1. Definitions
1.1. In these Terms and Conditions, the following terms, which are always capitalized and may be used in the singular or plural form, have the following meanings:
1.1.1. Account means the account created by the User to access and use the Service.
1.1.2. Agreement means the entirety of the agreements made between Lettermint and the User for the provision and/or use of the Service, which includes these Terms and Conditions.
1.1.3. AUP means Lettermint's Acceptable Use Policy, available at lettermint.co/acceptable-use.
1.1.4. Data means all data, information, and content that the User or third parties store, process, or make available through the Service, including but not limited to personal data, video recordings, analyses, statistics, and other information.
1.1.5. GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
1.1.6. Intellectual Property Rights means all intellectual property rights and all related rights, including but not limited to copyrights, database rights, trade name rights, trademark rights, design rights, patent rights, rights to know-how, rights to confidential information, rights to trade secrets and rights to domain names.
1.1.7. Offer means the offer that Lettermint makes or has made to the User for the provision of the Service, whether or not in the form of a (written) quotation.
1.1.8. Parties means Lettermint and the User.
1.1.9. Party means Lettermint or the User.
1.1.10. Personal Data means personal data as defined in article 4.1 of the GDPR.
1.1.11. Privacy Policy means the privacy policy of Lettermint, available at lettermint.co/privacy-policy.
1.1.12. Service all activities that Lettermint performs for the User under the Agreement. Lettermint's primary service is the provision of an email service provider (ESP) platform, enabling the sending of transactional email, broadcast email, inbound email, and related services via Lettermint's infrastructure and APIs. The Service may additionally include any other or future components, functionalities, applications, interfaces, and updates, as well as consultancy, support, and other professional services.
1.1.13. Lettermint means the private limited liability company under the laws of the Netherlands Lettermint B.V., established in Zwolle, the Netherlands, 8019 AB, Willemsvaart 16 B, registered in the trade register of the (Dutch) Chamber of Commerce under number 99337711.
1.1.14. Terms and Conditions means this set of Terms and Conditions of Lettermint.
1.1.15. User means the natural person or legal entity that enters into an Agreement with Lettermint for the provision and/or use of the Services or any natural person or legal entity who makes use of the Services otherwise.
1.1.16. Website means the Lettermint website, available at lettermint.co, including all underlying pages.
2. Applicability
2.1. These Terms and Conditions apply to all Offers and Agreements between Lettermint and the User concerning the provision of Services.
2.2. Deviations from these Terms and Conditions are only valid if they have been explicitly agreed upon in writing between Lettermint and the User.
2.3. The applicability of any general terms and conditions used by the User is explicitly rejected, unless Lettermint has explicitly agreed to their applicability in writing.
2.4. If any provision of these Terms and Conditions is or becomes void or is annulled, the other provisions of these Terms and Conditions remain fully applicable. Lettermint and the User will consult to agree on a new provision to replace the void or annulled provision, whereby the purpose and purport of the original provision is observed as much as possible.
2.5. Lettermint is entitled to unilaterally amend these Terms and Conditions. Amendments enter into force 30 (thirty) calendar days after Lettermint has notified the User in writing of the amendment. If the User does not agree with the amendment, the User may terminate the Agreement with effect from the date on which the amendment would enter into force. If the User continues to use the Services after the amendments have entered into force, the User is deemed to have accepted the amended Terms and Conditions. For the avoidance of doubt, where the User exercises its right to terminate the Agreement due to an amendment of these Terms and Conditions, the User may terminate the Agreement with effect from the date on which the amendment would enter into force, notwithstanding any fixed term of the Agreement.
2.6. In these Terms and Conditions in writing or written means communication by email, letter, or any other form of written communication that can be reproduced, unless these Terms and Conditions or the applicable law requires a different form.
2.7. These Terms and Conditions are drafted in English. If these Terms and Conditions are translated into any other language, the English version prevails in case of any conflict or inconsistency and this version must be interpreted in accordance with the laws of the Netherlands.
3. Lettermint
3.1. For questions, complaints, or other matters, the User can contact Lettermint. Lettermint can be reached using the following information:
Lettermint B.V.
Willemsvaart 16 B
8019 AB Zwolle
The Netherlands
Email: legal@lettermint.co
4. Conclusion of the Agreement
4.1. Lettermint makes an Offer to the User stating which Service is offered and what compensation the User owes upon acceptance of the Offer.
4.2. An Offer is without obligation and does not oblige the User to anything.
4.3. If an Offer is made in a (written) quotation, the Offer is valid for a period of fourteen (14) calendar days after the date of sending thereof by Lettermint, unless otherwise stated in the Offer.
4.4. The description of the Services in the Offer is binding. Lettermint is not bound by any deviation therefore in the User's acceptance response, even if this response deviates only in minor respects from the Offer.
