EMAIL SOLUTIONS

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SendForensics Terms of Service - Email Deliverability Suite (EDS)

Last updated 2016.01.06

1. These terms of service (Terms) govern your access to and use of SendForensics Pte Ltd's (registration no.: 201321279D) websites and services (Services).

2. By using the Services you agree to be bound by these Terms. If you are using the Services on behalf of a company, organization or other entity, you agree to these Terms for yourself and for and on behalf of that company, organisation or other entity. You agree and confirm that you have the authority to bind the company, organisation or other entity to these terms. A reference to you, your or similar pronoun includes the company, organisation or other entity referred to in this clause.

3. You shall use the Services in compliance with these Terms. You shall use the Services only if you have the legal capacity to do so. In using the Services, you shall comply with all applicable laws. The Services may change, including when we refine and add more features. We may stop, suspend or modify the Services at any time without prior notice to you. We may also remove any content from our Services.

Services

4. The use of the Services is at your own risk. We do not warrant any results from the Services. The Services do not constitute consulting, professional advice or any other form of advice whatsoever.

Ownership and Privacy

5. When using our Services you may provide us with information, files, data, folders and other content (together, your content). You retain full ownership to your content. These Terms do not grant us any rights or license to your content or the intellectual property arising from your information, except provided below.

6. You grant us a limited, free, irrevocable, non-exclusive and worldwide license to store, process, back-up and otherwise deal with your content solely for the purpose of providing to you the Services. We may grant a similar sub-license to the subcontractors, suppliers and service providers that we use to provide the Services.

7. Except as contemplated above and in our Privacy Policy, we do not disclose your information. Our Privacy Policy generally sets out the way we collect and use your content.

8. In using the Services, you are solely responsible for your conduct, the content of and dealing with your content and your communications with others. You warrant that you have all the right and power required to deal with your content.

9. We do not monitor your content or any other information that are subject to the Services. We are not responsible for the accuracy, completeness, appropriateness or legality of your content or any other content, results and information you may access with or receive from the Services.

10. In using the Services, you may require or deal with other third party licenses, including software licenses. You may acquire and own these third party licenses, or use these licenses under a sub-license that we grant to you in connection with the Services. You agree to comply with the terms of all these third party licenses.

Sharing

11. The Services may allow you to share your content with others. There are many things that others may do with your information; for example, they may copy, modify or again share your content with others. We are not responsible or liable for any of these activities.

Your Responsibilities

12. Files and other content in the Services may be subject to the intellectual property rights of others. You agree not to copy, upload, download, share or otherwise deal with content or information unless you have the necessary right or license. You alone are responsible and liable for content and information that you copy, share, upload, download or otherwise deal with.

13. You shall not by any act or omission cause spyware, virus or other malicious software to infect the Services.

14. You alone are responsible and liable for maintaining and protecting your Content. We are not responsible or liable for any expenses, losses or damages which you may suffer or incur arising out of or in connection with the loss or corruption of your content, including costs or expenses for backing up or restoring your content.

15. You shall from time to time update your contact information or other information related to your account.

Account Security

16. You shall keep secret the password that you use to access the Services and not disclose your password. You are responsible and liable for all activities related to your account, whether or not you authorized that activity. You should immediately notify us of any unauthorized use of your account. You agree and acknowledge that a secure encrypted connection to communicate with the Services can help protect your content.

Software and Updates

17. Some Service may require you to download a client software package (Software). We grant you a limited, nonexclusive, non-transferable, revocable license to use the Software, solely to access the Services. Your license to use the Software is automatically revoked if you breach any of these Terms. We reserve all rights not expressly granted in these Terms. You shall not directly or indirectly reverse engineer or decompile the Software, attempt to or assist others to do so. Our Services may update the Software on your device automatically when a new version is available.

Our Property and Feedback

18. These Terms do not grant you any right, title or interest in the Services, Software or any of their content. We may use any of your feedback, comments or suggestions you without any obligation or liability to you. Copyright, trademark and other applicable laws protect the Software and other technology we use to provide the Services. These Terms do not grant you any rights to use any of our trademarks, logos, domain names, or other brand features.

Service Fees and Taxes

19. In consideration of the Services, but excluding the FREE Email Deliverability Testing Package, you agree to pay the prevailing Service fees. Service fees are subject to change from time to time, without notice.

20. Service fees stated are exclusive of all taxes, including GST, VAT, sales tax, service tax or withholding taxes. You are liable to pay these taxes. If you are required to withhold and deduct, from any payments to us, withholding or other taxes, you shall pay us an additional sum, so that the amount we receive is the full invoiced amount as if no deduction or withholding is made. If you pay by credit card, you agree to the applicable terms of the credit card payment processor. Presently, our credit card payment processor is Worldpay UK Limited and any credit card transactions processed involve abiding by its terms & conditions.

21. If you pay by credit card or other payment process that automates fixed regular payments, the Services will be auto-renewed until you turn off auto-renewal.

