Date of Last Revision: 14th Dec 2020
By signing up to our services and affirming that you (the entity agreeing to the terms, “Customer”) agree to our terms of service through the sign-up process, you are entering into a service agreement with the legal entity set out below, which shall be referred to as “we”, “our”, “us” or “Sinch”. The terms of the service agreement are set out herein.
Legal Entity you will be entering into an agreement with –
|If you are domiciled in:||You are contracting with:||Notices should be addressed to:||The governing law is:||Dispute resolution:|
|The United States of America or Canada||Sinch America, Inc. (a Delaware corporation)||Sinch America Inc., Legal Department, 3500 Lenox Rd NE, Ste. 1875, Atlanta, GA 30326, Georgia, USA||Georgia law||The state and federal courts sitting in Fulton County, Georgia|
|Sweden||Sinch Sweden AB||Sinch Sweden AB, Legal Dept. Lindhagensgatan 74, 112 18 Stockholm, Sweden||Swedish law||The civil court in Stockholm, Sweden|
|Rest of the World||Sinch UK Ltd.||Sinch UK Ltd., Legal Department, 4th Floor, Cap House, 9-12 Long Lane, Barbican, London, EC1A 9HA, England||English law||The civil court in London, England|
Sinch offers Services and products including, but not limited to:
- Messaging (including SMS, MMS, RCS, Whatsapp)
- Number Rental (including Mobile Long Codes, Geographic Long Codes, Toll Free Codes and Short Codes),
- Voice (including, Text to Speech, App to App, App to Phone, Phone to Phone, SIP integration and Conference Calling)
- Verification (SMS, Flash Call, Voice)
- Number Lookup Services (including Number insight and Validation)
- Personalized Messaging including Personalized Video, Rich Media, SMS, Messaging Platform, Acquisition Platform)
- Number Masking (Anonymous Phone Numbers)
Customer agrees to purchase certain Services pursuant to the terms of service set out in this Service Agreement (as defined under Agreement Documents below).
The service agreement consists of this document, the General Terms of Service set out in Exhibit 1 below (along with any Supplementary Terms), the Data Protection Agreement found here https://www.sinch.com/data-protection-agreement/, and any Service Order, Order Form, Change Order and other document(s) signed by both parties, referencing the Service Agreement (together the “Service Agreement”).
If the Customer and Sinch (together, the “Parties”) desire to include additional Services under this Service Agreement, such services will be set forth in subsequent Service Orders, Change Orders or exhibits signed by authorized representatives by both Parties and attached to this Service Agreement.
In the event of a conflict among any of the components of this Service Agreement, precedence will be given in the following order: (a) Data Protection Agreement, (b) General Terms of Service, (c) Change Order(s), but solely with respect to the Service(s) covered by such Change Order, (d) Service Order(s), but solely with respect to the Service(s) covered by such Service Order, and (e) any other exhibit to the Service Agreement.
Authorization and Effectiveness
The account creator represents to Sinch that he or she is a duly-authorized representative and signatory of the corporate entity named in the account and that the information provided is complete and accurate. The corporate entity named in the account accepts the General Terms of Service and the Exhibits.
The Service Agreement shall be effective on the date at which time the account is created and verified.
Exhibit 1 General Terms of Service
The Service Agreement contains the legal terms of service that govern Sinch’s provision of Services and the Customer’s use of and access to the Services. If the Customer has a Prior Agreement, it shall be deemed terminated (to the extent it covers the Services provided pursuant to these General Terms of Service and/or a Service Order) upon the of applicable Service Order Effective Date and without prejudice to any of Sinch’s or the Customer’s accrued rights and liabilities under such Prior Agreement. The Customer’s use of and access to the Services are subject to additional terms that include without limitation the Supplemental Terms. Supplemental Terms may be made available to the Customer through means determined by Sinch.
Sinch and Customer agree that the non-binding date for the start of the Services will be the date on which the account is created and verified, hereinafter referred to as the “Service Start Date”. The date for the Service Start Date may be adjusted at Sinch’s sole discretion, in which case Sinch will notify the Customer of the revised Service Start Date.
(a) License. Unless expressly stated in the Service Agreement, the Customer will have a limited, non-exclusive, non-transferable, non-sublicensable right to (i) use the applicable Services, (ii) integrate the Services in the Customer’s Application in order to access to the Service, if applicable, and (iii) offer and make available to Service Users the Services solely, or, as integrated into the Customer’s Application, all in accordance with the Service Agreement. Such rights shall be immediately revoked without notice upon the earlier of termination of: (i) the Service Agreement; (ii) the applicable Service Order; or (iii) the applicable Service.
(b) License Restrictions. The Customer will not (and will not allow Service Users) to: (i) reverse engineer, decompile, copy or disassemble the Services; (ii) market, sell (subject to Section 1(c)), sublicense, rent, lease, or otherwise distribute the Services, in whole or in part; (iii) modify, upgrade, improve, enhance or create derivative works of any portion of the Services for any purpose (including without limitation error correction or any other type of maintenance); (iv) remove, obscure, or alter any identification, proprietary, copyright or other notices in the Services; or (v) for non-civilian purposes.
