Legal
India Version 1 – 08 August 2024
These supplemental terms and conditions (“Supplement”) are part of an agreement for certain Sinch India services (“Agreement”) between Sinch India and Customer and apply solely to the Sinch India services referenced in this Supplement i.e., RCS Business Messaging (“Service”) and not any other Sinch India product or service.
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 India Services (“GTC”).
Part A – Legal Terms
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, applicable legal and regulatory requirements and conditions, and all applicable industry guidelines relating to the Customer Data, Customer Services, messages or its use of the Service including, obtaining the prior consent from its End Users as per Data Protection Legislation, and providing accurate and true certified copies of Know Your Customer documents required to receive the Services. If a Service Provider changes the Service Provider Conditions and/or the technical standards for the delivery of Service, Sinch India may modify the terms and conditions governing such Service upon written notice to Customer.
A1.2. End User opt-in/opt-out requirements. Customer shall send messages only to End Users who have, and continue to, knowingly consent or “opt-in” to receiving them and who have been informed of their rights to, and been given, a free, readily accessible process for cancelling receipt or “opting-out” of receiving future messages, such as via End User text responses of STOP, QUIT, CANCEL, OPT-OUT, and/or UNSUBSCRIBE. Customer shall immediately stop sending messages to an End User who has “opted-out” from receiving such messages. At Sinch India’s request, Customer shall provide Sinch India with proof of any and all such opt-in(s) and opt-out(s), process adopted by the Customer for obtaining opt-in consents, and response time to discontinue transmission of messages after opt-out, to Sinch India’s reasonable satisfaction. If applicable, for International Termination i.e., outside India, Customer shall send messages only to End Users who have, and continue to, knowingly consent to receiving them in accordance with the destination country’s Applicable Law.
A1.3. Supply of Customer Services. Customer shall inform End Users that it is the source and supplier of the messages and provide appropriate contact details to End Users. Customer shall bear sole responsibility for the acts, omissions or breaches of End Users with respect to the use of the Service, Customer Services and the messages, including but not limited to the Customer Data. Customer shall promptly inform Sinch India if it becomes aware of any violation of the terms of this paragraph.
A1.4. Restrictions. Customer shall not use the Service or permit the Service to be used:
(a) in a manner that violates any Applicable Law, regulation, industry guidelines, or code of practice, or that violates, infringes or misappropriates the rights of any third party (including but not limited to, the intellectual property rights of Sinch India and the Service Provider and their respective Affiliates);
(b) to transmit any message 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 India Network or any computer systems or telecommunications equipment or mobile handsets owned by Sinch India 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;
(c) to send spam, “junk mail” or unsolicited advertising or promotional messages or material, or to send or knowingly receive or use any message or material which is obscene, offensive, abusive, harassing, misleading, fraudulent, violent, unethical, indecent, defamatory, discriminatory, threatening, libelous, unlawful or menacing or promotes alcohol abuse or illegal drug use; or
(d) to send any messages that contain medical and/or life-threatening emergency information if such message is the sole transmission channel to the End User with respect to such emergency.
A1.5 Customer obligations. Customer shall:
(a) not make any unauthorized, false, misleading, or illegal statements in connection with this Agreement or Service; and
(b) ensure that it is authorised to use the sending identity used to send the message to its End Users to prevent any messages being sent anonymously or with a false sender address/ sender originating name.
A2. Compliance
A2.1. Requirements. The provisions of Sections 2.5 and 4.1(3) of the GTC shall apply equally to requests, directions and/or orders made or issued by any Service Provider.
A2.2. Responsibility. Sinch India may, in its sole discretion, require Customer to take primary responsibility for any request or enquiry made under Section A2.1 above relating to any Customer Service, message(s) or Customer Data or arising from Customer’s use of the Service or from an alleged or actual breach of this Agreement by Customer.
Customer agrees, at its own cost, to accept full responsibility for any such request or enquiry including for any expenses, penalties, fines, sanctions or other analogous costs that may arise, and in relation to such request or enquiry, to provide all requested information to such regulator or Service Provider (with copies to Sinch India) in a timely manner.
A2.3. Effect of Termination. Sections A1.2 (“End User opt-in/opt-out requirements”) and A1.3 (“Supply of Customer Services”) above shall survive termination of the Agreement.
A2.4. Indemnity and Liability.
