Email Supplemental Terms and Conditions
Version 6.1 - Date of release: 7 September 2023
These supplemental terms and conditions (“Supplement”) are part of an agreement for certain SINCH services (“Agreement”) between SINCH and Customer and apply only to the SINCH services referencing or subject to this Supplement, including email services (“Service” or “Services”) as set forth in the applicable Order Form and not any other SINCH product or service. The Services will be subject to the Agreement except as otherwise and to the extent set forth herein.
Capitalized terms are defined in the Glossary below. Capitalized terms not defined in this Supplement shall have the meanings ascribed to them in the General Terms and Conditions for SINCH Services (“GTC”).
Part A – Legal Terms
A1. Services
A1.1. Service Provider Conditions and laws and regulations. In addition to Customer’s obligations set forth in Section 4.1 of the GTC, Customer shall comply with all Service Provider Conditions including any applicable legal and regulatory requirements relating to the Customer Data or its use of the Service. If a Service Provider changes the Service Provider Conditions and/or the technical standards for the delivery of Service, SINCH may modify the terms and conditions governing such Service upon prior written notice to Customer.
A1.2. Supply of Services. Customer shall bear sole responsibility for the acts, omissions or breaches of its Representatives with respect to the use of the Service, including but not limited to, the Customer Data. Customer shall promptly inform SINCH if it becomes aware of any violation of the terms of this paragraph.
A1.3. Restrictions. Customer shall not use the Service or permit the Service to be used:
(a) in a manner that violates the Agreement, including this Supplement and the Service Provider Conditions, including, without limitation, any applicable law, regulation, industry guidelines, or code of practice, or that violates, infringes or misappropriates the rights of any third party;
(b) to transmit any email or any electronic material (including viruses or other similar destructive computer programming routines) which causes, or is likely to cause, detriment or harm or damage to the SINCH Network or any computer systems or telecommunications equipment or mobile handsets owned by SINCH or any other person, or to facilitate the transmission or use of any code that would allow any third party to interfere with or access any Customer Data; or
(c) to send any emails or material which is or could be interpreted by a reasonable person to be obscene, offensive, abusive, harassing, misleading, fraudulent, violent, unethical, indecent, defamatory, discriminatory, threatening, libelous, unlawful or menacing or promotes alcohol abuse or illegal drug or other substance use.
A1.4 Intellectual Property.
(a) If Customer provides SINCH with Customer’s pre-existing Intellectual Property (“Customer IP"), then Customer hereby grants to SINCH, during the term of the applicable Order Form, a limited, worldwide, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Customer IP solely for the purpose of providing the Services. Customer represents and warrants that Customer has all rights in the Customer IP necessary to grant this license, and that SINCH’s use of such Customer IP shall not infringe on the Intellectual Property rights of any third party.
(b) Created by SINCH. Unless otherwise specifically stated in the applicable Order Form, and excluding any Customer IP, SINCH shall own all Intellectual Property created as part of providing the Services or contained in the Deliverables.
A1.5 Open-Source Software. SINCH may use certain open-source software within its systems (for example Linux, OpenStack, and software licensed under the Apache, GPL, MIT or other open-source licenses, collectively “Open Source Software") and makes no representation or warranty whatsoever regarding any such software or with regard to any third party products or services which may be recommended for Customer’s consideration or provided to Customer in connection with the Services. In the event SINCH provides any Open-Source Software to Customer as part of the Services, then such Open Source Software is subject to the terms of the applicable Open Source Software license. To the extent there is a conflict with this Supplement, the terms of the applicable Open Source Software license shall prevail.
A1.6 Third Party Software. SINCH may provide Third Party Software. Unless otherwise permitted by the terms of the applicable license you may not (i) assign, grant or transfer any interest in the Third Party Software to another individual or entity, (ii) reverse engineer, decompile, copy or modify the Third Party Software, (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software, or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing the Agreement. Customer may only use Third Party Software provided for Customer’s use as part of the Services (identified on the Order Form) on the Customer Configuration on which it was originally installed, subject to any additional restrictions identified in this Supplement, the Order Form or the Agreement. Customer is prohibited from using Third Party Software which SINCHl installs in order to assist our delivery of the Services. Upon termination of the Order Form, you will permit removal of the Third Party Software, if any. SINCH makes no representation or warranty regarding Third Party Software except that SINCH has the right to use or provide the Third Party Software and that SINCH is in material compliance with the applicable license.
