regulatory body or other third party or any legal action that may have a material effect on the Payment Services (collectively “Complaint”). Client shall share all relevant written documentation, to the extent not prohibited by Applicable Law.

5.4. Support

eMailbase shall make its best efforts to provide first and second line support to the Client. First line support means a general help desk that takes more information, offers simple solutions, and determines if an issue requires escalation to someone with more expertise. Second line support means a team with more technical knowhow who can assist with more complex issues. Support can be requested at support@eMailbase.com.

SECTION 6. Privacy and security

Where PSP processes personal data for the performance of the Payment Service, and specifically those for KYC purposes, it will do so in accordance with its privacy statement (available on www.adyen.com), and if and where applicable, act as an independent data controller in accordance with applicable privacy laws (including EU General Data Protection Regulation 2016/679 “GDPR”). Where eMailbase processes personal data for the performance of the Payment Service, eMailbase shall do so in accordance with the Annex “DPA” of the eMailbase Terms of Service. eMailbase may process personal data as an independent controller in accordance with its privacy statement available at https://www.eMailbase.com/legal/privacypolicy/. 

Each party shall implement and maintain industry standard technical and organizational privacy and security measures to protect the Client’s personal data against unauthorized access or use. 

The Client will cooperate with eMailbase’s and/or PSP’s assessment and provide accurate and complete information upon eMailbase’s and/or PSP’s request. In the event of a (potential) breach of or unauthorized access to Personal Data (“Security Breach”), Client will notify eMailbase within a timeframe that reasonably allows the other party to comply with its own obligations under Applicable Law, and in each case no later than 72 hours. Each Party will promptly take all necessary and appropriate actions to investigate, mitigate and remediate a Security Breach and its effects.

SECTION 7. Data analytics and scoring

PSP and eMailbase may use de-identified transaction-related data, which may also be aggregated data, for various purposes including but not limited to analyzing, tracking, and comparing transaction and other data to develop and provide insights for Client and/or other PSP’s customers as well as for developing, marketing, maintaining and/or improving PSP’s or eMailbase’s products and services. To this end, PSP uses network analysis and machine learning models for the purpose of payment performance, gaining better insights, fraud prevention, risk assessment and for improving PSP’s products and services.

PSP’s Score service (or Score) uses such network analysis and machine learning models in order to identify and score fraudulent patterns in Client’s transactional behavior. The Score can be accessed by PSP and eMailbase.

PSP will process personal data for the Score in accordance with the Adyen Privacy Policy (available at: https://www.adyen.com/policies-and-disclaimer/privacy-policy).

eMailbase reserves the right to cancel Transactions, at PSP’s discretion, that it has reasonable grounds to suspect to be fraudulent or involving other criminal activities, even if the fraud control tool failed to block the Payment Transaction. In this case, eMailbase shall notify and inform Client about these grounds without undue delay after being notified by PSP.

SECTION 8. Liability

8.1. The Client is solely responsible for the use of the Payment Services and in particular: 

The information integrated into the Payment Pages, 

The integration or sending of the Payment Pages and Payment Links on the Client’s website,  

The use of the Payment Card, 

The use of the Payment Account,

Transactions made from the Payment Pages, Payment Links, eMailbase Payment Card and eMailbase Payment Account, 

Compliance with the PSP Terms.

8.2. The Client will hold eMailbase harmless against all damages, claims and actions of third parties resulting from intentional misconduct, negligence, or breach by the Client of this Agreement and/or of the PSP Terms.

8.3. The Client is informed that any use of the Payment Services in violation of this Agreement or the PSP Terms may result in the application of a criminal or administrative sanction to the PSP, who is solely responsible for the provision of the Payment Services.  In the event that the use of the Payment Services leads to the application of such sanction, the Client will hold eMailbase against any claim by the PSP in this respect and will indemnify eMailbase of any damage suffered as a result, provided that the damage is attributable to it. 

8.4. eMailbase will not give advice to the Client about financial services provided by eMailbase or by the PSP nor will eMailbase mediate between the PSP and the Client for the provision of the Payment Services.

SECTION 9. Specific cases of termination

Without prejudice to the termination grounds set out in the Terms and Conditions, eMailbase may at any time terminate this agreement upon written notice to Client if and when:

eMailbase and/or PSP has reasonable suspicion that the Client is involved in, or facilitates, illegal or fraudulent activities;

eMailbase and/or PSP has reasonable suspicion that the Client is in breach of these Payment Terms;

eMailbase and/or PSP needs to do so in order to comply with Applicable Law or Scheme Rules, including relevant PCI-DSS regulation; or

The provision of all or part of the Payment Service pursuant to this agreement poses a material risk to the reputation of eMailbase, the PSP the Scheme Owners and/or the integrity of the payment system.

In all cases of termination (for breach, by mutual agreement, for non-renewal), eMailbase shall set off from the Client’s Account, provided the Account’s balance allows it, all amounts due by Client at the date of termination.

Except as expressly notified otherwise by eMailbase, the termination of this Agreement shall not automatically terminate the eMailbase Terms and Conditions or as the case may be any ongoing Order Forms. However, the termination for cause of this Agreement by eMailbase allows eMailbase to terminate the eMailbase Terms and Conditions and/or as the case may be any ongoing Order Form(s).

SECTION 10. Audit

In addition to any audit rights or ongoing provision of documentation and information obligations described herein, Client will reasonably cooperate with any request for information by eMailbase or PSP, their auditors, regulatory authorities, or Scheme Owners, without undue delay. eMailbase and/or PSP, its auditor, or any regulatory authority with oversight on eMailbase or PSP’s services, during the term, may perform audit(s), which may require both off-site and on-site access, Client’s policies, procedures, software, technical connections, records and any other activity that relate to the Payment Service (“Audit”). eMailbase and/or PSP will, when possible, provide at least 10 business days’ advance written notice of any Audit, starting from the communication of the audit plan by eMailbase and/or PSP. Client will not limit or prevent eMailbase, the PSP, a lawful body, regulatory body, competent authority, auditor, or Scheme Owner from exercising its rights to conduct investigations, request information, or perform Audits in relation to the Payment Service. Any Audit shall be conducted during normal business hours, and in a manner that reasonably minimizes interference with Client’s business. Client shall give all necessary assistance to the conduct of audits during the continuance of this agreement and for any period after termination of this agreement in accordance with Applicable Law. Any third-party audit costs will be borne by eMailbase or the PSP, unless the audit reveals that Client has materially breached its obligations under this agreement, the eMailbase Terms of Service, the Payment Service Provider Terms and/or Applicable Law.

SECTION 11. Issuing of the card (section applicable to card services only)

Client agrees and complies with the current content of the Card User Terms at all times during the Client’s use of the Card Services.

