01 | Preamble
Under the names “MailJerry” or “mailjerry.com” (hereinafter: “MailJerry”) a partly free, partly chargeable internet service is operated as an app or web application, which enables users to transfer e-mails between mail servers. This service is made available to private and commercial customers. The internet service is the property of CODE black Software GmbH, Technoparkstrasse 4, A-5310 Mondsee. Further information can be found in the legal notice.
The following general terms and conditions of use (hereinafter “terms”) form the contractual basis for the use of the app or web application “MailJerry”.
02 | General
2.1 | The company CODE black Software GmbH (hereinafter “CODE black” or “Mail Jerry”) provides its services exclusively on the basis of the following general terms and conditions of use (term). These apply to all legal relationships between CODE black and the client (hereinafter “user”), even if they are not expressly referred to.
2.2. | The following terms and conditions apply to the provision of the internet service “MailJerry”.
2.3 | The version valid at the time of the conclusion of the contract is decisive. Deviations from these and other supplementary agreements with the user are only effective if they are confirmed in writing by MailJerry. All mutual rights and obligations between the user and MailJerry are determined exclusively by the general terms and conditions of use.
2.4 | Any terms and conditions of the user, even if they are known, are not accepted, unless otherwise expressly agreed in writing in individual cases. Code Black expressly rejects the customer’s terms and conditions. A further objection to the general terms and conditions of the user by CODE black is not required.
2.5 | In addition, the regulations of the respective sales platforms (Google Play Store, Apple AppStore, etc.) can find application as part of the processing. In the event of deviating regulations in these terms and conditions and the terms and conditions of the sales platform, MailJerry’s terms and conditions always take precedence.
2.6 | Changes and / or additions to the terms and conditions come into effect with the online publication under the domain https://www.mailjerry.com/terms and are deemed to have been agreed to if the user does not object to the changed terms and conditions in writing within 14 days or if the user continues to use the service; the user is expressly informed of the consequences of remaining silent. The user will be informed of any changes to the terms and conditions by email.
2.7 | Should individual provisions of these general terms and conditions be ineffective, this does not affect the binding force of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision is to be replaced by an effective one that comes closest to the meaning and purpose.
2.8 | MailJerry’s offers are subject to change and non-binding. If the contract concluded with the user deviates from these terms and conditions, the provisions of the contract take precedence.
2.9 | MailJerry points out to the user that MailJerry employees are not authorized to make verbal side agreements or to give verbal assurances that go beyond the content of the respective contract or these terms and conditions.
03 | Services offered, subject matter & conclusion of contract
3.1 | The subject of this contract is the provision of a service for the transfer of emails between two mail servers.
3.2 | A contract between the user and MailJerry is concluded when the user starts the first free data transfer or buys a chargeable license and thus the service provision by MailJerry begins. The start of the data transfer resp. the purchase of a license creates a contractual relationship for an indefinite period in accordance with the general terms and conditions. The services to be provided by MailJerry depend on the scope of services selected by the user.
3.3 | As part of the free use, the user receives a free license, which enables a one-time data transfer of max. 250 GB. After this transfer, the user loses the right to use the internet service free of charge. Further use is only possible after purchasing a commercial license or subscription. Commercially purchased one-time licenses can be used on a maximum of one device, monthly or annual subscription licenses can be stored on a maximum of two devices at the same time.
3.4 | If corporate customers purchase a license or a transfer contingent that is subject to a fee, MailJerry reserves the right to carry out an identity check of the customer or his legal representative. In order to purchase a paid license, commercial and private users must provide an email address and a country of origin for accounting reasons.
3.5 | MailJerry reserves the right, in particular for the following reasons, to refuse the contract without giving any reason, to cancel the contract or to block the user and delete his data without replacement:
- in the event of a violation of these terms and conditions
- if there is justified suspicion of improper use of the internet service or the services of MailJerry
- in the event of a breach of statutory provisions, essential contractual provisions, morality, the reputation or legitimate interests of MailJerry and its partner companies
- upon termination of the contractual relationship between the user and MailJerry due to violation of essential contractual provisions by the user
- in the case of incomplete or incorrect information in the provision or non-provision of required evidence or documents
- in the absence of legal or business capacity or, in the case of entrepreneurs, in the absence of official approval
- in the event of late payment towards MailJerry
- if the fair use policy is violated (see 04)
All rights and obligations arising from the use of the internet service also apply to the employees or vicarious agents (other third parties) of the user to whom the internet service has been made available for use. The user is liable for third parties as for his own fault.
