, Data Processing Addendum
(collectively, “Terms” or "Agreement") is made between Customer ("Customer" or "you") and Send Right Limited
, a legal entity incorporated under the laws of Gibraltar under number 120444, having its registered office at 5-9 Main Street, Gibraltar, GX11 1AA, Gibraltar (“Sendios", "we" "us" "our") (each a "Party", together, the "Parties") and governs Customer's use of the Service provided by Sendios.
IF YOU ENTER INTO THESE TERMS ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT UNCONDITIONALLY AGREE TO THESE TERMS, YOU HAVE NO RIGHT TO USE THE SERVICE.
We reserve the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason.
Unless otherwise expressly provided herein, we will alert you about any changes by updating the "Last updated" date of these Terms and you waive any right to receive specific notice of each such change. Your continued use of the Service following such modifications shall constitute your consent to the modified Terms.1. Definitions
" means any application programming interface made available by Sendios to Customer in connection with the Agreement.
" means Customer and its respective employees, contractors or consultants.
" means any data, applications, files, information or materials input into the Software by or on behalf of Customer.
"Intellectual Property Rights
" means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
” means the: (i) signed order form between the Parties; or (ii) the applicable online registration form or click through agreement referencing these Terms.
" means the software applications set out in the Order Form provided by Sendios including upgrades thereto and any related content, APIs, software delivery kits and software tools provided by Sendios.
” means the marketing consulting and analytical services provided to you by Sendios under this Terms, including your use of the Website.
” means website operated by Sendios and available at https://sendios.io/
.2. LICENSE GRANT & RESTRICTIONS.2.1.
Sendios grants to Customer a non-sublicensable, non-transferable, non-exclusive, non-assignable right to access and use the Software in accordance with the Agreement, and solely for Customer’s internal business purposes. Customer will not be provided with and shall have no right to any software code and Sendios reserves the right to suspend Customer’s access to the Software for scheduled or emergency maintenance. Customer is responsible for Authorized Users’ use of the Software in accordance with the Agreement.2.2.
Customer shall not and shall not allow its Authorized Users to: (a) provide access to the Software to any third party (except Authorized Users) or otherwise permit a third party (except Authorized Users) to use or benefit from the Software, (b) copy, modify, or reverse engineer the Software or otherwise attempt to discover any source code or underlying technical information (except to the limited extent that applicable law prohibits such restrictions), (c) use the Software in breach of any applicable laws, regulations, embargoes, restrictive measures; (d) access, store, or transmit any viruses, spam, or duplicative messages, or any material that is unlawful or harmful, (e) use the Software: (i) to try to gain unauthorized access to or disrupt any service, device, data, account or network, (ii) send or store any content that is unlawful, abusive, or obscene or (iii) to send, store, or use any content in a manner which infringes Intellectual Property Rights.2.3.
Except to the extent caused by a breach of the Agreement by Sendios, Customer is responsible for Customer Content and shall hold Sendios and its affiliates harmless and indemnify them for all claims, losses, damages, liabilities, costs (including legal fees) and expenses arising out of or relating to Customer Content.2.4.
Sendios retains all right, title, interest (including, but not limited, to intellectual property rights) in and to the Software and all improvements, enhancements or modifications thereto, and anything developed and delivered under this Agreement.2.5.
The rights granted under this Agreement apply only to the Customer entity that enters into the applicable Order Form. The Customer may not extend its rights under any Order Form to its affiliates.2.7.
Customer may from time to time provide Sendios suggestions or comments for enhancements or improvements, new features or functionality or other feedback ("Feedback
") with respect to the Service. Sendios will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Sendios will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.3. ADDITIONAL SERVICES3.1.
Upon request by the Customer, the Customer may provide some additional Services. Sendios provides the Services with the due level of care, skill and diligence in accordance with standard practice in the industry, profession or trade.4.1 FEES AND PAYMENT
4.1. Fees will be invoiced according to the Order Form. All payment obligations are non-cancelable and all amounts paid are non-refundable (unless expressly stated otherwise in the Agreement or in the Order Form). All payments shall be made in the currency indicated in the Order Form in full and cleared funds without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law) within ten (10) business days after the applicable invoice date, unless otherwise specified in the Order Form. In case the late payment under this Agreement exceeds 30 calendar days from the date when the relevant payment becomes due, Customer will be subject to a late payment interest rate charge of 2% (two per cents) per month of the amount due. All sums payable under the Agreement are exclusive of value added tax (VAT) or any other local sales taxes, for which Customer shall be responsible. Customer shall provide Sendios with complete and accurate billing and contact information.