4.5. The Offer may be based on information provided by the User. In that case, if this information proves to be incorrect, Lettermint is entitled to adjust the Offer and/or the fees owed by the User to the correct information, even after the Agreement has already been concluded.
4.6. Lettermint cannot be held to the Offer if the User could reasonably understand that the Offer, or any part thereof, contains an obvious or typographical error.
4.7. The Agreement will be concluded once the Offer has been accepted, by creating an Account, by using the Service and/or by the User (otherwise) agreeing to these Terms and Conditions. The Offer is deemed to have been accepted as soon as the User agrees to the Offer, or if Lettermint may reasonably regard an action of the User as (the impression of) (evoked) acceptance.
4.8. Lettermint is entitled to refuse an order or request without stating reasons.
4.9. If the User has provided incorrect or incomplete information that is relevant to the proper execution of the Agreement, Lettermint is entitled to suspend the execution of the Agreement until the User has provided the correct and complete information.
5. Responsibilities of the User
5.1. The User represents and warrants that he or she is authorized to use the Service.
5.2. The User is responsible for compliance with the Terms and Conditions.
5.3. The User is responsible for meeting the technical and functional requirements and for using the electronic communication tools necessary to access and use (parts of) the Service. The risk of loss, theft, or damage to any information, including (User) Data, remains with the User at all times.
5.4. The User is responsible for the correct functioning of any third-party products and/or services and links between these third-party products and/or the Services.
6. Account
6.1. To use the Services, the User must create an Account. The User is responsible for the accuracy and completeness of the information provided when creating the Account.
6.2. The User is responsible for maintaining the confidentiality of login credentials (username and password) and for all activities that take place under the Account.
6.3. The User must immediately notify Lettermint in writing if the User suspects or becomes aware of unauthorized use of the Account or login credentials.
6.4. Lettermint is entitled to suspend or terminate the User's access to the Services if:
6.4.1. the User violates these Terms and Conditions;
6.4.2. the User fails to pay amounts due;
6.4.3. the User's actions pose a risk to the security or integrity of the Services or other users;
6.4.4. Lettermint is required to do so by law or by order of a competent authority.
6.5. The User may not transfer, sell, rent, or otherwise make the Account available to third parties without Lettermint's prior written consent.
7. Acceptable and prohibited use of the Services
7.1. The User undertakes to use the Services only in accordance with these Terms and Conditions and any instructions provided by Lettermint and in full compliance with all applicable laws and regulations, including but not limited to applicable data protection laws (including the GDPR), anti-spam legislation, electronic communications regulations, consumer protection laws, and applicable industry standards and best practices.
7.2. The User is responsible for ensuring that its use of the Services complies with the applicable laws and regulations of all jurisdictions in which the User operates or where the User's recipients are located. This includes, without limitation, the requirements of the Dutch Telecommunications Act (Telecommunicatiewet), Directive 2002/58/EC (ePrivacy Directive), the CAN-SPAM Act, Canada's Anti-Spam Legislation (CASL), and any equivalent legislation in other applicable jurisdictions.
7.3. In addition to the requirements set out in this article, the User shall comply with Lettermint's AUP. The AUP contains specific requirements regarding spam complaint rates, bounce rates, and email sending best practices and is incorporated by reference into the Agreement. Lettermint may update the AUP in accordance with article 2.5 of these Terms and Conditions.
7.4. The User represents and warrants that all email communications sent through the Services comply with the following requirements:
7.4.1. the User shall only send messages to recipients who have given their prior, explicit, and verifiable consent to receive communications from the User, or where the User has another valid legal basis to send such communications in accordance with applicable law. Purchased, rented, or third-party email lists that do not meet these consent requirements may not be used.
7.4.2. all messages must clearly and accurately identify the User as the sender, including a valid reply-to or sender address. The use of misleading, deceptive, or forged header information is strictly prohibited.
7.4.3. all marketing and promotional messages must contain a clear, conspicuous, and functional unsubscribe or opt-out mechanism. The User shall honor all unsubscribe requests promptly.
7.4.4. the User shall not use deceptive or misleading subject lines.
7.4.5. all marketing messages must include the User's valid physical postal address.
7.5. The User shall actively manage its mailing lists and shall:
7.5.1. promptly remove all recipients who have unsubscribed or opted out;
7.5.2. regularly process hard bounces, soft bounces, and spam complaints;
7.5.3. maintain a spam complaint rate and bounce rate within the limits communicated by Lettermint from time to time.
7.6. The User acknowledges that failure to comply with the email sending practices in this article may result in reputational harm to Lettermint's sending infrastructure. The User shall be liable for all resulting damages.