11.1. Issuing of physical card

Client will provide eMailbase with an order form or other written request as may be agreed by the Parties, when instructing eMailbase to pass on to PSP the order to design and /or manufacture Cards (“Order”). The Order shall not be binding until accepted in writing by eMailbase and Adyen. When eMailbase instructs PSP on behalf of Client to manufacture Cards with a custom design (such as Client’s branding), the Cards must comply with the then-current Card design requirements applied by the relevant Scheme Owner. eMailbase might provide available guidelines regarding Card design on request of the Client, depending on their communication by the PSP. eMailbase expressly makes no warranties that a custom design complies with relevant guidelines nor that a custom design will be accepted by the relevant Scheme Owner. eMailbase is not responsible or liable for costs or delays that result from a custom Card design not being accepted by the relevant Scheme Owner.

eMailbase makes no warranties about communicated manufacturing or distribution timelines as these generally depend on external factors not within the control of eMailbase or PSP, such as but not limited to, delays in manufacturing or distribution caused by the Card manufacturer. Client is responsible for monitoring and accounting for Card expiration. Client shall reach out to eMailbase from time to time when it requires new Cards to an existing Card Program or replace existing Cards. At the time of such request Client and eMailbase shall estimate the anticipated delivery time. eMailbase is not responsible for managing the PSP’s manufacturing stock. eMailbase accepts no responsibility or liability in connection with Card stock management or Card availability.

If the Client cancels an Order due to circumstances not within the control or responsibility of eMailbase, the Client will reimburse eMailbase the relevant design, manufacturing, distribution and third party (cancelation) costs incurred by eMailbase as a result of the Order or cancelation thereof.

11.2. Reversibility

In the event of termination, eMailbase will automatically cease the provision of Card Service to the Client. The Card remains the property of the PSP and must be returned or destroyed following the termination of the Card Service. 

The parties will cooperate in good faith to ensure the orderly wind-down or transition of the Card Service, including providing commercially reasonable transition support. 

Termination of this Agreement does not affect each party’s obligations under this Agreement, including the obligation to pay or procure payment of fees, costs, indemnified amounts or other financial obligations towards the other party based on, or resulting from, services rendered, or activities performed during the term of this Agreement. 

If at the time of termination, any Client’s obligations to eMailbase or PSP remain in relation to the Card Service, the relevant provisions of this Agreement and the Card User Terms will survive such termination and remain in force until all obligations of the Client are fulfilled. Client accepts responsibility for any losses, claims, costs, or damages eMailbase incurs.

III. Sendinblue Inc. Terms of Use (applicable to Users incorporated in USA, Canada, Australia and New Zealand)

Last Updated 27th April, 2021

For users incorporated in USA, Canada, Australia and New-Zealand

The below Terms of Use (the “Terms”) are a binding contract between you and Sendinblue Inc. dba Sendinblue, (collectively referred to as “eMailbase,” “us,” “our,” or “we”). These Terms, together with Sendinblue Inc. Privacy Notice (here after the “Privacy Notice”), govern your use of eMailbase.com and other websites we own and/or operate (collectively, the “Site”), our suite of software and professional services owned and operated by eMailbase, Inc. or its affiliates and/or delivered under the business name eMailbase (the “Software”) for managing your contacts and designing, implementing, and administering email, SMS, and certain other marketing programs, our other digital properties or services, and your communications with us by any means (collectively the “Services”), whether as a Site user, customer of the Services, or representative of any legal entity that is a customer of the Services (in each case, a “Customer” and/or “you”, “your”). These Terms apply if the legal entity of which you are a representative is incorporated in the United-States of America, in Canada, Australia or in New-Zealand. In such cases, these Terms prevail over any other terms and conditions available on our Site. 

Any terms we use in these Terms without defining them have the definitions given to them in the Privacy Notice. Additional, separate terms and conditions may apply to some Services, which shall be included and considered part of these Terms.

Sections “Acceptable Use Standards”, “Prohibited content”, “Contents and Ownership “, “Copyright”, “Services Security Features”, “Customer Content” and “Maintenance and Planned Outages” mandatorily apply to Customers subscribing to custom-made enterprise plans, regardless of other applicable contractual documentation. Other sections shall also apply regardless of any other specific applicable contractual documentation, except in case of contradiction. Applicable contractual documentation means any agreement signed by us and Customer pertaining to the Enterprise Services.

THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND AN ARBITRATION PROVISION THAT GOVERNS ANY DISPUTES BETWEEN YOU AND SENDINBLUE. 

Acceptance. To access, browse, or use our Services, you must agree to be unconditionally bound by these Terms. You can accept the Terms by clicking to accept or by agreeing to the Terms where this option is made available to you in any agreement, electronic form, or the user interface for any Service we offer, or by actually using the Services or the Site. By using the Services, you agree to be bound by these Terms, you represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into these Terms of Use or, if you are accessing the Services on behalf of a legal entity, you represent and warrant that you are authorized to act on behalf of the legal entity and to bind such legal entity to these Terms of Use. You further represent and warrant that you are not based in Cuba, Iran, North Korea, Syria, or any other territory that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist-supporting” country and that you are not a prohibited or restricted person as defined by the US Government. These Terms will remain in effect while you use the Services. If you do not agree and accept these Terms, you may not use, and must immediately cease all use of, the Services. If you have any questions regarding these Terms, please contact us at support@eMailbase.com.

Registration. To use certain Services, you must first register as a Customer. By registering with eMailbase, you agree to provide us with accurate and complete, information. Information you provide and the selections you make during registration, and any changes thereto from time to time, are an integral part of and governed by these Terms. You are responsible for maintaining the confidentiality of your account information and login credentials and for restricting access to your account. You agree to accept responsibility and liability for all activities that occur under your account whether lawful or unlawful and whether actually or expressly authorized by you. You must immediately notify us if your account is subject to unauthorized use.

Term. These Terms are effective on the date you begin to use the Services and continue until you close your account through the platform or until eMailbase terminate these Terms by giving you prior notification. eMailbase reserves the right to suspend your use of the Services at any time, with or without cause. If eMailbase terminates your access to the Services without cause, we will refund the prorated portion of any prepaid fees for the Services. If eMailbase suspends or terminates the Services for cause, such as for a breach or violation of the Agreement, eMailbase will not refund any fees paid. We may archive your account if it is not accessed for a period of 90 days, in which case your account will be disactivated.   

Privacy Notice. You acknowledge that you have read and understand our Privacy Notice, which is incorporated into these Terms by this reference. By using the Services, you represent and warrant that (a) any information you submit to us is truthful and accurate, (b) you will maintain the accuracy of that information, and (c) your use of our Services does not violate any applicable law, rule or regulation. Any information that you provide to us will also be subject to our Privacy Notice. 