(c) Resale. The Customer may resell the Services provided that: (i) as between Sinch and the Customer, use of the Services by Service Users and any of their acts and omissions are deemed to be the Customer’s use of the Services and the Customer’s acts and omissions, (ii) each Service User is legally bound by an agreement, which is at least as protective of Sinch, Sinch’s rights and the Services as this Service Agreement, (iii) no Service User shall be a third party beneficiary to the Service Agreement, (iv) as between Sinch and the Customer, Data shall be deemed to belong to the Customer and no other party, (v) each Service User accepts and complies with all third party policies or terms applicable for the use of the Services, such confirmation to be provided by each respective Service User prior to its use of the Services and (vi) the Customer shall not (and shall ensure that any Service User shall not) use Sinch or Sinch Affiliate trademarks, tradenames or branding or make any representations with respect to the Services that are inconsistent with any express Sinch representations in the Service Agreement.
(d) Numbers and Codes. The Customer acknowledges and agrees that neither the Customer nor any third party shall have any intellectual property rights and/or other proprietary interests in any Numbers and Codes made available to the Customer under the Service Agreement. The Customer will not take any action that would cause the Customer or any third party to acquire any intellectual property rights and/or other proprietary interest in any Numbers and Codes, including but not limited to making any changes to such Numbers and Codes. Sinch may withdraw or suspend such Numbers and Codes at any time to comply with Relevant Laws and/or an order, instruction, or request of a Service Provider, Regulator, court or other competent authority.
The Customer agrees that the Customer will not, and will not encourage or permit any party (including but not limited to Service Users) to, access or use the Services: (a) other than as expressly prescribed by the Service Agreement; (b) in violation of: (i) Compliance Rules or Relevant Laws or (ii) applicable third party licenses; (c) to send spam or unsolicited messages or other communications; (d) in any manner that is infringing, obscene, threatening, libelous, unlawful, or in violation of any third party rights; (e) to breach, interfere or attempt to interfere with any requirements, procedures, policies, or regulations of any mobile industry association, Regulator or any Service Provider; (f) to facilitate the transmission or use of any: (i) malicious code (including malware, viruses, worms, and Trojan horses); (ii) traps, time bombs, or other code with a latent ability to disable or cripple software or services; or (iii) code that would allow any third party to interfere with or access any Data; (g) to circumvent, disable, violate, or otherwise interfere with the security or integrity of the Services, their operation, any networks or servers used in connection with the Services, or any activity being conducted in or in relation to the same (or attempt at any of the foregoing); (h) to gather, store, upload or otherwise transmit any Data for which the Customer does not have a right to do so; (i) support or carry any emergency calls to any medical rescue, emergency, or law enforcement agency, service or provider of any kind; or (j) to impersonate any person or entity. Additionally, the Customer agrees to promptly comply with all requests for documentation and information Sinch makes relating to the Customer’s use of the Services.
3 The Customer’s Responsibilities.
(a) The Customer’s Account. The Customer is solely responsible for the Customer’s Account, all activities conducted in connection with the Customer’s Account, and the accuracy of all information provided by or to the Customer relating thereto, including without limitation, contact, technical, campaign and payment information, the Credentials, and for protecting and safeguarding the foregoing. The Customer will promptly update any Account Information if it changes and notify Sinch upon becoming aware of any unauthorized use of the Customer’s Account and/or Credentials, and any related security breach. The Customer will only connect to the Services through the Customer’s Account and using only the Credentials.
(b) Content and Monitoring. The Customer is solely responsible for all Content, and the storage and transmission of the Content must comply with the Service Agreement. The Customer agrees that Sinch may monitor use of the Services to ensure quality, improve the Services and verify the Customer’s compliance with the terms.
(c) Service Users. The Customer shall remain fully liable to Sinch for any use of the Services by Service Users (whose acts and omissions shall be considered to be the Customer’s acts and omissions). Sinch will provide support, when and if provided, only to the Customer and not to Service
(d) Records & Consents. The Customer will maintain accurate and complete records of its performance under the Service Agreement during the term and as required by the Compliance Rules, Relevant Laws, Regulator or Service Provider. Upon reasonable written notice, the Customer shall provide copies of any such records to Sinch. Sinch or its representatives shall be entitled to disclose any such records (and to carry out audits of the Customer’s premises and systems, upon reasonable written notice) where required by any Service Provider, Regulator or other competent authority. Without limiting the generality of any other provision of the Service Agreement, prior to using the Services to send Content to any third party, the Customer shall obtain verifiable informed consent if required in accordance with Relevant Laws, and shall maintain a record of each such consent. The Customer shall provide a reasonable and readily accessible method for third parties to revoke this consent and, at Sinch’s request, shall provide Sinch with verifiable evidence to establish informed consent from such third party (to Sinch’s reasonable satisfaction).
(e) The Customer is responsible to provide suitable hardware or communications equipment including all necessary infrastructure to ensure the Customer’s access to the Service. The Customer is also responsible, at the Customer’s own expense, for the provision and regular monitoring of telecommunication and access infrastructure between the Customer and the Services.