22. If you fail to pay or when your account expires, we will immediately stop providing you the Services but you may continue to login and view your historical data for a 30-day period. After the 30-day period, you may continue to log in for an additional 30 days, but will not be able to view or otherwise deal with any historical or other data. You may resume full Services by paying the required Service Fees within this 60-day period. If you do not do so, we will de-activate your account and terminate all Services and all data and information in your account.

Fair Use

23. If you use the Services in relation to more than 200 emails per sending address per month, in order to ensure fair use or to prevent abuse, we may reasonably limit your use of the Services or negotiate with you a customised package and pricing for the Services. In addition, there is a daily-usage policy for Live ISP Inbox Placement Testing feature of 10 Live ISP tests per sending address per day.

Acceptable Use Policy and Compliance with Laws

24. You shall not directly or indirectly abuse the Services or deal with the Services otherwise than for their intended ordinary uses. You shall comply with our Acceptable Use Policy.

25. You shall use the Services only in the furtherance and for the purposes of activities that are legal in the applicable jurisdiction. You shall in using the Services comply with all applicable laws. The laws referred to in this clause include and are not limited to laws relating to junk mail, spam and electronic communications and transactions.

Enterprise Evaluation Provisions

26. You acknowledge that the SendForensics Enterprise SLA is not applicable during the Evaluation and you therefore acknowledge that Deliverability-Testing should not be made available to your users as a commercial feature of your platform during the Evaluation.

27. You understand there is no obligation to continue with the service upon expiration of the Evaluation.

28. You will not share the information contained within the system nor the API documentation with anyone outside of your company.

29. You acknowledge that there is a fair-use policy of no more than 200 analyses per sending domain during the Evaluation.

Copyright

30. Our designated agent for notice of alleged copyright infringement is as registered from time to time with the Intellectual Property Office of Singapore.

Other Content

31. The Services may contain links to third-party websites or resources. We do not endorse and are not responsible or liable for their availability, accuracy, content, products or services. You are solely responsible for your use of any of these websites or resources. We may provide you with software under an open source license. The open source license applies and controls if there is conflict or dispute between the open source license and these Terms. The open source license and these terms shall otherwise apply cumulatively, to full force and effect.

Use of Customer's Name and Company Name

32. SendForensics reserves the right to use your name and/or company name as a reference for marketing or promotional purposes. To decline SendForensics this right you need to email privacy@sendforensics.com stating that you do not wish to be used as a reference.

Termination

33. We may suspend or terminate the Services at any time, with or without cause and with or without notice. If we do so without cause, we will refund to you any advance Service Fees that you have paid and which relate to Services that have not been consumed.

34. Available AS-IS

These provisions apply to the greatest extent permitted under applicable laws. The Services and Software are provided as-is, at your own risk, without express or implied warranty or condition of any kind. We disclaim any warranties of merchantability, fitness for a particular purpose, accuracies or non-infringement. We are not responsible or liable for any harm to your computer system, loss or corruption of data or other harm that results from your access to or use of the Services or Software.

Without limiting the generality of the previous paragraph, the Services are provided using and based upon our own analysis and algorithms, and open-source data and publicly available information. We do not provide any warranties whatsoever in relation to these analyses, algorithms, open-source data and publicly available information

Exclusions and Limitations of Liability

35. These provisions apply to the greatest extent permitted under applicable laws. They are not limited to the circumstances that are within the parties' contemplation as at the start of the Services. We shall not under any circumstances, whether in contract, tort, equity, statute or any other cause, be liable for any indirect damages, special damages, incidental damages, punitive damages, exemplary damages, consequential damages, expectation losses, loss of use, loss of data, loss of business, loss of profits or any other similar damages, whether or not we have notice of the possibility of these damages and whether or not these damages are within the parties' contemplation. Our liability arising out of or in connection with these Terms, whether in contract, tort, equity, statute or any other cause, is limited to the Service fees that we have received from you for the six months prior to your claim, for the Services that are the subject of your claim.

36. You indemnify and hold us harmless from and against all claims, damages, expenses or losses that we may incur or suffer arising out of or in connection with your breach of these Terms.

Modifications

37. We may revise these Terms from time to time. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Terms.

Governing Law and Arbitration

38. These Terms are governed by Singapore law. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of one arbitrator. The language of the arbitration shall be English.
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SendForensics Service Agreement - Enterprise Deliverability Control (EDC)

Last updated 2017.10.17

SENDFORENSICS PTE LTD, of Singapore, company number 201321279D (SendForensics) agrees to provide, and the Client agrees to purchase, the Services on the terms of the Agreement.

