Legal
Capitalized terms are defined in the Glossary at the end of this document.
2.1 Supply of Service.
Subject to the terms of the Agreement, SINCH will make the Service available to Customer.
2.2 Grant of Rights.
SINCH grants to Customer a non-exclusive and non-transferable right to use the Service as permitted under the Agreement solely for the Customer’s internal business operations.
2.3 Acceptable Use Policy.
With respect to the Service, Customer shall not:
2.4 Monitoring.
SINCH may, but is under no obligation to, monitor use of the Service (only to the extent allowed by applicable law):
2.5 Compliance.
Customer shall promptly provide any information as SINCH may request relating to Customer Data or Customer’s use of the Service:
2.6 Operating Instructions.
Customer shall comply, and use the Service in accordance, with the operating guidelines and policies relating to the use of the Services.
2.7 Suspension of Service.
SINCH may suspend use of the Service:
SINCH will promptly notify (email permitted) Customer of the suspension. SINCH will endeavor to limit the suspension in time and scope as reasonably possible under the circumstances, and will resume the Service once the cause of the suspension has been remedied, provided that if a suspension is due to Customer’s actions or inactions, SINCH will resume the Service once Customer has remedied the cause of the suspension and Customer will pay any applicable reconnection charge or, if no charge is specified, Customer shall reimburse SINCH for all reasonable costs and expenses incurred by SINCH in resuming the Service and further provided that SINCH may terminate the Agreement if Customer does not remedy the cause of the suspension within thirty (30) days.
2.8 Third Party Services and Applications.
The Service may include integrations with web services, software and/or application by third parties (other than SINCH or its Affiliates) that are accessed through the Service and subject to terms and conditions with those third parties.
2.9 Anti-Fraud
SINCH adopts measures to identify and prevent fraud and illegal practices during the use of the Service, including, without limitation, the verification of links inserted by the Customer during the use of the Service. SINCH does not represent that it will be able to block or prevent the transmission of fraudulent messages or voice calls. Customer is responsible for ensuring that its account is not used to transmit fraudulent messages or voice calls. Fraud, including artificial inflated traffic originating from the Customer, will not excuse Customer’s payment obligations under the Agreement.
3.1 Provisioning.
SINCH provides access to the Service as described in the Order Form.
3.2 Support.
SINCH provides support for the Service as referenced in the Order Form.
3.3 Modifications.
3.4 Excluded Events.
Notwithstanding any provision to the contrary in the Agreement, SINCH shall not be liable for any failure to perform or any delay in performing an obligation under the Agreement if such failure or delay arises as a result of or in connection with the occurrence of an Excluded Event.
4.1 Customer Obligations.
Customer shall:
4.2 Customer Data.
Customer is solely responsible for all Customer Data. Customer (i) grants to Sinch (including its Affiliates and subcontractors) a nonexclusive, worldwide right to use, modify, adapt and process Customer Data to analyse, develop, test, and operate, provide and support the Services and/or any of products of SINCH and its Affiliates and (ii) acknowledges that neither SINCH, its Affiliates, nor their respective suppliers exercise any control over Customer Data, and act as a mere or passive conduit in transmitting and handling Customer Data.
Customer acknowledge and agree that any Messages sent through Sinch are deemed to have been sent and/or authorized by Customer.
4.3 Personal Data.
Customer will collect and maintain all Personal Data necessary to utilise the Service, and all required consents associated with such Personal Data, in compliance with applicable Data Protection Laws.
4.4 Co-operation
The Customer shall reasonably co-operate with SINCH in SINCH’s supply and support of a Service, including any diagnostic or other maintenance or upgrade activities.
4.5 Access and Security.
Customer has the sole and exclusive responsibility for the installation, configuration, security (including firewall security), and integrity of all Customer facilities, systems, equipment, proxy servers, software, networks, network configurations and the like (the “Customer Equipment”) used in conjunction with or related to the Service(s) provided by SINCH, including, without limitation, Customer’s connectivity to any third party. Customer will maintain reasonable security standards to protect the SINCH Network from unauthorised access, including, but not limited to, protecting Customer’s passwords from being disclosed to or accessed by third parties. Customer shall immediately inform SINCH if the Customer becomes aware of any possible or actual unauthorised use, misuse or access of the Service.
4.6 Disaster Recovery.
Customer is solely responsible for all disaster recovery, business continuity and back up arrangements in respect of its own equipment and all of its Customer Data.
