Terms of Service

1.2 "Customer" means the person who has entered into a contractual relationship with the Provider concerning use of the Service and who acts in connection with its business, trade or professional activity. The Service is not offered as a consumer service, and the Customer confirms it does not use the Service as a consumer.

1.3 "Service" means the 404 Emails online service provided by the Provider, described further in Section 2. "Workspace" means the Customer's separate working environment within the Service. "Customer Data" means data that the Customer or its authorised users upload to the Service or that is generated through the Service in connection with the Customer's activity, including contacts, subscribers, campaigns and related data.

1.4 Processing of personal data contained in Customer Data is further governed by a separate Data Processing Agreement (DPA) - see Section 8. These Terms and the DPA supplement each other.

2.1 404 Emails is a B2B email-marketing SaaS service. The Service is offered only to persons acting in connection with their business, trade or professional activity and is not offered as a consumer service.

2.2 The Service includes in particular:

• account registration and workspace management;
• management of contacts and subscribers;
• creation and sending of email campaigns;
• forms;
• automations, where available under the applicable plan;
• email sending infrastructure;
• analytics and reporting;
• integrations with other services;
• data exports;
• billing; and
• related SaaS functionality.

2.3 The functionality of the Service may evolve, and some features may be available only under a particular Customer plan.

3.1 The Customer is responsible for the accuracy and currency of information provided at registration and within the account.

3.2 The Customer is responsible for protecting access credentials to its account and workspace and for managing its authorised users.

3.3 The Customer is responsible for actions taken through its account or workspace, including actions by its authorised users.

3.4 The Customer must promptly notify the Provider upon becoming aware of a suspected unauthorised access to its account or workspace.

3.5 The Provider applies the technical and organisational measures described in the DPA (Section 8). These Terms do not guarantee any specific security capability beyond what is stated in the DPA and its annexes.

4.1 The Customer is solely responsible for determining whether it may lawfully collect, import, store and use each individual contact and whether it may lawfully send each individual communication through the Service.

4.2 The Customer is responsible in particular for:

• the legal basis for processing personal data and for contacting each contact;
• the existence of marketing consent where required by applicable law;
• the ability to demonstrate such consent where required;
• the lawful reliance on any existing-customer marketing exception, where the Customer relies on it;
• the source and origin of contact data;
• sender identity;
• campaign content;
• mandatory disclosures and requirements for commercial communications under applicable law;
• the recipient's right to unsubscribe or object;
• compliance with suppression rules; and
• compliance with applicable electronic-marketing, privacy and data-protection law.

4.3 The fact that the Service technically allows a given campaign to be sent does not mean that campaign is lawful. The Provider supplies tools for sending and managing communications, not a legal assessment of any individual case.

5.1 The Customer must not use, within the Service:

• contact lists obtained by scraping or other unauthorised harvesting;
• stolen data;
• unlawfully obtained data;
• fabricated consent records;
• knowingly inaccurate consent records;
• contacts for which the Customer lacks the required legal authority; nor
• re-import a contact for the purpose of bypassing an unsubscribe or suppression, nor otherwise circumvent the suppression list.

5.2 Purchased, rented or otherwise third-party-sourced contact lists are not, by themselves, prohibited from use within the Service solely because they were purchased. Such lists may be used by the Customer only if it can demonstrate that their acquisition and the intended marketing use are lawful and that any necessary consent or other legal requirement actually covers that Customer and that specific use. The Customer bears the responsibility for satisfying this condition.

6.1 Where reasonably necessary to protect deliverability, infrastructure, recipients, other customers, or the Service's legal compliance, the Provider reserves the reasonable right to:

• investigate suspected abuse;
• request evidence from the Customer of lawful list acquisition or consent;
• limit sending;
• suspend a campaign;
• suspend integrations or API access; and
• suspend or terminate the Customer's workspace or account.

6.2 These rights are not arbitrary or unlimited and are exercised by the Provider proportionately to the actual risk involved. Where an immediate risk of abuse, a security incident, or a legal risk requires it, the Provider may act immediately, including without prior notice.

6.3 Further detail is set out in the separate Acceptable Use / Anti-Spam Policy, which is incorporated into these Terms by reference.

7.1 The Customer retains ownership and control of Customer Data. The Provider does not acquire ownership of the Customer's subscriber or contact database merely because it is uploaded to or generated through the Service.

7.2 The Customer grants the Provider and its subprocessors and other providers only such rights to Customer Data as are necessary to operate, secure and provide the Service and to comply with the Provider's legal obligations.