1. INTERPRETATION

1.1 Definitions: In the Agreement, the following terms have the stated meaning:

Term Meaning
API Service the SendForensics Services made available by SendForensics via an API.
Business Day a day that is not Saturday, Sunday or a public holiday in Singapore.
Client Data all data, content, and information stored, submitted or input by or on behalf of the Client for the purpose of receiving the SendForensics Services.
Confidential Information the terms of the Agreement and any information that is not public knowledge and that is obtained from or about the other party in the course of, or in connection with, the Agreement. SendForensics’ Confidential Information includes Intellectual Property owned by SendForensics (or its licensors). The Client’s Confidential Information includes the Client Data.
Customers the Client’s own customers.
Fair Use Limit up to 1,000 analyses per sending-domain per month.
Fees (SendForensics Services) $399 per month for up-to 50 sending-domains. Overage fee beyond 50 sending-domains according to the following tiering:

Domain Overage Tiering Price Per Domain
51 - 500 $1
501 - 1500 $0.7
1501 - 10000 $0.5
10001 - $0.3
Fees (Related Services) $299 per month for Unlimited Email Client Preview Testing.
Force Majeure an event that is beyond the reasonable control of a party, excluding:
  • an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
  • a lack of funds for any reason.
Initial Term 1 month from the Start Date.
Intellectual Property Rights includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Minimum Volume 50 sending-domains per month
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.
Payment Terms Invoicing or credit card debiting on or about the first day of each month:
  • in advance for services to be provided in that month, based on the Minimum Volume; and
  • in arrears for services provided in the previous month over and above the Minimum Volume.
Personal Data has the meaning given in the Personal Data Protection Act 2012.
Privacy Policy the SendForensics privacy policy dealing with the collection, storage and use of Personal Data, available here.
Provider Data means all data, information or materials generated by the SendForensics Services in the course of analysing the Client Data.
Related Services any further services that SendForensics agrees to provide to the Client under the Agreement.
SendForensics API the SendForensics two-way feed API functionality intended to enable Clients to access and use the API Service.
SendForensics Services the selected services as described on the Website, and as may be updated from time to time.
Services the SendForensics Services and any Related Services.
Service Levels the service levels set out in Schedule 1.
Start Date the date of the first invoice, following completion of the 14-day Free Trial.
Underlying Systems the IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
Website the Internet site at sendforensics.com

1.2 Interpretation: In the Agreement:

  1. clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
  2. words in the singular include the plural and vice versa
  3. a reference to:
    1. a party to the Agreement includes that party’s permitted assigns;
    2. personnel includes officers, employees, contractors and agents;
    3. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
    4. including and similar words do not imply any limit; and
    5. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
  4. no term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party; and
  5. if there is any conflict between the Agreement and the Website Terms of Use, the terms of the Agreement prevail.

2. SERVICES

2.1 Provision of Services: SendForensics agrees to provide, and the Client agrees to purchase, from the Start Date the Services on the terms of the Agreement.

2.2 General: SendForensics will provide the Services:

  1. in accordance with the Agreement and all applicable law; and
  2. exercising reasonable care, skill and diligence.

2.3 Non-exclusive: SendForensics’ provision of the Services to the Client is non-exclusive.

2.4 Availability:

  1. Subject to the rest of this clause 2.4, SendForensics will use commercially reasonable efforts to:
    1. ensure the Services are available on a 24/7 basis in Singapore; and
    2. provide the Services in accordance with the Service Levels.
  2. On occasion the Services may be unavailable so as to permit maintenance or other development activity to take place, or in the event of Force Majeure.SendForensics will use reasonable efforts to notify the Client by email and publish on the Website advance details of any planned unavailability. Client may terminate the Agreement and receive a pro rata refund of any prepaid Fees if the Services are unavailable for maintenance or other development activity, or for breach of the Service Levels, for more than four (4) hours in any calendar month.
  3. The Services are dependent upon the provision of certain Underlying Systems from third party service providers.SendForensics does not make any warranty or representation on the availability of those Underlying Systems provided by a third party over which it has no control or ability to control.

2.5 Additional Related Services: At the request of the Client and subject to the Client paying the applicable Fees, SendForensics may agree to provide to the Client an additional Related Service on the terms of the Agreement.

3. CLIENT OBLIGATIONS

3.1 Internal business purposes: The Client and its personnel must:

  1. use the Services for the Client’s own internal and lawful business purposes only (including complying with any applicable anti-spam legislation) and in accordance with any Fair Use Limit; and
  2. not re-supply, publicly display, distribute (whether for consideration or otherwise), commercially exploit, or make available, all or any part of the Services, except as expressly permitted under the Agreement.
  3. However, nothing in Section 3.1(a) or 3.1(b) shall limit or restrict Client’s use of the Services in providing email deliverability consulting services to its clients, including the ability to share reasonable portions of data and visualisations to those clients.

3.2 Responsibility: The Client is responsible for:

  1. any acts or defaults carried out by any person using any password, token, key or similaraccess feature provided to the Client by SendForensics, as if that person’s act or default was the Client’s own.

