Legal
Global Version 5 – India Version 1 – 08April2022
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 WhatsApp services (“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. Services
A1.1. 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 Messages and who have been informed by Customer of their right to cancel, and have been given a readily accessible free process for cancelling, receipt or to “opt-out” of receiving further Messages. This opt-in information shall include the End User’s MSISDN and any further details if and as required by any relevant Service Provider. Customer agrees that Sinch India will deliver Messages to the Customer’s WhatsApp Application via the Platform Provider based on the End User’s Opt-In Information. Customer shall stop sending Messages to an End User who has opted-out from receiving such Messages as soon as possible but in no case later than twenty-four (24) hours after receipt of the opt-out request (or any shorter time period if necessary to meet or comply with any legal, regulatory, governmental and/or Service Provider request or requirement). At Sinch India’s request, or the request of a Service Provider, Customer shall provide Sinch India with proof of any and all such opt-in(s) and optout(s), and response time to discontinue transmission of Messages after opt-out, to Sinch India’s reasonable satisfaction.
A1.2. Supply of Customer Services. Customer shall inform End Users that Customer is the source and supplier of the Messages and provide appropriate contact details to End Users. Sinch India shall have no support obligations of any kind with respect to End Users and Customer shall not in any way, directly or indirectly, communicate or otherwise convey to End Users anything to the contrary. 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 Customer 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:
A1.4. Inappropriate Use. Customer shall not: (a) remove any identification, patent, trademark, copyright or other notice from the Service or any part of it; (b) access, use, or copy any portion of the intellectual property of Sinch India (access to which is provided to the Customer as part of the Service) to directly or indirectly to develop, promote or support any product or service that is competitive with the Service or any part of it; (c) disclose or publish performance or capacity statistics about the Service or any part of it; or (d) use the Service in connection with any activity that may result in tangible or intangible personal property damage, or death or serious body injury.
A1.5. Acceptable Use. Customer shall not access any information or data provided or controlled by any other customer of Sinch India or its suppliers and will abide by, and will not circumvent or otherwise disable, any security measures implemented in the Service. Customer shall immediately inform Sinch India if any third party makes or threatens any claim or action against Customer, or Sinch India, or any other party relating to any Customer Data, Customer Service or Messages.
A1.6. Faults. Customer agrees to promptly fix any faults and/or bugs in Customer’s software that causes the Service to be accessed incorrectly, including, but not limited to, software that generates incorrect API calls to the Service.
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 the 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 Survival. Sections A1.1, A1.2, A1.3, A1.4, A1.5, A2.2, A2.3, A2.4, A2.6, and A2.7 shall survive termination or expiration of the Agreement.
A2.4 Indemnity. Customer will indemnify and, at Sinch India’s election, defend Sinch India, its Affiliates and subcontractors against:
A2.5 Suspension. In addition to its rights under the GTC, Sinch India may without liability block or delete any Customer Data or Message(s) that Sinch India determines, in its sole discretion, violates the terms of the Agreement.
A2.6 Disclaimer. Customer agrees that, with respect to its supply of the Service, neither Sinch India nor any Sinch India supplier 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 not delivered regardless of the reason for 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.
A2.7 Compliance with WhatsApp Terms and Condition. Customer shall fully comply at all times with all terms and conditions imposed and required by Facebook / WhatsApp with respect to Customer’s use of the WhatsApp Platform (“WhatsApp Platform Terms”) and such compliance shall at all times be a condition of use by Customer of the Service. Customer is solely responsible for ascertaining WhatsApp Platform Terms and ensuring Customer’s full compliance with WhatsApp Platform Terms. Sinch India shall have no obligations to Customer or any third party with respect to Customer’s ascertaining or compliance with WhatsApp Platform Terms. For information purposes only, set forth below are URLs for a sample of WhatsApp Platform Providers’ policies as published or updated by such WhatsApp Platform Providers. Customer acknowledges and agrees that it understands that the following URLs and such policies are subject to change at any time and from time to time based on the specific actions solely of WhatsApp Platform Provider and that ascertaining the correct URL, and WhatsApp Platform Terms, for a specific WhatsApp Platform Provider is solely the obligation of Customer:
Customer’s use of the WhatsApp Business Solution also shall be governed by the appendix to the applicable Order Form. In the event of a conflict between terms in the Agreement and the terms in such Appendix with respect to the subject matter of Appendix, the terms in the Appendix shall govern.