4 Payments and Pricing.
(a) Post-pay Customers. Where the Customer has signed a Service Order for a post-pay Service, the Customer shall be a post-pay Customer. The Customer will pay Sinch the Fees and Taxes and all other invoiced amounts within the period specified in the applicable Service Order or within thirty (30) days from the date of invoice, whichever is longer. Unless stated otherwise in a Service Order, the Fees shall be calculated in accordance with rates and pricing which Sinch makes available to the Customer (by means determined by Sinch) from time to time. Unless stated otherwise in a Service Order, all Non-Recurring Fees may be invoiced monthly in arrears, and all Recurring Fees and One-Time Fees may be billed in advance. All Fees, Taxes and other sums shall be billed in the applicable currency stated in the Service Order. All sums will be paid by the method determined by Sinch in Sinch’s sole discretion. Time is of the essence in relation to the Customer’s payment obligations.
(b) Pre-pay Customers. Where the Customer has signed a Service Order for pre-pay Services or if the Customer has not signed a Service Order for a Service, the Customer will be a pre-pay Customer. The Customer will pay Sinch the Fees and Taxes and all other amounts payable to Sinch through prepayments made by the Customer on the Customer’s Account. The Fees shall be calculated in accordance with the rates and pricing which Sinch makes available to the Customer (by means determined by Sinch) from time to time. Sinch may deduct or offset from the Customer’s Credit Balance, any sums the Customer owes to Sinch, which may include but are not limited to Fees and Taxes. All Recurring Fees and One-Time Fees may be deducted in advance of the applicable Service being provided and all Non-Recurring Fees may be deducted after the applicable Service is provided. Payments received from the Customer will be deposited in the currency selected during Account creation. Sinch supports USD, GBP and EUR as standard and may be able to support other currencies on a case by case basis. All Fees, Taxes and other sums due will be deducted from this Credit Balance in the same currency. Every Service on an Account will deduct Fees, Taxes and other sums due from the same Credit Balance. The Customer will not earn interest on any Credit Balance held by Sinch. The Customer shall not be entitled to a refund of an unused Credit Balance below EUR 100 (or the equivalent in the currency of the Customer’s Account). The Customer will lose the right to any Credit Balance and such Credit Balance shall be permanently assigned to Sinch without further notice (and without prejudice to Sinch’s other rights and remedies), where; (i) Sinch suspends the Services more than once due to the Customer’s breach of the Service Agreement; or (ii) such Credit Balance has not been used within 365 days of it being credited.
(c) Set-Off. The Customer will not have a right of any type of deduction or setoff unless required by Relevant Laws. If any such set-off is required by Relevant Laws, the Customer shall, when making the payment to which the withholding or deduction relates, pay to Sinch such additional amount as will ensure that Sinch receives the same total amount that Sinch would have received if no such withholding or deduction had been required.
(d) No Waiver. No omission or delay by Sinch in invoicing any sums and/or deducting them from a Credit Balance shall prohibit Sinch from raising an invoice and/or deducting them from a Credit Balance at a later date nor shall it relieve the Customer of the Customer’s liability to pay.
(e) Credit Limit. The Customer’s Credit Limit when post-paying shall be as notified by Sinch to the Customer from time to time. If Sinch determines that the Accrued Liability exceeds the Credit Limit, the Customer shall pay, within twenty-four (24) hours of notice from Sinch, such amount as Sinch determines is necessary to (i) reduce the Accrued Liability to the same or less than the Credit Limit and, (ii) ensure the Credit Limit shall not be exceeded prior to the next invoice due date. The Customer consents to and shall procure that the Customer’s owners, directors, officers and assigns consent to, Sinch carrying out searches with credit reference agencies relating to the Customer’s creditworthiness and financial status.
(f) Fee Changes. Unless expressly stated otherwise in the Service Order, Sinch reserve the right to change the pricing used to calculate the Fees at any time (with notice).
(g) Fees and Taxes are non-refundable. Fees exclude, and the Customer will pay, all Taxes, but neither Party will pay income taxes of the other Party. For any invoice the Customer fails to pay by its due date, Sinch may charge the Customer a late penalty on the amount overdue each day it is overdue until it is paid whether before or after judgment, equal to an interest rate of eight percent (8%) over the then-current rate of 1 year LIBOR. The Fees payable shall be calculated by reference to data recorded or logged by Sinch and not by reference to any data recorded or logged by the Customer. Any invoices issued by Sinch shall, save in the case of manifest error, be final, conclusive and binding on the Customer. The Customer may dispute an invoice in good faith, but must do so within the period specified for payment of invoices in the applicable Service Order or within thirty (30) days from the date of invoice, whichever is longer, otherwise the Customer will be deemed to have irrevocably waived all rights and claims concerning such invoice. However, a dispute of an invoice does not waive the Customer’s obligation to pay the undisputed part of such invoice in accordance with this Service Agreement. Sinch may setoff amounts owed by the Customer under the Service Agreement or any other agreement the Customer has with Sinch or any of its Affiliates. Each Party shall bear the costs imposed by their own bank when making and receiving payments under the Service Agreement. Sinch will charge a three (3%) percent fee for any credit card payments.