4.7. Test Account. Sinch may make an account available to the Customer for the purposes of non-productive testing, demonstration and evaluation of certain Services. The terms of the 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 strictly for the purpose of non-production testing, demonstration and evaluation, and not for any productive, commercial or other purpose. The Customer shall not connect the test Services to a productive IT-environment. 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 agrees that Sinch can withdraw such test account and test Services at any time (with or without notice to the Customer).
5.1 Fees and Payment.
Customer will pay fees as stated in the Order Form. For nonpayment, SINCH may, after prior written notice, suspend Customer’s use of the Service until payment is made. Customer cannot withhold, reduce or set-off fees owed during the Term. For any invoice the Customer fails to pay by its due date, interest will thereafter accrue on such unpaid amount at the maximum allowable rate. 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. Invoices issued by Sinch shall be final, conclusive and binding on the Customer, provided that the Customer may dispute an invoice in writing and in good faith no later than within thirty (30) days from the date of invoice but further, provided that Customer will timely pay any undisputed part of such invoice. No omission or delay by Sinch in invoicing any sums shall prohibit Sinch from raising an invoice at a later date nor shall it relieve the Customer of the Customer’s liability to pay. Customer shall pay for all fees, costs and expenses, including but not limited to reasonable legal fees and costs on an attorney and client basis, and debt collectors’ costs, incurred by Sinch in enforcing or attempting to enforce the rights and obligations under the Agreement.
5.2 Taxes.
Unless otherwise stated in an Order Form, fees and other charges imposd under an Order Form will not include taxes, including withholding taxes, all of which will be for Customer’s account. Customer is responsible for all taxes including withholding taxes, other than SINCH’s income and payroll taxes. If SINCH is required to pay taxes (other than its income and payroll taxes), Customer will reimburse SINCH for those amounts and indemnify SINCH for any taxes and related costs paid or payable by SINCH attributable to those taxes.
5.3 Set-off.
SINCH may, without notice to the Customer, set-off any sums owed by the Customer under this Agreement and/or any other agreement with SINCH against any sums owed by SINCH to Customer regardless of the place of payment or currency of such obligations.
6.1 Term.
The Term is as stated in the Order Form.
6.2 Termination by Either Party.
A party may terminate the Agreement:
6.3 Termination by SINCH.
In addition to the termination rights set out in Section 6.2, SINCH may also terminate the Agreement or any specific Service being affected at any time:
Sinch will endevaour to limit the termination in time and scope as reasonably possible under the circumstances. In addition, Sinch may terminate the entire Agreement immediately, without prejudice to the other clause in the Agreement and in applicable legislation, if any illegal practice and/or fraudulent use of the Service is proven.
6.4 Effect of Expiration or Termination.
Upon the effective date of expiration or termination of the Agreement:
6.5 Survival.
Sections 1, 2.4, 2.5, 5, 6.4, 6.5, 8, 9, 10, 11, and 13 will survive the expiration or termination of the Agreement.
7.1 Compliance with Law.
Each Party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with (i) in the case of Sinch, the operation of SINCH’s business as it relates to the Service and (ii) in the case of Customer, the Customer Data and the Customer’s use of the Services.
7.2 Disclaimer.
Except as expressly provided in the Agreement, neither SINCH nor its subcontractors make any representation or warranties, and SINCH and its subcontractors disclaim all representations, warranties, terms, conditions or statements, which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, all of which are excluded to the fullest extent permitted by law including the implied conditions, warranties or other terms as to merchantability, suitability, originality, or fitness for a particular use or purpose. In addition, except as expressly provided in this Agreement, neither SINCH nor its subcontractors make any representations, warranties, terms, conditions or statements of non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of SINCH or product roadmaps in entering into the Agreement. Customer acknowledges that (i) the Service has not been specifically designed to meet its and/or any of its customer’s or end-user’s individual requirements; and (ii) the Service will not be error- free, uninterrupted, or free from unauthorised access. Except as expressly stated in this Agreement, the Service is provided on an ‘as is’ and ‘as available’ basis.
8.1 Claims Brought Against Customer.
8.2 Third Party Claim Procedure.
8.3 Exclusive Remedy.
The provisions of Section 8 state the sole, exclusive, and entire liability of SINCH, its Affiliates, and subcontractors to Customer, and is Customer’s sole remedy, with respect to third party claims and to the infringement or misappropriation of third party intellectual property rights.