Customer acknowledges and agrees that WhatsApp Platform available for use in connection with the Service may change from time to time and that Sinch India does not guarantee to Customer the availability of the WhatsApp Platform. Sinch India will promptly notify Customer in writing (email permitted) of changes to the availability of the WhatsApp Platform of which Sinch India becomes aware. Customer will promptly notify Sinch India of any changes to Customer’s right to use the WhatsApp Platform of which Customer becomes aware or of any non-compliance by Customer with the WhatsApp Platform Terms. Customer further acknowledges and agrees that WhatsApp / Facebook may at any time impose on Sinch India certain other terms and conditions with respect to the availability and use of WhatsApp Platform (“Other WhatsApp Platform Terms”) in connection with the Service and that in such event Sinch India shall have the right to impose on Customer such Other WhatsApp Platform Terms in the form of a written addendum to the Agreement, effective on the same date on which such Other WhatsApp Platform Terms are effective as to Sinch India, and to be signed promptly by Customer, but in no event later than five (5) business days from the date on which Sinch India communicates such addendum to Customer, as a condition to Customer’s use thereafter of the WhatsApp Platform. If Customer does not sign such addendum within the foregoing time frame Sinch India shall have no obligation to provide, or continue to provide, the Service with respect to the WhatsApp Platform and may at any time in its own discretion suspend or terminate Customer’s use of the WhatsApp Platform.
Part B – Business Terms
B1. Supply of the Service
B1.1. Other Services Required. As further stated in the Order Form or in the Documentation, the Service may require connection through a separate API and in such cases it cannot be used as a stand-alone product or service. In order for Customer to use the Service, Customer must separately enter in an agreement with Sinch India for the right to use the other Services. Unless and until Customer has entered into an agreement with Sinch India to obtain the right to use other Services, Sinch India shall have no obligation to provide the Service, and Sinch India shall not be liable for any failure to do so, and any Messages that Customer submits to the Sinch India Network for transmission via the Service may be blocked or deleted by Sinch India.
B1.2. Third party use. Customer shall not subcontract, sub-license, license, sell, lease, rent or otherwise make the Service available to third parties.
B2. Customer Responsibilities
B2.1. Access and Connectivity
(a) 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 and this obligation is a condition to Customer’s use of the Service.
(b) Other Conditions to Customer’s Use of the Service. Subject to Section A2.7, Customer must independently establish its physical and functional presence on WhatsApp Platform as to which Message transmission is available from Sinch India and as to which Customer desires to use the Service. Customer’s required actions in this regard include, but might not be limited to, depending on the specific nature and requirements of the WhatsApp Platform, (a) Customer’s establishment of a WhatsApp landing page on the WhatsApp Platform and (b) Customer’s account creation on the WhatsApp Platform.
(c) Sinch India SmartTA. Sinch India may, in its sole discretion, provide Customer with access to an Sinch India’s SmartTA interface (“Sinch India SmartTA”) which access will enable Customer to obtain statistical reports detailing Service activity. Access to the Sinch India SmartTA is provided to Customer for informational purposes only, and the data and information displayed are provided without warranties of any kind regarding completeness or accuracy. Customer agrees not to use or rely on such data and information in accounting for monies due between the parties or for billing purposes.
(d) Traffic Forecasts. Customer shall provide to Sinch India timely and accurate forecasts of proposed maximum Message volumes, including peak hour, monthly and quarterly volumes. If Customer does not submit such forecasts, it may impact the quality of the Services.
B2.2. Commercial Messages. Customer shall not use the Service for mobile to mobile, peer to peer messaging purposes. Customer shall use the Service solely to promote or facilitate, directly or indirectly, the goods, services or image of Customer pursuing a commercial activity.
B2.3. Sinch India Webhook integrations and On-boarding. Subject to Customer’s full compliance with Section B2.1 above, Sinch India shall provide to Customer Webhook via a URL provided by Sinch India to Customer for the purpose of Customer integrating such Webhook. Webhook, as so integrated, will be used for the purpose of Customer transmitting Opt-In Information to the Sinch India Network. Sinch India will provide to Customer an on-boarding guide to assist Customer with Customer’s integration of Webhook into the Customer Messaging Application and other set-up requirements relating to transmission between the Customer Messaging Application and the Sinch India Network via the Webhook in accordance with the Documentation.
B2.4. Fees. Customer shall be fully responsible for any fees imposed by WhatsApp with respect to Customer’s use of WhatsApp Platform. In the event WhatsApp imposes any fees on Sinch India with respect to Customer’s use of the WhatsApp Platform, Sinch India shall have the right to charge Customer, and Customer shall pay, the amount of any such fee (including any additional fees), which shall be invoiced by Sinch India to Customer.
Glossary