7.3 The Provider does not sell Customer Data and does not use a former Customer's subscriber database for the Provider's own marketing.

8.1 With respect to personal data of subscribers, contacts, and related Customer Data processed in connection with campaigns, the Customer generally acts as controller and 404 Branding s.r.o. generally acts as processor within the meaning of the GDPR. Details of this processing are governed by a separate Data Processing Agreement (DPA).

8.2 The current list of subprocessors and other service providers is maintained on the separate Subprocessors and Other Service Providers page.

8.3 For its own account administration, billing, Service security, fraud and abuse prevention, customer support, and its own legal and compliance obligations, 404 Branding s.r.o. may act as an independent controller of personal data. Such processing is not processing carried out on behalf of the Customer under the DPA and will be described further in the Service's separate Privacy Policy.

9.1 Paid subscriptions to the Service are billed according to the selected plan and billing period.

9.2 Recurring subscriptions automatically renew unless cancelled by the Customer.

9.3 The Customer may cancel future renewal of its subscription at any time.

9.4 Unless the applicable plan or agreement states otherwise, cancellation takes effect at the end of the current paid billing period.

9.5 Fees already paid are generally non-refundable, except where required by applicable law or expressly provided by the applicable plan or agreement.

9.6 Applicable taxes may be added to the stated prices.

9.7 Plan limits, features and prices may vary and change over time.

10.1 The Customer may terminate the Service itself at any time, following the procedure in Section 11.

10.2 The Provider may reasonably restrict, suspend or terminate the Customer's access to the Service or its workspace, in particular where any of the following occurs:

• a material breach of these Terms;
• unlawful activity;
• abuse of the Service or sending of unsolicited communications (spam);
• a security risk;
• non-payment, where applicable;
• a requirement under applicable law or from a public authority; or
• a material threat to the Service, its infrastructure, or other users.

10.3 The Provider will give reasonable prior notice where reasonably practicable. Where protection against an immediate risk of abuse, a security incident, or a legal risk requires it, the Provider may act immediately.

11.1 The Customer may request closure and deletion of its workspace.

11.2 The standard closure period is 30 days.

11.3 During the closure period, relevant Service functionality is, to the extent implemented, restricted or disabled - in particular, the workspace cannot send campaigns, run automations, or accept new integration activity.

11.4 Before permanent deletion, the Customer may export available Customer Data.

11.5 After the closure period ends, Customer Data is permanently removed from the Provider's active systems in accordance with the applicable deletion process.

11.6 Residual copies may temporarily remain in backups or in subprocessor systems according to documented retention schedules; such residual copies are not used for ordinary processing.

11.7 Narrow records may be retained after deletion where necessary for accounting, the establishment or defence of legal claims, security, fraud or abuse prevention, or another legal obligation. The Provider does not retain a historical copy of the Customer's subscriber or campaign database for its own purposes after permanent deletion.

11.8 The Customer is responsible for exporting any consent or compliance evidence it needs to retain before final deletion.

12.1 This Section applies to the extent Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023 on harmonised rules on fair access to and use of data (the "Data Act") applies to the Service, in particular its provisions on switching between data processing services.

12.2 404 Emails voluntarily charges no switching charges from the first day of providing the Service - an amount of EUR 0.

12.3 The Customer may submit a switching or data-portability request at any time. The Provider will initiate and support the switching process without undue delay.

12.4 The normal mandatory transitional period will not exceed 30 calendar days. Where completing the switch within that period is not technically feasible, the Provider will notify the Customer within 14 working days of the request, explain the reasons for the technical infeasibility, and specify an alternative transitional period not exceeding seven months, in accordance with the Data Act.

12.5 The Customer has the right to request an extension of the transitional period once, where relevant under the Data Act.

12.6 Following termination of the applicable transitional period, the Provider will provide a retrieval period of at least 30 calendar days.

12.7 After successful switching and expiry of the applicable retrieval period, exportable data and digital assets will be erased in accordance with applicable law.

12.8 Instead of switching to another provider, the Customer may choose to:

• move to another provider;
• move to its own on-premises infrastructure, where relevant; or
• delete its data instead of switching.

12.9 Exportable data is provided in a structured, commonly used and machine-readable format, where relevant.

12.10 The Provider's internal data, protected intellectual property, trade secrets, and other material that may lawfully be excluded may be excluded from export only to the extent permitted by applicable law, and such exclusion must not be used to improperly obstruct switching.