A2. Compliance
A2.1. Security and Privacy. SINCH shall provide the Services in accordance with the security and privacy practices set forth at https://www.mailgun.com/security-privacy and any additional security specifications identified in the Order Form or this Supplement, as may be amended or modified from time to time. Customer must use reasonable security precautions in connection with Customer’s use of the Services, including appropriately securing and encrypting Personal Data stored on or transmitted using the Customer Configuration. Customer Data is, and at all times shall remain, Customer’s exclusive property. SINCH will not use or disclose Customer Data except as materially required to perform the Services or as required by law. Customer agrees not to provide SINCH or use the Services in connection with any sensitive personal data or protected health information or other information that can be deemed sensitive personal data or protected health information without obtaining SINCH’s prior written consent and entering into a separate agreement with SINCH governing the transmission of such information in connection with Customer’s use and benefit of the Services. Customer may not attempt to probe, scan, penetrate or test the vulnerability of a SINCH system or network, or to breach the SINCH security or authentication measures, whether by passive or intrusive techniques, without our prior written consent and entering into a separate agreement with and acceptable to SINCH governing the scope, and containing appropriate restrictions and requirements for any such penetration or similar testing.
A2.2 Content Privacy. Customer acknowledges and understands that the Services may include the transmission of unencrypted email in plain text over the public internet. Customer is responsible for encrypting any Personal Data Customer uses in conjunction with the Services. Email sent using the Services may be unsecured, may be intercepted by other users of the public internet, and may be stored and disclosed by third parties (such as a recipient’s email service provider). Although Services include support for TLS, content may be transmitted even if the recipient does not also support TLS, resulting in an unencrypted transmission.
A2.3 If following suspension of the Services for non-payment, Customer’s payment of any invoiced undisputed amount remains overdue for a further ten (10) days, SINCH may terminate the Agreement or the applicable Order Form(s) for breach on written notice.
A2.4 Indemnity. If SINCH or any of its Representatives (the “Indemnitees") is faced with any claim (including, but not limited to, any fines, penalties) or other liabilities brought against SINCH or any of its Representatives by any third party relating to Customer Data, Customer’s use of the Service or otherwise arising out of Customer’s actual or alleged: willful misconduct, breach of applicable laws, failure to meet the security obligations required by the Agreement, breach of Customer’s agreement with Customer’s customers or end users, violation of the AUP, or Customer’s breach of Section A1.4 (Intellectual Property) hereof or Section 10 of the GTC (Intellectual property rights), then Customer will promptly pay SINCH for the cost of defending the claim (including reasonable legal fees and settlement expenses) and any damages award, fine or other penalty that is imposed on the Indemnitees as a result of the claim. Customer’s obligations under this Section include claims arising out of the acts or omissions of Customer’s employees or agents, any other person to whom Customer has given or allowed access to the Service or the Customer Configuration, and any person who gains access to the Customer Configuration as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer.
SINCH will choose legal counsel to defend the claim, provided that the choice is reasonable and is communicated to Customer. Customer must comply with our reasonable requests for assistance and cooperation in the defense of the claim. SINCH may not settle the claim without Customer’s consent, which may not be unreasonably withheld, delayed or conditioned to the extent such settlement includes an admission of liability or payment of money by Customer. Customer must pay costs and expenses due under this Section as SINCH incurs them.
A2.5. Disclaimer. Customer agrees that, with respect to its supply of the Service, neither SINCH nor any SINCH supplier shall be liable whether in contract, tort or strict liability to Customer or to any its customers or end user for (i) any emails deleted or not delivered regardless of the reason for deletion or non-delivery, including, without limitation, email processing errors, transmission errors, or messaging network and/or service failures; or (ii) the accuracy of information provided through the Service.
SINCH makes no commitment to provide any services other than the Services stated in the Order Form. SINCH or its Service Provider is not responsible to Customer or any third party for unauthorized access to your Customer Data or for unauthorized use of the Services that is not solely caused by SINCH or its Representative’s failure to meet its security obligations in Section A2.1 above. SINCH and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose and non-infringement. SINCH and its Representatives expressly reserve the right, at any time during the term of the Agreement, to adapt, arrange and/or modify any of the components granting access and use rights to the Service and the associated documentation, provided that the maintenance and support commitments are complied with for these operations. Similarly, SINCH may, at any time, discontinue providing a platform deemed undesirable and/or obsolete and migrate services to a new infrastructure; in which case, SINCH will endeavor to inform Customer as early as possible.
