General Terms and Conditions of Use as of 1st May 2018
THESE GENERAL TERMS OF SERVICE (the “Terms”) are a legal and binding agreement between (“zagomail” or “We” or “Service Provider”) and you, or if you represent an employer or client, than the employer or client (“You” or “Client”), governing your use of zagomail’s http://www.zagomail.com website, the emailing services and all other related services that zagomail provides (collectively the “Services”).
zagomail reserves all rights to change or update these Terms at any moment and at its sole discretion, by posting on its Website or by providing any other notice, if possible at least 30 days before its entry into effect, and your rights under these Terms will be subject to the most current version posted on the Website at the time of use.
PLEASE CAREFULLY READ THESE TERMS. BY SUBSCRIBING OR BY ACCESSING OR USING THE WEBSITE OR THE SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THE AGREEMENT BEING THE FOLLOWING DOCUMENTS, LISTED BY ORDER OF PRIORITY:
– Specific Terms (defined below in article 1), if any
– These Terms
– Anti-Spam Policy
– Service Level Agreement (SLA)
The Services are exclusively reserved for a professional use and are not available to minors under the age of 18.
Article 1. Definitions
Each capitalized term herein shall have the meaning given below unless otherwise expressly stated.
“Assistance Services” means any consulting services, development, configuration and settings assistance provided by Service Provider in order to allow Client to access and use the Service, including integration of an API into its own website or implementation of an “SMTP-IN” protocol for email transfers. Assistance Services include Consulting Services, On-boarding and training services, as well as all related services.
“Data” means Client’s electronic data, whether or not personal data, which are collected, managed, processed and/or shared by Client and Service Provider, and which may be intended for third parties, through the Service access and use rights.
“Service” means the zagomail externalized application solution that is hosted on the servers and/or cloud that Service Provider designates and that Client may execute remotely. The Service offers various features, including, but not limited to, management of emailing campaigns with real-time monitoring of sent email deliverability, newsletter creation and sending, sending and managing, transactional emails and SMS. Service Provider expressly reserves the right, at any time during the term of the Agreement, to adapt, arrange and/or modify any of the components granting access and use rights to the Service and the associated documentation, provided that the maintenance and support commitments are complied with for these operations. Similarly, zagomail may, at any time, discontinue providing a platform deemed undesirable and/or obsolete and migrate services to a new infrastructure; in which case, zagomail will endeavor to inform You as early as possible and invite You to migrate your account to the new infrastructure.
“Intellectual Property Right” means all industrial property and copyrights including patents, trademarks, designs and models, copyrights (audiovisual effects, graphic interfaces, preparatory design material, software and source code, specifications and ancillary documentation).
“Specific Terms” means all specific terms and conditions mutually agreed with the Client stating in particular the financial and technical elements specified in quotation.
“Website” means the web pages associated with the technological features of the Service described in the Service Documentation that can be accessed by and configured for and/or by Client, especially the “Admin” interface, in accordance with the Agreement.
Article 2. Support and Service Levels
2.1 We shall use reasonable efforts, in accordance with customary state of the art principles, to ensure that emails sent by You are properly routed to their recipients’ electronic mailboxes. To this end, We shall provide You with an online automatic monitoring service, enabling You to update and modify your mailing lists and emailing campaigns in real time.
You may also subscribe to additional recommended services in order to improve the Service. Such additional services shall be invoiced separately and shall be provided only after your prior acceptance of a quotation and are as referenced in the Specific Terms.
2.2 Support and Service Levels
You shall be responsible for appointing an administrator (the “Administrator”), who shall be in charge of collecting information and assistance requests from your users and for trying to respond to them.
We shall provide second level support for the Service (“Support”), consisting of (i) responding to the Administrator’s requests for information and support in connection with use of the Service, or (ii) resolving anomalies arising from use of the Service that the Administrator has not been able to fix despite its best first level support efforts.
The Administrator is to create a Support ticket by sending a request to: firstname.lastname@example.org, including as much detail as possible relating to the request for Support, it being agreed that only the Administrator may contact/access the Support service.
Support access conditions and service levels commitments are detailed in the Service Level Agreement (SLA), or SLA Premium where applicable.
Article 3. Use of the Services
3.1 Use of the Services
You shall comply with the terms and use restrictions, if any, set out in these present Terms, and in the Operating Policies. You shall be responsible for ensuring that your users also comply with said Terms and use restrictions.