7.7. The User is expressly prohibited from using the Services for unlawful acts or for acts otherwise prohibited under applicable law and regulations, or from otherwise misusing the Services. In this regard, the User is, among other things, strictly prohibited from using the Services to send, transmit, store, or distribute content that:
7.7.1. is unlawful, fraudulent, or deceptive under applicable law;
7.7.2. constitutes unsolicited commercial electronic messages ("spam");
7.7.3. promotes, facilitates, or constitutes phishing, spoofing, identity theft, or other fraudulent activities;
7.7.4. contains or distributes malware, viruses, ransomware, spyware, or any other malicious code;
7.7.5. promotes, facilitates, or constitutes the illegal sale or distribution of controlled substances or narcotics;
7.7.6. promotes, facilitates, or constitutes illegal arms trafficking or the illegal sale of firearms or weapons;
7.7.7. promotes, facilitates, or constitutes unlicensed or illegal gambling activities not conducted in compliance with a valid license from a competent authority;
7.7.8. incites hatred, discrimination, or violence based on race, ethnicity, gender, religion, sexual orientation, disability, or any other protected characteristic;
7.7.9. infringes any Intellectual Property Rights or other rights of any third party;
7.7.10. constitutes child sexual abuse material or any content that sexually exploits minors; or
7.7.11. otherwise violates any applicable law or regulation.
7.8. For the avoidance of doubt, the prohibitions in this article apply to the nature and content of the messages sent through the Services, and not to the industry sector or regulated activity of the User. The following uses are expressly permitted, provided that the User complies with all applicable laws and licensing requirements:
7.8.1. licensed gambling operators or state lotteries sending transactional or operational messages in connection with their lawfully licensed activities;
7.8.2. law enforcement agencies, government bodies, or regulatory authorities sending transactional, operational, or training-related messages in the exercise of their official functions;
7.8.3. healthcare providers or pharmaceutical companies sending transactional or operational messages in compliance with applicable healthcare regulations and data protection law.
7.9. The User is expressly prohibited from:
7.9.1. unauthorized access to, interference with, or disruption of the Services or any third-party systems;
7.9.2. circumventing any technical, security, or rate-limiting measures;
7.9.3. using automated systems that place a disproportionate load on Lettermint's infrastructure;
7.9.4. harvesting or scraping email addresses from the Services;
7.9.5. reselling or sublicensing the Services without prior written consent;
7.9.6. sending messages on behalf of third parties without proper consents and legal compliance.
7.10. The User represents and warrants that any contact list used with the Services:
7.10.1. was obtained legally and in compliance with applicable data protection laws;
7.10.2. consists only of recipients who have provided verifiable consent or in respect of whom the User has a valid legal basis;
7.10.3. is maintained in compliance with opt-out and erasure obligations.
7.11. Lettermint recommends the use of a confirmed double opt-in process for marketing communications.
7.12. Upon Lettermint's reasonable request, the User shall provide evidence of consent or legal basis for any recipient list.
7.13. Lettermint reserves the right, but has no obligation, to monitor the User's use of the Services for compliance with this article.
7.14. If Lettermint has reasonable grounds to suspect a violation, Lettermint may, without prior notice or liability:
7.14.1. immediately suspend or restrict access to the Services;
7.14.2. remove, block, or quarantine violating content;
7.14.3. report violations to competent authorities;
7.14.4. terminate the Agreement with immediate effect.
7.15. Suspension or termination under this article does not affect the User's payment obligations or give rise to any right to a refund.
7.16. The User shall indemnify Lettermint against all claims, damages, fines, costs, and losses arising from the User's violation of this article.
7.17. Lettermint is entitled to take all reasonable measures to prevent or avert risks or damage to the extent it deems necessary, including but not limited to limiting, suspending or terminating access to and/or use of (parts of) the Services, all at the sole discretion of Lettermint and without being liable for any damages.
8. Availability and maintenance
8.1. Lettermint endeavors to keep the Services available, but does not guarantee uninterrupted availability.
8.2. Lettermint reserves the right to temporarily disable the Services for maintenance, modifications, and/or upgrades, without the User being entitled to any compensation. Lettermint strives to announce maintenance in advance whenever possible and to keep the downtime of the Services as short as possible.
8.3. Lettermint may offer Service Level Agreements ('SLA') specifying uptime commitments, response times, and service credits for specific pricing plans. In the absence of an applicable SLA, Lettermint's obligations regarding availability are solely governed by this article 8.
8.4. Lettermint is not liable for damage resulting from temporary unavailability of the Services, except in cases of intent or deliberate recklessness on the part of Lettermint.
8.5. Lettermint is entitled to modify or update the Services or parts thereof at any time without prior notice, regardless of whether the Services are subsequently no longer available via certain operating systems and/or hardware. Lettermint is not liable for any damage resulting from such modifications or updates.