3.6 | The user agrees to use the internet service in accordance with the agreed service descriptions including the fair use policy (see 04) and in compliance with all legal provisions.
3.7 | One-Time-Licenses acquired for a fee have a period of validity of one year starting with the date of purchase and must be used by the user within this period, otherwise the entitlement to benefits expires.
04 | Fair Use Policy
4.1 | The fair use policy includes the use of the internet service in such a way that other users are not impaired. A use of the service contrary to the fair use policy is in any case – unless otherwise agreed in writing – if the data volume per license and month exceeds 20 GB or the yearly data volume per license exceeds 200 GB.
4.2 | MailJerry is entitled to block free and commercial licenses with immediate effect at any time if the fair use policy is violated.
4.3 | Furthermore, regardless of any claims for damages and subject to the right to premature termination of the contract, MailJerry reserves the right to change prices at any time and immediately if the use of the internet service exceeds the data volume agreed upon with the user or the limits of the fair use policy are being exceeded.
4.4 | If the data volume granted in the fair use policy is exceeded, MailJerry is entitled to invoice the user for the additional data volume in accordance with the current prices for commercial licenses and or subscriptions.
4.5 | In the event that the contract is terminated by the user, MailJerry is entitled to invoice the volume of data used in excess of the fair use policy in the form of a final invoice. The customer agrees to pay for the data volume that exceeds the fair use policy.
4.6 | The billing dates result from the time the license was ordered. Recurring costs are invoiced after one month (for monthly subscriptions) or year (for yearly subscriptions) after the date of the initial order. Any additional, consumption-dependent costs will be billed at the end of each month.
05 | Resignation & Termination
5.1 | The transmission of the termination of the contractual relationship by MailJerry via email is sufficient and is deemed to have been received with the confirmation of delivery from the server or the user’s mail service.
5.2 | Note on the right of withdrawal for consumers in contracts according to §3 of the Consumer Protection Act (in extracts):
“If a consumer has not submitted his contract declaration either in the premises used by the entrepreneur for his business purposes or at a stand used by the latter at a trade fair or market, he can withdraw from his contract application or from the contract. This withdrawal can be declared up to the conclusion of the contract or within one week thereafter; the period begins with the delivery of a document containing at least the name and address of the entrepreneur, the information necessary to identify the contract as well as an instruction on the right of withdrawal to the consumer, but at the earliest with the conclusion of the contract. (…) “
“The right of withdrawal is not available to the consumer,
1. if he himself has initiated the business relationship with the entrepreneur or his agent for the purpose of concluding this contract
2. if the conclusion of the contract was not preceded by a discussion between the parties or their agents (…)”
“The withdrawal must be in writing to be legally effective. It is sufficient for the consumer to show a document containing his or her contract declaration or that of the entrepreneur to the entrepreneur or his agent who participated in the contract negotiation with a note indicating that the consumer has concluded or maintained the contract refuses. It is sufficient if the declaration is sent within the withdrawal period mentioned above. “
5.3 | Reference to the Distance Selling Act for consumers in contracts in accordance with Section 5 of the Consumer Protection Act (excerpts):
“1. The consumer can withdraw from a contract concluded in distance selling or a contract declaration made in distance selling up to the expiry of the periods specified in paragraphs 2 and 3. It is sufficient if the declaration of withdrawal is sent within the deadline.
2. The withdrawal period is 7 working days, with Saturday not counting as a working day. In the case of contracts for the delivery of goods, it begins on the day they are received by the consumer, in the case of contracts for the provision of services on the day the contract is concluded.