You shall not interfere with or disrupt operation of the Service and shall comply with the Agreement for access to and use of this service.
When You use the zagomail API, You shall be responsible for your usage of the zagomail platform and shall limit your API calls to a reasonable volume. zagomail reserves the right, at its sole discretion, to take any necessary action to address any improper use.
You subscribe to the Services in your name and on your behalf, and You are not entitled to send via our Services promotional emails for a third-party, nor to assign the use of all or part of the Services to your own customers, even for free; in this context, We draw Your attention on the fact that one single domain must not include more than two (2) master accounts.
As an indirect zagomail subscriber, You subscribe to the Services in Your name but on behalf of your own clients with the objective of managing and/or reselling zagomail to your clients. Specific Terms will be applicable to this usage, including that You must use sub-accounts to separate email traffic of your own clients using the Services and are responsible for the necessary support for the End Users.
You shall keep confidential and secure all credentials, User IDs and passwords associated with your account (including the master account and any attached sub-accounts), and to immediately notify Us of any unauthorized use of your account, or of any theft or loss of credentials allowing access to the account. Each account is personal and can only be accessed and used by You or the users duly authorized by You. You recognize and acknowledge that You may be liable for any unlawful, wrongful or fraudulent use of the account, and You shall indemnify and hold Us harmless against any action or claim arising from such a use. We reserve the right to request proof of your identity or authority before granting access to your account.
You shall be solely and wholly liable (i) for any Data, information or content, in particular the content of emails, SMS or newsletters sent by You through the Service, including if such content is provided by a third party, such as an SMTP relay or via the routing of an entire infrastructure (hereinafter collectively referred to as « Content »), and (ii) for the Content’s compliance with the regulations in force in accordance with article 4 below.
You acknowledge and warrant that the Content, whether in whole or in part, shall in no event:
* infringe, misappropriate or violate any right, especially any Intellectual Property Right, of any third party whatsoever;
* contain any virus or program designed to cause damage, intercept or misappropriate any system or Data or personal data in a fraudulent manner;
* contain any unlawful, bullying, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature or any material that encourages * conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable laws or regulations ;
* contain any sensitive personal data, including social security number, individually identifiable health or health insurance information, bank account information or credit card information;
* be false, misleading or inaccurate; or,
* be in breach with the Operating Policies.
You acknowledge that We have the right, but not the obligation, to monitor the Service and any Data submitted to the Service. To comply with legal obligations in this respect, We may take any actions (including removing Content or denying routing of certain Data and emails) We reasonably believe are necessary to prevent unlawful activity in connection with the Service.
You expressly acknowledge and agree that zagomail shall not be liable for any loss or destruction of the Content, including the Data, and that You shall be responsible for ensuring that You have proper backups thereof.
3.4 Sending Policy
You undertake to comply with Our Sending Policy and, in particular, You acknowledge that You have been informed that in the event of breach of the provisions of this Policy, in particular if emails or SMS are sent to recipients who did not specifically ask to receive such emails or SMS, if SMS messages are sent for non transactional purposes, or if We receive an unusual number of complaints, We shall be entitled to terminate your subscription and/or close the master account or any associated sub-account, in which case You shall not be entitled to claim any refund or compensation.
We also reserve the right to temporarily limit your sending – which means that your daily and total emails or SMS sent will be limited in number and You will need to take the necessary measures to ensure that your practices comply with our Policy and requirements – before zagomail can lift the temporary sending limit and allow You to send your desired volumes. A temporary sending limit subsequent to a breach of your contractual obligations means that You will remain liable for the payment of the amounts contractually due during the limitation period despite the limitation on your email sending options and no refund whatsoever will be made. You will also be liable for any fines imposed if sending non transactional SMS messages.
Some internet service providers (“ISP”) may suspend the routing of emails from certain addresses if they detect or suspect any dishonest or illegal behavior (“blacklisting”). If Your account is blacklisted by an ISP, We shall use reasonable efforts to attempt to re-establish communication with such ISP, and You agree to pay for the additional Services We may be required to perform for this purpose.
Article 4. Compliance with the Law
You (i) shall comply with all laws and regulations in force that are applicable in any country from which You access the Website and/or use the Service, as well as in any country to which You send emails, and (ii) shall indemnify and hold Us harmless from any action brought against Us, judgment entered against Us or loss We may sustain due to Your non-compliance with applicable laws and regulations.