4.2. If Customer believes that Sendios has billed Customer incorrectly, Customer must contact Sendios no later than five (5) days after receipt of invoice in order to receive an adjustment. Inquiries should be directed to Sendios contact email set forth in the applicable Order Form.5. LIMITED WARRANTY AND DISCLAIMERS5.1.
YOU AGREE THAT SENDIOS HAS MADE NO EXPRESS WARRANTIES, ORAL OR WRITTEN, TO YOU REGARDING THE SOFTWARE AND THAT THE SOFTWARE IS BEING PROVIDED TO YOU 'AS IS' WITHOUT WARRANTY OF ANY KIND. SENDIOS DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR OTHER TERMS OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PURPOSE OR A PARTICULAR PURPOSE. SENDIOS DOES NOT WARRANT OR REPRESENT THAT THE SOFTWARE WILL BE DELIVERED FREE OF ANY DELAYS, OMISSIONS OR ERRORS.5.2.
Sendios is not responsible for any delays, delivery failures, or other loss or damage resulting from the transfer of data over communications networks and facilities which are not owned or directly controlled by Sendios. Customer acknowledges that the Software may be subject to problems inherent in the use of such communications facilities.5.3.
In the event of any loss or damage to Customer Content, Customer's sole and exclusive remedy shall be for Sendios to use reasonable commercial endeavors to restore the lost or damaged Customer Content from the latest back-up.
5.4. Additional Representations and Warranties of Sendios
. Sendios represents and warrants to the Customer that it will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
5.5. Additional Representations and Warranties of the Customer
. The Customer represents and warrants to Sendios that the Customer owns or otherwise has and will have the necessary rights and consents in and relating to data of the Customer’s clients, which is received by Sendios and processed in accordance with this Agreement and the Data Processing Agreement.
5.6. The Customer represents and warrants that it will not use the Software to:
a) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content;
b) transmit any content that the Customer does not have a right to make available;
c) transmit any junk email and spam email;
d) interfere with or disrupt the email services;
e) take any action that imposes an unreasonable or disproportionately large load on the Software;
f) impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity;
g) modify, decompile, reverse engineer, disassemble or reproduce any of the software.
5.7. The Customer represents and warrants that its marketing campaign and the emails and push notifications transmitted via the Software:
a) do not breach any applicable laws or regulations;
b) do not infringe intellectual property rights of any third party;
c) are not harmful, threatening, defamatory, obscene, sexually explicit, or harassing;
d) do not promote violence, discrimination or illegal activities;
do not contain any virus or content, codes or links that are malicious, or illegal.6. SENDIOS INDEMNITY
6.1. Sendios, at its sole expense, agrees to defend Customer against any third party claim that the Software directly infringes a third party's Intellectual Property Right (an “Infringement Claim”), and indemnify Customer from the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement; provided that: (a) Customer promptly notifies Sendios in writing of the Infringement Claim; (b) Sendios has sole control of the defense and all related settlement negotiations; (c) Customer provides Sendios with the information, assistance and authority to enable Sendios to perform its obligations under this Section 6; and (d) Customer makes no admission of liability and does not compromise the ability of Sendios to defend the claim. The Customer may not settle or compromise any Infringement Claim without the prior written consent of Sendios.
6.2. Sendios shall have no liability or obligations for an Infringement Claim pursuant to this Section 6 to the extent that it results from: (a) modifications to the Software made by a party other than Sendios; (b) the combination, operation or use of the Software with non- Sendios products; (c) use of the Software outside the scope of the Agreement; or (d) use of third party software, technology or any derivatives or other adaptations thereof not embedded by Sendios into the Software. This Section 6 sets out Customer sole and exclusive remedies and Sendios’ entire liability with respect to claims subject to indemnification under this Section, including claims for infringement or violation of third-party Intellectual Property Rights by the Software.