3. If the entrepreneur has not complied with his information obligation according to § 5d Paragraphs 1 and 2 KSchG, the withdrawal period is three months from the dates specified in Paragraph 2. If the entrepreneur fulfills his obligation to provide information within these deadlines, the period specified in Paragraph 2 for exercising the right of withdrawal begins at the time the information is transmitted by the entrepreneur. (Reference is made to the inadmissibility of the right of withdrawal in accordance with § 5 f leg.cit.) (…) “
5.4 | Exception to the right of withdrawal for consumers: With consumption of a chargeable e-mail transfer license trough starting a data transfer on the part of the consumer, his right of withdrawal expires. The consumer notices the loss of the right of withdrawal when purchasing the chargeable license. A corresponding confirmation of the waiver of the right of withdrawal and the early start of the service provision on the part of MailJerry will be sent to the consumer in writing by email (Section 7, Paragraph 3 FAGG).
In accordance with Section 7 (3) FAGG, the consumer will be provided with a confirmation of the concluded contract by email, together with the information specified in Section 4 (1) FAGG, within a reasonable period of time after the conclusion of the contract, but no later than before the start of the provision of services, unless this information has not already been made available beforehand on a permanent data carrier. The confirmation of the contract contains in any case a confirmation of the consent to the immediate provision of services and the consumer’s knowledge of the loss of the right of withdrawal.
5.5 | Termination of contracts based on free or non-regular chargeable use: Contracts based on these terms and conditions that relate to the free use of the service or chargeable one-time licenses can be canceled by the customer at any time by deleting the MailJerry app or by not using it of the web portal.
5.6 | Cancellation of subscriptions: Contracts based on these terms and conditions that include a subscription can be canceled by the customer in compliance with the stated deadlines as follows:
- 30 days prior to the expiry of the main due date of the contract in the event of termination via email
- 1 day before the main due date of the contract expires in the event of termination via the customer center (deactivation of the subscription)
5.7 | Contracts based on these terms and conditions can be terminated for the following reasons:
- expiry of the contract period
- for subscriptions: 30 days before the main contract due date expires in the event of cancellation via email
- for subscriptions: 1 day before the main contract due date expires in the event of termination via the customer center (deactivation of the subscription)
- after the agreed transfer amount has been used up
- if the agreed transfer amount is not used for
- a period of one year starting with the time of purchase
- service termination by MailJerry
An ordinary or extraordinary termination by the user must be provided in writing by email. The termination is deemed to have been received upon receipt of a written confirmation of termination by MailJerry.
5.8 | If the contract is terminated, the entitlement to the transfer license acquired free of charge or for a fee expires. MailJerry expressly objects to a refund of transfer licenses that have been purchased for a fee.
06 | Support
The communication between the user and MailJerry takes place in principle by email. The user has to ensure that the receipt of emails is guaranteed. MailJerry offers support for commercial and private customers exclusively by email at email@example.com. If MailJerry is in contact with the customer by phone in exceptional cases, the connection fees and any costs (e.g. for value-added numbers) will be funded by the user.
The times at which the MailJerry support can be reached and the scope of the MailJerry support services can be viewed at https://www.mailjerry.com/contact/.
If the support services are used repeatedly, MailJerry is entitled to invoice the services. MailJerry will inform the user in advance of any costs. Oral information is not binding and MailJerry is not liable in this case. The commissioned service is carried out by MailJerry in the manner chosen by MailJerry and within normal working hours.
07 | Liability & Warranty
7.1 | In cases of slight negligence, the liability of MailJerry and that of its employees, contractors or other vicarious agents („people”) for property damage or financial damage to the user is excluded, regardless of whether it is direct or indirect damage, loss of profit or consequential damage due to defects, delay, impossibility, positive breach of contract, negligence when concluding the contract or due to defective or incomplete performance. The injured party has to prove the existence of gross negligence. As far as the liability of MailJerry is excluded or limited, this also applies to the personal liability of its “people”.