9.1 Unlimited Liability.
Neither party will exclude or limit its liability for damages resulting from:
9.2 Liability Cap.
Subject to Sections 9.1 and 9.3, under no circumstances and regardless of the nature of the claim, shall the maximum aggregate liability of either party (or its respective Affiliates or SINCH’s subcontractors) to the other party or its Affiliates or any other person or entity (howsoever arising) under or in connection with this Agreement including (but not limited to) liability for breach of contract, tort (including but not limited to negligence), misrepresentation (whether tortious or statutory), breach of statutory duty, breach of warranty, claims by third parties from any repudiatory, material, or other breach (however minor) of this Agreement (whether or not intentional), from willful misconduct or otherwise, exceed EUR 10,000 for all events (or series of connected events) arising in any twelve (12) month period Any “twelve (12) month period” commences on the Term start date or any of its yearly anniversaries.
9.3 Exclusion of Damages.
Subject to Section 9.1:
9.4 Risk Allocation.
The Agreement allocates the risks between SINCH and Customer. The fees for the Service reflect this allocation of risk and limitations of liability.
10.1 SINCH Ownership.
SINCH, its Affiliates or licensors own all intellectual property rights in and related to the Service, Documentation, design contributions, related knowledge or processes, and any derivative works of them, including any feedback Customer may provide to Sinch about the Service in connection with Customer’s use of the Service. All rights not expressly granted to Customer are reserved to SINCH, its Affiliates and its licensors.
10.2 Customer Ownership.
Customer retains all rights in and related to the Customer Data as between Customer and SINCH.
10.3 Non-Assertion of Rights.
Customer covenants, on behalf of itself and its successors and assigns, not to assert against SINCH, its Affiliates or licensors, any rights, or any claims of any rights, in any Service or Documentation.
11.1 Use of Confidential Information.
11.2 Exceptions.
The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
11.3 Compelled Disclosure
The receiving party may disclose Confidential Information pursuant to a lawful requirement or request from a court or governmental agency (including by pursuant to stock market rule or regulation); provided that prior to making any disclosure, the receiving party will (a) give the disclosing party written notice, to the extent commercially practicable and not otherwise prohibited by law, sufficient to allow the disclosing party to seek a protective order or other appropriate remedy and (b) disclose only that portion of the Confidential Information it is required to disclose, based on advice of its counsel, to comply with such legal requirement, and will use commercially reasonable efforts to obtain confidential treatment for any of the Confidential Information so disclosed.
11.4 Publicity.
Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that SINCH may use Customer’s name and logo in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of SINCH’s marketing efforts (including reference calls and stories, press testimonials, site visits). Customer agrees that SINCH may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorisations to share Customer employee contact information with SINCH.
12.1 Data Controller.
The Customer acknowledges that SINCH shall act as an independent Data Controller with respect to the processing of Personal Data that is necessary to provide its communications services and carry out its necessary functions and business as a communication services provider, including necessary measures to prevent spam and fraud and measures for control, security, and maintenance of its network, management of its business and compliance functions, consistent with its obligations under applicable laws including Data Protection Law.
12.2 Data Processor.
When SINCH processes Personal Data on behalf of the Customer (in accordance with Data Protection Law), SINCH can be qualified as a Data Processor and the Customer as a Data Controller as defined within this Agreement and the DPA applicable on the service.
13.1 Severability.
If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
13.2 No Waiver.
A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
13.3 Electronic Signature.
Electronic signatures that comply with applicable law are deemed original signatures.
13.4 Regulatory Matters.
SINCH Confidential Information is subject to export control laws of various countries. Customer will not submit SINCH Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export SINCH Confidential Information to countries, persons or entities if prohibited by export laws.
13.5 Notices.
All notices will be in writing and given when delivered to the address set forth in an Order Form with copy to the legal department. Notices by SINCH relating to the operation or support of the Service, and as otherwise permitted in the GTC or an Order Form (including, but not limited to, those under Sections 2.7 and 5.1 of this GTC) may be in the form of electronic mail to Customer’s authorised representative or administrator, with such notice deemed to have been given upon dispatch from SINCH’s email server.
13.6 Assignment.
Without SINCH’s prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. SINCH may assign the Agreement to any of its Affiliates. Any attempted assignment in violation of the provisions of this Section will be void ab initio.
13.7 Subcontracting and use of Affiliates.
SINCH may subcontract parts of the Service to third parties. SINCH is responsible for breaches of the Agreement caused by its subcontractors. Nothing shall prevent SINCH from delegating the performance of any or all of its obligations under this Agreement to any Affiliate.
