In these Terms of Service (hereafter “Agreement” or “Terms”), “we,”“us,”“our” or “SMTPServer” will refer collectively to SMTPServer and its affiliates. The terms “you,” “your” and “Customer” will refer to you. To be eligible to register for a customer account in order to use the Services, you must review and accept these Terms by ticking on the “I Accept” box or other mechanism provided. If you are registering for a customer account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to SMTPServer that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” or “Customer” will refer to that organization). The exception to this is if that organization has a separate written agreement with SMTPServer covering the use of the Services, in which case that agreement will govern such use.
When we refer to the “Services” in these Terms, we mean to include all products and services that SMTPServer offers, and that you order under an Order Form or by using the SMTPServer or SMTPServer customer account. This also includes our services provided to you on a trial basis or otherwise free of charge. Services may include products that provide both (a) the platform services, including access to any application programming interface (“API”) and (b) where applicable, connectivity services, that link the Services to the telecommunication providers’ networks via the Internet.
When we refer to the “SMTPServer API” we mean an application programming interface for the Services (or feature of the Services) provided to you by us.
When we refer to the “Customer Application” we mean any software application or service that Customer makes available to End Users that interfaces with the Services.
If you have any questions, you can reach SMTPServer at smtpserver.com/contact.
SMTPServer may update these Terms of Service from time to time by providing you with prior written notice of material updates at least thirty (30) days in advance of the effective date. Notice will be given in your account portal or via an email to the email address owner of your account. This notice will highlight the intended updates. Except as otherwise specified by SMTPServer, updates will be effective upon the effective date indicated at the top of these Terms of Service. The updated version of these Terms will supersede all prior versions.
Your acceptance: Following such notice, your continued access or use of the Services on or after the effective date of the changes to the Terms constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the Services.
To use the Services, you will be asked to create a customer account. As part of the account creation process, you’ll be asked to provide your email address, create a password, and verify that you’re a human being by clearing capcha. Until you register for an account, your access to the Services will be limited to what is available to the general public. When registering for an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process.
You are solely responsible for all use (whether or not authorized) of the Services under your customer account(s) including the quality and integrity of your Customer Data and each Customer Application (as defined below). You are also solely responsible for all acts and omissions of anyone who has access to or otherwise uses any Customer Application (“End Users”). You agree to take all reasonable precautions to prevent unauthorized access to or use of the Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your customer account(s). You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you and each End User to connect to, access, and use the Services. As part of our ongoing and routine monitoring of account activity, and to help us reduce the risk of fraudulent use of your account and our services, you will initially be limited in the number of messages you can send while we are activating your account, or where you have not used your account in 6 months or longer.
We will make the Services available to you in accordance with these Terms, the Documentation and any applicable Order Forms. The Services will comply with this service level agreement “SLA”), which may be updated from time to time. We will provide the Services in accordance with laws applicable to SMTPServer’s provision of the Services to its customers generally (i.e. without regard for your particular use of the Services), and subject to your use of the Services in accordance with these Terms, the Documentation and any applicable Order Form.
On a non-exclusive basis, solely to: (a) use the Documentation and SMTPServer APIs as needed to develop your Application; (b) use and make the Services available to End Users in connection with the use of each Customer Application in accordance with the Documentation and our Acceptable Use Policy; (c) use the Services solely in connection with and as necessary for your activities pursuant to these Terms; and (d) allow your affiliates to use the Services pursuant to this Section 3.
You should know you and your End Users have a number of responsibilities you must carry out, and there are some restrictions on what you can do with them and requirements that you must follow if you use the Services.
You will: (a) be solely responsible for all use (whether or not authorized) of the Services and Documentation under your account, including for the quality and integrity of Customer Data and each Customer Application; (b) use Services only in accordance with this Agreement, Documentation, Order Forms or other applicable terms relating to the use of the Services, and applicable laws; (c) be solely responsible for all acts, omissions and activities of your End Users, including their compliance with these Terms, Documentation and any Order Forms or other terms of sales of the Services; (d) do your best to prevent unauthorized access to or use of the Services and notify SMTPServer promptly of any such unauthorized access or use; (e) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (f) comply with the representations and warranties you make in Section 12 (Representations and Warranties) below.
With regard to the Services, you agree that: (a) except to make the Services available to your End Users in connection with the use of each Customer Application as permitted herein, you will not transfer, resell, lease, license or otherwise make available the Services to third parties or offer them on a standalone basis; (b) you will not attempt to use the Services to access or allow access to Emergency Services (meaning, an official government-sponsored emergency telephone number (such as 911 in North America or 112 in the European Union and other locations worldwide) which is used to dispatch professional emergency responders; and (c) you will ensure that the Services are used in accordance with all applicable law and third party rights, as well as these Terms as amended from time to time; (d) you will ensure that we are entitled to use your Customer Data, as needed to provide the Services; (e) you will not use the Services in any manner that violates any applicable law; (f) You will not use the Services to create, train, or improve (directly or indirectly) a substantially similar product or service, including any other machine translation engine; (g) you will not create multiple Customer Applications or Service accounts to simulate or act as a single Customer Application or Service account (respectively) or otherwise access the Service in a manner intended to avoid incurring fees; (h) except as allowed by applicable law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the Services.