Service Communications. eMailbase may use your contact information to communicate with you about our Services. For example, we may send you service announcements or administrative emails. We may use text, phone, or other means to authenticate your account or provide you with customer support. You understand that you receive these communications as part of your use of the Services, and you will not be able to opt out from receiving these service announcements and administrative messages. 

Texting Consent. By providing eMailbase with your wireless phone number, you consent to eMailbase using text messaging to communicate with you. We may send you text messages related to the Services you use, including for security verification purposes. 

Marketing Communications. We may send you marketing communications by email, mail, or other means in compliance with applicable law. You can opt-out of receiving marketing communications from eMailbase at any time.

License Grant. As a Customer of the Services, on condition that your registration and subscription (if any) is current, we hereby grant you a limited non-exclusive, non-transferable, non-sublicensable license to read and access the Services and our information and materials contained on the Services in accordance with these Terms of Use. You may only use the Services in accordance with our Acceptable Use Standards (defined below) and as expressly permitted by these Terms. The permissions described herein will terminate automatically if you breach any of these Terms.

Acceptable Use Standards. Your use of the Services must comply with our community standards (“Acceptable Use Standards”) described in this section and with our Anti-spam Policy, available on demand and/or on our Site. You hereby agree to not: 

Send messages that violate the CAN-SPAM or other anti-spam laws; 

Use the Service for any unlawful or abusive purpose or in any way which interferes with our ability to provide the Services to other Customers or potential Customers; 

Organize or participate in any Prohibited content (defined below); 

transfer or attempt to transfer abnormally large files or streaming media presentations; 

Use purchased, rented, or third-party lists of email addresses;

Use a false e-mail address, impersonate any person or entity, or otherwise mislead us or other Customers as to your identity; 

Post false, inaccurate, misleading, defamatory, or libelous content (including Personal Information); 

Use the Services in a manner that might confuse others as to eMailbase’s identity or disparage us; 

Distribute or post spam, chain letters, or pyramid schemes; 

Distribute viruses or any other technologies that may harm us, or the interests or property of Customers; 

Commercialize, rent, retransmit, disclose, publish, resell (except pursuant to a written reseller agreement with us), assign, lease, sublicense, market or transfer the Services or any portion of it (including the Contents); 

Copy, reverse engineer, translate, port, modify or make derivative works of any portion of the Services; or

Use the Services for any unlawful activities, in violation of any third-party rights, or in a manner that is otherwise objectionable as determined by eMailbase at our sole discretion. 

Without limiting the foregoing, tampering with the Services, conducting fraudulent activities on the Services, and all other illegal activities are prohibited and may subject a Customer to legal action and/or termination of access to the Services. We reserve the right to establish and revise these Acceptable Use Standards from time to time in our sole discretion.

We reserve the right to interrupt or restrict Service at any time, without notice to you, if we suspect you have violated our Acceptable Use Standards or otherwise engaged in fraudulent, abusive, or unlawful activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe as set forth from time to time at the sole discretion of eMailbase. You also agree that we may report any activity that we suspect is unlawful to appropriate government authorities and to cooperate with any investigation conducted by any government authority. 

Prohibited content. The Service may not be used for or contain the following (“Prohibited content”): 

Gambling or games of chance, including campaigns, materials, posts, or otherwise that constitute gambling or any game of chance, or which promote giveaways, random drawings, raffles, or prizes, except promotions that comply with all applicable laws 

Any content that encourages illegal activity, as well as campaigns, materials, posts, or any other activity that encourages, promotes, facilitates, or instructs others to engage in illegal activity

Adult subjects, nudity, or sexual acts

Promotion of hatred, violence, racial, or religious intolerance, campaigns, materials, posts, or other any other content that promotes or glorifies hatred, violence, racial or religious intolerance, or items that promote organizations with such views

Any campaigns, materials, posts, or other content where it appears that a person is attempting to use eMailbase (directly or through another person) to benefit financially from a criminal activity or  

Otherwise objectionable, campaigns, materials, posts, or other content as determined by eMailbase in our sole discretion. 

eMailbase reserves the right to suspend any Customer whom eMailbase determines, in our sole discretion, is or has engaged in a Prohibited content. 

Subscription. This section applies to paying Customers who sign up for a paid Services plan online or via a purchase order established by our services. 

By subscribing to a paid Services plan, the subscription contract comes into effect from the date of subscription, for an initial period chosen by the Customer.  

At the end of the initial period, the subscription is automatically renewed for successive periods equivalent to the initial period. 

Unless otherwise specified in a purchase order, the Customer may, at any time, terminate the automatic renewal by cancelling their subscription from their Account. 

When the Customer ends the renewal, the subscription continues until the end of the current period and is not renewed. Any remaining credits will be lost.

Payment. When you sign up to a paid Services plan online, you are required to select a plan level and you will be charged according to the terms of the applicable paid plan level. You are responsible for paying the fees associated with the plan level you have selected, as well as any and all applicable sales and use taxes for your purchase of Services based on the address that you provide at signup. Your monthly or annual payment is due on the date you sign up and billing for the following month or years will occur on the same date each month or year. 

If you downgrade or upgrade your plan level during a billing cycle, we will issue a credit note for the remaining prepaid amount on a pro-rata basis. The credit note will automatically be applied to your next invoice. 

You are required to maintain a valid payment method, such as debit or credit card information, on file with us. You authorize eMailbase to charge your payment method for the amount due to eMailbase for the Services, any sales and use taxes and any applicable late fees or interest. If your card is replaced for any reason, you authorize us to charge such replacement card for the amount due to eMailbase for any Services. The person submitting the card for payment represents and warrants that they are authorized to use such card, that the card may be charged as agreed herein, and that such charges will not be rejected. You agree that you are solely liable for any payment or credit card fraud, abuse or unauthorized use by you or others. 

If we stop providing the service to you for any reason and terminate your account without cause, we will provide you a refund of the pro rata amount of the monthly or annual charge that was prepaid.  Otherwise, you won’t be entitled to a refund or credit for any reason.  

If you do not pay on time or if we cannot charge the payment method you have on file for any reason, we reserve the right to either suspend or terminate your access to the Services. In addition, if any payment is not received within 30 days after the due date, then we may charge a late fee of $10 and we may assess interest at the rate of 1.5% of the outstanding balance per month (18% per year), or the maximum rate permitted by law, whichever is lower, from 30 days after the due date until the date paid. If your unpaid fees are referred to an attorney or collections agency, you shall pay all reasonable attorney’s fees or collections agency fees.

eMailbase uses PCI DSS-compliant third party payment providers to process payments, including Adyen, PayPal, GoCardless, and Chargebee, and eMailbase reserves the right to process payments using any provider. Your payment is subject to the terms and conditions imposed by the third-party payment provider.