7.2 | Any liability on the part of MailJerry for claims that are raised against the user on the basis of the service provided by MailJerry is expressly excluded if MailJerry has complied with its notification obligation or such was not recognizable for MailJerry, whereby slight negligence does not harm. In particular, MailJerry is not liable for legal costs, the user’s own legal fees or the costs of the publication of judgments, nor for any claims for damages or other claims by third parties; the user has to hold MailJerry free of harm in this regard.
7.3 | The user pledges himself to take over all liability claims and damages that are asserted against MailJerry due to the transfer of the users licenses to third parties. If a third party claims to cease and desist against MailJerry due to the transfer of licenses, MailJerry is entitled to block the user until the user has unequivocally averted this claim. The user agrees to use the service only as instructed by MailJerry and is liable for all damage that he inflicts to MailJerry or other participants through improper use.
7.4 | MailJerry is not liable for errors, malfunctions, damage that can be traced back to improper use, changed operating system components, interfaces and parameters. MailJerry is not liable for the compatibility of the internet service with the hardware and software of the user or for the constant availability, for viruses, misuse or damage caused by improper operation of the user due to unsuitable hardware and software used or for malfunctions due to the internet connection or otherwise arising from the use of the service or the internet service.
7.5 | MailJerry is not liable for any failure of MailJerry’s servers. MailJerry points out that services can be restricted or temporarily suspended for necessary reasons (e.g. maintenance, security, capacity or improvement reasons). These measures do not represent a failure.
7.6 | It is principally the obligation of the user to make backup copies of his data before using the services of MailJerry. MailJerry is not liable for the loss of emails or other data that occurs during, after or through the use of the internet service. MailJerry expressly points out that the sole responsibility for the correct configuration of the user’s e-mail program and the ability to receive e-mails lies with the user.
7.7 | It is strictly forbidden to sublet services to third parties that are obtained through MailJerry. Passing on the services obtained via MailJerry to third parties is only permitted after consultation with MailJerry.
7.8 | Claims for damages by the user expire six months after knowledge of the damage; in any case after one year from the infringement act by MailJerry. Claims for damages are limited in amount to the net order value.
7.9 | MailJerry is not liable for defects that can be traced back to open source software or parts of open source software or software from third parties or parts thereof.
08 | Billing & Payment
8.1 | Unless otherwise agreed, the fees resulting from the current price list at www.mailjerry.com apply. Special prices for commercial customers can be requested at firstname.lastname@example.org.
8.2 | The user bears all costs and expenses associated with the payment (e.g. credit card debiting), such as bank charges or manipulation fees. Amounts or prices to be paid by the consumer include statutory VAT, duties and other surcharges (= gross price). For commercial users, prices are stated including statutory VAT, excluding other fees, taxes or duties. Insofar as subsequent taxes or other charges are introduced or prescribed, these shall be borne by the user.
8.3 | Payment is made before the service is activated (e.g. assignment of licenses subject to a charge) and must be made using the means of payment specified by MailJerry (credit card, PayPal). MailJerry is entitled to issue a total invoice for all services, regardless of whether these services are owed from different contracts or purchases.
8.4 | Invoices are only sent by e-mail; paper invoices are not due. When purchasing subscription licenses, invoices can be viewed and downloaded in the customer center. Receipt of the invoice is considered to be the point in time from which the user can access or take note of it under normal circumstances (e.g. receipt of the email). MailJerry reserves the right to round up or down to 1 full cent. Invoices can be reprimanded within 14 days of receipt, provided that they are accepted by the customer.
8.5 | Users must provide their email address for payment receipts. It is also possible to enter name and address. In order to issue tax-free deliveries to commercial customers from abroad, the VAT number is required. In the event of incorrect or false information, the user will be charged for the research costs incurred. The debt-discharging effect of the payment occurs only with the correct allocation.
8.6 | When paying by credit card or PayPal, the user must ensure that the credit card or account is not blocked or has expired, otherwise any delays in payment arising from this shall be borne by the customer. In this case MailJerry reserves the right to charge default interest.
8.7 | If the payment is processed via a payment provider, MailJerry is not liable for the security of the data or incorrect bookings caused by errors on the part of the payment provider. If the customer complains in this context, MailJerry reserves the right to refer the customer directly to the payment provider to clarify the matter.