5 Term and Termination, Suspension, Survival.
(a) Term and Termination. The Service Agreement takes effect as of the earlier of (i) the Customer’s use of any Service, and (ii) the Customer’s electronic acceptance of the Service Agreement, and will continue until terminated in accordance with the terms of the Service Agreement. The Service Agreement may, unless otherwise set out in a Service Order, be terminated by each Party by giving ninety (90) days written notice to the other Party. The aforementioned notice period for termination by the Customer shall be subject to the Customer’s full payment of any and all fixed Fees regarding Services ordered by Customer with a longer notice period than ninety (90) days (if and as applicable, as set out in the applicable Service Order).
(b) Each Service Order will come into effect on the Service Order Effective Date. Subject to Section 5(a), either Party may terminate any Service Order and/or Service (including any Order Form) with no less than ninety (90) days’ notice to the other (or such alternative period specified in applicable Service Order). Each Party may terminate the Service Agreement for convenience, upon notice, if no Service Orders are in effect. Sinch may also terminate a Service Order or Service, in full or in part, for convenience on less than ninety (90) days’ notice where for operational reasons Sinch can no longer make the applicable Service(s) available to the Customer (including but not limited to where the Service has been withdrawn by a Service Provider).
(c) Each Party may terminate the Service Agreement (in whole or in part) for cause, immediately upon notice to the other Party, should (i) the other Party file for bankruptcy or otherwise become insolvent, (ii) a liquidator, administrator or receiver be appointed in respect of the whole or part of the other Party’s assets or undertaking, (iii) the other Party enters into (or proposes to enter into) an arrangement with its creditors, or (iv) anything analogous to Section 5(c)) (ii) or (iii) occur in any jurisdiction. Further, Sinch may terminate the Service Agreement (in whole or in part) for cause, immediately upon notice to the Customer, should (i) a suspension of the Services under Section 5(e) continue for more than five (5) consecutive days, (ii) the Customer does not substantially use the Services for a consecutive period of six (6) months or longer, or (iii) the Customer breaches the Service Agreement and fail to cure such breach within five (5) days of the Customer’s receipt of notice of the same.
(d) Termination of a Service Order shall trigger termination of all Services under it on the same date.
(e) Sinch may suspend all or any part of the Services: (i) in Sinch’s sole discretion, if not doing so would have a detrimental effect on the Services or Sinch’s provision thereof, (ii) if the Accrued Liability exceeds the Credit Limit, (iii) to comply with Relevant Laws and/or an order, instruction, or request of a Service Provider, Regulator, court or other competent authority, (iv) where the Customer fails to pay any Fees, Taxes or other charges due in accordance with the Service Agreement; or (v) if Sinch otherwise finds it necessary to do so in order to maintain or to protect Sinch’s interests (including without limitation, for any breach or potential breach of the Service Agreement). In addition to Sinch’s right to terminate or suspend the Services, the Customer acknowledges that Sinch reserves the right to temporarily disable access to the Services (or any portion thereof) for maintenance purposes. Suspension under this section does not waive the obligation of any payment obligations under this Service Agreement.
(f) Survival. The following provisions will survive the termination of the Service Agreement and the termination or expiration of each Service Order or Service (together with any other provisions of the Service Agreement which expressly or impliedly survive termination): Sections 3(d), 4, 5, 6, 9, 10, 11, 12, 13, 14, 16, 17, and 18. The termination of the Service Agreement and the termination or expiration of any Service Order or Service shall be without prejudice to Sinch’s accrued rights and the Customer’s accrued liabilities.
The Customer retains all rights and ownership in Data. Sinch does not claim any ownership rights in Data. Except for rights expressly granted herein, no implied licenses are granted by Sinch, and Sinch hereby reserves all rights not so granted. The Customer acknowledges that Sinch retains all sole and exclusive ownership of all right, title and interest in and to the Services and Sinch’s Confidential Information (defined below), including all intellectual property rights thereto, and at no time will the Customer dispute or contest Sinch’s exclusive ownership rights in any of the foregoing. If the Customer provides feedback or suggestions about the Services, then Sinch (and those Sinch allow) may use such information without obligation to the Customer.
7 Data Protection and Privacy.
(a) Each Party shall comply with applicable the Data Protection Legislation.
(b) Whenever Sinch is processing Personal Data on behalf of the Customer (in accordance with Data Protection Legislation), Sinch can be qualified as a Data Processor and the Customer is to be qualified as a Data Controller as is defined within this Agreement (and further defined within the Data Protection Agreement applicable on the service, if necessary).
(c) Parties agree that the Data Protection Agreement is applicable on the processing of personal data as described within the Service Agreement. Whenever the Customer is the Data Controller and Sinch is the Data Processor, the Customer has the obligation to inform Sinch, in writing, about the Data Protection Legislation are applicable on the processing of the Personal Data of which the Customer is the Data Controller.
(d) The Customer acknowledges that Sinch in certain situations shall act as:
- an independent Data Controller with respect to the processing of Personal Data that is necessary for the operation of the Services, which shall include the processing of any information processed for the purpose of the conveyance of a communication on an electronic communications network, for the billing or administration of the services (as far as permitted by Data Protection Legislation), such as but not limited to Customer contact and contract data.
- a Joint Data Controller with respect to the processing of Personal Data for the purpose of providing the services. These situations will be identified within the Service Order, Order Form, Change Order and other document(s) belonging to a specific service(s).
