TERMS OF SERVICE AGREEMENT
This Agreement is effective as of 17 March 2023.
This Agreement governs the use of, and the subscription to, JungleMail 365, also known as JungleMail for Office 365 (“Service”, “JungleMail”) hosted and provided by EnovaPoint.
This Agreement is between You (“Customer”, “You”) and EnovaPoint, UAB with an address at P. Vileisio str. 19a-43, Vilnius, LT-10300, Lithuania, and EU VAT LT-100003251118 (“EnovaPoint”, “Our”, “We”) agreed on these terms (“Terms”) for provision of EnovaPoint JungleMail for Office 365 service.
By accessing JungleMail 365 or by signing or accepting the present agreement, you agree to these Terms, unless you have a superseding written agreement with EnovaPoint.
JungleMail 365 is an email service app for the Microsoft 365 platform, hosted in Microsoft Azure and distributed through the Microsoft Office 365 app store (AppSource) or provided directly by EnovaPoint together with its related services. (the “Service”).
“JungleMail Users” – Microsoft 365 users who access and interact with the Service to send Newsletters, create templates, review analytics.
“Recipient” means a person receiving an Email
“Unique Recipients” – a metric used to determine the number of unique Recipients used within the Service during 3 months period (per quarter).
“JungleMail Site” refers to:
- a JungleMail site entity created and accessible in the JungleMail user interface for the purpose of sending newsletters and/or creating templates and/or reviewing newsletter analytics and separation of other JungleMail Users activity within the Service;
- a JungleMail site entity linked to a separate SharePoint Online site (formerly known as a “site collection”) with JungleMail SharePoint app installed for the purpose of sending newsletters and/or creating templates and/or reviewing newsletter analytics and separation of other JungleMail Users activity within the Service.
It is important to note that a SharePoint site with the JungleMail SharePoint app installed solely to provide the Service with the access to the site for content retrieval or storage purposes, does not count towards or qualify as a JungleMail Site.
“Azure” means Microsoft Azure cloud computing platform.
“Microsoft 365”means the Microsoft 365 cloud platform provided by Microsoft
“Office 365” means the old name of Microsoft 365 cloud platform provided by Microsoft
“Support” shall mean technical support services for the Service, updates and maintenance.
“Subscription Term” the set term designated herein or in the initial or renewal invoice.
“AI” refers to the Artificial Intelligence text and graphical beta models, including but not limited to the AI Writer for text and AI Artist for image generation, provided by OpenAI within JungleMail 365 as beta services.
2. Access and use of the Service
2.1 Eligibility. In order to use the Service, you must have an active Microsoft 365 subscription from Microsoft, provide accurate contact information and agree to these Terms, Anti-Spam Policy (Appendix #1.), which form part of these Terms;
2.2 Service usage. You agree to use the Services during Subscription Term in accordance with these Terms, within volume of your projected audience (Unique Recipients), package (Basic, Pro or Enterprise), number of JungleMail Users and JungleMail Sites (together the “Plan”). You also understand that in accordance to the Plan, the Service may impose limits on, for example, the amount of email sent, Unique Recipients amount, AI credits, the amount of JungleMail Sites or the number of JungleMail Users.
2.3 Service access. Access to the Service is limited to Microsoft 365 user accounts only. Users are accessing the Service by passing on their Microsoft 365 user security token.
2.4 Access granted by Customer. You understand and agree that in order to use an additional functionality of the Service, you need to provide read access to Your Microsoft User Profile, Microsoft Azure Active Directory, Exchange Online, read or write access to specific lists in Microsoft 365 SharePoint Online. Service can also be granted a read access to one or more of your Microsoft 365 SharePoint Online site collection(s). This access includes the access to the content or files stored by the Customer in its Microsoft 365 SharePoint Online site collection.