Contents and Ownership. Unless otherwise expressly indicated, the information contained on the Services and any updates or improvements thereto are owned, controlled, or licensed by eMailbase or its affiliates or licensors, including, but not limited to (a) all platforms, software, and proprietary technology; (b) products, services, and related documentation available on the Services; (c) all features, functionality, ideas, images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, software code, and other materials; and (d) all names, logos, taglines, trade dress, copyrights, patents, trademarks, or other intellectual property (collectively, the “Contents”). Contents not owned or controlled by eMailbase are the property of their respective owners. The Contents are protected by U.S. and foreign copyright, trademark, trade dress, or other proprietary right laws and international conventions. No license to or regarding any of the Contents is granted in connection with your use of the Services, except as specifically set forth in these Terms or the applicable license terms pertaining to certain eMailbase Services. All rights that are not granted to you are reserved by eMailbase. Only a duly authorized officer of eMailbase may grant permission or a license to use any of our Contents; any attempted grant or similar promise by anyone other than a duly authorized officer of eMailbase is invalid.

Copyright. You do not have permission to copy, reproduce, make derivative works from, distribute, republish, download, display, perform, post electronically or mechanically, transmit, record, or mirror any of the Contents without the prior written permission of eMailbase. You may only display, download, and print in hard copy format the Contents for the purposes of using the Services as an internal or personal business resource.  

Trademarks. eMailbase’s registered and unregistered trademarks and trade dress, including the eMailbase word mark, and eMailbase graphics, logos, page headers, button icons, scripts, and service names, taglines, trade dress, and other trademarks, may not be copied, imitated, or used, whether in whole, partial or modified form, without the prior written permission of eMailbase. You may not use any meta tags or any other hidden text utilizing a eMailbase name, trademark, or product name without eMailbase’s prior written permission. Third-party trademarks and service marks used on our Services are the property of their respective owners. eMailbase and the other licensors of the marks on our Services reserve all rights with respect to all Contents and all intellectual property.

Feedback. You may from time-to-time provide eMailbase materials, communications, suggestions, comments, improvements, ideas or other feedback related to the Services (“Feedback”). You hereby grant to eMailbase all rights, titles, and interests in and to any Feedback. In the event this grant is not sufficient for us to fully realize and use the Feedback, you additionally grant eMailbase a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use and incorporate into the Services or our website any of the Feedback. By providing Feedback, you represent that the Feedback is not subject to any intellectual property claim by a third party or any license terms which would require products or services derived from that Feedback to be licensed to or from, or shared with, any third party.

Reports. eMailbase may, from time to time, de-identify the Personal Information (“De-identified Information”) that we collect directly from you and combine it with others’ De-identified Information in order to generate statistics, reports and studies. eMailbase uses these reports and studies for internal purposes only. Any such reports or studies are the sole and exclusive property of eMailbase. You hereby assign any rights you may have to such reports, studies, and your De-identified Information contained therein to eMailbase in perpetuity throughout the world for any and all present or future uses in any and all languages and for no compensation. All De-identified Information will be treated as nonconfidential and nonproprietary. eMailbase shall be under no obligation of any kind with respect to such De-identified Information and shall be free to reproduce, make derivative works from, use, disclose, and distribute the Reports to others without limitation. Additionally, eMailbase may use any ideas, concepts, know-how, or techniques contained in generating reports or studies for any purpose whatsoever including, but not limited to, developing, manufacturing, or marketing products incorporating such information.

Services Security Features. You are strictly prohibited from violating or trying to violate the security features of the Services, such as by (a) accessing data not intended for you or logging onto a server or an account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures unless we expressly authorize that you do so in writing; (c) attempting to interfere with service to any user, host or network, such as by means of submitting a virus to the Services, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” or (d) sending unsolicited email that you are not authorized to send, including promotions and/or advertising of products or services forging any TCP/IP packet header or any part of the header information in any email.

You hereby agree not to use any device, software, or routine to interfere or try to interfere with the proper working of this Services or any activity being conducted on this Services. You further agree not to use or try to use any engine, software, tool, agent or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Services other than the search engine and search agents that we make available on this Services and other than the generally available third-party web browsers. If you violate our system or network security, you may face civil or criminal liability. We will investigate occurrences that may involve such violations. We may involve or cooperate with law enforcement authorities in prosecuting users who are involved in such violations.

Customer Content. The Services may contain features that allow Customers to submit content as part of managing contacts and designing and administering email, SMS, and certain other marketing programs and to send certain communications and other content using the Services, (any such content submitted referred to as “Customer Content”). You represent that you are the owner of any Customer Content you submit and/or have the necessary rights, licenses, and authorization to distribute it. 

By submitting your Customer Content, you hereby grant us an irrevocable, worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and the right to use and disclose your Customer Content, in order to provide you with the Services, during the performance of these Terms. To the extent permitted by applicable laws, you hereby covenant not to assert against Us any moral rights you may have in any of Your Customer Content.  You further hereby authorize eMailbase to mention your business name and logos as trade references on any communication medium including social media. These mentions are granted free of charge. You may terminate this authorization at any time by sending a simple email to enterprise.marketing@eMailbase.com

eMailbase is not responsible for any Customer Content. We reserve the right to withhold approval, or remove Customer Content for any reason at our sole discretion, but we have no obligation to police Customer Content on the Services. We further reserve the right to remove any Customer Content for any reason and to interrupt or restrict the Services at any time, without notice to you or any other Customers, if we suspect activity that is unlawful, abusive, or otherwise in breach of these Terms. 

If your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including Customer Data. If your account has been terminated, your username will no longer be available for use and may not be reclaimed or used for any future account.

Third Party Rights. We take the rights of others very seriously. If you have any concerns that Customer Content, or other content made available by third parties via the Services is improper or infringing, please contact us at support@eMailbase.com. If you would like the reported content removed, please provide:

A detailed description of the content, including where it is located;

A statement that you have a good faith belief that the third party does not have permission to use the content;

A statement that you are the owner, or exclusive agent of the owner, of the content;

Your contact information, including telephone number and physical address; and 

A signed and sworn statement, under penalty of perjury, that your statements above are true.

Links to Other Websites. Links to third party websites from the Services are provided solely for your convenience. eMailbase is not responsible for the content of any other websites, nor do we make any representations about the content or accuracy of material on any other websites. Inclusion of any linked website on our Services does not imply our approval or endorsement. If you click through to another website, you do so at your own risk, and you will be subject to that website’s privacy practices and not ours. Any concerns regarding any such website, or a hyperlink thereto, should be directed to the website’s owner or operator. 

Maintenance and Planned Outages. eMailbase may limit or suspend the Services from time to time to perform scheduled maintenance or to stop a violation of this Agreement, to prevent material harm to eMailbase or its customers or as required by applicable law. eMailbase will endeavor to give Customer reasonable advance notice of any limitation or suspension so that Customer can plan around it, or address the issue that has prompted eMailbase to take such action. There may be some situations, such as security emergencies, where it is not practicable for eMailbase to give such advance notice. eMailbase will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as is needed to resolve the issue that prompted such action. In any case, no credit of service shall be granted to Customer in such cases of suspension. 

Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS WITH ALL FAULTS AND DEFECTS. WE MAKE NO WARRANTIES REGARDING THE SERVICE WHATSOEVER AND EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR BEHALF AND THAT OF OUR AFFILIATES, LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. WE FURTHER DISCLAIM ANY WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, DEVICES OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE ON THE SERVICES IS ACCURATE, COMPLETE, OR CURRENT. WE MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR VIRUS FREE. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. 

Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to You insofar as they relate to implied warranties. If You rely on the representations or warranties of any third persons with respect to the Services (including without limitation by dealers or resellers of the Services) beyond those made by eMailbase, your sole remedy for such reliance is against the third person making such representation or warranty.

YOU USE THE SERVICES AT YOUR OWN RISK. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF OUR SITE, FROM THE CONDUCT OF ANY USERS (WHETHER ONLINE OR OFFLINE), OR OTHERWISE. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, SOFTWARE, MODEM, TELEPHONE OR OTHER PROPERTY RESULTING FROM YOUR USE OF (OR INABILITY TO USE) OUR SERVICES. WE WILL NOT BE LIABLE TO YOU IF YOU ARE UNABLE TO ACCESS INFORMATION THROUGH OUR SERVICES. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM SENDINBLUE, ITS OFFICERS, EMPLOYEES, OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

Indemnification. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS SENDINBLUE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COST, EXPENSE, OR DEMAND, INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES, DUE OR RELATING TO OR ARISING OUT OF (I) YOUR USE OR MISUSE OF OUR SERVICES, (II) ANY OTHER PERSON’S USE OF ANY ACCOUNT OR PIN YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU; (III) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT; (IV) YOUR BREACH OF OUR TERMS, OR (V) ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES SET FORTH IN OUR TERMS.

Limited Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SENDINBLUE OR OUR AFFILIATES, OR ANY OF OUR OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS OR ANY OF OUR OR THEIR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, SUPPLIERS OR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER PERSON RELATED TO OR ARISING OUT OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE; LOSS OR COMPROMISE OF DATA, PROFITS OR GOODWILL; BUSINESS INTERRUPTION; COMPUTER FAILURE OR MALFUNCTION; PERSONAL INJURY OR PROPERTY DAMAGE, OR OTHER DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, COPYING, OR DISPLAY OF THE CONTENT OF THIS SITE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, STRICT LIABILITY, MISREPRESENTATION, PRODUCTS LIABILITY, VIOLATIONS OF LAW (INCLUDING REGULATIONS), NEGLIGENCE, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, SENDINBLUE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE, AND REGARDLESS OF THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT. 

WITHOUT LIMITING THE FOREGOING PROVISIONS OR THE PROVISIONS OF OUR PRIVACY NOTICE IN ANY WAY, THE LIMIT ON TOTAL CUMULATIVE LIABILITY OWED BY SENDINBLUE TO YOU OR ANY PERSON FOR ANY CLAIMS ARISING FROM OR RELATING TO THE SERVICES SHALL BE LIMITED TO A MAXIMUM OF THE AMOUNT YOU HAVE PAID SENDINBLUE FOR THE SERVICES OR ACCESS TO OUR SERVICES IN THE THREE (3) MONTHS PRECEDING THE DATE OF THE CLAIM GIVING RISE TO SUCH LIABILITY. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR SENDINBLUE’S SERVICES MUST BE COMMENCED WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Force Majeure. eMailbase shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, pandemic, or government requirements.

Assignment.  You may not assign, delegate, or transfer these Terms, or your rights or obligations hereunder, or your subscription or other use of the Services, in any way (by operation of law or otherwise) without prior written consent from eMailbase. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. We may transfer, assign, or delegate these Terms and our rights and obligations without your consent. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Notices. Notices to you are effective when sent by email to the email address we have on file for you or, at our option and if applicable, three (3) days following the date such notice is deposited in the US Mail addressed to the address we have on file for you. You are responsible for notifying us of any changes in your contact information. Written notice to eMailbase shall be effective when directed to our Customer Care Department and received at our address available at eMailbase.com/contact. Your notice must specify your name, email address, telephone contact and eMailbase account number. 

Governing Law and Venue. Claims relating to, including the use of, the Services and the Contents contained herein are governed by the laws of the United States and the State of Washington, without regard to its conflicts of laws rules. Any legal suit, action, or proceeding arising out of or related to these Terms or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Washington. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Class Action Waiver. YOU HEREBY WAIVE ANY RIGHT TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT AGAINST SENDINBLUE RELATED TO ANY CLAIM, DISPUTE OR CONTROVERSY, AND, WHERE APPLICABLE, YOU HEREBY AGREE TO OPT OUT OF ANY CLASS PROCEEDING AGAINST SENDINBLUE OTHERWISE COMMENCED.

Arbitration Agreement. Please read this section carefully. This section affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions.

YOU AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.

Any claim or dispute brought by you arising from or relating to these Terms, or to the relationships that result from these Terms, including disputes about the validity, scope, or enforceability of this arbitration provision (collectively, “Covered Disputes”) may, at eMailbase’s option and in its sole discretion, be settled exclusively by binding, individual arbitration, rather than in court, and to be held in King County, Washington, or another location mutually agreeable to the parties. The arbitration will be conducted by the American Arbitration Association under its rules and procedures. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Prior to initiating any arbitration, you will give eMailbase at least 60 days’ advanced written notice of your intent to file for arbitration.  You must provide such notice by email to support@eMailbase.com. During such 60-day notice period, the parties will endeavor to settle amicably by mutual discussions any Covered Disputes. Failing such amicable settlement and expiration of the notice period, either party may initiate arbitration. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity, and any award of the arbitrator(s) will be final and binding on each of the parties. Judgment upon the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The arbitrator will apply applicable law and the provisions of these Terms, and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. You are not entitled to arbitrate any Covered Dispute as a class, representative, or private attorney action, and the arbitrator(s) will have no authority to proceed on a class, representative, or private attorney general basis. If any provision of the agreement to arbitrate in this section is found illegal or unenforceable, the remaining arbitration terms shall continue to be fully valid, binding, and enforceable (but in no case will there be a class, representative, or private attorney general arbitration). These Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA) and, where otherwise applicable, by the laws of the State of Washington. eMailbase reserves all rights to pursue any and all claims and remedies, whether in a court of law or other tribunal, and in no way shall the foregoing be interpreted to limit eMailbase’s rights in this regard. 