(e) The Customer warrants, represents and undertakes to Sinch that the Customer has and will maintain all necessary rights, licenses and consents to provide Sinch with Data for the purposes described in this section. Sinch may require that Customer provides proof of theses whenever necessary and in accordance with the terms of this Service Agreement, specifically Section 3(d).
(f) The Customer acknowledges, permits and accepts that Sinch may retain, store, use and disclose Data solely in order, and to the extent necessary, to provide and improve the Services and to satisfy applicable legal, accounting or regulatory requirements. Sinch will establish processes to ensure compliance with Relevant Laws.
(g) The Customer acknowledges, permits and accepts that Sinch may process Customer contact and contract data for the purposes of customer relationship management and development and that this information may be shared with Affiliates that are part of the Sinch Group for the purposes as described.
Except as expressly stated in a Service Order, Sinch reserves the right, in Sinch’s sole discretion and with or without notice from time to time, to modify or update any Services (including but not limited to the features, scope, reach and functionality). Additionally, Sinch may amend the Service Agreement (or any part thereof), and such amendment will take effect on the date Sinch designates (or upon expiration of the minimum period of notice Sinch is required to provide under Relevant Law). Upon the event that there is uncertainty regarding what version of the Service Agreement that applies between the Parties, the version published at https://www.sinch.com/terms-of-service/ at that point in time shall apply. Sinch specifically reserves the right to make changes to such terms of service by publishing a revised version at https://www.sinch.com/terms-of-service/ (or any successor URL Sinch determines) as may be updated by us from time to time. If an amendment to the Service Agreement or Services is to the Customer’s material detriment, the Customer may terminate either: (i) the affected Service Order; or (ii) the affected Service, upon written notice within thirty (30) days following the effectiveness of such amendment (or by the date which the Customer is entitled to terminate under Relevant Law).
9 Relevant Laws and Compliance Rules.
The Customer shall (and shall ensure that the Customer’s customers, Affiliates, employees, contractors and agents shall) ensure that all use of the Services and all Data complies with Relevant Laws and the Compliance Rules, including but not limited to export control laws and regulations, economic, trade and financial sanctions laws, regulations, embargoes, restricted state lists or restrictive measures administered. This includes for the Customer to not (and not allow Service Users to) provide or use the Services in or to the Region of Crimea in Ukraine (UA), Cuba (CU), Iran (IR), the Democratic People’s Republic of Korea (KP), and Syria (SY), and any other jurisdictions specifically mentioned in a Service Order. The Customer shall provide (and shall ensure that the Customer’s customers, Affiliates, employees, contractors and agents shall provide) all co-operation as is required by Sinch to enable Sinch to comply with requests and investigations by Regulators, law enforcement agencies and Service Providers relating to the Services and Data.
(a) Warranties. Each Party represents and warrants it has the necessary authority to enter into and perform the Service Agreement, and that such performance does not violate or breach any other agreement to which it is a party. Sinch warrants that the Services will be provided with the reasonable degree of skill, care, diligence, prudence and foresight to be expected of a competent provider of the Services. Additionally, the Customer represents and warrants that the Content and the Customer’s use of the Services do not and will not cause any breach of the Service Agreement.
(b) Disclaimer. Except as expressly stated in the Service Agreement, Sinch provides the services on an “as is” and “as available” basis. Sinch makes no representations or warranties with respect to the Services and Data, and Sinch does not warrant that the Services will be secure, uninterrupted, timely, or error-free or that Content will be delivered. To the fullest extent permitted by law, Sinch disclaims and the Service Agreement excludes any implied or statutory warranty, including any warranty of title, non-infringement, merchantability or fitness for a particular purpose. The Customer acknowledges that there are risks inherent in network connectivity that could result in the loss of the Customer’s privacy, Data, Confidential Information and property. The Customer further acknowledges that Sinch does not control networks of third parties (including without limitation Service Providers and their networks) and Sinch is not responsible for the impact on the Services by the action or inaction of such networks or third parties.
(a) Indemnification by Sinch. Sinch will indemnify, hold harmless and defend the Customer from and against any and all Losses arising out of or relating to any Claim from a third party (other than one of the Customer’s Affiliates) arising from or relating to any proven infringement of the intellectual property rights of such third party by the Customer’s use of the Services in accordance with the Service Agreement. This indemnity is subject to the Customer (i) providing Sinch with prompt written notice of any Claim; (ii) providing Sinch with sole control and defense of the Claim, including any settlement; (ii) not making any admission of liability or otherwise acting in any manner which prejudices Sinch’s ability to fully defend the Claim; (iii) providing Sinch with any reasonable co-operation Sinch requires. Sinch may (at any time) in Sinch’s sole discretion: (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for the Customer’s continued use of that Service in accordance with the Service Agreement, or (iii) terminate the Customer’s subscription to that Service upon written notice and refund the Customer any prepaid Fees or Taxes relating to such part of the Services which have not been provided by the effective date of termination. This Section 11(a) shall not apply to the extent the relevant Claim arises as a result of any: (i) Data; (ii) use or exploitation of the Services by the Customer or any Service User in any manner which breaches the Service Agreement; (iii) combination or integration of the Services with anything not provided by Sinch.