Part B – Business Terms
B1. Customer Responsibilities
B1.1. Access and Connectivity
(a) Acceptable Use Policy. Customer agrees that its use of the Services, including any Customer Configuration provided by SINCH, will comply with the Acceptable Use Policy (the “AUP") at http://www.mailgun.com/legal/aup/. In the event we determine that your (including your users’) act(s) or omission(s) fail(s) to comply with the AUP, we reserve the right to take any additional action or measure we deem reasonably necessary or required to preserve the integrity of our Services, platforms, networks and other customers or otherwise comply with applicable laws, rules, regulations and policies.
(b) Documentation. Customer agrees to comply with the SINCH Group documentation found on the respective website and agree that SINCH may establish new procedures for Customer’s use of the Services as it deems necessary for the optimal performance of the Services. Requirements included, but are not limited to, an individual email message not exceeding the per-message size limit (including attachments) of 25MB or it may be permanently lost.
B2. Commercial Terms
B2.1. Price Changes. SINCH may revise the pricing terms that apply to Customer’s use of the Services at any time by providing Customer with notice pursuant to the GTC. With respect to Customers that are not party to a then-effective Order Form (i.e., self-service Customers), such rate changes will be effective immediately upon the posting of an update to Customer’s Control Panel. With respect to Customers that are party to a then-effective Order Form (i.e., custom contract Customers), SINCH reserves the right to increase rates or charges for the Services, provided, however, that any such revised rates or charges assessed to Customer for Services under such Order Form will not become effective until the commencement of the next renewal term of such Order (and the Order Form will be deemed amended to reflect such increased rates or charges). If at any time a third-party license or service provider directly or indirectly increases the fee they charge SINCH for Customer’s use of Third-Party Software or services, SINCH may increase Customer’s fees by the same percentage amount on thirty (30) days’ advance written notice (for either self-service or custom contract Customers). Self-service customers may be able to upgrade or downgrade Customer’s plan through Customer’s online account on SINCH’s website at any time; provided, however, that upgrades to the Customer’s plan will take effect immediately, while downgrades will take effect at the end of the then-current term.
B2.2. Reimbursement for Expenses. Unless otherwise agreed in the Order Form or otherwise provided for in the Control Panel, if any of the Services are performed at Customer’s premises, Customer agree to reimburse SINCH for the actual substantiated out-of-pocket expenses of its Representatives.
B2.3. Service Level Agreement. SINCH guarantees that the Services (meaning any or all of the API, SMTP and Outbound Delivery services listed on our status page but excluding InboxReady offerings) will be available 99.99% of the time in any given monthly billing period, excluding maintenance. Customer is entitled to a credit of 5% of Customer’s given monthly fee for the Services for each 30 minutes of Services unavailability (after the first .01%) in a given monthly period.
B2.4. Credit Limitations. Customer is not entitled to any credit if Customer is in breach of the terms governing Customer’s use of the Services unless Customer has timely cured the breach. Customer is not entitled to any credit if downtime would not have occurred but for Customer’s breach of this Supplement, including violation of the AUP (referenced below). Customer is not entitled to any credit for downtime or outages resulting from denial of service attacks, virus activity, hacking attempts, or any other circumstances that are not within our control. In addition, to receive a credit, Customer must make the request by creating a support ticket in the Control Panel within thirty (30) days following the end of the downtime. Customer must show that Customer’s use of the Services was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in this Supplement to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 50% of the fees for that billing period. Credits that would be available but for the limitation to open a support ticket within the timeframe set forth above will not be carried forward to future billing periods; eligible credits will only be carried forward to the extent the Customer renews its subscription for the subsequent term period.
B2.5. SLA Credits. The credits stated in any applicable SLA are Customer’s sole and exclusive remedy for SINCH’s failure to meet those guarantees for which credits are provided. The maximum total credit(s) for failure to meet any applicable SLA for any calendar month shall not exceed 50% of the then current monthly recurring fee for the Services. Credits that would be available but for this limitation will not be carried forward to future months. Customer is not entitled to a credit if Customer is in breach of the Agreement at the time of the occurrence of the event giving rise to the credit unless Customer has timely remedied the breach. No credit will be due if the credit would not have accrued but for Customer’s action or omission.