In addition to suspension of the Services for non-payment of fees as described in Section 10.3 (Suspension for Non-Payment), we may also suspend the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) any provision of these Terms; (b) there is reason to believe the traffic created from your use of the Services or your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (c) we determine, in our sole discretion, that providing the Services is prohibited by applicable law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding, or (e) there is any use of the Services by Customer or End Users that in SMTPServer’s judgment threatens the security, integrity or availability of the Services. However, SMTPServer will use commercially reasonable efforts under the circumstances to (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable limit the suspension based on the circumstances leading to the suspension (e.g., to certain phone numbers, sub-accounts or other subset of traffic); and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved. If your account is blocked because you are operating in a country or region prohibited under Section 12.1.4 (Export Controls), you will receive notice of your account being inoperable when you attempt to log into your account in the restricted country or region.
The features and functions of the Services, including the SMTPServer API, may change over time. It is your responsibility to ensure that calls or requests you make to the Services are compatible with our then-current Services. Although we try to avoid making changes to the Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementing those changes.
You agree to pay fees in accordance with the rates listed at smtpserver.com/, unless otherwise set forth in an order form or order confirmation between the parties (an “Order Form”).Additionally, we will charge you, and you shall pay, in accordance with Section 10.3, any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider as a result of your use of the Services.
You will make all of the payments due hereunder in accordance with the following applicable payment method:
If you elect to pay via credit card, then you are responsible for ensuring that your customer account(s) has a sufficient positive balance to cover all fees due. If, for any reason, you have a negative balance on your customer account(s), then we reserve the right to suspend the Services.
If you elect to pay via cryptocurrency, then you are responsible for ensuring that your customer account(s) has a sufficient positive balance to cover all fees due. If, for any reason, you have a negative balance on your customer account(s), then we reserve the right to suspend the Services.
If we suspend the Services pursuant to this Section 7.3, then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such suspension.
If you are disputing any fees or Taxes, you must act reasonably and in good faith and you must cooperate diligently with SMTPServer to resolve the dispute. You must notify us in writing if you dispute any portion of any fees paid or payable by you pursuant to these Terms. You must provide that written notice to us within sixty (60) days of the date we bill you for the charge you want to dispute, and we will work together with you to resolve the dispute promptly.
As between you and SMTPServer, we exclusively own and reserve all right, title and interest in and to the Services, Documentation, our Confidential Information and all anonymized or aggregated data resulting from use and operation of the Services (such as but not limited to volumes, frequencies, or bounce rates) and that do not identify a natural person as the source of the information, as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about the Services (“Contributions”). As between you and SMTPServer, you exclusively own and reserve all right, title and interest in and to each Customer Application, Customer Data and your Confidential Information.
We welcome your Contributions about the Services. But please know that by submitting Contributions you agree that: (a) we are not under any obligation of confidentiality with respect to your Contributions; (b) we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; (c) we own your Contributions; and (d) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions.
You grant SMTPServer the right to use your name, logo, and a description of your use case to refer to you on SMTPServer’s website, earnings release and calls, marketing or promotional materials, subject to your standard trademark usage guidelines that you provide to us from time-to-time.
Means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include any information which: (a) is publicly available through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party's rights; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are legally bound to keep such information confidential consistent with the terms of this Section 11. SMTPServer may disclose the terms of any Order Form or other purchase of Services to its affiliates, legal counsel and accountants without your prior written consent, and SMTPServer will remain responsible for its affiliate’s, legal counsel’s or accountant’s compliance with this Section 11 (Confidentiality). Notwithstanding the foregoing, (x) SMTPServer may disclose the terms of this Agreement and any applicable purchase transaction to a subcontractor to the extent necessary to perform SMTPServer’s obligations under this Agreement, and (y) SMTPServer may use and disclose your Confidential Information as necessary to provide the Services, including as set forth in the Data Protection Addendum, and in each case of (x) and (y) under terms of confidentiality materially as protective as set forth herein.
SMTPServer may disclose your Confidential Information if so required pursuant to a regulation, law or court order. We will give you notice of the compelled disclosure (to the extent legally permitted). You will cover our reasonable legal fees for preparation of witnesses, deposition and testimony to the extent such compelled disclosure is in connection with a lawsuit or legal proceeding to which you are a party or to the extent fees are incurred in connection with reasonable assistance we provide to you in connection with your efforts to contest disclosure.
The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 11 and that, in the event of an actual or threatened breach of the provisions of this Section 11, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
Without limiting a party’s express warranties and obligations hereunder, and except as expressly provided herein, the services are provided “as is,” and smtpserver makes no warranty of any kind, whether express, implied, statutory or otherwise, and smtpserver specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the fullest extent permitted by law. Smtpserver additionally disclaims all warranties related to third party telecommunications providers. Beta offerings are provided “as is” and “as available” with no warranties whatsoever, and smtpserver shall have no liability whatsoever for any harm or damage arising out of or in connection with a beta offering.