3.3 Access conditions: When accessing or using the Services or the Website or the Underlying Systems, the Client and its personnel must not themselves, nor permit directly or indirectly any other person to:

  1. impersonate another person or misrepresent authorisation to act on behalf of others or SendForensics, or send altered, deceptive or false source-identifying information, including by way of spoofing or phishing;
  2. incorrectly identify the sender of all electronic transmissions;
  3. attempt to undermine the security or integrity of the Services or the Underlying Systems;
  4. copy, adapt, translate, modify, or create derivative works from, all or any part of the Services, the Website, or the Underlying Systems, nor attempt to disassemble, decompile or reverse engineer all or any part of the Services, the Website, or the Underlying Systems, except as is expressly permitted under the Agreement, as is strictly necessary to use the Services, Website or Underlying Systems for normal operation, or to the extent expressly permitted by any law that cannot be excluded.
  5. use, or misuse, them in any way which may impair the functionality of the Services, the Website or the Underlying Systems or impair the ability of any other user to use them, including by way of overloading, flooding, spamming, or mail-bombing;
  6. attempt to view, access or copy any material or data other than that to which the Client is authorised to access;
  7. use the Services, the Website or the Underlying Systems in a manner, nor transmit, input or store any Client Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading;
  8. act in a manner contrary to any terms of use on the Website, as updated from time to time by SendForensics;
  9. act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Services, the Website or the Underlying Systems, or otherwise attempt to damage or interfere with the Services, the Website or any Underlying Systems;
  10. access the Services, the Website and the Underlying Systems other than via standard web browsers only and not by any other method except as expressly permitted under the Agreement.Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method; and
  11. transfer, assign, sublicense, or otherwise deal with or grant a security interest in any part of the Services, the Website or the Underlying Systems, or in any Intellectual Property Rights subsisting in them.

3.4 Security: The Client and its personnel must:

  1. notify SendForensics in writing immediately on becoming aware of any circumstances which may suggest that any person may have unauthorised knowledge, possession, access or use of the Services, the Website or the Underlying Systems.

3.5 Authorisations: The Client is responsible for procuring all licences, authorisations and consents required for it, its personnel and any Customers to use the Services, including to use, store and input Client Data into, and process and distribute Client Data through, the Services.

4. DATA

4.1 Supplier access to Client Data: The Client must arrange all consents and approvals that are necessary for SendForensics and its personnel to access the Client Data to exercise its rights and perform its obligations under the Agreement.

4.2 Restrictions relating to Client use of Provider Data:

  1. The Client must:
    1. use the Provider Data for its own internal and lawful business purposes only; and
    2. not re-supply, publicly display, distribute (whether for consideration or otherwise), commercially exploit, or make available, all or any part of the Provider Data other than:
      • to its own Customers for the Customer’s internal business purposes; or
      • with the prior written consent of SendForensics (such consent not to be unreasonably withheld).
  2. Notwithstanding any other provision, the Client must not use any Provider Data in a way that:
    1. alters the original meaning of the information conveyed;
    2. states or implies that SendForensics endorses the Client, the Client’s business, or any product or service; or
    3. without limiting clause 4.2bi or 4.2bii, is misleading or deceptive or is likely to mislead or deceive.

4.3 Agent: The Client acknowledges and agrees that to the extent Client Data contains Personal Data, in collecting, holding and processing that information through the Services, SendForensics is acting as an agent of the Client for the purposes of the Personal Data Protection Act 2012 and any other applicable privacy law and will act in accordance with SendForensics’ Privacy Policy.

4.4 Backups of Client Data: While SendForensics will take standard industry measures to back up all Client Data stored using the Services, the Client agrees to keep a separate back-up copy of all Client Data uploaded by it onto the SendForensics Service.

4.5 International storage of Data: The Client agrees that SendForensics may store Client Data in secure servers in Singapore, US, Ireland (Republic of), Australia, and such other countries as SendForensics may give reasonable notice of from time to time, and may access that Client Data in those territories from time to time.

4.6 Indemnities: The Client indemnifies SendForensics against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by SendForensics’ solicitors) and loss of any kind arising:

  1. from any actual or alleged claim by a third party that any Client Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Client Data is Objectionable, incorrect or misleading; and
  2. from any actual or alleged claim by a third party in connection with reliance by any party on information created or derived from the Services, to the extent that the information is derived from information input into the Services by or on behalf of the Client, or derived from a failure by the Client to comply with any applicable laws.

5. FEES

5.1 Fees: The Client must pay to SendForensics the Fees plus GST on any taxable supplies (if applicable).The Fees are based on the applicable pricing, as set out in the Client Specific Key Details.Where the actual volume of active sending domains/active IP addresses/emails processed per month for the Client is less than the Minimum Volume, the Fees for that month are the amount equivalent to that which would be payable had the Minimum Volume been reached in that month.

5.2 Invoicing and payment: Subject to clause 5.3, SendForensics will provide the Client with invoices on the dates set out in the Payment Terms, or if there are none, monthly in advance for the Fees due in the subsequent month.The Client must pay the Fees within 30 days of the date of invoice and electronically in cleared funds without any set off or deduction.