2.5 Data stored on our servers
“Customer Data” means any data that the Customer provided or was transferred by and to the Service in order to provide service to the Customer. This includes:
-Data provided during the registration process
-API Security Tokens, tenant identification data
-JungleMail Users data
-All data created with and uploaded to the Service. Including: newsletter settings, templates, images, email attachments, newsletter content created manually or retrieved automatically based on specified settings, landing pages, forms, chats with or requests to AI, AI generated responses
-Emails addresses and other related data of recipients used in a Newsletter or for newsletter analytics
-Campaign analytical data (email opens, link clicks, unsubscribes, bounces, survey responses and feedback, user logs and any other derived info)
-Campaign performance information (Sending and processing speed, other telemetric data)
-Bounced, blocked emails, spam complaints, unsubscribe events
-Billing data and usage history
-Email sending accounts, from, reply-to addresses
EnovaPoint has implemented appropriate technical and organizational measures to secure and protect Customer Data from unauthorized disclosure and modification. These measures are described in more detail on the EnovaPoint Security page, currently available at enovapoint.com/security-statement. Our security measures include:
– storing Customer Data on servers located in a secure physical location;
– access controls, and other security technology to protect Customer Data
2.6 Data Protection. For personal data of JugleMail Users and Recipients, processed by EnovaPoint as part of the Service, the Data Processing Agreement, currently available at https://www.enovapoint.com/legal/data-processing-addendum/ (“DPA”), applies and is a part of this Agreement, unless EnovaPoint and Customer have signed a separate data processing agreement.
2.7 AI usage. You understand and agree that: a) the usage of AI models available within the service may posses additional risks of data exposure or informational leaks; b) Your AI input and AI output would be stored in the United States regardless of your JungleMail Service hosting location; c) EnovaPoint has very limited possibilities to adjust or tune the AI output, and any output provided does not fall under our support obligations; d) EnovaPoint may turn off these AI beta services ar any time without prior notice; e) You may request the complete removal of AI functionality for your Service account by contacting email@example.com;
2.8 Unacceptable use. By agreeing to these Terms, You promise to follow these rules:
-You won’t send spam and comply with our Anti-Spam Policy (Appendix #1.)
– You won’t use AI models for generation of content specified in our Disallowed AI usage (Appendix #2.)
– You won’t use purchased, rented, or third-party lists of email addresses.
– Host Content or Images on our servers for any purpose other than for your use of the Service;
-You may not use the Service for any purpose which is illegal or violates any laws in your jurisdiction or in any way that intentionally or unintentionally violates any applicable local, state, national or international law;
-You may not access or use the Service if You are Our direct competitor, except with Our prior written consent. In addition, You may not access or use the Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
2.9 Fair usage, and abuse of features. Proper use of Our Service gives good value and performance to hundreds of our Customers. However, we have defined certain parameters to make sure that excessive or abusive use of certain Service features will not adversely affect Our other Customers and their ability to use the Service. These parameters are set beyond normal and considerate usage and thus, they will not affect the vast majority of our Customers at all.
You can be affected by these rules only if You use certain features of the Service excessively, to the extent that such usage overloads Our system and detrimentally affects the usability of the Service for other Customers.
Should our Compliance Team determine this, we will contact You immediately to let You know that You use the Service or part thereof in an excessive manner and supply You with simple advice on how to reduce Your usage.
If You do not follow our advice and Your usage of the Service is still excessive, we reserve the right to suspend or terminate the Service in whole or in part. Each case will be decided on an individual basis and at Our sole discretion.
3. Service Fees and billing
3.1. Service Fees. In order to use the Services outside of Your Trial or Free plan, Customer shall pay annual, quarterly or monthly fees. Fees are based on the Service Plan You subscribed to, number of additional JungleMail Users or JungleMail Sites set forth in the applicable order, invoice or purchased separately. The beginning of the subscription term corresponds to the date the invoice is sent to the Customer. Customer agrees that its subscription be automatically renewed for the same subscription term as the previous one, unless it cancels its subscription at least 7 days prior the Subscription expiration. Unless otherwise agreed in writing by the Parties, the Service Fees applicable to any such renewal shall be EnovaPoint then current standard Service Fees.
3.2 Payment type. You may pay for the Service using a credit card, PayPal or pay the invoice by wire transfer. Purchase orders are accepted only for annual subscriptions and additional supporting information may be asked before completing the order. Bank Checks are not accepted.