8.8 | MailJerry reserves the right to offer payment for e-mail transfers or licenses with previously loaded credit. In this case, the user must acquire sufficient credit in order to be able to use the desired services. The user can view the account balance at any time in the “Settings” area. Complaints must be made within 14 days of the last change, otherwise the account balance is considered accepted.
8.9 | Licenses purchased in advance are valid for 12 months. There will be no reimbursement of unused credit.
8.10 | MailJerry is not liable for any misuse, theft, loss etc. of access data, license codes, credits or other data or information associated with the account of the user.
8.11 | MailJerry reserves the right to adjust prices a maximum of twice a year. In the event of price changes, the new conditions will also apply to ongoing contracts. The price is fixed for the period of any advance payment; the new price applies from the next invoice. MailJerry will point out a price adjustment in good time in advance.
8.12 | Billing for package contracts for commercial customers: The payment of individually agreed package contracts is made via the payment provider. Invoices are to be paid immediately after receipt, without deductions, unless otherwise agreed. In the case of package contracts, MailJerry reserves the right to postpone the contract and billing start date – even with deviating contractual agreements – to the 1st or 15th of the respective month and to invoice the period before or after that aliquot.
8.13 | For the timeliness of the payment, the receipt or the credit on the account of MailJerry applies. If in doubt, the payment will be offset against the oldest debt of the user. In the event of default in payment, MailJerry is entitled, without setting a grace period, to suspend the services immediately or to dissolve the contract with immediate effect, without any claims such as compensation for the user. In this case, MailJerry’s claim to the agreed fee remains unaffected for the duration of the contract. Any discounts granted do not apply in the event of termination and MailJerry is entitled to request the price according to the price list. In this case, the user has to pay back any differences that arise since the start of the contract.
8.14 | In the event of default in payment, the user will be charged the statutory default interest; in addition, the user has to reimburse any reminder and collection costs as well as legal and court costs. The withholding of payments and the offsetting of claims by the user against claims by MailJerry are excluded.
9 | Confidentiality & Data protection
9.1 | MailJerry will treat all information and documents as strictly confidential that it becomes aware of in the course of its cooperation with the user and that are not intended to be passed on to third parties. MailJerry will oblige employees and third parties who receive such information or documents to carry out work under this contract to the same degree of confidentiality.
9.2 | By using the Internet service, the user declares his consent that his data can be transferred via the MailJerry servers. MailJerry reserves the right to outsource the maintenance and operation of its servers to third parties. In this case MailJerry is not responsible for the operation of the servers.
9.3 | The user agrees to the processing, automatic processing and storage of his personal data, thereunder name / company, commercial register number, powers of representation, contact person, business address and other addresses of the user, telephone number, email address, bank details, VAT number for the purpose of fulfilling the contract, for MailJerrys advertising purposes, for example to send offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of indicating the existing or previous business relationship with the user (reference notice). The user consents to electronic mail being sent to him for advertising purposes until further notice.
9.4 | The user agrees that MailJerry may use, process and store his specified and existing base and traffic data for his services and related services (e.g. administration, billing, data backup, data protection control, support, market research, needs-based offers, services, services with additional benefits and to improve the service in the automated processes and to improve services in general). The user agrees that this data may also be used for evaluations and statistics and that the results thereof may be used (e.g. publication, provision).
9.5 | MailJerry is entitled to save and use logs of the user’s IP addresses within the framework of the statutory provisions. Stored data is protected according to the usual state of the art. MailJerry is not liable for illegal interference by third parties, e.g. viruses or hacking attacks.
9.6 | MailJerry can use third parties for its services and data processing, provided that the relevant provisions of data protection are complied with. The user acknowledges that the data can be viewed by third parties.
9.7 | The user expressly agrees that the data provided by him will be stored and passed on to government agencies (police, courts, authorities, etc.) that conduct investigations into the data provided by the user or transferred via MailJerry, or that relate to illegal activities. In this case, the user waives to assert any claims (e.g. due to a breach of data protection).