6.3. The Customer agrees to indemnify, hold harmless and defend Sendios, at the Customer’s expense, from any and all third-party claims, actions, proceedings, and suits brought against Sendios or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, court costs, reasonable attorneys’ fees and other litigation expenses) incurred by Sendios or any of its officers, directors, employees, agents or Affiliates, arising out of, or relating to: (i) the Customer’s breach of any terms of the Agreement; or (ii) the Customer’s use of the Software in violation of applicable laws, rules or regulations.7. LIMITATION OF LIABILITY AND DAMAGES
7.1. SUBJECT TO THIS SECTION 7.2, 7.3 AND 7.4, EACH PARTY’S TOTAL AGGREGATE LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY, WITH RESPECT TO ALL SUBJECT MATTER RELATING TO OR ARISING OUT OF THE AGREEMENT SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND PAYABLE TO SENDIOS UNDER THE AGREEMENT IN THE YEAR PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
7.2. SUBJECT TO SECTIONS 7.3 AND 7.4, NEITHER PARTY WILL BE LIABLE FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOSS OF REVENUES; (C) LOSS OF PROFITS; (D) LOSS OR INACCURACY OF DATA; OR (E) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, IN EACH CASE, REGARDLESS OF THE FORM OF ACTION (AND WHETHER (B) THROUGH (E) ARE DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL), WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY.
7.3. THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS SECTION 7 SHALL NOT APPLY TO BREACHES OF LICENSE RESTRICTIONS SET OUT IN SECTION 2, INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 8 (CONFIDENTIALITY AND PROPRIETARY INFORMATION
), WILLFUL MISCONDUCT, AND CUSTOMER’S PAYMENT OBLIGATIONS.
7.4. NOTHING IN THE AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.8. CONFIDENTIALITY AND PROPRIETARY INFORMATION
8.1. A Party (the “Receiving Party
”) may receive Confidential Information of the other Party (the “Disclosing Party
”) and the Receiving Party shall keep all such Confidential Information confidential and protect it by using the same level of care and discretion that the Receiving Party uses with respect to its own confidential information, which will be in no case less than reasonable care and discretion.
8.2. The Receiving Party shall not use the Confidential Information for its own purposes (other than as provided in the Agreement) nor disclose Confidential Information to any person other than such Party’s Authorized Users, or Sendios’ subprocessors, who have a need to know that Confidential Information provided that the Receiving Party remains responsible for the confidentiality of the information. The Parties shall not use Confidential Information for any purpose other than as necessary to exercise rights or fulfill obligations under the Agreement.
8.3. Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is: (a) required by law or (b) necessary to exercise its rights or perform its obligations under and in accordance with the Agreement.
8.4. In the Agreement, “Confidential Information
” means business information of a confidential or proprietary nature (including trade secrets and information of commercial value), including without limitation, pricing, software, source code and underlying technical or business information, which relates to the Disclosing Party that is disclosed or provided to Receiving Party by or on behalf of Disclosing Party pursuant to the Agreement; provided, however, that Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (iv) is input into the Software or (v) is independently developed by the Receiving Party.
8.5. This Section shall apply during the Term of this Agreement, and for three (3) years after the Agreement’s termination or expiry.9. INTERNATIONAL USE
Sendios makes no representation that the Service is accessible, appropriate or legally available for use in your jurisdiction, and accessing and using the Service is prohibited from territories where doing so would be illegal. You access the Service at your own initiative and are responsible for compliance with local laws.10. TERMINATION; SUSPENSION
10.1. Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if the other Party breaches a material obligation under the Agreement that has not been cured (if curable) within thirty (30) business days of the effective date of such written notice requiring the remedy of such breach or either Party (a) announces a cessation of its entire business or becomes insolvent; (b) elects to dissolve and wind-up its business; (c) makes a general assignment for the benefit of creditors; or (d) petitions for or appoints (or a third party causes to be appointed for itself) a receiver, custodian or trustee to take possession of all or substantially all of that Party’s property.