5.3 Credit card details: The Client may elect to pay the Fees by credit card.By providing SendForensics with credit card information, the Client represents and warrants to SendForensics that the Client is authorised to use that credit card and that SendForensics is authorised to deduct the Fees against that credit card in accordance with the Payment Terms.If credit card authorisations or charge attempts are declined, SendForensics may immediately suspend or terminate the Client’s access to the SendForensics Services in its sole discretion.

6. INTELLECTUAL PROPERTY

6.1 Ownership:

  1. Subject to clause 6.1c, title to, and all Intellectual Property Rights in, the Services, SendForensics API, the Website (including its look and feel), all Underlying Systems, and the Provider Data, and any copy, adaptation, translation, enhancement, modification or derivative work of any of the foregoing, is and remains the property of SendForensics (and its licensors).
  2. The Client must not dispute SendForensics’ ownership or contest the validity of any of the Intellectual Property Rights referred to in clause 6.1a.
  3. Title to, and all Intellectual Property Rights in, the Client Data (as between the parties) remains the property of the Client.The Client grants SendForensics a worldwide, non- exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Client Data for:
    1. any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement; and
    2. any other purpose, including the creation of Provider Data, and may use any Provider Data for any purpose, provided that either:
      • any use (including disclosure) by SendForensics of the Client Data is on an anonymised basis (i.e. in a manner that does not publish details enabling the identification of any individual or Client); or
      • where any disclosure to a third party of the Client Data is not on an anonymised basis, SendForensics must obtain the Client’s consent prior to the disclosure.
      The parties agree that the Client may, on notice to SendForensics, terminate the Agreement in the event of a breach of this clause 6.1cii by SendForensics.

6.2 Licence: SendForensics grants the Client a non-transferable licence to use the Provider Data in accordance with clause 4.2, subject to the Client’s continued compliance with the provisions of the Agreement.

6.3 Know how: To the extent not owned by SendForensics, the Client grants SendForensics a royalty-free, transferable, irrevocable and perpetual licence to use any know-how, techniques, ideas, methodologies, and similar Intellectual Property required by SendForensics in order to provide the Services; provided, however, that the foregoing will not apply to any Intellectual Property or Confidential Information of Client.

6.4 Feedback: If the Client provides SendForensics with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):

  1. anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by SendForensics; and
  2. Client grants SendForensics a royalty-free, transferable license to use the feedback for its own internal business purpose.

6.5 Third party sites and material: The Client acknowledges that the Services may link to third party websites or feeds that are connected or relevant to the Services.Any link from the Services does not imply any SendForensics’ endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators.To the maximum extent permitted by law, SendForensics excludes all responsibility or liability for those websites or feeds. The foregoing does not apply to any third party websites or materials that are embedded in the Services or otherwise required for Client to use the Services.

6.6 Assignment: To the extent that any ownership of Intellectual Property Rights does not vest in accordance with the intention of this clause 6, the parties assign with effect from the date the relevant rights arise those Intellectual Property Rights so as to give effect to the intentions of this clause 6.The parties agree to do all acts and execute all documents as may be needed to give effect to this clause 6.

6.7 Third party Intellectual Property Rights indemnity:

  1. SendForensics will:
    1. defend at its own expense any claim or proceeding against the Client brought by a third party to the extent that claim or proceeding alleges that the Client’s use of the Services in accordance with the Agreement constitutes an infringement of a third party’s patent, or of a third party’s copyright, trademark or trade secret (IP Claim); and
    2. pay all losses incurred by Client due to an IP Claim, including those costs and damages finally awarded (without right of appeal) against the Client in any such claim or proceeding that are specifically attributable to that claim or those costs and damages agreed to in a monetary settlement of that claim or proceeding.
  2. The indemnity in clause 6.7a is subject to the Client:
    1. promptly notifying SendForensics in writing of the IP Claim, provided that failure to promptly notify shall not relieve SendForensics of its obligations except to the extent prejudiced by the late notification;
    2. making no admission of liability and not otherwise prejudicing or settling the IP Claim, without SendForensics’ prior written consent; and
    3. giving SendForensics complete authority and information required for SendForensics to conduct and/or settle the negotiations and litigation relating to the IP Claim and all assistance reasonably required by SendForensics in the defence or settlement of the IP Claim, subject to SendForensics reimbursing the Client for the Client’s reasonable costs incurred in providing that assistance.The costs incurred or recovered are for SendForensics’ account
  3. The indemnity in clause 6.7a does not apply to the extent that an IP Claim arises from or in connection with:
    1. the Client’s breach of the Agreement;
    2. use of the Services after SendForensics’ notice to cease use of the Services due to an IP Claim;
    3. use of the Services in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by SendForensics; or
    4. any third party data or any Client Data, except to the extent contemplated by the parties in connection with use of the Services.
  4. If at any time an IP Claim is made, or in SendForensics’ reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, SendForensics may (at SendForensics’ option):
    1. obtain for the Client the right to continue using the items which are the subject of the IP Claim; or
    2. modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing
  5. This clause 6 states SendForensics’s entire liability and the Client’s sole and exclusive remedy for claims of infringement and/or misappropriation of any Intellectual Property Right.