General. No joint venture, partnership, employment, or agency relationship exists between you and eMailbase as a result of these Terms or your use of the Services. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect. You hereby consent to eMailbase publicizing the existence (but not the terms) of the relationship contemplated hereunder as a part of eMailbase’s promotional and marketing activities from time to time. These Terms, along with the agreements incorporated by reference herein, constitute the entire agreement between eMailbase and you with respect to your access to and use of the Services and your eMailbase account, and supersedes all prior or contemporaneous communications and proposals, whether oral or written, between eMailbase and you with respect thereto and, with respect to your use of the Services, supersedes the terms of any other party’s terms and conditions. These Terms may be executed by the parties hereto in separate counterparts, as applicable to the Services, each of which when so executed and delivered shall be an original for all purposes, but all such counterparts shall together constitute but one and the same instrument. The failure of eMailbase to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

Consent to Do Business Electronically. By accessing our Services, subscribing with us, creating a eMailbase account, typing your name into any of our electronic forms and indicating your acceptance, or submitting information by clicking a box, you consent to (a) eMailbase communicating with you electronically; (b) receiving all applications, notices, disclosures and authorizations (collectively, “Records”) from eMailbase electronically; and (c) entering into agreements and transactions using electronic Records and signatures. Please note that federal law treats electronic signatures as having the same legal force and effect as if they were signed on paper by hand, and online contracts have the same legal force as signing an equivalent paper contract in ink. eMailbase will use electronic documents for all communications, agreements, disclosures, authorizations, and other documents necessary to provide you with the Services. You must have a computer or other web-enabled device, a connection to the internet, an active email account, and the ability to receive and read electronic files to conduct business with us electronically. You agree to be responsible for keeping your own Records. You may print or download Records from the Services and keep them for your own reference. If you require assistance with your Records, wish to receive Records in paper format, or wish to withdraw your consent to receiving electronic Records from us, please contact us at support@eMailbase.com. Agreements and transactions executed prior to this request will remain valid and enforceable.

Modification of Terms of Use. eMailbase reserves the right to revise these Terms of Use by updating the Terms of Use posted to its website without prior notice.  Your continued use of our Services following the posting of changes constitutes your acceptance of such changes. You are advised to periodically visit this page to determine the then current Terms of Use. 

Contact Us. If you have any questions about these Terms, please contact us at support@eMailbase.net.

The DPA has been updated on 08/21/23 to notably:

adapt its content to eMailbase’s new products and services;

take into account the latest changes of applicable privacy laws;

detail the description of the processing.

To consult the previous version please ask the support team.

Data Processing Agreement (DPA)

This Data Processing Agreement and its Annex (collectively, the “DPA”) is part of the Terms and Conditions between eMailbase and the Customer (the “Terms”) and sets forth the terms and conditions relating to Processing of Personal Data by eMailbase. The Parties agree to comply with the terms and conditions in this DPA in connection with such Processing of Personal Data contained in Customer Data. For the purpose of this agreement, the Parties agree that eMailbase acts as Processor and Customer acts as Controller as those terms are defined under Data Protection Laws. In some cases where Customer acts as Processor for an end-user, eMailbase shall act as subprocessor. This DPA shall not replace any comparable or additional rights relating to Processing of Personal Data contained in the Terms. All capitalized terms not defined herein have the same meaning set forth in the Terms. All capitalized terms not defined in this DPA shall have the meaning set forth in the Terms.

1. Definitions

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity. 

“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code§ 1798.100 et seq., and its implementing regulations, as amended from time to time.

“Control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly. 

“Controller” means the entity which determines the means and purposes of the Processing of Personal Data.

“Customer Data” means any Personal Data that eMailbase processes on behalf of Customer as a Processor in the course of providing Services, as more particularly described in this DPA. 

“Data Protection Laws” means all laws and regulations applicable to the Processing of Personal Data under the Terms, including without limitation CCPA and other laws and regulations of the United States and its states, the GDPR and other EU Data Protection Laws and Regulations, each as amended from time to time. 

“Data Subject” means the identified or identifiable person to whom Personal Data relates.

“EEA” means, for the purposes of this DPA, the European Economic Area, United Kingdom and Switzerland. 

“EU Data Protection Law” means (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector, and other applicable laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, and the United Kingdom, as well as applicable national implementations thereof (as may be amended, superseded or replaced). 

“Group” means any and all Affiliates that are part of an entity’s corporate group. 

“Personal Data” means any information contained in Customer Data that is protected under applicable Data Protection Laws and Regulations, such as information describing or relating to: (i) an identified or identifiable natural person or household or (ii) an identified or identifiable legal entity (where such information is protected as personal data or personally identifiable information under applicable Data Protection Laws and Regulations). 

“Processing” has the meaning given to it in the GDPR and “process”, “processes” and “processed” shall be interpreted accordingly. 

“Processor” means the Party which Processes Personal Data on behalf of the Controller, including as applicable any “Service Provider” as that term is defined by the CCPA and comparable U.S. privacy laws.

“Services” means all features and services provided by eMailbase via its online Platform.

“Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data. 

“Sub-processor” means any Processor engaged by eMailbase or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Terms or this DPA. Sub-processors may include third parties or members of the eMailbase Group.

2. Relationship with the Terms

2.1. If there is any conflict between this DPA and any other provision of the Terms, this DPA shall prevail to the extent of that conflict. 

2.2.  Any claims brought under or in connection with this DPA shall be subject to the terms of the Terms, including but not limited to the exclusions and limitations set forth in the Terms. 

2.3. No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms. 

2.4. This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Terms, unless required otherwise by applicable Data Protection Laws.

2.5. This DPA applies where and only to the extent that Data Protection Laws are applicable to the processing of Customer Data. 

3. Details of Data Processing

3.1. Role of Parties: The parties acknowledge and agree that (i) with regard to the Processing of Customer Data, Customer is the Controller and eMailbase is the Processor and (ii) eMailbase will engage Sub-Processors pursuant to the requirements set forth in Section 7 “Sub-Processors” below. eMailbase may process Customer Data as a Controller in accordance with eMailbase’s privacy policy that Customer hereby acknowledges (https://www.eMailbase.com/legal/privacypolicy/) in order to manage the Customer’s account, provide billing, produce statistics, or defend its rights in court or in settlement.  

3.2. Duration:  eMailbase shall Process Customer Data throughout the duration of the term of the Terms or any renewal thereof. Upon termination of the Services by either party, eMailbase shall cease processing Customer Data. eMailbase may use Customer Data for the purpose of creating statistics and improving its products and services in an anonymized or aggregated manner or to comply with legal obligations applicable to eMailbase in its role as a hosting provider.

3.3. Nature of Processing: The nature of eMailbase’s Processing of Customer Data as Customer’s Processor is described in and governed by the Terms. The provision of the standard Services includes, without limitation, maintaining and improving the security of eMailbase’s platform, maintaining and improving the deliverability conditions of electronic communications, and developing the eMailbase product and user experience.