12.11 This Section does not guarantee functional equivalence of the Customer's new environment after switching beyond what the Data Act requires. The detailed, currently available switching and export procedure is described on the separate Data Portability information page.

13.1 The Customer retains Customer Data.

13.2 404 Branding s.r.o. retains all software, design, trademarks, documentation and other intellectual property relating to the Service.

13.3 The Customer is granted a limited, non-exclusive, non-transferable right to use the Service for the duration of the contractual relationship, subject to these Terms.

13.4 This Section does not affect the Customer's statutory data-portability rights under Section 12.

14.1 Provision of the Service depends on third-party infrastructure and services, and the Service may permit integrations that the Customer independently selects and configures.

14.2 Such third-party providers may have their own contractual terms, which apply to the Customer independently.

14.3 The Provider is responsible for the performance of its own obligations and cannot disclaim mandatory statutory responsibility.

14.4 Not every integration selected by the Customer is automatically a subprocessor of the Provider - see the DPA (Section 9) and the Subprocessor List (Section 8.2).

15.1 The Provider may reasonably change the Service, perform maintenance, and further develop it.

15.2 For material adverse contractual changes, the Provider will give reasonable prior notice where reasonably practicable.

15.3 The Provider does not reserve an unlimited right to materially remove, without compensation or notice, paid functionality that the Customer is paying for.

16.1 The Provider provides the Service with reasonable care but does not guarantee uninterrupted or error-free operation, nor any particular marketing or business result.

16.2 In particular, the Provider does not guarantee:

• inbox placement;
• campaign revenue;
• conversion rates;
• subscriber engagement; nor
• uninterrupted availability of the Service.

16.3 This Section does not affect the Customer's mandatory statutory rights.

17.1 The Provider's aggregate liability arising from the Service will generally not exceed the fees actually paid by the affected Customer to the Provider for the Service during the 12 months preceding the event giving rise to the claim.

17.2 To the extent permitted by applicable law, indirect and consequential losses and loss of profit, data, or business opportunity are excluded.

17.3 The limitation in this Section does not apply to liability that cannot lawfully be limited or excluded, including liability for damage caused intentionally or by gross negligence, and to any other case required by mandatory provisions of Czech law. This Section is not intended, and must not be construed, to circumvent mandatory law.

18.1 To the extent permitted by applicable law, the Customer will indemnify the Provider against third-party or public-authority claims arising from the Customer's unlawful campaigns, unlawful acquisition or use of data, infringement of third-party rights by the Customer, or the Customer's material breach of these Terms.

18.2 This Section does not apply to claims arising from the Provider's own acts or omissions.

19.1 Neither party is liable for delay or non-performance caused by circumstances excluding liability beyond its reasonable control (force majeure), to the extent permitted by applicable law.

20.1 The Provider's operational and legal contact: 404branding@gmail.com.

20.2 Electronic notices may be used where appropriate.

20.3 The Customer must keep its account contact details current.

21.1 These Terms are governed by the laws of the Czech Republic.

21.2 The courts of the Czech Republic have jurisdiction to resolve disputes, to the extent such a jurisdiction agreement is permissible under applicable law.

21.3 This Section does not affect mandatory provisions of applicable law.

21.4 These Terms may be made available in Czech and in English. The Czech version shall prevail.

22.1 The Provider may update these Terms in the future. Reasonable notice will be given of material changes.

22.2 The current version and effective date are always stated in the header of these Terms.

22.3 The Customer's silence is not automatically treated as acceptance of a change in every circumstance, where applicable law or the applicable agreement requires otherwise. Where legally or contractually necessary, the Provider may require affirmative re-acceptance of updated Terms.

23.1 If any provision of these Terms is invalid or unenforceable, the validity of the remaining provisions is unaffected; the parties will replace the invalid provision with one that most closely approximates its purpose and economic effect.

23.2 Delay in exercising a right under these Terms is not treated as a waiver of that right.

23.3 The Customer may not assign its rights and obligations under these Terms without the Provider's prior consent.

23.4 These Terms, together with the DPA and other documents referenced by these Terms, constitute the entire agreement between the parties regarding the subject matter of the Service and supersede prior arrangements on the same subject matter. Where there is a direct conflict between these Terms and the DPA concerning the processing of the Customer's Personal Data, the DPA prevails. Individually negotiated written commercial terms or an order may take precedence over these Terms where expressly agreed between the parties.

23.5 Provisions which by their nature are intended to survive termination of the contractual relationship, in particular those concerning ownership of Customer Data, confidentiality, limitation of liability, and governing law, remain in effect after termination.