7. CONFIDENTIALITY

7.1 Security: Each party must, unless it has the prior written consent of the other party:

  1. keep confidential at all times the Confidential Information of the other party;
  2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
  3. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1a and 7.1b.

7.2 Permitted disclosure: The obligation of confidentiality in clause 7.1a does not apply to any disclosure or use of Confidential Information:

  1. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
  2. required by law (including under the rules of any stock exchange);
  3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
  4. which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
  5. by SendForensics if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that SendForensics enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.

8. WARRANTIES AND ACKNOWLEDGEMENTS

8.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

8.2 Client warranty: The Client warrants that is has all rights and has obtained all permissions necessary to disclose Client Data to SendForensics and for SendForensics to use that data in accordance with the Agreement.

8.3 SendForensics Warranties: SendForensics warrants that:(i) the Services will be completed in a professional, workmanlike manner, with the degree of skill and care that is required by good, and sound professional procedures, and shall be completed in accordance with applicable specifications; (ii) it has full power to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights granted to Client hereunder; (iii) the Services will materially conform to all materials and documentation provided to Client and as described herein; and (iv) SendForensics has taken reasonable steps to check and remove from the Services any and all viruses, Trojan horses, trap doors, or other malicious code.

8.4 Client acknowledgements: The Client acknowledges that the Services operate principally through the use of a software engine which generates data based on automated analyses of Client Data. As a software tool, the Services are unlikely to operate entirely without error or interruption.The Client acknowledges that the Services are merely one information tool which might be used to assist in analysing and optimising email deliverability. It remains the Client’s responsibility to make its own decisions in respect of email distribution and marketing planning and the Client retains sole responsibility for any decisions it may take based upon the information generated by the Services.

8.5 No implied warranties: To the maximum extent permitted by law:

  1. SendForensics’ warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Singapore Sale of Goods Act or any other applicable legislation applying generally to the sale of goods or services) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to SGD 1,000; and
  2. Except as expressly set out in the Agreement, SendForensics makes no representation concerning the quality of the Services and does not promise that the Services will:
    1. meet the Client’s requirements (other than as provided under this Agreement) or be suitable for a particular purpose; or
    2. be uninterrupted or error free.

8.6 Consumer protection legislation: The Client agrees and represents that it is acquiring the Services, and entering the Agreement, for the purpose of a business and that, to the maximum extent permitted by law, any applicable consumer protection legislation does not apply to the supply of the Services or the Agreement.

8.7 Limitation of remedies: Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement.The liability of SendForensics for any breach of the warranties contained here is limited, at Client’s option, to:

  1. supplying the Services again; and/or
  2. paying the costs of having the Services supplied again.
  3. If SendForensics is unable to supply the Services again or pay for the cost of having the Services supplied again, in each case, to Client’s reasonable satisfaction, Client may terminate this Agreement and SendForensics will provide a pro-rata refund of any prepaid Fees.

LIABILITY

9.1 Maximum liability: The maximum aggregate liability of either party under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not in any Year exceed an amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability). The cap in this clause 9.1 includes the cap set out in clause 8.5a.

9.2 Unrecoverable loss: Neither party is liable to the other party under or in connection with the Agreement or the Services for any:

  1. loss of profit, revenue, savings, business, use, data (including Client Data and/or Provider Data), and/or goodwill; or
  2. consequential, indirect, incidental or special damage or loss of any kind.

9.3 Liability for Provider Data: SendForensics will not under any circumstances be liable to the Client or any third party in respect of any act or omission by the Client or any Customer in:

  1. inputting data into the Services or providing SendForensics with any data or other information in respect of the Services; or
  2. using any information created by or derived from the Services, including any decisions in respect of optimising email deliverability,
  3. each of which remains the Client’s sole responsibility.

9.4 Unlimited liability:

  1. Clauses 9.1 and 9.2 do not apply to limit SendForensics’s liability under or in connection with the Agreement for:
    1. negligent acts causing personal injury or death;
    2. fraud or wilful misconduct; or
    3. the indemnity in clause 6.7.
  2. Clause 9.2 does not apply to limit the Client’s liability:
    1. to pay the Fees;
    2. under the indemnity in clause 4.6;
    3. for a breach of clause 7.1; or
    4. negligent acts causing personal injury or death; or
    5. for those matters stated in clause 9.4a.

9.5 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

9.6 Time bar: SendForensics will not be liable to the Client for a claim under or in connection with the Agreement unless that claim is notified to SendForensics within 12 months of the date that the circumstances giving rise to the claim were reasonably discoverable to the Client.