3.4. Purpose of Processing: The purpose of eMailbase’s Processing of Customer Data as Customer’s Processor is the provision of eMailbase’s standard Services to the Customer and the performance of eMailbase’s obligations to Customer and under applicable laws. In particular, eMailbase shall process Customer Data for the following purposes: 

Storage of contact lists uploaded by Users

Sending messages by email or SMS or other means of electronic communications, whether automated or not

Retention and analysis of email deliverability data

Collection of unsubscriptions 

Collection of consents (in the event that the User uses the eMailbase form to retrieve contact data from their own site)

3.5. Categories of Data Subjects: Users, and any individual: (i) whose email address and/or telephone number is included in the Customer distribution list; (ii) whose information is stored or collected via the Services, or (iii) to whom Users send emails or otherwise engage or communicate with via the Services.

3.6. Subject matter: The subject-matter of data Processed under this DPA is Customer Data as described in the Terms and this DPA.

(a) Customer and Users: identification and contact details (name, address, title, contact details, username, company/organization details, phone number); organization details (geographic location, website), sending information (email address, IP address, date and time). 

(b) Contact/recipient: identification and contact details as uploaded by the User (name, email address, telephone number, notes, imported file); IT information (IP addresses, open/click rate and events related), sending information (date and time).

3.7. Instructions: eMailbase shall Process, retain, use, store, or disclose Customer Data only according to written, documented instructions issued by Customer to eMailbase to perform a specific or general action with regard to Customer Data for the purpose of providing the services to Customer pursuant to the Terms (Customer’s “Instructions”). The parties agree that the Terms (including this DPA), together with Customer’s use of the eMailbase services in accordance with the Terms, constitute Customer’s complete and final Instructions to eMailbase in relation to the Processing of Customer Data. eMailbase shall inform Customer without delay if, in eMailbase’s opinion, an Instruction violates applicable Data Protection Laws or eMailbase is unable to follow an Instruction and, where necessary, cease all Processing until Customer issues new Instructions with which eMailbase is able to comply.

4. Customer Obligations

4.1. Customer Processing: Customer shall, in Customer’s use of the Services, Process Personal Data in accordance with the requirements of all applicable Data Protection Laws and Regulations. Customer represents and warrants that Customer has established a lawful basis to Process Personal Data, Customer’s use of the eMailbase services will not violate the rights of any Data Subject, and Customer has the right to transfer, or provide access to, the Personal Data to eMailbase for Processing in accordance with the terms of the Terms (including this DPA).

4.2. Customer Responsibilities: Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. If Customer is established in a jurisdiction governed by Data Protection Law(s), or if its Distribution List contains Personal Data of citizens of one or more jurisdictions governed by Data Protection Law(s), Customer agrees that (i) it shall comply with its obligations as a Controller under applicable Data Protection Law in respect of its processing of Customer Data and any processing instructions it issues to eMailbase; and (ii) it has provided notice and obtained (or shall obtain) all consents from Data Subjects and rights necessary under Data Protection Laws for eMailbase to process Customer Data and provide the Services pursuant to the Terms and this DPA.  

4.3. Data Retention: The Parties agree that Customer (including its Users), and not eMailbase, are responsible for managing the retention periods of Personal Data that they upload onto eMailbase’s Platform, and that it is incumbent on Customer to delete such Personal data as and when the applicable retention period expires. eMailbase is responsible only for deleting or anonymizing data at the end of its contractual relationship with Customer. 

4.4. No Sensitive Personal Data: Customer undertakes not to include in the Distribution Lists uploaded onto the Platform any Personal Data known as “sensitive” within the meaning of Article 9 of the GDPR or as defined in Cal. Civ. Code § 1798.140(ae) of the CCPA or comparable U.S. Data Protection Laws.

4.5. Notice to eMailbase: Customer shall inform eMailbase without undue delay if Customer is not able to comply with Customer’s obligations under this DPA or any applicable Data Protection Laws. For the avoidance of doubt, eMailbase is not responsible for compliance with any Data Protection Laws applicable to Customer or Customer’s industry that are not generally applicable to eMailbase.

5. eMailbase’s Obligations

5.1. eMailbase Processing: Customer hereby appoints eMailbase to process Customer Data on Customer’s behalf for the purposes described in the Terms (including this DPA) and its privacy policy (https://www.eMailbase.com/legal/privacypolicy/). eMailbase shall Process Customer Data in accordance with Customer’s Instructions, as further specified in the Terms and this DPA. All Customer Data Processed under the Terms (including this DPA) will be stored, organized, and made available to Customer as the Controller. eMailbase shall appoint a Data Protection Officer: dpo@eMailbase.com.

5.2. Register: eMailbase shall maintain a register with a list of the processing operations carried out on behalf of the Controller as required by applicable Data Protection Laws. Such register shall include all the information listed in Article 30 (2) of the GDPR.

5.3. Data Destruction or Export: Customer may, at any time during the performance of the Terms, (i) access or delete Customer Data processed by eMailbase directly via the Platform or (ii) retrieve the data that the Customer has uploaded on the Platform or reports relating to the data by clicking on the “export button” in Customer’s eMailbase account. Upon termination of the Terms, eMailbase shall, upon Customer’s request, destroy all Customer Data within three (3) months of termination. Upon request by Customer, eMailbase shall provide Customer with written confirmation of such destruction. Notwithstanding the foregoing, eMailbase reserves the right to retain Customer Data for longer periods where a longer retention period is required by applicable law. 

5.4. Security: eMailbase undertakes to take all commercially reasonable and legally necessary precautions, in respect of the nature of Personal Data and the risks presented by the processing, to preserve the security of Personal Data and in particular, to prevent it from being distorted, damaged or accessed by unauthorized third parties. eMailbase shall implement and maintain appropriate technical and organizational security and confidentiality measures available on demand.

5.5. Confidentiality: eMailbase shall treat Customer Data as Confidential Information. eMailbase undertakes to ensure that only its employees authorized to process Personal Data for the purpose of performing the contract have access to it within the strict limits of what is necessary for the performance of their duties, and these employees undertake to respect the confidentiality of Personal Data. 

5.6. Required Disclosure: If eMailbase is required by applicable law to disclose Customer Data for a purpose unrelated to the Terms, eMailbase will first inform Customer of the legal requirement and give Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice. Notwithstanding the foregoing, eMailbase shall have the right to collect and use Personal Data contained in Customer Data to investigate a use of the eMailbase services that is unlawful or violates the Terms, provide, and develop such services, respond to legal actions, or for administrative purposes such as accounting and compliance.

