Terms and Conditions for the provision of Omnivery services

(hereinafter the “Terms”)

We understand that you want to jump right into using our services. But you should know what we offer as part of our services and what is expected from you.

These Terms define basic rules for using our services and your relationship with us and include these topics:

who is Omnivery;
what definitions we use;
what services are provided;
how you can register and conclude the agreement;
how we fight against spam;
what we do to improve deliverability;
what must be included in all messages;
what other legal requirements apply to you;
how we provide the bot detection service;
technical requirements and conditions;
how to pay for the services;
for how long is the agreement concluded;
how is the information protected;
what quality of services we guarantee and how we handle complaints;
how are divided liabilities of parties;
what is provided to multi-tenant customers.

I. Who is Omnivery

Omnivery services are provided and operated by Omnivery s.r.o. (Ltd.) based in Czech Republic and it’s regional subsidiaries (eg. Omnivery US Inc.). Specific entity within the Omnivery group which provides the services is always listed in the Agreement. We will use terms “we”, “us”and “our” to describe this Omnivery entity.

II. Definitions

In these Terms, we use the following definitions:

Additional Service - any of our services other than the Omnivery Service;
Agreement - Agreement for the provision of Omnivery services, as concluded between us and you;
API - Application Programming Interface;
Applicable Laws – any laws, rules, regulations, orders and decrees of all governmental authorities (i) of the state in which we are physically located, (ii) of the state whose national the Recipient is or in which the Recipient physically resides and (iii) the state whose national the Recipient is or in which the Recipient is physically located, including good manners in the mentioned states, governing the provision and use of the Omnivery Service, in particular statutes on advertising regulation and statutes on protection of public order, public health, state security, consumers, minorities, personal data and privacy rights;
Bot Detection Service – our bot detection service provided through our API;
Conditions for the processing of personal data – the document stipulating conditions for the processing of personal data by us as data processor for you;
Documents - together the Specification, these Terms and the Conditions for the processing of personal data;
Event - quantifiable and verifiable event which serves as the basis of the calculation of fees;
Maintenance – changes to the Services leading to their temporary unavailability;
Marketing Message - any Message used for the direct or indirect promotion of the products, services or image of an enterprise of a natural or legal person;
Message - any message in digital form processed through the Service;
Omnivery Service - online message transport platform defined in Article III (1);
Recipients - your existing or potential customers who receive your Messages;
Scheduled Maintenance – any Maintenance resulting from our plan to perform Maintenance in a specific time for a specific reason, such as planned maintenance, modification or updating of the Services;
Services - together the Omnivery Service and Additional Service;
Spam - any Message sent to the Recipient in violation of the Applicable Laws and these Terms, against the reasonable expectations of the Recipient or with the reasonable effect of being a nuisance to the Recipient, including:
1. any Message that does not contain the mandatory content of Message, referred to in the Article VI. “Compulsory content of Messages”;
2. any Marketing Message sent without the consent of the Recipient to have its data used for the purpose of sending the Marketing Messages and to receive it or after the Recipient has withdrawn this consent or has informed you that they do not wish to receive any further Marketing Messages from you;
3. any Marketing Message relating to products or services that are provided by you or are similar to products or services in connection of which sale you have obtained the Recipient’s contact information, with which sending the Recipient expressed its disagreement.
Specifications - Omnivery Service specification included in the Agreement;
SMTP - Simple Mail Transfer Protocol, i.e. internet standard communication protocol used for email transmission;
Transactional Message - Message other than Marketing Message, which are intended to service customer and not to promote products or services of the sender; Transactional Messages could be notifications, updates, legaly mandated communications, etc.;
Unscheduled Maintenance - any Maintenance other than the Scheduled Maintenance, typically resulting from the need to react to changes or risks caused by a third party, such as (i) internet malfunctions, power network failures, hardware failures as well as other circumstances of a technical nature which we may not influence or whose solution requires third-party cooperation; (ii) any external threat to Services or any equipment and systems on which of the provision of Services depends.

Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

III. Services provided

Omnivery Service. We provide the Omnivery Service, an online message transport platform with API and SMTP submission that enables you to communicate directly with Recipients and track the efficiency of these actions (hereinafter the “Omnivery Service”).
Additional Services. We also provide, based on your individual orders approved by us, the Additional Services.
Specification. The Services are described in detail in the Specification.

IV. Registration and conclusion of the Agreement

Initiation of Services provision. To initiate the provision of Services to you, you must conclude the Agreement with us and consent to these Terms.
Agreement conclusion. The Agreement is concluded at the moment of its signing by the second contracting party.
Access credentials. When the Agreement is concluded, you will be provided with initial access credentials for the use of the Services. You will be able to add an unlimited number of access credentials of different types directly from the Omnivery Service user interface. Please ensure confidentiality of these credentials, we have limited options to protect you against their misuse. For this reason, we assume no responsibility for the misuse of your username and password by a third person and encourage you to enable Two-Factor Authentication for your account.

V. Spam prevention

Spam prohibition. You must ensure that the Messages do not qualify as the Spam and meet the industry standards and recommendations.
No purchased contact lists or generated addresses. Most laws prohibit sending of Messages to contacts with which you do not have any prior interactions. More importantly, this is a bad practice from e-mail marketing point of view, as sending Messages to such contacts has significant negative impact on not only your reputation, but could also affect all our customers. For this reason, you may not send Messages to contacts obtained from purchased or leased address lists, to randomly generated email addresses or to contacts obtained from the Internet or to obscure origin of these addresses or subject, source email address or content of the Messages.

Compliance with statistical parameters. You must ensure that the Messages will be in compliance with the current direct marketing best-practices and to fulfil the following statistical parameters, which will be monitored by us:

Measured indicators	Allowed Value	Description
Bounced messages	< 5 %	Ratio of bounced addresses from the total number of Messages sent within a rolling 1 month period
Unsubscribes	< 1 %	Ratio of Recipients unsubscribed within a rolling 1 month period
Suppressed messages	< 1 %	Ratio of Recipients suppressed on message submission
Spam complaints	< 0.1 %	Ratio of Spam complaints within a 1 month period
Spam trap hits	0	Number of Messages delivered to pristine spam traps

Your reputation as a sender is highly impacted by these indicators and affects the deliverability of your Messages. We want to make sure that you follow best practices and understand the impacts of exceeding these thresholds. In case of parameter “Spam trap hits” we rely on monitoring from spam trap providers. While we understand you may hit a typo trap or recycled trap at times, we want to make sure your lists are clean and there are not hits to pristine traps. Hit of these pristine spam traps is subject to a contractual penalty in the amount specified by the Specification. This is our incentive for you to keep your lists clean.

If you do not comply with any of the Measured indicators, we may terminate an Agreement unless you will demonstrate a sufficient effort to comply with set values.

Compliance across platforms and senders. Your reputation is built across all the services you use and third parties that send on your behalf. We want to make sure you follow best practices across the board to provide the deliverability you expect from us. For these reasons, all limitations and prohibitions on sending Marketing Messages contained in this Article V. “Spam prevention” apply also to any Marketing Messages sent directly by you through other platforms or by any third party on behalf of you.