We will defend you from and against all claims, demands, suits or proceedings made or brought against you by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (“Infringement Claim”), and will indemnify you from any damages, attorney fees, and costs finally awarded against you as a result of, or for amounts you pay to settle an Infringement Claim under a settlement under Section 13.5 (Conditions of Indemnification) for which SMTPServer has given its written approval.
If your use of the Services has become, or in SMTPServer’s opinion is likely to become, the subject of any Infringement Claim, SMTPServer may at its option and expense: (a) procure for you the right to continue using the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees. This Section 13 states your exclusive remedy for any Infringement Claim by a third party.
SMTPServer will have no liability or obligation with respect to any Infringement Claim and a court award of damages (a) arising out of your use of the Services in breach of these Terms, (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing, or (c) arising from Services for which there is no charge.
You will defend SMTPServer, its officers, directors, employees, and affiliates (“SMTPServer Indemnified Parties”) from and against any claim, demand, suit or proceeding made or brought against a SMTPServer Indemnified Party by a third party alleging or arising out of (a) your or any of your End Users’ breach of these Terms or your obligations under Section 5 (Customer Responsibilities, Restrictions and Requirements), or breach of your representations or warranties under Section 12 of these Terms; (b) your or any of your End Users’ use of the Services or any activities under these Terms; or (c) your Customer Application, including, without limitation, any intellectual property claims for infringement or misappropriation relating to each Customer Application (collectively, “Customer Indemnifiable Claims”) and will indemnify SMTPServer from any damages, attorney fees, and costs finally awarded against SMTPServer Indemnified Parties as a result of, or for amounts paid by SMTPServer Indemnified Parties to settle a Customer Indemnifiable Claim under a settlement under Section 13.5 (Conditions of Indemnification) for which you have given your written approval.
As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Customer Indemnifiable Claim, as applicable (collectively referred to as a “Claim”), provided, however, that the failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party's consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 13 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.
Except for amounts payable under a party's indemnification obligations under section 10 (mutual indemnification) of these terms, in no event will either party or its affiliates have any liability arising out of or related to this agreement for any revenues, goodwill, or indirect, special, incidental, consequential, cover, lost data, business interruption or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
Except for damages arising from breach of your obligations under section 5 (customer responsibilities, restrictions and requirements) and except for amounts payable under a party’s indemnification obligations under section 10 (mutual indemnification) of these terms, in no event will the aggregate liability of each party arising out of or related to these terms exceed the amounts paid or payable by customer hereunder for the services giving rise to the liability during the twelve (12) month period preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort, and regardless of the theory of liability, but will not limit your payment obligations under section 10 (fees, payment terms, taxes) above.
Neither smtpserver nor its representatives will be liable under any legal or equitable theory for any claim, damage, or loss (and customer will hold smtpserver harmless against any and all such claims) arising from or relating to the inability to use the services to contact emergency services, as defined in section 5.2(b), above. Smtpserver’s outbound communications services should not be used for contacting emergency services. The provisions of this section 14 allocate the risks pursuant to these terms between the parties, and the parties have relied on the limitations set forth herein in determining whether to enter into these terms.
These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 12.2 (Termination) below (“Term”).
Either party may terminate these Terms and close your customer account(s) for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, then these Terms will not terminate until such Order Form(s) have expired or been terminated. SMTPServer, at its sole discretion, may terminate these Terms and close your customer account(s) in the event you commit any material breach of these Terms and fail to remedy that breach within five (5) days after SMTPServer provides written notice of that breach to you. You may also terminate these Terms in the event we commit a material breach of these Terms and fail to remedy that breach within five (5) days after providing written notice of that breach to us.
You will comply with the applicable law relating to your respective activities pursuant to these Terms. SMTPServer will provide the Services in accordance with laws applicable to SMTPServer’s provision of the Services to its customers generally (i.e. without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and applicable Order Form (if any).
Our failure to enforce at any time any provision of these Terms, our Acceptable Use Policy, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by you and us to be legally binding. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (except as otherwise expressly set forth in an applicable Order Form): (1) product-specific terms, (2) the Terms of Service and (3) the Documentation.
You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be void. SMTPServer may assign these Terms, in whole or in part, without consent. Subject to this Section these Terms will be binding on both you and SMTPServer and each of our successors and assigns.
You and SMTPServer are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and SMTPServer will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and SMTPServer will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor SMTPServer has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.
Except as described in Section 18 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
Any notice required or permitted to be given hereunder will be given in writing to the party at the address specified in this Agreement by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer in its account. Notices to SMTPServer shall be copied to [email protected]
No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with these Terms. If you (or any of your End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Services were developed fully at private expense.
The enforceability and interpretation of Section 18 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 18, these Terms will be governed by and interpreted according to the laws of the State of California without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Except as provided in these Terms and any exhibits or addenda or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by SMTPServer, its agents or employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms. Any purchase order document or similar document provided by you shall be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon shall be void and have no effect with regard to these Terms between you and SMTPServer and be non-binding against SMTPServer even if signed by SMTPServer after the date you accept these Terms.