8.6. Lettermint is also entitled to permanently discontinue the Services or a material part thereof. In the event that Lettermint decides to, Lettermint will provide the User with at least 30 (thirty) calendar days' prior written notice of such discontinuation. Lettermint is not liable for any damage resulting from such discontinuation.
9. No warranties
9.1. The Services are provided "as is" and "as available," without any warranties of any kind, whether express or implied.
9.2. Lettermint does, amongst others, not warrant that:
9.2.1. the Services will be error-free, uninterrupted, or free from viruses or other harmful components;
9.2.2. The Services will meet the User's specific requirements or expectations;
9.2.3. the results obtained through the use of the Services will be accurate or reliable at all times.
9.3. The User acknowledges and accepts that the use of the Services is at the User's own risk. Lettermint is not responsible for any damage resulting from the use of or inability to use the Services, except as provided in article 18 (Liability).
10. (Additional) Services
10.1. All Services provided by Lettermint are performed on a best-efforts basis unless Lettermint has explicitly promised a specific result in writing in the Agreement and the Agreement describes that result in sufficient detail. Lettermint does not guarantee any particular outcome from consultancy, advice, support, or training services. The User acknowledges that the success of Services may depend on factors beyond Lettermint's control, including the User's cooperation, the quality of information provided by the User, and external circumstances.
10.2. Lettermint makes reasonable efforts to comply, to the greatest extent possible, with the terms and delivery periods and/or dates and delivery dates, whether or not these are deadlines and/or strict dates, that they have specified or that parties have agreed on. The interim dates and delivery dates specified by Lettermint or agreed on by parties always apply as target dates, do not bind Lettermint and are always indicative.
10.3. Lettermint may, at the request or with the prior consent of the User, perform activities other than making the Lettermint SaaS-product available, including but not limited to performing activities in the field of consultancy, support, training, project management, and/or setting up the User's environment in the Services (collectively, "Additional Services").
10.4. If Additional Services are provided, the User shall compensate for this work or other services at Lettermint's agreed (hourly) rates and, in the absence thereof, at Lettermint's usual (hourly) rates.
10.5. The User undertakes to fully cooperate with Lettermint in the performance of Additional Services under this article, including but not limited by:
10.5.1. providing timely, accurate, and complete information, documentation, and access to systems as reasonably requested by Lettermint;
10.5.2. designating qualified contact persons with sufficient knowledge and decision-making authority;
10.5.3. providing access to necessary systems, facilities, premises, and documentation required for the performance of the Additional Services;
10.5.4. ensuring that the User's personnel and any third parties engaged by the User have the required knowledge, skills, and experience to cooperate effectively;
10.5.5. making timely decisions and providing approvals when required for the progress of the Additional Services;
10.5.6. complying with any reasonable instructions or recommendations provided by Lettermint.
10.6. If the User fails to meet these cooperation obligations, or if such failure causes delay or additional work, Lettermint is entitled to:
10.6.1. suspend its performance under the Agreement until the User has fulfilled its obligations;
10.6.2. adjust agreed terms, deadlines, and rates to reflect the additional time and effort required;
10.6.3. charge the User for any additional costs incurred as a result of the User's failure to cooperate.
10.7. Lettermint is not liable for any failure to meet agreed deadlines, specifications, or outcomes if such failure is caused, in whole or in part, by the User's failure to fulfill its cooperation obligations
11. Additional Work
11.1. If the User requests Lettermint to perform work that falls outside the content and/or scope of the Agreement and/or involves changes to it (collectively, "Additional Work"), Lettermint is not obligated to fulfill that request. Lettermint may require the User to enter into a separate agreement for the Additional Work in that case.
11.2. The User acknowledges and accepts that Additional Work may affect the performance of the Agreement, the responsibilities of the Parties and any previously agreed rates and/or terms.
11.3. The fact that Additional Work occurs during the performance of the Agreement is not a basis for cancellation, rescission or annulment of the Agreement by the User.
12. Fees and payment
12.1. The User shall pay to Lettermint the fees (for the Service) specified in the Offer and/or the fees otherwise agreed upon. All fees are always exclusive of VAT and other government levies and in euros, unless otherwise stated.
12.2. For the use of the Services, Lettermint offers various pricing plans that include different combinations of features of the Services. The User's chosen pricing plan will determine the specific services and features to be provided by Lettermint. Pricing plans are subject to change at the sole discretion of Lettermint. The latest pricing plans can be found on lettermint.co/pricing. The User's applicable pricing plan is the one in effect at the time of entering into this Agreement.
12.3. Each pricing plan includes a defined volume of email sends or other usage metrics as specified in the applicable pricing plan. If the User's usage exceeds the limits of its pricing plan in any billing period, additional charges ("overages") will apply at the rates specified for the User's plan as published on the Website. Overages will be calculated and billed to the User's account automatically at the end of each billing period.