(b) Indemnification by The Customer. The Customer will indemnify, keep indemnified, hold harmless and defend Sinch from and against any and all Losses arising out of or relating to any and all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from (a) any Content or Data routed into or used with the Services by the Customer, Service Users or anyone acting on the Customer’s behalf, (b) the Customer’s misuse or Service User’s misuse of the Services, or (c) the Customer’s violation or Service User’s violation of the Service Agreement..
12 Limitation of Liability.
(a) Subject to Section 12(c), neither Party will be liable to the other under (or in connection with) the Service Agreement (whether for breach of contract, negligence, misrepresentation, statutory duty or otherwise) and regardless of the nature of the Claim, for (i) any incidental, indirect, special, punitive or consequential losses of any kind, (ii) loss of profits, data (including but not limited to corruption of data), business opportunities, contracts, revenue, goodwill, anticipated savings, or financial loss of any kind (whether any of the types of loss referred to in this Section 12(a) (ii) are direct, incidental, indirect, special, punitive or consequential losses).
(b) Subject to Section 12(c), neither Party will be liable to the other under (or in connection with) the Service Agreement (whether for breach of contract, negligence, misrepresentation, statutory duty or otherwise) and regardless of the nature of the Claim, for any amounts in the aggregate exceeding EUR 10,000.
(c) Nothing in the Service Agreement either limits or excludes the liability of: (i) either Party in relation to an indemnity given by it under Section 11; or (ii) the Customer for the Customer’s payment obligations. Further, the Parties agree that nothing in this Service Agreement is intended to or has the effect of limiting or excluding liability in any way or to an extent that is prohibited by applicable law.
Each Party will, during the Term and thereafter, maintain in confidence the Confidential Information of the other Party and will not use such Confidential Information except as expressly permitted herein. Each Party will use the same degree of care in protecting such Confidential Information as such Party uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Each Party will use such Confidential Information solely for the purpose of carrying out its respective rights and obligations under the Service Agreement. In addition, each Party: (a) will not reproduce such Confidential Information, in any form, except as required to accomplish its rights and obligations under the Service Agreement; and (b) will only disclose such Confidential Information to its Affiliates, employees and consultants who have a need to know such Confidential Information in order to perform their rights and obligations relating to the Service Agreement and have been informed of the obligation to preserve the confidentiality of such information prior to receiving such information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) is in or enters the public domain without breach of the Service Agreement through no fault of the receiving Party; (b) the receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the disclosing Party; (c) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the Confidential Information; or (d) the receiving Party receives from a third Party without restriction on disclosure and without breach of a nondisclosure obligation. Either Party may disclose Confidential Information of the other Party (and Sinch may disclose any Data) to the extent required by law, Regulators or Service Provider request.
The Customer hereby grants Sinch a limited, non-exclusive, non-transferable, royalty-free, non-revocable, perpetual, non-sublicenseable license to display the Customer’s trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that the Customer uses or has used the Services, including on Sinch’s website, in press releases and in other media. The Customer can at any time withdraw the license granted under this Section 14 by notifying Sinch in accordance with Section 17.
15 Test Accounts.
Sinch may have made or may make an Account available to the Customer for the purposes of testing of certain Services (with or without a test Account and Service Order, at Sinch’s discretion). The terms of the Service Agreement shall govern the Customer’s use and access to such test Account and test Services. The Customer shall ensure that the test Account and test Services are used only for the purpose of testing, and not for any productive, commercial or other purpose (such restriction prevailing over any other provision to the contrary in the Service Agreement). The Customer shall comply with any relevant instructions or protocols Sinch notifies the Customer of in relation to the test Account and test Services. The Customer agree that Sinch can withdraw such test Account and test Services at any time (with or without notice to the Customer).
16 Governing Law and Venue.
This Service Agreement shall be governed by and construed in accordance with the applicable law set out in the Introduction section of the Service Agreement. The Parties agree to submit to the exclusive jurisdiction of the civil court in London, England. Sinch may however bring enforcement proceedings and enforce payment obligations against the Customer in any jurisdiction.
Sinch may provide all written notices hereunder to any email address indicated in the Account, effective upon transmission. If the Customer’s email address under its Account is not valid, or if Sinch for any reason is not capable of delivering to the Customer any notices required/permitted by the Service Agreement, Sinch’s dispatch of the email containing such notice will constitute effective notice. Sinch may also give notice to Customer by the postal address listed in the Account, or as otherwise instructed by Customer, which shall be deemed effective (i) one business day after delivery to a reputable international courier service, if delivered by courier service or (ii) two business days after delivery to the post office. Customer’s written notice to Sinch shall be deemed to have been given (i) on the day of dispatch thereof, if sent by e-mail to email@example.com (provided that the transmission is confirmed in e-mail), (ii) one business day after delivery to a reputable international courier service, if delivered by courier service or (iii) two business days after delivery to the post office, if sent by recommended mail, addressed to the applicable address set out in the Introduction section of the Service Agreement..