9.9 | If the account is terminated, blocked or deleted by the user or MailJerry, MailJerry is entitled to delete all of the user’s data without any claim for compensation.
9.10 | This consent can be revoked at any time in writing by sending an email to email@example.com.
Further information on data protection can be found at the web address https://www.mailjerry.com/privacy/.
10 | Data Security
MailJerry will take all technically possible and reasonable measures to protect the emails transferred by MailJerry and the data stored by MailJerry. MailJerry is not responsible if a third party nevertheless manages to gain unlawful access to the data. In order to ensure the necessary protection of the data, the user is obliged to keep passwords secret. He is liable for all damages resulting from the breach of this obligation. The user is responsible for backing up his data.
11 | User Obligations
11.1 | The user may only use the internet service in accordance with applicable law and these terms and conditions. He pledges to use the internet service exclusively for the transfer of data that does not violate any third party rights (e.g. trademark rights, copyrights, rights to one’s own image, personal rights) or other legal provisions (e.g. the protection of minors). If the user uses the internet service to transfer data from third parties, he is solely responsible for obtaining consent to the use of the data in advance.
11.2 | The user pledges not to use MailJerry for purposes other than those intended and to use the internet service in a way that neither disrupts nor overloads the technical process. These include:
- to process or to make data publicly available in any other way that contains viruses, Trojans or other disruptive software
- to process data that are subject to criminal or contractual objection
- to process data that violate the rights of third parties (in particular brands, copyrights, patents)
- to use the internet service for illegal activities
- to disrupt the technical operation of the internet service
11.3 | Information, data, documents, business and trade secrets, ideas, codes, etc. (“information”) that become known to the user in the context of the business relationship with MailJerry are subject to strict confidentiality. This does not include information that is already publicly known or otherwise publicly available or that has not been expressly designated as confidential by MailJerry. The user is prohibited from using confidential information outside of the contractual purpose or from making it available to third parties without authorization. Confidentiality is also agreed after the contract has been terminated.
12 | Applicable Law
The contract and all derived mutual rights and obligations as well as claims between MailJerry and the user are subject to Austrian substantive law, excluding its reference norms and excluding the UN sales law.
13 | Severability Clause
The invalidity or ineffectiveness of individual provisions of these terms and conditions does not affect the validity of the remaining provisions. In this case, those provisions shall be deemed to have been agreed which are legally effective and which come closest to the purpose of the void or ineffective provisions, provided they still correspond to the original intention of the contracting parties. The same applies in the event of a loophole in the contract.
14 | Place of Performance, Place of Jurisdiction, Miscellaneous
14.1 | The place of performance is the headquarters of MailJerry / CODE black Software GmbH.
14.2 | The place of jurisdiction for all legal disputes arising between MailJerry and the user in connection with this contractual relationship is exclusively agreed to be the competent court for Mondsee / Upper Austria (AT). Notwithstanding this, MailJerry is entitled to sue the user at his general place of jurisdiction.
14.3 | Neither of the parties will invoke agreements that are not recorded in writing or by email communication.
14.4 | The contracting parties are obliged to immediately notify the other contracting party of any changes of address, otherwise notifications to the last address given in writing will be deemed to have been received with legal effect.
14.5 | The terms and conditions also apply to future transactions between the user and MailJerry, even if no reference is made to them again in a future contract conclusion, although this does not apply to consumer transactions.
14.6 | MailJerry is entitled to transfer rights and obligations from a contractual relationship with the user to companies in which MailJerry holds at least 25%. The user has no right of termination on the occasion of such a transfer. In the case of legal succession, all rights and obligations are to be transferred to the legal successors (individual or universal succession). The transfer of rights and obligations from the user to third parties is not permitted without the express prior written consent of MailJerry.
14.7 | Verbal side agreements do not exist. Any changes and additions must be made in writing, this also applies to side agreements, assurances and subsequent changes to the contract, as well as the waiver of the written form requirements.
14.8 | Insofar as designations relating to natural persons are only given in masculine form in this contract, they apply equally to women and men.