12.4. Users may opt to disable overages or to set a maximum overage spending limit ('Budget Cap') through their Account settings. If a User has disabled overages and reaches the volume limit of its pricing plan, Lettermint may suspend the User's email sending capabilities for the remainder of the billing period without liability. If a Budget Cap is set, once the Budget Cap is reached, Lettermint will suspend overage billing and may limit email sending capabilities accordingly. Lettermint is not liable for any damages, loss of business, or failed email deliveries resulting from a suspension pursuant to this article.
12.5. Payments must be made in euros, unless otherwise agreed.
12.6. Payments are due on a monthly or annual basis, depending on the billing cycle selected by the User at the time of subscription, unless otherwise agreed in writing. Monthly subscriptions are billed monthly in advance at the start of each monthly billing period. Annual subscriptions are billed annually in advance.
12.7. The User agrees to electronic invoicing by Lettermint.
12.8. Lettermint is entitled to adjust its rates and fees. Lettermint will notify the User of this at least one (1) month in advance. If the increase exceeds 10% and the User does not wish to agree to such an increase, the User is entitled, within 30 (thirty) days of notification by Lettermint, to cancel the Agreement with effect from the date the increase takes effect.
12.9. The payment term for invoices sent by Lettermint is 14 (fourteen) calendar days from the invoice date, unless expressly stated otherwise.
12.10. Late payment by the User entitles Lettermint to fully suspend its obligations under the Agreement. This does not affect the User's obligation to (continue to) make payments.
12.11. Payment terms are fatal deadlines. If the User fails to meet their payment obligation(s) on time, he is in default by operation of law.
12.12. If the User has been requested by or on behalf of Lettermint to pay a late payment within 14 (fourteen) days, and payment has not been made after this period has expired, the User shall also owe the statutory commercial interest on the amount owed. Lettermint is also entitled to charge the User for all costs incurred and yet to be incurred to collect the amount, including but not limited to all extrajudicial and judicial (collection) costs, including costs for attorneys, bailiffs, and debt collection agencies. The extrajudicial (collection) costs will be calculated according to the Dutch "Staffel Buitengerechtelijke incassokosten" (BIK, extrajudicial collection costs).
12.13. The claim for payment of fees is immediately due and payable when the User is declared bankrupt, when the User applies for a suspension of payments, when full attachment is levied on the User's assets and/or when the User goes into liquidation or is dissolved.
13. Intellectual Property Rights
13.1. All Intellectual Property Rights in all works developed or made available within the framework of the Services, the Website, and all related materials, computer software (integral to the services provided by Lettermint), graphical user interfaces, (source and object) codes, designs, documentation, analyses, protocols, advice, reports, quotations, documents, contracts, deeds and configuration files on which Intellectual Property Rights may rest, and the preparatory material thereof, belong to Lettermint and/or its licensor(s).
13.2. Lettermint grants the User a non-exclusive, non-transferable, and non-sublicensable right to use the Services for the term of the Agreement, solely for the User's own business operations.
13.3. The User is granted only the rights of use and authorizations expressly granted to him under the Agreement or by law. The right of use granted to the User hereby is non-exclusive, non-sublicensable, non-transferable, limited to the term of the Agreement, and limited to use in connection with the Service. Unless otherwise agreed in writing, this right of use does not extend to third-party products and/or services and/or third-party integrations. The terms and conditions of those third parties apply to such third-party integrations.
13.4. Lettermint and/or its licensor(s) reserve all rights, claims and interests not granted to the User under the Agreement or by law.
13.5. The User is expressly prohibited from downloading, copying, modifying, reverse engineering, making public, using for direct or indirect commercial purposes, disassemble, decompile, alter, replicate, disclose or use for any purpose other than the purposes stated in the Agreement, any (part of) information made accessible in the context of providing the Service, unless such use has been agreed upon and/or mandatory applicable law permits such use.
13.6. The User shall not remove or alter any indication(s) concerning the confidential nature or any Intellectual Property Right on any work.
13.7. Lettermint is authorized to implement (visible or invisible) technical measures to protect materials or other works. The User is not permitted to circumvent or remove such technical measures.
13.8. The User shall not perform any actions that may infringe the Intellectual Property Rights of Lettermint and/or its licensors, including but not limited to unauthorized disclosure and/or reproduction of (any part of) the Services and/or the registration of domain names, trade names, trademarks and/or Google AdWords or Bing Ads search terms or keywords (or search terms or keywords in other search engines) that resemble or are identical to any sign to which Lettermint and/or its licensors may assert Intellectual Property Rights.
13.9. The User grants Lettermint a royalty-free, non-exclusive, worldwide license to all (User) Data to the extent that it is subject to Intellectual Property Rights, solely for the purpose of providing, maintaining, and improving the Services under the Agreement, and only for the duration of the Agreement.