A2.4.1. Indemnity. Customer will indemnify and, at Sinch India’s election, defend Sinch India, its Affiliates and subcontractors against:
(a) any claims (including, but not limited to, any claims, fines, penalties, or losses) or other liabilities brought against Sinch India, its Affiliates and subcontractors by any third party (including, but not limited to, any other Sinch India customer, Service Provider or governmental or regulatory authority) relating to Customer Data, Customer Services, messages or Customer’s use of the Service (including, but not limited to, any such claim which relates to infringement or misappropriation of any intellectual property rights of any third party or any breach or violation of laws or regulations or guidelines issued by Service Providers);
(b) any claims (including, but not limited to, any claims, fines, penalties, or losses) or other liabilities brought against Sinch India, its Affiliates and subcontractors by any third party (including, but not limited to, any governmental or regulatory authority) due to (i) non-compliance by Customer of the know your customer compliance process and/or (ii) non-adherence by the Customer of the know your customer process or any enquiries/orders issued by competent governmental or regulatory agencies; and
(c) all damages finally awarded against Sinch India, its Affiliates and subcontractors with respect to these claims.
A2.4.2. Liability. Notwithstanding anything to the contrary contained in this Agreement, the Customer shall not exclude or limit its liability for any claims arising out of infringement of any intellectual property rights or breach of confidentiality provisions.
A2.5. Disclaimer. Customer agrees that with respect to its supply of the Service, neither Sinch India nor any Sinch India supplier nor any Service Provider shall be liable whether in contract, tort, or strict liability to Customer or to any End User or any other customer of Customer for (i) any messages deleted or not delivered regardless of the reason for deletion or non-delivery, including, without limitation, message processing errors, transmission errors, or messaging network and/or service failures; or (ii) the accuracy of information provided through the Service; or (iii) any message content that the Customer or any End User sends using the Service.
It is further clarified that (i) neither Sinch India nor any of its subcontractors, make any representation or warranties pertaining to RBM on behalf of the Service Provider; (ii) RBM is a third-party product owned and developed by the Service Provider and its associates, therefore neither Sinch India nor any of its subcontractors shall be liable for the Service or Service deficiency.
To the fullest extent permitted by Applicable Law, Sinch India and the Service Provider make no conditions, representations, warranties, or other commitments (whether express or implied, including as to satisfactory quality, fitness for a particular purpose or conformance with a description) regarding RBM.
A2.6. Suspension of Service. Notwithstanding anything contained in Section 2.7 of GTC, Sinch India shall immediately suspend or terminate the Services if Sinch India receives intimation from any Service Provider of Service misuse or of Customer’s use of the Service contrary to Applicable Law or of Customer’s use of the Service contrary to Service Provider Conditions, and/or if Sinch India is directed by any Service Provider to suspend provision of the Services to the Customer. Customer agrees that Sinch India and/or Service Provider may discontinue, suspend, or terminate the Services if the same is permitted under Service Provider Conditions and in the event of a security, technical, or other incident that poses a significant risk or has an adverse impact on the Service, RBM Platform, and/or to Sinch India or Service Provider’s other customers.
Sinch India or any Service Provider may, in its sole discretion, without incurring any liability to the Customer, and upon prior written notice: (i) discontinue the sale or availability of the Service or Service Support; and/or (ii) modify the features and functionality of the Service (including adding any features or functionality of RBM, the use of which may be contingent on Sinch India’s or Customers’ agreement to additional terms) or the Service Provider Conditions.
A2.7. Disclosure of information. Sinch India may be obligated under Applicable Law to disclose information to law enforcement authorities, regulatory authorities, and Service Providers during audits and/or further to request for information pertaining to alleged or actual fraudulent and/or use (including illegal use) of the Services.
A2.8. Goodwill. Goodwill arising from the use of the Service Provider’s Brand Features by the Customer and the End User will belong to the Service Provider and/or its Affiliates.
Part B – Business Terms
B1.1. Access and Connectivity.
Sinch India Network connection. Customer is solely responsible, at its own expense, for establishing and maintaining its equipment, software, facilities, and its connection to the Sinch India Network.
B1.2. Commercial Messages.
Customer acknowledges that the Service is intended solely for Commercial messages and shall not be used for mobile-to-mobile peer to peer messaging purposes. For the purpose of this Section, “Commercial messages” means messages designed to promote or facilitate, directly or indirectly, the goods, services or image of any person or entity pursuing a commercial activity.
B2.1. Price Changes. Unless otherwise agreed in an Order Form, Sinch may modify any fees in its sole discretion upon written notice.