Email Supplemental Terms and Conditions

These Email Supplemental Terms and Conditions (“Email Supplement”) are made under and form a part of Customer’s Agreement with Sinch. This Email Supplement governs Sinch’s provision and Customer’s receipt of the Email Services (defined below). The definitions in the Agreement apply to any term not defined in this Email Supplement.

1. Definitions

1. 1 “Configuration Requirements” means those specifications as required to perform the Email 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 Email 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 Email Services relate.

1. 4 “Customer Service” means a marketing, advertising, promotional or informational program or initiative, or other project, conducted by Customer utilizing the Email Service.

1. 5 “Email Services” means email services provided by Sinch to Customer, including without limitation under the umbrella brands Mailgun, Mailjet, and Email on Acid.

1. 6 “Service Provider” means any entity, including but not limited to email and mailbox providers, that is used in relation to the supply of the Email Services and as identified in the applicable Order Form.

1. 7 “Service Provider Conditions” means the rates, terms and conditions and “codes of conduct” or email content rules and restrictions imposed by the applicable Service Providers on the Email Services and conduct of Customer Services as a condition of permitting Sinch to provide the Service and Customer to conduct Customer Services, 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. 8 “SLA” means any provision providing a specified credit remedy for an identified failure to deliver or provide the Email Services to the identified standard.

1. 9 “Third Party Software” means any third-party software for Customer’s use as part of the Email Services or to assist Sinch in its delivery of the Email Services.

2. Customer’s Use of Email Services

2. 1 Acceptable Use Policy. Customer agrees that its use of the Email 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 Sinch determines that Customer’s (including its users’) act(s) or omission(s) fail(s) to comply with the AUP, Sinch reserves the right to take any additional action or measure it deems reasonably necessary or required to preserve the integrity of the Email Services, Sinch Network and other customers or otherwise to comply with applicable laws, rules, regulations and policies.

2. 2 Documentation. Customer agrees to comply with all Documentation related to the Email Services and agrees that Sinch may establish new procedures for Customer’s use of the Email Services as it deems necessary for the optimal performance of the Email 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.

2. 3 Compliance with Service Provider Terms. In addition to Customer’s obligations set forth in the Agreement, Customer will comply with all Service Provider Conditions including any applicable legal and regulatory requirements relating to Customer Content or Customer’s use of the Email Services. If a Service Provider changes its Service Provider Conditions and/or the technical standards for the delivery of the Email Services, Sinch may modify the terms governing such Email Services upon prior written notice to Customer.

2. 4 Restrictions. Customer will not use or permit the Email Services to be used:
   
   2.4.1 in a manner that violates the Agreement, including this Email 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;
   
   2.4.2 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 Content; or
   
   2.4.3 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.

2. 5 Responsibility. Customer shall bear sole responsibility for the acts, omissions or breaches of its officers, directors, employees, contractors, Affiliates, suppliers, agents with respect to the use of the Email Services, including but not limited to, the Customer Content. Customer shall promptly inform Sinch if it becomes aware of any violation of this section.

2. 7 Content Privacy. Customer acknowledges and understands that the Email 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 Email Services. Email sent using the Email 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 Email Services include support for TLS, content may be transmitted even if the recipient does not also support TLS, resulting in an unencrypted transmission.

2. 8 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 Email Services. Sinch makes no commitment to provide any services other than the Email Services stated in the Order Form. Sinch or its Service Provider is not responsible to Customer or any third party for unauthorized access to Customer Content or for unauthorized use of the Email Services that is not solely caused by Sinch’s failure to meet its security obligations in Section 3.1 below.

2. 9 Indemnity. Customer will indemnify, defend and hold Sinch harmless against any and all claims against Sinch by any third party in connection with the Services, including but not limited to: (i) Customer’s use of any Services or related products, data and documentation provided to Customer hereunder, including where the same results in an alleged violation of any law, regulation or AUP; (ii) Customer Content; and (iii) Customer’s connection of any Sinch product or service to any third party service or network, including without limitation, damages resulting from unauthorized use of, or access to, the Sinch Network. Customer will indemnify Sinch from any damages, fines, penalties, reasonable attorneys’ fees, losses, expenses and costs incurred by any Sinch Indemnitee with respect to these claims, including any claim Sinch makes to enforce Customer’s obligations hereunder.

2. 10 Price Changes. Sinch may revise the pricing terms that apply to Customer’s use of the Email Services at any time by providing Customer with notice pursuant to the Agreement. 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 Email 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 Form (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.

3. Sinch’s Provision of Email Services

3. 1 Security and Privacy. Sinch shall provide the Email 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 Email 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 Email Services, including appropriately securing and encrypting Personal Data stored on or transmitted using the Customer Configuration. Customer agrees not to provide Sinch or use the Email 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 Email Services.

3. 2 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.

3. 3 Third Party Software. Sinch may provide Third Party Software. Unless otherwise permitted by the terms of the applicable license Customer 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 Email Services (identified on the Order Form) on the Customer Configuration on which it was originally installed, subject to any additional restrictions identified in this Email Supplement, the Order Form or the Agreement. Customer is prohibited from using Third Party Software which Sinch installs in order to assist our delivery of the Email Services. Upon termination of the Order Form, Customer 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.

3. 4 Modifications. Sinch expressly reserves 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.

3. 5 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 the Email Services provide some email filtering services designed to filter spam, the Email Services do not provide virus scanning. Sinch recommends that Customer employ additional security measures to protect against spam, email phishing attempts and email infected with viruses. Customer acknowledges 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 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. Customer acknowledges 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.

3. 6 Mailgun Optimize. Sinch will provide the Mailgun Optimize 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 in the Documentation for such tool or service.

4. Service Level Agreement

4. 1 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 excluding Mailgun Optimize offerings and excluding Mailgun Inspect email preview clients) 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.

4. 2 Credit Limitations. Customer is not entitled to any credit if Customer is in breach of the terms governing Customer’s use of the Email Services unless Customer has timely cured the breach. Customer is not entitled to any credit if (i) downtime would not have occurred but for Customer’s breach of this Email Supplement, including violation of the AUP, or (ii) if the credit would not have accrued but for Customer’s action or omission. 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 Sinch’s 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 Email Services was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in this Email 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.

4. 3 SLA Credits. The credits stated in an 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 a calendar month shall not exceed 50% of the monthly recurring fee for Email Services for that month. Credits that would be available but for this limitation will not be carried forward to future months.

5. Miscellaneous.

5. 1 Multiple Order Forms. 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.

5. 2 Changes to Order Form. An Order Form may be amended to modify, add, or remove services by a 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.

5. 3 Effect of Online Revisions. 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 Email 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.