5.7. Data Breach: eMailbase shall notify Customer without undue delay at Customer’s email address on file or via Customer’s account on the Platform after becoming aware of a Data Breach occurring on eMailbase’s Platform or information systems, or information systems of a eMailbase Sub-Processor upon eMailbase becoming aware. eMailbase shall provide such notification in compliance with applicable Data Protection Laws and such notification shall include, at a minimum, the details listed in Article 33 (3) of the GDPR. 

eMailbase shall make reasonable efforts to identify the cause of such Data Breach and take such steps as eMailbase deems necessary and reasonable to remediate the cause of such a Data Breach to the extent the remediation is within its reasonable control. At Customer’s reasonable request, and to the extent eMailbase is required to do so under applicable Data Protection Laws, eMailbase will promptly provide Customer with commercially reasonable assistance as necessary to enable Customer to meet Customer’s obligations under applicable Data Protection Laws to notify authorities and/or affected Data Subjects. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Users.

6. Assistance and Audit

6.1. Assistance: To the extent Customer is unable to independently access the relevant Customer Data via the Platform, upon written request by Customer and at Customer’s expense, eMailbase shall reasonably assist and cooperate with Customer to respond to a Data Subject request to exercise rights as required by applicable Data Protection Laws or a request from applicable data protection authorities relating to the processing of Personal Data under the Terms. If any such request is made directly to eMailbase, eMailbase shall not respond to such request directly without Customer’s prior authorization unless legally compelled to do so. If eMailbase is legally compelled to directly respond to such a request, eMailbase shall promptly notify Customer and provide Customer with a copy of the request unless legally prohibited from doing so. eMailbase may directly execute a data subject’s request if (i) the request is an automatic unsubscription or if (ii) the request refers to an unsolicited communication, a prohibited use of the Services or a potential breach of this Agreement by the Customer or one of eMailbase’s customers. In cases (i) and/or (ii), eMailbase will execute the request of the data subject without the prior approval of the Customer. In case (ii), eMailbase may suspend the possibility of sending any electronic communication to the domain of the person concerned.

6.2. Audit: eMailbase endeavors to provide Customer with all the information and documents necessary for Customer to demonstrate its compliance with the obligations set out in this DPA. eMailbase undertakes to accede to all reasonable requests made by Customer to verify that eMailbase complied with the contractual obligations imposed by this DPA. If Customer requires further documentation related to this DPA, upon Customer’s written request and at reasonable intervals and Customer’s sole expense, and subject to the confidentiality obligations set forth in the Terms, eMailbase shall make available to Customer documentation regarding eMailbase compliance with the obligations set forth in this DPA in the form of a copy of eMailbase’s then most recent third-party audits or certifications or comparable documentation as determined by eMailbase or, upon request by Customer, documentation of a Sub-Processor’s compliance with this DPA (collectively, “Audit Documentation”). Customer acknowledges that: (i) documentation of a Sub-Processor’s compliance shall be considered confidential and (ii) certain Sub-Processors may require Customer to execute a non-disclosure Terms with them to view Sub-Processor documentation. 

6.3: Audit Limitations: The audits described in Section 6.2: (i) may not occur more than one (1) time per contract year; (ii) will be limited to Customer Data processing activities performed by eMailbase on behalf of the Customer; (iii) may not involve any on site investigation, except as mutually agreed in writing by the eMailbase and Customer; and (iv) available Audit Documentation shall be limited to the extent necessary for eMailbase to comply with the legal rights of eMailbase employees.

7. Sub-Processors

7.1. Authorized Sub-Processors: Customer is informed and expressly authorizes eMailbase to engage the Sub-Processors on the Sub-Processor List in Annex as of the Effective Date to Process Customer Data pursuant to the Terms (including this DPA). eMailbase has entered into a written Terms with each Sub-Processor containing data protection obligations not less protective than those in this DPA with respect to the protection of Customer Data to the extent applicable to the nature of the services provided by such Sub-Processor.

7.2. Sub-processor Obligations: eMailbase shall: (i) enter into a written Terms with each Sub-Processor imposing data protection terms that require the Sub-Processor to protect the Customer Data to the standard required by Data Protection Laws; and (ii) remain responsible for Sub-Processor compliance with the obligations of this DPA and for any acts or omissions of the Sub-Processor that cause eMailbase to breach any of its obligations under this DPA. 

7.3. Changes to Sub-Processor: eMailbase shall provide notification to Customer by email or through Customer’s account on the Platform of any new Sub-Processors before authorizing such new Sub-processor(s) to Process Customer Data. Customer will have the possibility, in the event of an objection that is justified by a violation of EU Data Protection Law, to terminate the Terms during thirty (30) days following the email or notification.

8. U.S. Data Subjects

8.1. Definitions: This Section 8 applies to the extent that eMailbase Processes Personal Data on Customer’s behalf that is subject to the protections of the CCPA or comparable U.S. state consumer privacy law (“Personal Information”). For the purposes of this section: (i) “Business”, “Service Provider”, “Sell”, and “Share” shall have the meanings given to them in the CCPA or other applicable U.S. state Data Protection Law and (ii) “Controller” is replaced with “Business”, “Processor” is replaced with “Service Provider”, and “Personal Data” is replaced with “Personal Information” throughout this DPA to the extent necessary for alignment with applicable Data Protection Laws. 

8.2. Responsibilities: The Parties agree that eMailbase will Process Personal Information contained in Customer Data as Customer’s Service Provider in accordance with the CCPA or other applicable U.S. Data Protection Laws strictly for the business purpose of performing the Services under the Terms. eMailbase shall not (i) Sell Personal Information contained in Customer Data; (ii) Share Personal Information contained in Customer Data with third parties for cross-contextual behavioral advertising purposes; (iii) retain, use, or disclose Personal Information contained in Customer Data for a commercial purpose other than for such business purpose or as otherwise permitted by applicable U.S. Data Protection Laws; or (iv) retain, use, or disclose Personal Information contained in Customer Data outside of the direct business relationship between Customer and eMailbase. Customer agrees that Customer is solely liable for Customer’s compliance with applicable Data Protection Laws in Customer’s use of eMailbase services.

8.3. Certification: eMailbase certifies that it understands and will comply with the restrictions of Section 8.2.

8.4. No Sale of Personal Information: The parties agree that Customer does not sell Personal Information to eMailbase because, as a Service Provider, eMailbase may only use Personal Information contained in Customer Data for the purposes of providing the Services to Customer.

9. International Transfers

The Services may at times require the Processing of Customer Data outside the EEA where eMailbase, its Affiliates or its Sub-processors maintain operations. eMailbase shall at all times provide an adequate level of protection of the Customer Data processed, in accordance with the requirements of applicable Data Protection Laws, including Standard Contractual Clauses and supplementary measures. eMailbase reserves the right to rely on the EU-US Data Privacy Framework for transfers to the US, as long as this framework remains valid.