13.10. Lettermint shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable and perpetual right to use and incorporate into the Services any suggestions, improvement requests, recommendations or other feedback provided by the User regarding (the operation of) the Services.
14. Data
14.1. The User retains all rights, title, and interest in and to the Data that the User uploads, stores, or processes via the Services.
14.2. By using the Services, the User grants Lettermint a non-exclusive, worldwide, royalty-free license to use, copy, store, transmit, and process the Data solely to the extent necessary for the provision of the Services under the Agreement, in compliance with applicable data protection legislation including the GDPR.
14.3. The User represents and warrants that:
14.3.1. he has all necessary rights, licenses, and consents to upload, store, and process the Data via the Services;
14.3.2. the Data does not infringe any Intellectual Property Rights, privacy rights, or other rights of third parties;
14.3.3. the Data does not contain any unlawful, harmful, threatening, defamatory, obscene, or otherwise objectionable content.
14.4. The User is solely responsible for the content, accuracy, quality, and legality of the Data. Lettermint is not responsible for the Data and does not review, monitor, or verify the Data.
14.5. Lettermint is entitled to remove or block access to Data if:
14.5.1. Lettermint reasonably believes that the Data violates these Terms and Conditions, applicable laws, or third-party rights;
14.5.2. Lettermint is required to do so by law or by order of a competent authority; or
14.5.3. the Data poses a security risk to the Services or other users.
14.6. The User must ensure that adequate backups of the Data are made. Lettermint is not responsible for the loss or corruption of Data, except in cases of intent or gross negligence on the part of Lettermint.
15. Privacy
15.1. The User is responsible for his Data, the Personal Data and other data imported or entered into the Services, including for the protection thereof.
15.2. The User represents and warrants that the provision of Personal Data to Lettermint, the entry of Personal Data into the Service, and the processing by Lettermint is lawful and does not infringe any third-party rights. More specifically, the User represents and warrants that the provision of Personal Data to Lettermint complies with articles 5-11 of the GDPR.
15.3. Lettermint processes Personal Data on behalf of the User as a data processor within the meaning of the GDPR. The Parties shall at all times have in place a data processing agreement that complies with Article 28 GDPR. When Parties did not have concluded a specific data processing agreement, the terms of the standard data processing agreement of Lettermint apply, which is available on the Website and which is deemed to have been accepted by the User upon entering into the Agreement.
16. Confidentiality
16.1. Both Parties undertake to keep confidential all information of a confidential nature that they receive from the other Party in the context of the Agreement, except to the extent that disclosure is required by law, by order of a competent authority, or with the prior written consent of the disclosing Party.
16.2. Information is considered confidential if it has been designated as such by the disclosing Party or if the nature of the information is such that the receiving Party should reasonably understand that it is confidential.
16.3. The obligation of confidentiality does not apply to information that:
16.3.1. was already known to the receiving Party before disclosure, without an obligation of confidentiality;
16.3.2. is or becomes publicly available without any breach of these Terms and Conditions by the receiving Party;
16.3.3. is lawfully obtained from a third party without an obligation of confidentiality;
16.3.4. is independently developed by the receiving Party without use of or reference to the confidential information.
16.4. The obligation of confidentiality continues to apply after termination of the Agreement.
16.5. The User is responsible for ensuring that all of its personnel, representatives, or any other parties comply with these confidentiality obligations.
17. Force majeure
17.1. A Party cannot be held to fulfill any contractual and/or legal obligation if it is prevented from doing so due to force majeure. Force majeure shall be deemed to exist if a Party is prevented from fulfilling its obligation(s) as a result of circumstances beyond its control and for which it cannot be held responsible under the law, a legal act, or generally accepted standards of conduct.
17.2. Force majeure on the part of Lettermint, in addition to what is understood by law and case law, also includes illness of employees and/or absence of employees who are crucial to the delivery of the Service, interruptions in the supply of electricity, strikes, riots, fire, natural disasters, floods, shortcomings of Lettermint's suppliers, shortcomings of third parties engaged by Lettermint, internet disruptions, hardware disruptions, disruptions in (telecommunications) networks, epidemics, pandemics, government measures and all other external causes over which Lettermint has no influence.
17.3. The Party invoking force majeure is obliged to make every effort to ensure that the force majeure situation lasts as short as possible.
17.4. In the event of force majeure, Lettermint is entitled to suspend its obligations under the Agreement or to cancel the Agreement in its entirety and with immediate effect, without incurring any obligation, such as the obligation to pay damages.
18. Liability
18.1. Lettermint's liability for damages resulting from an attributable failure to perform the Agreement, tort or otherwise, is excluded to the extent permitted by mandatory law.