Neither Party will be liable for failures or delays in the performance of its obligations hereunder due to causes beyond its reasonable control, including, without limitation, in respect of the provision of the Services, failures or delays caused by Service Providers, epidemic or pandemic, any act of God, terrorist attacks, inclement weather, accidental damage, vandalism, failure or shortage or power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labor disturbance, compliance with Relevant Laws, any act or omission of Government or other competent authorities. Nothing in the Service Agreement will limit either Party’s ability to seek injunctive relief. The Parties are independent contractors, and there is no partnership, joint venture, employment, franchise or agency relationship created by the Service Agreement. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent. The Customer shall not, without Sinch’s prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of the Customer’s rights or obligations under the Service Agreement. Sinch may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Service Agreement without the Customer’s consent however, the Customer shall, if Sinch requires, execute such deeds and/or documents as may be necessary or required by Sinch to give effect to any such dealing in such rights and/or obligations. If the Customer does not comply with the Service Agreement, and Sinch does not take action right away, this does not mean that Sinch is giving up any rights that it may have (such as taking action in the future). If it turns out that a particular term of this Service Agreement is not enforceable, this will not affect any other terms. Any Sinch Affiliate is entitled to enforce any provision of this Service Agreement which confers a benefit on it (however the consent of such Sinch Affiliate shall not be required to amend or terminate the Service Agreement in accordance with its term). There are no other third-party beneficiaries to the Service Agreement and any Relevant Law, which may grant third party rights, is expressly excluded. The Service Agreement is the Parties’ entire agreement relating to its subject, and supersedes any Prior Agreement, including any prior oral agreements or written proposals or understandings. Neither Party has entered into the Service Agreement (or any part thereof) in reliance upon and nor shall they have any remedy in respect of, any representation or statement (whether made by the other Party or any other person) which is not expressly set out in the Service Agreement. The only remedies available for breach of any representation or statement which was made prior to entry into the Service Agreement (or any part thereof) and which is expressly set out in the Service Agreement shall be for breach of contract (although nothing in this Section shall be interpreted or construed as limiting or excluding the liability of either Party for any type of fraud). The terms contained in any purchase order, order form or similar document, will have no force or effect, and will not be binding upon Sinch. The Parties may sign the Service Agreement (or any part thereof) electronically and in counterparts, each of which is deemed an original and, together, comprise a single document. Each Party to this Service Agreement agrees to use electronic signatures; and be subject to the provisions of the applicable national laws governing electronic signatures.
In the Service Agreement, capitalized terms shall have the meanings set out below or if not defined herein, the meanings set forth elsewhere in the Service Agreement:
“Account” the Customer’s account with Sinch for the Services.
“Account Information” information the Customer supplies in relation to the Customer’s Account.
“Accrued Liability” when calculated at any given time, the total Fees and Taxes invoiced under the Service Agreement which remain unpaid, plus the unbilled but accrued Fees and Taxes.
“Affiliate” an entity that directly or indirectly controls, is directly or indirectly controlled by, or is under common direct or indirect control with, a Party. For purposes of this Agreement, “control” of any entity shall mean ownership of a majority of the voting equity interests or profit interests in such entity.
“Application” an application owned by the Customer and offered by the Customer under a brand controlled by the Customer.
“Change Order” the document provided by Sinch (and entered into by both the Customer and Sinch) which details changes to Service Orders, Services, Fees and other Service related terms (and which is governed by the General Terms of Service).
“Claim” claim, action, demand, allegation or proceeding brought or made.
“Compliance Rules” shall mean that the Customer shall not use or provide the data calling Services in or to any Restricted Countries. For the purpose of this Service Agreement, “Restricted Countries” shall mean Afghanistan (AF), Armenia (AM), Azerbaijan (AZ), Bahrain (BH), Belarus (BY), Democratic the Republic of the Congo (CD), Côte d’Ivoire (CI), Egypt (EG), Eritrea (ER), Ethiopia (ET), Guinea-Bissau (GW), Guinea (GN), Iraq (IQ), Iran (IR), the Democratic People’s Republic of Korea (KP), Lebanon (LB), Liberia (LR), Libya (LY), Moldova (MD), Myanmar (MM), Oman (OM), Pakistan (PK), the Russian Federation (RU), Somalia (SO), South Sudan (SS), Sudan (SD), Syrian Arabic Republic (SY), Tunisia (TN), Republic of Uzbekistan (UZ), Republic of Yemen (YE), Republic of Zimbabwe (ZW), Kyrgyz Republic (KG), Republic of Kosovo (XK), Republic of Sierra Leone (SL), Republic of Tajikistan (TJ), Turkmenistan (TM), People’s Democratic Republic of Algeria (DZ), Islamic Republic of Mauritania (MR), Kingdom of Morocco (MA), Republic of Djibouti (DJ), Hashemite Kingdom of Jordan (JO), State of Kuwait (KW), State of Qatar (QA), Kingdom of Saudi Arabia (SA), United Arab Emirates (AE), and/or Republic of Rwanda (RW).
“Confidential Information” all information disclosed (whether in oral, written, or other tangible or intangible form) by a Party to the other Party concerning or related to the Service Agreement (whether before, during or after the Term), which the receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information, is confidential information of the disclosing Party. Sinch’s Confidential Information includes, but is not limited to, the Service Agreement, Sinch’s pricing, Sinch’s intellectual property rights and the Services.