9.7 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

9.8 Application of limitations and exclusions: Nothing in the Agreement applies to limit or exclude any liability which the relevant party is not permitted by law to limit or exclude.To the extent any limitation or exclusion is not permitted under applicable law, that limitation or exclusion will be deemed not to apply but will not affect any of the remaining limitations or exclusions under this clause 9.

10. TERM, TERMINATION AND SUSPENSION

10.1 Duration: Unless terminated earlier under its provisions, the Agreement starts on the Start Date, and continues for:

  1. the Initial Term;

10.2 Other termination rights:

  1. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
    1. breaches any material provision of the Agreement and the breach is not:
      • remedied within 10 Business Days of the receipt of a notice from the first party requiring it to remedy the breach; or
      • capable of being remedied;
    2. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
    3. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.

10.3 Consequences of termination or expiry:

  1. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
  2. On termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.
  3. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
  4. At any time prior to one month after the date of termination or expiry, the Client may request:
    1. a copy of any Client Data stored using the SendForensics Services or any previously provided Provider Data. On receipt of that request, SendForensics will use reasonable endeavours to provide a copy of the requested Client Data or Provider Data, in a common electronic form.SendForensics does not warrant that the format of the Client Data or Provider Data will be compatible with any software; and/or
    2. deletion of the Client Data stored using the SendForensics Services, in which case SendForensics must use reasonable efforts to promptly delete that Client Data. To avoid doubt, SendForensics is not required to comply with clause 10.3di to the extent that the Client previously requested deletion of the Client Data.

10.4 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 4.6, 6.6, 7, 10.3, 10.4 and 11, continue in force.

10.5 Suspending access: Without limiting any other right or remedy available to SendForensics, SendForensics may restrict or suspend the Client’s access (or its personnel’s access) to the Services where the Client (including any of its personnel):

  1. undermines, or attempts to undermine, the security or integrity of the Services or any Underlying Systems;
  2. uses, or attempts to use, the Services:
    1. for purposes not authorized by this Agreement; or
    2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Services;
  3. has otherwise materially breached the Agreement (in SendForensics’ reasonable opinion).

10.6 Notice: SendForensics must notify the Client where it restricts or suspends the Client’s access under clause 10.5.

DISPUTES

11.1 Good faith negotiations: Before taking any Court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement, including non-contractual claims, through good faith negotiations.

11.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

11.3 Right to seek relief: This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

GENERAL

12.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:

  1. immediately notifies the other party and provides full information about the Force Majeure;
  2. uses best efforts to overcome the Force Majeure; and
  3. continues to perform its obligations to the extent practicable.

12.2 Rights of third parties: No person other than SendForensics and the Client has any right to a benefit under, or to enforce, the Agreement.

12.3 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

12.4 Independent contractor: Subject to clause 4.3, SendForensics is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

12.5 Notices: A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Client Specific Key Details or otherwise notified by the other party for this purpose.

12.6 Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

12.7 Variation: Any variation to the Agreement must be in writing and signed by both parties.

12.8 Entire agreement: The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.

12.9 Subcontracting and assignment:

  1. Neither party may assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the other.Eac h party remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer.Any assignment, novation, subcontracting or transfer must be in writing;
  2. Any change of control of either party is deemed to be an assignment for which the other’s prior written consent is required under clause 12.9a.In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.

12.10 Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of Singapore.

12.11 Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing electronically and providing electronically a counterpart copy to the other party.

SCHEDULE 1

The following Service Levels apply to the Services.

1. Service Levels

  1. Subject to paragraph 2 and 3, where the Services are unavailable or there is another issue with the service, SendForensics will use reasonable endeavours to resolve the unavailability or other issue in accordance with the target resolution times set out in the following table:
Priority Description Target resolution time (from notification by the Client)
1 Total Services unavailable Within 1 Business Day
2 Core parts of the Services are unavailable and most users are affected. Workaround not available. Within 1 Business Day
3 Important functionality affected but workaround available. Within 5 Business Days
4 Minor issue, including cosmetic. As agreed

2. Availability

  1. The obligation to make the Services available does not include, and the Services will not be considered unavailable, to the extent the unavailability is:
    1. reasonably required so as to permit maintenance or other development activity to take place; provided that in no event will the Service be unavailable for maintenance for more than four (4) hours in any calendar month;
    2. due to Force Majeure;
    3. due to failure of third party service providers or third party features;
    4. due to Client or third party acts or omissions (including anyone gaining access to the Services by means of the Client’s passwords or equipment)
    5. due to problems attributable to the Client’s or Customer’s systems
    6. caused by anyone other than SendForensics or its personnel.