B2.6. Delivery & Filtering. SINCH will use commercially reasonable efforts to deliver Customer’s email messages, but cannot guarantee delivery. Third party filtering services and other policies of recipient email services may prevent successful delivery of Customer’s email messages. While our Service does provide some email filtering services designed to filter spam it does not provide virus scanning, it is recommended that Customer employ additional security measures to protect against spam, email phishing attempts and email infected with viruses. Customer acknowledge that the limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. SINCH Group is not responsible for any damages arising from the failure of the Service’s filtering services to filter unwanted email or from the capture of legitimate email, or from a failure of Customer’s email to reach its intended recipient. Furthermore, Customer acknowledge that SINCH does not control the transfer of Data via the internet, and cannot be held responsible for delays or delivery problems arising from internet or other outside connection issues.
B2.7. InboxReady. SINCH will provide the InboxReady deliverability tools and services as set forth in the Order Form, subject to the service level agreements and other limitations as more particularly described in the product description and/or on SINCH’s documentation for such tool or service.
B2.8. Some terms are incorporated into the Agreement by reference to pages on the SINCH websites and SINCH may revise those terms from time to time (including this Supplement). Such revisions will be effective and supersede and form part of the Agreement as of the time (i) Customer enters into a new Order Form referencing the terms subject to the revisions, or (ii) an Order Form automatically renews pursuant to the Agreement in which case Customer acknowledges that Customer has reviewed and accepted the then-current version of the terms as of the date of the renewal. If there is a conflict between the terms of the Agreement, the documents will govern in the following order: the Order Form, this Supplement and then the Agreement. The headings or captions in this Supplement are for convenience only. If over time Customer enters into multiple Order Forms for a given Customer Configuration (for example to add additional components or services), then the most recent terms referenced in the Order Form(s) will govern the entirety of the Services for the given Customer Configuration.
B2.9. Unless otherwise expressly permitted in the Agreement or herein, the terms of this Supplement may be varied only by a written agreement signed by both parties that expressly refers to this Supplement and the Agreement. An Order Form may be amended to modify, add, or remove services by a formal written agreement signed by both parties, or by an exchange of correspondence (including via the SINCH ticketing system) that includes the express consent of an authorized individual for each of us. The pre-printed terms of Customer’s purchase order or any other business form or terms that Customer provides shall be void and of no effect.
B.2.10. Notices. Your routine communications to Service Provider regarding the Services should be sent to your account team using the Control Panel. To give a notice regarding termination of the Agreement for breach or other legal matter, you must send it by first-class post to the address indicated on the Order Form, Attention: Legal Department, with a copy by email to [email protected].
Glossary
1.1 “Configuration Requirements" means those specifications as required to perform the Services, such as a required reference architecture, documentation or software version.
1.2 “Control Panel" means the customer portal accessible to Customer containing, among other information, the pricing terms applicable to Customer’s use of the Services and users designated to receive support.
1.3 “Customer Configuration" means any Customer configuration or information technology system needed to enable the Services or to which the Services relate.
1.4 “Customer Service” means a marketing, advertising, promotional or informational program or initiative, or other project, conducted by Customer utilizing the Service.
1.5 “Deliverables" means the tangible or intangible materials which are prepared for Customer’s use in the course of performing the Services and that are specifically identified in an Order Form as Deliverables and described therein, if any.
1.6 “Intellectual Property" means patents, copyrights, trademarks, trade secrets, software and source code, specifications and ancillary documentation and any other proprietary intellectual property rights.
1.7 “Representatives" means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, agents.
1.8 “Service Provider” means any entity, including, but not limited to, mobile network operators, email providers and mobile messaging aggregators, that is used in relation to the supply of the Service and as identified in the applicable Order Form.
1.9 “Service Provider Conditions” means the rates, terms and conditions and “codes of conduct” or email content rule and restrictions imposed by the applicable Service Providers on the provision of the Service and conduct of Customer Services as a condition of permitting SINCH to provide the Service and Customer to conduct Customer Services, including, without limitation, the conditions set forth in Section A1.1 hereof, whether such Service Provider Conditions are incorporated in the terms of this Supplement, the Agreement or provided by SINCH to Customer in writing or by email from time to time.
1.10 “SLA" means any provision providing a specified credit remedy for an identified failure to deliver or provide the Services to the identified standard.
1.11 “Third Party Software” means any third-party software for Customer’s use as part of the Service or to assist SINCH in our delivery of the Service.