13.8 Relationship of the Parties.
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
13.9 Rights of third parties.
Except as specifically provided for in this Agreement, this Agreement does not give rise to any third party being a third party beneficiary of this Agreement or being entitled to any rights whatsoever, including, but not limited to, the right to enforce any term of this Agreement. Under this Agreement, any liability, loss or damage incurred or suffered by an Affiliate of SINCH in relation to the supply of the Service to, or use by, Customer pursuant to this Agreement shall be deemed to constitute a liability, loss or damage incurred or suffered by SINCH.
13.10 Force Majeure.
Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
13.11 Anti-Corruption
The Parties, in addition to acting according to this Agreement, will comply with all Anticorruption and Bribery applicable legislation. Neither party nor its officers, directors, employees, agents, affiliates, delegates or representatives shall pay, offer or promise to pay or authorize the payment, directly or indirectly, of any money, gift, or any other type of favoring to an official or employee of a private organization or company, the government or a state agency, an agency or company which majority partner is a state body, a public organization, a candidate for public office or a political party, a member of a political party, any person acting in an official governmental capacity and any person or entity acting for or for the benefit of any of the parties mentioned in this paragraph, for the purpose of influencing any action or decision, whether to obtain a commercial advantage or to obtain or retain business, or to direct transactions for any person. The Parties further agree to maintain books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions undertaken and the disposition of assets; and will maintain, and provide to the other Party on request, information that is reasonably required to verify compliance with this paragraph.
13.12 Export Regulations
Customer acknowledges that the products delivered by SINCH under this Agreement may be controlled under applicable export and import control or sanctions laws and regulations and Customer may require an export or import license from a government authority to export, transfer or import any Hardware, Software or Documentation. Customer represents that it is not on any sanction lists such as the EU restrictive list or the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons and warrants it will only use the products for civil and peaceful use and not use the products to develop or produce conventional weapons and/or nuclear, chemical, biological weapons or missiles. Nothing in this agreement shall be read as requiring either Party to be directly or indirectly involved in export, re-export, transfer, use of goods, technology, software, or services that is prohibited by applicable export control or sanctions laws
13.13 Governing Law and Dispute
(a) If this Agreement is entered into with Sinch Sweden AB, the Agreement will be governed by, and construed in accordance with, the laws of Sweden, without reference to its conflicts of laws principles. All disputes will be subject to the exclusive jurisdiction of the courts in Stockholm, Sweden.
(b) If this Agreement is entered into with Sinch UK Ltd., the Agreement will be governed by, and construed in accordance with, the laws of England and Wales, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in London, England.
(c) If this Agreement is entered into with Sinch America Inc. or MessageMedia U.S.A. Inc., the Agreement will be governed by, and construed in accordance with, the laws of the state of Georgia, USA, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in Georgia, USA.
(d) If this Agreement is entered into with Sinch Communications Canada Inc., the Agreement will be governed by, and construed in accordance with, the provincial laws of Quebec and the federal laws of Canada as applicable therein, without reference to its conflicts of laws principles. All disputes will be subject to the exclusive jurisdiction of the provincial and federal courts in the judicial district of Montreal, Quebec.
(e) If this Agreement is entered into with Sinch Singapore Pte Ltd, this Agreement and any matters relating to this Agreement shall be governed by and construed in accordance with the laws of Singapore, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the Singapore courts. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any term of this Agreement.
(f) If this Agreement is entered into with Sinch Australia Pty Ltd, the Agreement and any claims relating to its subject matter will be governed by and construed under the laws of New South Wales, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the New South Wales courts.
(g) If this Agreement is entered into with MessengerPeople GmbH, the Agreement will be governed by, and construed in accordance with, the laws of Germany, without reference to its conflicts of laws principles. All disputes will be subject to the exclusive jurisdiction of the courts in Berlin, Germany.
(h) If this Agreement is entered into with Sinch BR S.A., the Agreement will be governed by, and construed in accordance with, the laws of Federative Republic of Brazil- All disputes will be subject to the exclusive jurisdiction of the Central District located in São Paulo, State of São Paulo.
(i) If this Agreement is entered into with Cyclelogic Mexico S. de R.L de CV, the Agreement will be governed by, and construed in accordance with, the Mexican laws applicable in Mexico City and the Parties chose the court of Mexico City, to resolve the questions or controversies arising from the Agreement, excluding any other, as privileged as it may be.