“Content” messages, information, data, text, software, music, audio, photographs, graphics, video, messages or other materials stored or transmitted via the Services in any medium.
“Credentials” names, passwords and other information provided to the Customer or created in accordance with Sinch’s policies.
“Credit Balance” a credit balance on a prepay Customer’s account.
“Credit Limit” the aggregate credit limit of all sums payable by the Customer to Sinch which is applied by Sinch to the Customer’s Account.
“Data” Account Information, Content, Personal Data and any other information made available to Sinch in connection with the use of the Services.
“Data Controller” has the meaning given to it in the GDPR.
“Data Processor” has the meaning given to it in the GDPR.
“Data Protection Agreement” is the Data Protection Agreement (“DPA”) applicable on the Services that can be found here https://www.sinch.com/data-protection-agreement/, as amended from to time to time.
“Data Protection Legislation” is the relevant laws and other regulations applicable to the collection, use, storage, disclosure or otherwise processing personal data (such as but not limited to and as far as applicable the General Data Protection Regulation or the “GDPR”) and as is further defined within the Data Protection Agreement.
“Documentation” the technical documentation made available to the Customer by Sinch regarding any portion of the Services, which includes without limitation the relevant Service Specification(s).
“Fees” the charges payable for the Services including but not limited to Recurring Fees, Non-Recurring Fees and One-Time Fees.
“Fine” any and all fines, penalties, refunds, charges, debits, deductions, legal fees and costs incurred by or other sums payable to a Service Provider or Regulator.
“General Data Protection Regulation” or “GDPR” the General Data Protection Regulation (EU) 2016/679 of the European Parliament and the Council, as amended, supplemented and/or varied from time to time.
“General Terms of Service” the general terms of service set out in this document.
“Losses” all losses, damages, liabilities, costs, expenses, Fines and penalties (including without limitation reasonable legal fees and costs).
“Non-Recurring Fees” includes but is not limited to usage based fees and Service Provider pass through fees.
“Numbers and Codes” numbers and/or codes which Sinch makes available for the Customer to use as part of the Services, including (but not limited to), short codes, long numbers, and/or alphanumeric sender ID’s.
“One-Time Fees” one-off fees, including but not limited to set-up fees.
“Personal Data” information about an individual that is defined as “personal data” or “personal information” as defined within the Data Protection Agreement and, if necessary, further defined within in the applicable Data Protection Legislation, such as but not limited to the GDPR.
“Prior Agreement” any other agreement the Customer has entered into with CLX Networks AB, Sinch AB, CLX Communications GmbH, CLX Canada Inc., CLX Communications Ltd or CLX Communications Inc. prior to the effectiveness of the Service Agreement, which governs the Customer’s use of the Services or any part of them.
“Recurring Fees” non-usage based fees, including but not limited to minimum fees and lease fees.
“Regulator” any regulator or other authority, voluntary or otherwise, which a Party is regulated by.
“Relevant Laws” any statute, regulation, bylaw, ordinance or subordinate legislation which is in force for the time being to which a Party is subject; the common law as applicable to the Parties (or any one of them); any binding court order, judgment or decree applicable to the Parties (or any one of them); and any applicable industry code, policy, guidance, standard or accreditation terms enforceable by law, which is in force for the time being, and/or stipulated by any Regulator to which a Party is subject, in each case, for the time being.
“Service” services provided by Sinch under the Service Agreement, including but not limited to the Customer’s use of and access to the platform, software (including any and all software development kits, API and all other software and tools provided to the Customer) and/or Documentation.
“Service Agreement” has the meaning given to it in the Agreement Documents section above.
“Service Level Agreement” or “SLA” the document or documents setting forth Sinch’s standard support terms and service levels for the Services, as provided to the Customer by Sinch.
“Service Order” the document provided by Sinch (and entered into by both the Customer and Sinch) which details the applicable Services, Fees and other Service related terms (and which is governed by the General Terms of Service).
“Service Order Effective Date” the date detailed in a Service Order, being the date which it takes legal effect.
“Service Provider” any entity (including without limitation, a mobile network operator, mobile virtual network operator, signaling provider, messaging aggregator or hosting provider, that directly or indirectly provides a service to Sinch or an Affiliate of ours) that is used in relation to the provision of any of the Services.
“Service Specification” the document or documents detailing a description of the Services, as provided (or otherwise made available) to the Customer by Sinch.
“Service Start Date” means as defined in the second paragraph of the Introduction of these General Terms of Service.
“Service User” means any user of the Services, whether or not the Customer has a contractual relationship with such user including (without limitation) any of the Customer’s customers (or any other third Parties to whom the Services are subsequently resold or made available) or any of the Customer’s Affiliates, suppliers, employees, contractors, agents.
“Sinch” shall mean the applicable Sinch legal entity you enter into this Services Agreement with according to the table set out in the Introduction section of the Service Agreement.
“Supplemental Terms” the Documentation, SLA and any other terms governing the Customer’s use of the Services.
“Taxes” applicable taxes, duties, and similar charges, including sales, usage, excise and value added taxes.
“Term” the term of the Service Agreement, which commences on the date referred to in Section 5(a).