Furthermore, You agree to reimburse Us for any action or formality We may be required to carry out to comply with a legal demand or request from an administrative or judicial authority in relation to your use of the Service.
In the event You become aware of a violation by any third party of any provision of these Terms or of any laws or regulations and, in particular, if You become aware of a security breach by a third party or discover a security breach, You shall immediately notify Us by any means, including by sending an email to email@example.com
Article 5. Plans – Financial Terms
We offer various options to our Clients, including free and paid plans, with or without a fixed commitment period. You can find these options and the relevant pricing on our website at: https://zagomail.com/pricing. The pricing of these plans is available in United States Dollars, Euros, and British Pounds.
5.1 Free plans
Free plans are non paid subscriptions subject to use restrictions (maximum limits to the number of daily and monthly emails and support ticket requests, restriction on API calls, etc.); these use restrictions are set forth on our Website.
You may at any time terminate your free plan or upgrade to a paid plan.
5.2 Paid plans (Basic)
Paid plans are without any fixed-term commitment and have lower use restriction limits than the self-service free subscriptions. Premium features can also be added to these plans, including dedicated IP address and reputation monitoring.
Your paid subscription shall be due and payable either on a monthly or yearly basis in advance from the date of your first paid subscription and will be automatically renewed thereafter on the same basis, subject to the full payment in advance of the fees due. You may not re-subscribe to the same paid monthly plan within twenty-one (21) days for the same account. SMS messaging packages shall be due and payable in advance for the desired volume, no automatic renewal will be processed.
You may at any time terminate Your paid self-service plan. We nevertheless draw your attention to the fact that zagomail shall not reimburse You the unused fees paid for a started month or year, even on a prorata basis; it is then Your responsibility to anticipate the termination of Your plan to make it effective at the most convenient time.
Payment may be made by credit card, direct debit, or e-payment system (paypal, wirecard). You authorize zagomail to charge the credit card or bank account You provide to Us for any and all costs and amounts that You owe Us for the Services.
There are NO REFUNDS for any fees paid. If you have already made payment for any given month, and you terminate your account at some point during the same month, for which you have already paid, there will be no refunds of amounts already paid, only no new recurring charges made to your credit card. RedCappi will also not refund fees charged to your account and credit card as a result of your failure to properly terminate your account in accordance with these Terms and Conditions.
Paid Subscription Fees are non-refundable. Customer acknowledges that from time to time, delivery of email messages sent using the Services may be blocked or prevented at destination email servers. Customer’s payment obligation set forth herein continues regardless of whether delivery of such email messages is prevented or blocked. Payments for Fees and reimbursements for expenses, if any, will be billed monthly and will be due immediately upon receipt of invoice; or may be pre-paid in advance;
If customer violate our terms or send spam, no refund will be granted
Article 6. Termination
6.1 Right of withdrawal
The Services are reserved exclusively for a professional use and any regulations on consumer or retraction rights are not applicable to the Services.
6.2 Termination and/or deletion of an account upon zagomail’s initiative
zagomail may terminate your Account and the performance of Services at its sole discretion under the following circumstances:
* at any time and for any legitimate reason for a free plan provided reasonable notice is given; or,
* after You have been notified by zagomail following any breach of laws or regulations or these Terms, including but not limited to: if payment or partial payment of any sum due by You is not received by zagomail; in the event of a payment incident; when using the Services to send emails that do not comply with the Sending Policy; in the event of a breach or attempted breach of the Website security; or, in the event of fraud or attempted fraud when using the Website.
6.3 Consequences of the termination
Upon expiration or termination of your account for any reason whatsoever, all amounts still owed by You, shall become due and payable immediately. We will not refund any prepaid fees and will charge You the full amount that We would have been entitled to charge for the remaining term.
Article 7. Intellectual Property – Access and Use Rights
The service name zagomail and all trademarks referenced on the Website, without limitation, are among the registered trademarks of Service Provider. You are not allowed to use any such trademarks without Service Provider’s express written agreement. All Website content, including graphics, logos, page headers, icons, and service names are the property of Service Provider and its affiliates. Other trademarks that appear on the Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Service Provider.
All elements on the site, such as graphic elements (including graphical interface), logos, headers, icons, service names, literary content, computer programs, etc. are protected by copyright laws, and remain the full property of their authors. You are not allowed to use the content or design of the site without Service Provider’s express written agreement. You may not use, copy, modify, create or distribute a derivative work. Concerning the computer programs used, You also cannot reverse engineer, decompile or otherwise attempt to extract the source code of our platform. Any activity that infringes terms of the Agreement violates copyright law and will be prosecuted according to the current applicable laws.