(j) If this Agreement is entered into with ACL Mobile Private Ltd., the Agreement will be governed by, and construed in accordance with, the laws of India, without reference to its conflicts of laws principles. All disputes will be subject to the exclusive jurisdiction of the courts in New Delhi, India.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one (1) year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s). If Customer fails to pay Sinch any amounts due under this Agreement, Customer will be liable for and pay to Sinch all expenses Sinch incurs in collecting such unpaid amounts, including fees Sinch pays to a debt collection agency. In addition, in any jurisdiction in which attorneys’ fees and expenses are not awarded to the prevailing party, if either party commences a legal action in connection with this Agreement, the prevailing party will be entitled to recover as a part of the action its reasonable third-party, out-of-pocket attorneys’ fees, and all other reasonable expenses actually incurred. The prevailing party for the purpose of this clause shall be determined by the trier of fact.
13.14 Entire Agreement.
The Agreement constitutes the complete and exclusive statement of the agreement between SINCH and Customer relating to the subject matter of the Agreement and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that in entering into the Agreement it has not relied on any representation, discussion, collateral contract or other assurance except those expressly set out in the Agreement. Each party waives all rights and remedies which, but for this section, might otherwise be available to it in respect of any such representation, discussion, collateral contract or other assurance. Except as permitted under Section 3.3, this Agreement may be modified only in writing signed by both parties. The Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order furnished by one party to the other, and any additional terms and conditions in any such purchase order shall have no force and effect, notwithstanding the non-furnishing party’s acceptance or execution of such purchase order.
1.1. “Affiliate” means SINCH or any legal entity in which Customer or SINCH, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
1.2. “Agreement” means an Order Form and documents incorporated into an Order Form.
1.3. “Confidential Information” means
1.4. “Customer Data” means any content, messages, data and/or information that Customer delivers or uploads to the SINCH Network or to a Service or provides via a Service. Customer Data and its derivatives will not include SINCH’s Confidential Information nor any usage data that arises or SINCH generates in the supply of the Service.
1.5. “Data Controller” means given to it in the GDPR.
1.6. “Data Processor” means given to it in the GDPR.
1.7. “Data Processing Agreement” is the Data Processing Agreement (“DPA”) applicable on the Services, and of which the most recent version can be found at https://www.sinch.com/data-protection-agreement/.
1.8. “Data Protection Law” means 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”), the California Privacy Rights Act (the “CPRA”) and California Consumer Privacy Act (the “CCPA”) and as further defined within the DPA.
1.9. “Documentation” means SINCH’s then-current technical and functional documentation as well as any service descriptions and roles and responsibilities descriptions, if applicable, for the Service which is made available to Customer with the Service.
1.10. “Excluded Event(s)” means any of the following: (i) a fault in, or any other problem associated with, systems not operated or managed by SINCH; (iii) any breach of the Agreement by the Customer or a third-party within the Customer’s direct control or any third party supplier to the Customer;(iv) any act by the Customer which interferes with or impedes the supply and support of the Service; (v) any suspension of the Service in accordance with the terms of the Agreement; or (vi) any other circumstances caused by events for which SINCH is not liable in accordance with the terms of the Agreement.
1.11. “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.
1.12. “Indemnity” means any section within an Order Form, Supplement or GTC identified as an indemnity either by its wording or its heading.
1.13. “Intellectual Property Rights” means copyrights, database rights, patents, patent applications, patent rights, trademarks, trademark applications, trademark registrations, trademark rights, trade secrets, rights in know-how and all other intellectual property and proprietary information rights as may exist now or hereafter come into existence under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action).
1.14. “Order Form” means the ordering document (including an electronic form and/or order submitted through an online ordering platform) for the Service that references the GTC.
1.15. “Personal Data” information about an individual that is defined as “personal data” or “personal information” as defined within the DPA and, if necessary, further defined within in the applicable Data Protection Law, such as but not limited to the GDPR
1.16. “Service” means any distinct service or services that SINCH provides pursuant to an Order Form including any support associated with such service or services.
1.17. “SINCH Network” means the digital networks (wireless or otherwise), server(s), hardware, software and/or any other equipment that SINCH owns, operates or leases, in its sole discretion, in connection with the supply of the Service and including any extranet access provided by SINCH in connection with the supply of the Service.
1.18. “Supplement” means the Supplemental Terms and Conditions that apply to the Service and that are incorporated in an Order Form.
1.19. “Term” means the term identified in the applicable Order Form, including all renewals.