3.3 Plan changes. You can upgrade Your Plan at any time by sending your request to firstname.lastname@example.org or from the Service user interface if available. When upgrading we will calculate the difference between Your current and new Plan on pro-rata basis and provide You with instructions of how to pay for an upgrade. When downgrading, we will keep Your current Plan features and benefits until the end of Your current billing cycle. You will need then to repurchase Your subscription with the desired Plan (or use the Free version if available).
3.4 Free Plan. Trials. Your service usage may start with a free Plan or Trial. Such Plans may have limits imposed on the number of emails, users, documents or features. EnovaPoint reserves the right to change the conditions for the Free or Trial Plans at any time.
3.5 Refunds. We will give You a refund only if we terminate our Services to You without cause before the end of a period for which You have paid or in case of fraudulent payments made to Us using Your credit card. We won’t provide refunds if Your account was cancelled as a result of the violation of these Terms or Our Anti-Spam policy.
3.6 Non-Payment and Suspension of Service. If Customer’s account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, EnovaPoint reserves the right to suspend the Service upon fifty (15) days written notice, without liability to Customer, until such amounts are paid in full.
3.7. Third-Party Payment Processor. EnovaPoint reserves the right to use a third-party PCI-DSS compliant payment processor to process payments.
3.8 Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature on the Service, including, for example, value-added, sales, use, or withholding taxes assessable in any jurisdiction whatsoever. You agree to pay any taxes applicable to Your use of the Services.
4. Support services
4.1 Support period. During the Subscription Term, EnovaPoint will provide Support on an as-needed basis, for the sole purpose of addressing technical issues relating to the use of the Service, at the level dependent on the Package of the Service that has been purchased by Customer. The Customer is not entitled to receive Support outside of the Subscription Term.
4.2 Support channels. Includes web, email, phone, online session or remote technical support, but exclude any on-site technical support by EnovaPoint personnel, it partners or subcontractors.
4.3 Support hours and response time. Support is provided from 07:00 until 23:00 Central European time GMT+2 (1 am – 5 pm Eastern Time), Monday-Friday. EnovaPoint will use reasonable amount of time to respond and address technical issues related to the use of Service.
4.4 Support process: The Customer shall report the Service problems to the EnovaPoint support team using the support request page on https://www.enovapoint.com/support/, though the app if available or by email email@example.com, and provide EnovaPoint with:
a) Detailed description of the problem;
b) List steps to reproduce the issue and relevant data
EnovaPoint may request that the Customer takes certain actions to determine whether the problem or error is related to the Service or another item. The Customer shall reasonably cooperate with EnovaPoint during this process.
4.5 Resolution of issues. Depending on the nature of the issue, the resolution may take the form of an explanation, recommendation, usage or workaround instruction, or advising Customer of an available release that addresses the issue. EnovaPoint may close issues identified as outside the scope of Support.
4.6. Modifications and Updates. EnovaPoint may make modifications to the Service from time to time and will use commercially reasonable efforts to notify Customer of any essential modifications which Customer needs to prepare. Other modifications may be deployed without prior notice, Customer can read more information about implemented updates in JungleMail app’s What’s New section. EnovaPoint reserves the right to periodically perform error corrections, bug fixes, patches or other updates to the Service. EnovaPoint also reserves the right to discontinue some components of the Service.
4.7 Communication. You acknowledge and agree that EnovaPoint may occasionally email JungleMail Users regarding your account or the Service.
5.1 Term. This Agreement will commence on the effective date and continue for a period of twelve (12) months, and will automatically renew at the end of the Subscription Term (or any renewal term) for a period of one year unless either Party provides written notice to the other of non-renewal at least thirty (15) days before the end of the Subscription Term. Any such renewal will be at the list price in effect at the time of such renewal.