7.3 Right of Access and Use
Subject to full payment of all fees when due for any paid plans, zagomail authorises/grants You a limited, non-exclusive, non-transferable, personal and temporary right to access and use the Service. This grant of rights shall not be deemed an assignment of any intellectual property rights.
7.4 Exclusive rights
zagomail has the exclusive right to intervene to adapt, arrange and/or modify any of the components of the Service and in particular, to correct any errors. zagomail remains the owner of all intellectual property rights, protecting, where appropriate, the works and services performed by Us in connection with our Services, as well as all associated documentation, but also all copies of such works and services, their derivatives, modifications and enhancements.
Article 8. Warranties
zagomail makes all reasonable efforts to deliver a functional Service and substantially compliant with its documentation and/or SLA, but does not guarantee an error or “bug” free service. If You notice a non-compliance issue, You must notify zagomail as soon as possible and zagomail undertakes to make every reasonable effort to remedy the non-compliance issue, as this is Your only recourse.
zagomail also ensures that Support Services will be provided, where appropriate, according to the description given in the Specific Terms signed by You, where applicable, and proper codes of practice, as the Service Provider is only bound by an obligation of means in this instance.
You declare, warrant and agree, in zagomail’s favor, that: (1) You have the right and authority to subscribe and use the Services, and accept these Terms, and if You accept the Agreement on behalf of a corporation or other entity, to link that company or other entity hereunder; (2) You have the right and executing authority of your obligations under these Terms; and, (3) all Data, information or content that You provide to zagomail in the context of your access to the Website and use of the Services is accurate and up-to-date.
Furthermore, You acknowledge that zagomail does not control the transfer of Data via the internet, and cannot be held responsible for delays or delivery problems arising from internet or other outside connection issues.
Article 9. Third Party Claims
9.1 We agree to (i) defend You, at our own expense, and (ii) pay all damages resulting from any claim initiated by a third party and asserted against You on the grounds that the Service, when used in accordance with the provisions of these Terms, infringes any EU, US, UK or Canadian patent, copyright, trade secret, or other proprietary right, provided that You: (a) promptly notify Us, in writing, and no later than within five (5) days following receipt of any claim; (b) allow Us to control and direct the investigation, preparation, and defense; and (c) fully collaborate in defense and resolution of the claim. We shall not be responsible for any settlement that We do not approve in writing in advance.
In the event a notice of an infringement claim is received from a third party, We may, in our sole discretion and at our option, (a) procure for You the right to continue to use the Service, or (b) replace or modify the Service to make it non-infringing. If We determine that it is not commercially reasonable to perform either of these alternatives, You shall cease to access and use the Service upon our written request. We shall then refund You any Fees paid in advance, on a prorata basis over the period during which the Service is not usable.
THIS ARTICLE 9.1 STATES zagomail’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ALLEGATIONS THEREOF BY A THIRD PARTY.
9.2 You shall defend and pay to Us all damages, including damages resulting from any claim initiated by a third party and asserted against Us on the grounds of the use of the Website or the Service or any breach of these Terms, provided that We (a) promptly notify You, in writing, of such claim; (b) allow You to control and direct the investigation, preparation, defense and settlement of the claim; and, (c) assist and fully cooperate in the defense thereof. You agree to pay any damages or other remedy awarded against Us (or agreed to in a settlement by You) resulting from the claim, including any costs and attorneys’ fees awarded. You shall not be responsible for any settlement You do not approve in writing in advance.
Article 10. Limitation of Liability
The Service, as well as the Website may include links to other websites or other Internet sources. Insofar as We cannot control these sites and external sources, zagomail cannot be held responsible for the availability of such external websites or sources, and may not be held liable in any way for the content, advertising, products, services or other materials on or available from such external websites or sources. zagomail provides links only as a convenience, and such inclusion of any link does not imply that We endorse the linked websites or any part of their content. In addition, zagomail cannot be held responsible for the behavior or actions of other users, nor for any proven or alleged damage or loss subsequent to or in connection with access to, use of or the fact of having relied upon the content, products or services available on such external sites or sources.
zagomail will be freed from the performance of Services, following an event of Force Majeure, as defined in article 13.4 of these Terms.