3. Qualifications

  1. The following qualifications apply to SendForensics’s resolution of unavailability and other issues (assistance):
    1. The Client must:
      • log a request for assistance via: the Raise a Support Ticket online request form found under the Helpdesk menu item or email to support@sendforensics.com
      • provide SendForensics with sufficient information to enable SendForensics to determine the priority of the unavailability or other issue, and to resolve it
      • ensure that appropriately trained and skilled personnel are available to discuss any issue with SendForensics
  2. Assistance excludes:
    1. any work required to be undertaken by SendForensics to the extent caused by a breach of the Agreement by the Client or its personnel;
    2. any design, development or training work;
    3. on-site (non-remote) help.

4. Service Credits

4.1 Service Credits are issued as a financial reimbursement if SendForensics does not meet the Service Levels for a particular month. Upon approval of a claim we will provide the applicable remedy set forth below:

Monthly Service Unavailability Service Credit
>2 hours but <= 4 hours 100% of the Minimum Volume Fees for that month

4.2 Claim Procedure: To receive a Service Credit for a particular calendar month, Customer must submit a claim by email to support@sendforensics.com within 30 days of the end of the month during which the Service did not meet the Service Levels, and include the following information:

  1. Client name and email address:
  2. the name of the service to which the claim relates;
  3. information supporting each claim of Unavailability, including date, time, and a description of the incident and affected service, all of which must fall within the calendar month for which you are submitting a claim.

5. Access to Support

  1. Support is available in English, Monday – Sunday (including holidays), 24 hours a day.
  2. SendForensics provides the following types of support:
    1. Support Ticket online request form found under the Helpdesk menu item; or
    2. email to support@sendforensics.com
  3. SendForensics will use reasonable endeavours to respond to each case within the applicable response time described in the table below, depending on the priority level set on the case.
  4. Priority Description Target response time (from notification by the Client)
    1 Total Services unavailable Within 4 hours
    2 Core parts of the Services are unavailable and most users are affected. Workaround not available. Within 4 hours
    3 Important functionality affected but workaround available. Within 24 hours
    4 Minor issue, including cosmetic. Within 72 hours

SendForensics Privacy Policy

Last updated 2015.05.25

1. SendForensics Pte Ltd (registration no.: 201321279D) distinguishes between personal and non-personal information. Personal information is information that relates to a natural person from which that person's identity may be directly or indirectly determined; it includes names, addresses and telephone numbers. Non-personal information is information that is not personal information.

2. SendForensics does not generally use or otherwise deal with personal information. In exceptional cases where SendForensics uses or deals with personal information, SendForensics only uses or deals with personal information which is provided voluntarily and obtained in compliance with all applicable laws. In order for SendForensics to use personal information, the natural person must voluntarily submit it. If you would like to remove or update your personal information in our databases, please email privacy@sendforensics.com.

3. SendForensics may use the personal information you provide to operate the Service and tailor it to your needs, for billing, identification and authentication, to contact and communicate with you about the Service and your use of the Service, send you marketing materials (subject to your opt-out option), for research purposes, and to generally improve the content and functionality of the Service.

4. SendForensics retains personal information collected (in accordance with the previous clause) only as long as necessary to fulfil a legitimate business need, or as required by law.

5. Non-personal information is used by SendForensics solely to provide services to you and to improve its services.

6. Cookies are data stored on a user’s hard drive that contain information such as banners seen or sites visited. SendForensics may use cookies for:

(a) keeping track of items in the shopping cart. No other data will be collected or tracked by this cookie, which acts purely as a storage facility for the shopping cart;

(b) keeping track of session variables. This cookie expires at the end of the session. No other data will be collected or tracked by the cookie, which is purely for the management of the variables required for the user to view the site once logged in; and

(c) other purposes solely for the provision of SendForensics services.

7. SendForensics does not use cookies to obtain personal information.

8. If you have any concerns or comments about our policy, please email privacy@sendforensics.com.
[end]

SendForensics Acceptable Use Policy

Last updated 2013.10.07

1. You shall not directly or indirectly abuse the Services or deal with the Services otherwise than for their intended ordinary uses. In using the Services, you shall comply with all applicable laws. You shall not use the Services for any illegal or inappropriate purposes.

2. Without limiting the generality of the previous paragraph, you shall not carry out any of the following:

(a) probe, scan, or test the vulnerability of any system or network;
(b) breach or otherwise circumvent any security or authentication measures;
(c) access, tamper with, or use non-public areas of the Service, shared areas of the Service you have not been invited to, our (or our service providers') computer systems;
(d) interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
(e) plant malware or otherwise use the Services to distribute malware;
(f) access or search the Services by any means other than our publicly supported interfaces (for example, by scraping);
(g) to the extent prohibited under applicable laws, send unsolicited communications, promotions or advertisements, or spam;
(h) send altered, deceptive or false source-identifying information, including spoofing or phishing;
(i) publish anything that is fraudulent, misleading or infringes another's rights;
(j) promote or advertise products or services other than your own without appropriate authorization;
(k) impersonate or misrepresent your affiliation with any person or entity;
(l) abuse referrals to get more credit for referrals than deserved;
(m) publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred; and
(n) violate the law in any way, violate the privacy of others or defame others
[end]

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