6. Suspension and Termination
6.1. Maintenance and Downtime. EnovaPoint may, without any liability to Customer (except as set forth in the applicable Order), suspend access to the Service at any time: (a) to perform scheduled or unscheduled maintenance, modifications, or upgrades; (b) due to hardware failures, power outages, or failures of third party providers; (c) to mitigate or prevent the effects of any threat or attack to the Service or any other network or systems on which the Service relies; EnovaPoint will make a reasonable effort when possible to notify Customer in advance of any scheduled Service suspension, but EnovaPoint will have no liability for any damages, losses (including loss of data or profits), or any other consequences incurred as a result of a Service Suspension or the failure to provide notice thereof.
6.2. Account Suspension. We may suspend the Account, in whole or in part, with or without prior notice, for cause or for material breach of this Agreement that is reasonable under the circumstances including, for example, Customer’s account is more than thirty (30) days past due or a suspected breach of the Spam Policy or we detect an abusive use of the Service or AI assistants.
6.3. Termination and refunds. This Agreement may be terminated:
(a) by Customer at any time if it cancels the Services through its Service account or with an EnovaPoint customer representative; You will not be entitled to any refund if you terminate this Agreement before the end of the Subscription term.
(b) by either Party upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period;
If Agreement was terminated due to Customer material breach the refund is not provided, if Agreement was terminated due to EnovaPoint material breach we will refund you on a pro-rata basis for the rest of your Subscription term
(c) by EnovaPoint for convenience with a ninety (90) days prior notice. If we terminate the Agreement for convenience, we will refund you on a pro-rata basis for the rest of your Subscription term.
6.4 Survival. Customer’s obligation to pay any fees accruing before termination, Section 1 Definitions, Section 2.4 and 2.5, Section 6 (Suspension and Termination), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (Limitation of Liability), and Section 13 (General)
7. Intellectual Property
7.1 Ownership of the Service. EnovaPoint will own all rights, title and interest in the Service including all characters, storyline, images, templates, photographs, graphics, animations, video, music, and text provided with the Service, and all associated copyrights, trademarks, and other intellectual property rights therein. You may use the EnovaPoint logo and product names on your website to advertise Your use of the Service, unless otherwise informed by us.
7.3 AI generated data. You own all input to AI, and subject to your compliance with these Terms, EnovaPoint hereby assigns to you all its right, title and interest in and to output produced by AI. You are responsible for input, including for ensuring that it does not violate any applicable law or these Terms.
8. Disclaimer and Warranties
8.1 EnovaPoint warrants that the Service and services provided hereunder shall meet all descriptions in EnovaPoint’s specifications and websites, and shall be provided in a good and workmanlike manner. Except for this stated warranty, EnovaPoint provides the Service to the Customer as is and without warranty of any kind, express, implied or otherwise, including without limitation any warranty of merchantability or fitness for a particular purpose. We do not warrant that Your use of Service or materials will be uninterrupted, secure or error-free.
8.2 Service credit. Customer is eligible to request a 25% of monthly fee service credit if Service availability is less than 99.5%, 50% of monthly fee if Service availability is less than 98%, and 100% of monthly fee if Service availability is less than 95%.
8.3 Backup. EnovaPoint warrants that it shall store and back up Customers data so as to remedy any unintentional loss of data. The back-up frequency shall be 4 hours.
8.4. Failure caused by Microsoft 365 SharePoint Online, Windows Azure Active Directory and Microsoft Graph. JungleMail for Office 365 relies on Microsoft 365 SharePoint Online, Windows Azure Active Directory and Microsoft Graph to perform the Services. EnovaPoint is therefore not responsible if a failure to perform the Services is caused by a default of Microsoft 365 SharePoint Online, Windows Azure Active Directory and Microsoft Graph.
9.1 EnovaPoint Indemnification. EnovaPoint will defend, indemnify and hold Customer harmless from and against any third-party claim damage, or costs (including reasonable attorneys’ fees) in connection with claims, made or brought against Customer by a third party alleging that the use of the Service as made available by EnovaPoint under this Agreement to Customer, any third party’s copyrights enforceable in the United States and/or the European Union issued as of the Effective Date, or a trademark of a third party.