18.2. To the extent that Lettermint's liability cannot be excluded under applicable mandatory law, Lettermint's total liability for direct damage is limited as follows:
18.2.1. Lettermint's total liability for all direct damage arising from or related to the provision of the Services is limited to compensation up to a maximum of:
18.2.1.1. the amount covered by Lettermint's professional liability insurance in the relevant case; or
18.2.1.2. if no insurance coverage is available or if the insurance does not cover the damage, an amount equal to the fees (excluding VAT) that the User paid to Lettermint for the use of the Services in the year immediately preceding the event giving rise to liability.
18.2.2. For consultancy projects, or other project-based Services (as opposed to recurring SaaS subscription services), Lettermint's total liability for all direct damage is limited to compensation up to a maximum of:
18.2.2.1. the amount covered by Lettermint's professional liability insurance in the relevant case; or
18.2.2.2. if no insurance coverage is available or if the insurance does not cover the damage, an amount equal to the fees (excluding VAT) invoiced to the User for that specific project, with an absolute maximum of EUR 10,000.
18.2.3. If multiple events give rise to liability, Lettermint's total liability for all such events together is limited to the maximum amounts stated in sub-paragraphs 18.2.1 and 18.2.2, as applicable.
18.3. Direct damage is understood to mean only:
18.3.1. material damage to property;
18.3.2. reasonable costs incurred to prevent or limit direct damage that could be expected as a result of the event on which liability is based; and
18.3.3. reasonable costs incurred to determine the cause of the damage.
18.4. Notwithstanding the foregoing, Lettermint's liability for damages resulting from death, physical injury, or material damage to goods is limited to EUR 1,750,000.
18.5. Lettermint's liability for indirect damages is excluded in all cases. Indirect damages are any damages not defined as direct damages in these Terms and Conditions and include, but are not limited to, consequential damages, loss of profits, loss of business, loss of anticipated savings, loss of information (including Data), and/or loss of goodwill or reputation.
18.6. Without prejudice to the above, Lettermint excludes any liability for acts of third parties engaged by it and for malfunctions in products and/or services of third parties. If the User becomes aware of such an act and/or malfunction, the User's sole and exclusive remedy is to report it to Lettermint. Lettermint may, in its sole discretion, replace the third party and/or product or service or create a workaround.
18.7. The exclusions and limitations of this article do not apply if and to the extent that the damage is caused by intent or deliberate recklessness on the part of Lettermint and/or its management.
18.8. Unless performance of the agreement by Lettermint is permanently impossible, Lettermint's liability due to an attributable failure in the performance of the agreement only arises if the User sends Lettermint a notice of default immediately in writing, thereby setting a reasonable term for remedying the failure, and Lettermint continues to fail attributably in the performance of its obligations even after that term.
18.9. Any claim for damages by the User that is not specifically and explicitly reported by the User will lapse after a period of 12 (twelve) months from the time the claim arose. This does not affect the User's obligation to file a complaint.
18.10. To the maximum extent permitted by applicable law, and unless mandatory applicable law provides otherwise, the User shall be liable for and shall indemnify Lettermint and its affiliated companies, and the directors and officers thereof, from and against any and all third party liabilities, losses, damages, fines, costs or claims (including but not limited to legal fees on an indemnity basis), regardless of cause, relating to or arising out of the User's use of the Service, a breach of the User of the Agreement, and/or any unlawful activities, including but not limited to the infringement of Intellectual Property Rights.
19. Term and termination
19.1. The Agreement is entered into for the term agreed upon between the Parties, failing which the term corresponds to the User's selected billing cycle (monthly or annual). Upon expiration of the term, the Agreement will be tacitly extended for the same term, unless the Agreement is cancelled by either Party or otherwise terminated.
19.2. The User may cancel the Agreement as follows:
19.2.1. for monthly subscriptions: the User may cancel in writing at the end of any monthly billing period;
19.2.2. for annual subscriptions: the User may cancel in writing at the end of the annual term.
19.3. Lettermint may cancel the Agreement at any time by providing at least thirty (30) calendar days' prior written notice to the User.
19.4. For project-based Services (such as consultancy projects with a defined scope and timeline), either party may cancel the Agreement only:
19.4.1. upon completion of the ongoing project phase; or
19.4.2. by mutual written agreement.
19.5. Each Party is authorized to rescind the Agreement due to a breach of the Agreement by the other Party, if the other Party continues to fail to comply with the Agreement even after proper notice of default and the expiry of the reasonable period(s) specified therein. The notice of default must contain a description of the breach that is as complete and detailed as possible, so that the other Party is given the opportunity to respond adequately.
19.6. If at the time of rescission (part of) the Service has already been provided by Lettermint to the User, then this Service and the associated (payment) obligation(s) will not be subject to the undoing obligations as a result of the rescission.