Furthermore, for maintenance reasons, zagomail may suspend temporarily access to the Services; in such cases, zagomail will endeavor to notify You and to keep the length of the interruption to a minimum.
In any event, zagomail (including its third party suppliers, employees or representatives) may not, under any circumstances, be liable for indirect or consequential damages of any kind, including and without limitation, loss of revenue, profits, chance, business interruption, or Data loss, even if the parties were informed of the possibility of such damages.
Moreover, as to any indirect zagomail subscriber, in no event shall zagomail be liable for any End User, in particular in the event of temporary or permanent suspension of the Services due to non respect of the zagomail Sending Policy by Yourself or the End User.
In all cases, zagomail’s total liability is limited, all damage combined, to the amount paid by You to zagomail, if any, for use of the Website and Services during the twelve (12) months preceding the date on which the damage occurred. This limitation does not apply to damage due to bodily injury (including death) or to willful misconduct or gross negligence.
You acknowledge that You have subscribed to the Services with knowledge of (i) the risks related to them, and (ii) the level of risk accepted by You. The prices applicable have been agreed upon in consideration of this article, which is integral to the economic balance of the Agreement.
Article 11. Confidentiality
Service Provider and You undertake to treat as confidential, and to not reproduce or disclose, other than for the sole purposes of performing the Agreement, the information and documents exchanged between them as well as any disclosures obtained during this Agreement.
Both Parties shall also oblige all contracting parties, subcontractors, client or any third party to maintain confidentiality with the same reasonable care standard as its own confidential information.
Both Parties acknowledge that any breach of its obligations with respect to confidential information may cause the other party irreparable injury for which there are inadequate remedies at law, and that the injured party shall be entitled to seek equitable relief in addition to all other remedies available to it. Client shall not disclose to a third party the results of any performance tests conducted on the Service, without the prior written consent of Service Provider.
Excluded from the obligation to maintain confidentiality is information that is generally available to the public or whose disclosure is required for legal reasons, or due to a judicial or administrative ruling.
Article 12. Miscellaneous
12.1 Transfer of the Agreement – Change of Control
For the avoidance of doubt, it is hereby reiterated that Client has a personal, temporary, non-transferable and non-exclusive right to access and use the Service.
Under these conditions, it is expressly agreed that Client shall not transfer the Agreement or any right derived from the access and use of the Service to a third party, whether by a contribution, assignment, concession, merger, demerger, loan or otherwise, including without consideration, or within the group to which Client belongs, without Service Provider’s prior written agreement.
Service Provider reserves the right to use subcontractor(s) of its choice to provide the services in connection with the Services, and shall remain liable to Client for the performance thereof in accordance with the present Terms and subject to the reservations stipulated in the Agreement.
12.3 Entire Agreement
These Terms, including the Operational Policies along with any purchase order and/or special conditions, constitute the entirety of the commitments between You and us. It establishes all of the Parties’ rights and obligations and supersedes all prior oral or written commitments that directly or indirectly concern the subject matter of the agreement between us. This Agreement binding us may only be modified by a written amendment which is signed and designated as such by both Parties (You and us).
If any one of the provisions of the Agreement is deemed void under any legal principle, law or regulation, or is invalidated by a court decision, it shall be severed from the Agreement, but the other provisions of the Agreement shall remain in full force and effect.
12.5 Force Majeure
zagomail shall not be responsible for any default or delay due to extraordinary events beyond its control including, without limitation, strikes, lock-outs, shutdown of internet connections by Internet provider, cyber-attacks on the Website (“Force Majeure”).
If a Force Majeure event occurs, this Agreement shall be automatically suspended during the time the Force Majeure event continues, and neither Party shall be liable to the other for non-performance or delay in the performance of required obligation(s) due to the Force Majeure event, provided the non-performing Party gives prompt written notice of its inability to perform specified obligation(s) due to the event and uses reasonable efforts to resume its performance of its obligation(s) as soon as possible. It is agreed that the other Party may, during the time the Force Majeure event continues, similarly suspend performance of its obligations until such time as the non-performing Party resumes performance of its obligation(s). The Parties shall meet in order to jointly determine the conditions for resuming performance of the Agreement as soon as possible. If a Force Majeure event continues for more than a period of sixty (60) days, the Agreement may be terminated by either Party, by giving notice by certified mail, return receipt requested, effective immediately, if the impacted obligations are material obligations under the Agreement. Notwithstanding the foregoing, in no event shall a Force Majeure event.