10.2. Upon termination of the Agreement by any means, the rights granted under Section 2 will terminate and Customer shall promptly destroy any and all Sendios Confidential Information and Sendios will remove access to the Software.
10.3. If this Agreement is terminated as a result of a material breach by Customer, then Customer shall pay in full all outstanding Fees payable through the remainder of each outstanding Order Form or if Customer has prepaid any Fee, then those Fees are nonrefundable. If this Agreement is terminated by Customer due to a material breach by Sendios, then Sendios shall refund Customer on a pro-rata basis any prepaid Fees.
10.4. Without limiting the foregoing, Sendios may upon 24 (twenty-four) hours' prior written notice suspend or limit the Customer’s access to or use of the Software without liability if (a) Customer’s payment for the Services is past due, or (b) Customer’s use of the Software breaches Section 2 or harms, unduly burdens or impairs performance of the Software, provided that Sendios will promptly end such suspension when Customer cures the foregoing (without prejudice to Sendios other remedies in respect of the applicable breach).
10.5. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.11. TERM
11.1. The Agreement shall become effective on the date the Customer signs the Order Form which references the Agreement (the "Effective Date
") and shall continue for a period of twelve (12) months ("Initial Term
") unless otherwise indicated on the Order Form. Each Order Form shall automatically renew for an additional twelve (12) month term (each, a "Renewal Term
", together with the Initial Term, the "Term
") on Sendios’ then-current terms and conditions unless either party provides notice (via email shall suffice) of its intent not to renew at least thirty (30) days in advance of the end of the Initial Term or current Renewal Term.12. GOVERNING LAW AND ARBITRATION
12.1. This Agreement shall be governed by the laws of England and Wales, excluding conflict of laws rules.
12.2. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The International Expedited Procedures of the International Centre for Dispute Resolution shall apply regardless of the amount in dispute. The place of arbitration shall be Nicosia, Cyprus, however the Parties agree that in case an oral hearing is necessary, it shall be conducted via video, audio, or other electronic means. The language of the arbitration shall be English. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.13. GENERAL
13.1. The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and the Software, superseding all prior or contemporaneous proposals, communications and understandings, oral or written relating to that subject matter. To the extent there is any conflict or inconsistency between the Terms and any Order Form signed by both Parties, the Order Form shall prevail to the extent of any such conflict or inconsistency.
13.2. Except as expressly provided in the Agreement, any modifications of the Agreement must be in writing and signed by both Parties.
13.3. Any waiver of any provision of the Agreement must be in writing and will not be deemed a waiver of any other provision.
13.4. The Agreement does not confer any right or benefit on any person who is not a Party to it and no one other than a Party to the Agreement, their successors and permitted assignees shall have any right to enforce any of the terms of the Agreement.
13.5. Except for an assignment by Sendios to a wholly owned affiliate neither the rights nor the obligations arising under the Agreement are assignable or transferable by either Party without the other Party’s prior written consent (which will not be unreasonably withheld), and any such attempted assignment or transfer shall be void and without effect.
13.6. Each provision of the Agreement shall be considered severable such that if any provision or clause conflicts with any existing or future law or regulation, or is held to be illegal, unenforceable or invalid by a court, the other provisions of the Agreement shall be limited or modified to the minimum extent necessary to make it valid, legal and enforceable and so that the Agreement shall otherwise remain in effect.
13.7. Either Party will deliver all notices, approvals or other communications required or permitted under the Agreement, including those regarding modifications to the Agreement, via e-mail (in each case to the email address stated in the Order Form). For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
13.8. A delay by either Party in performing its obligations will not be a breach of the Agreement if caused by an event beyond the reasonable control of such Party. The affected Party will notify the other Party of such event and resume performance as soon as possible.
13.9. The Agreement may be executed in any number of counterparts, each of which is an original, but all the counterparts together constitute the same document. Delivery of an executed counterpart of a signature page to the Agreement by e-mail or other electronically delivered signatures of the Parties shall be as effective as delivery of a manually executed counterpart of the Agreement.
13.10. Nothing in the Agreement is intended to create a joint venture, partnership, agency or employment relationship between the Parties.