If EnovaPoint receives information about an infringement or misappropriation claim related to the Service, EnovaPoint may, in its discretion, and at no cost to Customer: (a) modify the Service so that it no longer infringes or misappropriates; or (b) terminate Customer’s Service upon thirty (30) days’ prior written noticeand refund Customer any prepaid fees covering the remainder of the term of the terminated subscription.
EnovaPoint will have no liability for claims or losses to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after EnovaPoint notifies Customer to discontinue use because of an infringement claim.
9.2 Indemnification by Customer. Through the use of the Service Customer will display content including Customer’s own content, or content procured from external sources. Customer acknowledges and agrees that EnovaPoint is not responsible for the legality or accuracy of the particular content Customer’s Users choose to display or the availability of any external content sources including, without limitation, any Customer Data. Customer shall, indemnify and hold EnovaPoint harmless from any Claims of the Service or otherwise caused by the Customer Data or content made or brought by a third party: (a) based upon breach of this Agreement by Customer, its employees and JungleMail Users resulting in the unauthorized disclosure of Confidential Information; (b) alleging that the Customer Data or business information infringes the rights of, or has caused harm to a third party;
10.1 EnovaPoint and Customer agree to hold each other’s Confidential Information in confidence and not to disclose it to any third party without the prior written consent of the disclosing party. ‘Confidential Information’ shall mean the information disclosed by the discloser or its affiliates, which is identified as confidential, or which can reasonably be considered confidential due to its nature, or in the circumstances surrounding disclosure. Confidential Information does not include information which: (a) is in the public domain; (b) was or lawfully becomes known to the receiver; or (c) was independently developed by the receiver. The parties agree to use such Confidential Information of the disclosing party only as it relates to the performance of the party’s obligations under these terms. Further, the receiving party shall use the same degree of care it uses with respect to its own Confidential Information to prevent the unauthorized disclosure to a third party, but in no event less than reasonable care.
11. Limitation of Liability
11.1. Liability Cap. EXCEPT FOR (I) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND (II) DAMAGES CAUSED BY THE WILFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY OR ANY PERSON FOR WHOSE ACTIONS OR OMISSIONS THE PARTY IS LEGALLY LIABLE, IN NO EVENT SHALL EACH PARTY’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
11.2. Exclusion. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR (a) FRAUD OR WILLFUL MISCONDUCT OF A PARTY, AND (b) EACH PARTY’S INDEMNIFICATION OBLIGATIONS.
12. Relation of The Parties
12.1 Nothing in these Terms will create or imply an agency relationship between EnovaPoint and the Customer, nor will these Terms be deemed to constitute a joint venture or partnership between the parties.
13.1. Notice. All notices should be in writing and send to firstname.lastname@example.org
13.2. Publicity. EnovaPoint may reproduce, display and use Customer name and logo for the limited purpose of advertising the Customer’s use of the Service. If Customer wishes to limit such right, it shall send an email to email@example.com.
13.3 Governing Law. This Agreement is governed, construed, and enforced in accordance with (a) the laws applicable in the Lithuania if the Customer is located in EEA, UK or Switzerland or (ii) the laws of the State of New York if the Customer is located anywhere else in the world, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. If the Customer is a governmental or public entity, this Section 13.3 will not apply to the Customer only to the extent the Customer’s jurisdiction’s laws prohibit the Customer from accepting the requirements in this section.
13.4 Jurisdiction and Venue. The Parties agree that any litigation in any way relating to this Agreement shall be brought and venued exclusively in (a) the courts of Lithuania if the Customer is located in EEA, UK or Switzerland or (b) an appropriate federal or state court in New York, New York, USA if the Customer is located anywhere else in the world, and waives any objection that such venue is inconvenient or improper. If the Customer is a governmental or public entity, this Section 13.4 will not apply to the Customer only to the extent the Customer’s jurisdiction’s laws prohibit the Customer from accepting the requirements in this section.
14. Modification of Agreement
EnovaPoint reserves the right to amend these General Terms from time to time by posting an amended version of the General Terms on its Website. Customer’s continued use of the Services following any such amendments may be relied upon by EnovaPoint as Customer’s consent to any such amendments.
Appendix 1. Anti-Spam Policy
Appendix 2. AI Usage Policy