19.7. Notwithstanding article 19.8, new Users are entitled to a refund of fees paid for the first subscription period if they request termination of the Agreement within 30 (thirty) calendar days of the commencement of their first subscription ('Refund Period'). This refund right:
19.7.1. applies exclusively to the User's first subscription with Lettermint;
19.7.2. does not apply to renewals, upgrades, downgrades, or any Additional Services;
19.7.3. is forfeited upon material breach of article 7 (Acceptable Use).
Refund requests must be submitted in writing to Lettermint within the Refund Period.
19.8. Lettermint shall never be liable for any damages and/or any refund of fees already received due to termination of the Agreement, in any manner and for any reason whatsoever.
19.9. Upon termination of the Agreement in any manner and for any reason:
19.9.1. all rights of the User under this Agreement shall immediately cease;
19.9.2. the User is not entitled to a refund of any amount paid;
19.9.3. the User has 30 (thirty) calendar days after the effective termination date to retrieve the User's Data from the Services. After this period, Lettermint is entitled to permanently delete all Data associated with the User Account. Lettermint may charge a reasonable fee for assisting the User with Data retrieval or providing Data in a specific format.
19.10. All provisions intended to survive the termination of this Agreement, in any way, shall survive the termination of this Agreement. These provisions include (but are not limited to) the provisions regarding the exclusions and limitations of Lettermint's liability, confidentiality, Intellectual Property Rights, applicable law, dispute resolution, and this provision.
20. Applicable law
20.1. The Agreement, (the provision of) the Services and all legal acts and disputes arising therefrom shall be governed exclusively by the laws of the Netherlands, unless mandatory law provides otherwise.
20.2. The United Nations Convention on Contracts for the International Sale of Goods ("Vienna Sales Convention 1980") shall not apply.
21. Disputes
21.1. To the extent permitted by mandatory law, all disputes between the Parties shall in the first instance be resolved by mutual agreement between the Parties.
21.2. If after 14 days Parties do not succeed in resolving the dispute in mutual consultation, each of the Parties is entitled to start an ICT-Mediation procedure in accordance with the ICT-Mediation Regulations of the Stichting Geschillenoplossing Automatisering (SGOA). The other Party is obliged to actively and constructively participate in a started ICT-Mediation procedure.
21.3. If, within 30 days from the commencement of mediation, the Parties fail to resolve the disputes through mediation, the following shall apply with regard to dispute resolution.
21.4. If the User is domiciled or established in an EU country, Denmark, Iceland, Norway or Switzerland, disputes shall be exclusively settled by the competent court of the District Court of Overijssel location Zwolle (the Netherlands), unless mandatory law provides otherwise.
21.5. If the User is not domiciled or established in an EU country, Denmark, Iceland, Norway or Switzerland, then disputes shall be settled exclusively by arbitration in accordance with the arbitration rules of the Stichting Geschillenoplossing Automatisering (SGOA), with its registered office in The Hague, the Netherlands, which will be the place of arbitration. If the User is a natural person not acting in the exercise of a profession or business, then the User has one (1) month, after Lettermint has invoked this arbitration clause in writing against the User, to opt for settlement of the dispute by the court competent under the law.
21.6. The preceding paragraphs shall not affect the possibility of the Parties to take precautionary measures and/or interim relief before the competent court of the District Court of Overijssel location Zwolle (the Netherlands), unless another court is competent on the basis of mandatory law.
22. Miscellaneous
22.1. In these Terms and Conditions, "written" also includes communication by email, if and to the extent that the identity of the sender and the integrity of the content of the communication are sufficiently established.
22.2. If the Agreement is or becomes partially invalid or void, the Parties will remain bound by the remaining part of the Agreement. Lettermint will replace the invalid or void portion with provisions that are valid and not void, and whose legal consequences, given the content and scope of the Agreement, correspond as closely as possible to those of the invalid and/or void portion.
22.3. All notices or notifications permitted or required under the Agreement shall be in writing.
22.4. Lettermint may amend or supplement the Terms and Conditions at any time. The User will be informed of any changes or supplements by email and/or through updates on the Website and/or the Services and/or when logging in to the Services. The new version of the Terms and Conditions will be available for viewing and download on the Website and/or via the Services. If the User does not agree to the amended or supplemented Terms and Conditions, the User may terminate the Agreement with effect from the date on which the new Terms and Conditions would enter into force, notwithstanding any fixed term.
22.5. The version of any communication and/or documents received or stored by Lettermint shall be deemed authentic and binding evidence, unless the User provides evidence to the contrary.
22.6. Lettermint has the right to engage third parties for the full or partial performance of its rights and/or obligations under the Agreement.
22.7. The User may only transfer its rights and/or obligations under the Agreement to a third party with the prior written consent of Lettermint.
22.8. The failure of Lettermint to enforce at any time any provision of the Agreement shall in no way be construed to be a waiver of such provision or of any other provision thereof.