VI. Deliverability

Investigation and limitations. We need to make sure your Messages get the best deliverability possible. Our team may need to investigate messages that trigger our detection criteria and suspend delivery of such Messages during investigation. This also helps protect you from unknowingly sending phishing or other harmful messages, which could have negative legal consequences on you. The investigation may result in Messages being rejected but we will let you know if that is the case. In some cases the Messages may need to be rate limited to better meet the limit of receiving parties. For these reasons, we may apply rate limits or suspend message delivery to review the content of the Messages in order to verify compliance with the Applicable Laws and the Terms.
Marketing SMS sending. Different providers in different countries have different policies governing Marketing Messages in the form of SMS. In general most of the providers only permit Marketing Messages in the form of SMS during workdays and only working hours. You must ensure that the Marketing Messages in the form of an SMS message will be sent to the Recipients only during working hours of the Recipient‘s local time. Outside of this time period, you may only send Transactional Messages in the form of an SMS message, as Transactional Messages in the form of SMS are not limited in this way.
Removing Messages and suspension of Services. We always care about protecting you as a sender - imagine your account gets hijacked or a disgruntled employee uses your API credentials and starts sending Spam or other harmful Messages. We need to have the power to remove such Messages from the queue and even disable Services on the account to prevent such abuse. As a result, if we identify that the Messages or their content are, according to our opinion, inconsistent with the rules contained in these Terms, we may (i) remove such Messages, (ii) remove such content from the Messages, (iii) disable Services on an offending sending domain, or (iv) completely stop providing Services to you. We will however make sure to contact you and let you know what is going on.
Data size limits. Every channel and every provider has certain limits we must obey. For example Gmail service may crop messages that are too long or exceed 120 KB in size. Also, while Transactional Messages may contain attachments and have a size of up to 10 MB, Marketing Messages must be much smaller, preferably under 120 KB, but we allow up to 400 KB. For other channels the limits are even more strict and may differ by network, e.g. SMS has length limits depending on encoding. For these reasons, we may set limits on the Message size, Message length, sending rate and number of Messages allowed, depending on the sending domain, the Message channel (email, SMS, RCS, Viber) as well as the Message content (transactional, commercial).
No guarantee of delivery. We are doing our best to deliver your Messages but ultimately we can’t guarantee the delivery as that is out of our hands. It’s up to the receiver’s decision (mailbox provider, mobile network, third-party filtering services etc.) how will they handle each individual Message. This means that we will send Messages that comply with these Terms through the Omnivery Service, but we are not responsible for their delivery to Recipients. We are not responsible for Message delays or Message non-delivery caused by third parties.
No promotion by affiliate partners. Affiliate partners can have negative impact on your reputation if they send on your behalf. In many cases affiliate partners use scraped or bought lists of contacts to increase their reach and their revenue share from you. It’s important that you ban affiliate partners from sending on your behalf or impersonate your brand to prevent reputational impacts. As a result, if you run an affiliate or a partner program, you must ensure that terms of this program expressly prohibit promotion of your brand, business, website or goods and services by sending any marketing messages by electronic means by the affiliate partners.
No liability for rejection of Messages. Receiving services like Gmail, Yahoo and Microsoft have different requirements on senders in terms of rates or message limits we have to respect. We can’t be liable for Messages rejected or “Spam foldered” by the receiving service as we have no control over their decision-making. For these reasons, we will not be liable for any damage (material or non-material) or any other harm incurred by you in connection with the different delivery terms of the individual email service providers or in the context of changes in these conditions.

VII. Compulsory content of Messages

Content requirements. This Article contains a list of compulsory content of Messages, divided by type of the Messages. Information to be provided for the Recipient according to this Article must be clear and legible and their reading must not require any activity on the part of the Recipient (e.g. loading the image, opening the linked page, etc.).
General requirements. You must ensure that all Messages include the following:
- designation of the person who has ordered the distribution of the Messages in the manner prescribed by the Applicable Laws and the Recipient to whom the Communication is sent, including the business name, company registration number, VAT number (if assigned);
- in the case of the Messages containing information on the prices of goods or services, a clear definition of whether or not the prices are inclusive of taxes and other charges or not, and the amount of such taxes and charges;
- all other information and content required by the Applicable Laws for specific cases. The above information for the Recipient must be clear and legible and their reading must not require any activity on the part of the Recipient (e.g. loading the image, opening the linked page, etc.).
Marketing Messages requirements. Additionally, the Marketing Messages must also include the following:
- information that the Message sent is a Marketing Message;
- in case of the Messages sent by email, the sending email address which must be functional and reachable by recipients;
- a valid contact, at which the Recipient may directly and effectively request not to receive any further Marketing Messages from you (in case of the Messages sent by email an email address; in case of Messages sent by SMS or other Mobile channel the contact information can be omitted due to length limitations as long as the sender is clearly identifiable by the recipient), instructions for using this contact and, if applicable, a link to the your website with contacts (except for SMS or other Mobile channel due to its length limitations); this contact must be clear and legible; you are not authorized to alter, delete or disable this contact in any way, and ascertaining of such contact may not require any activity on the part of the Recipient;
- visibly placed unsubscribe link for automated opt-out by the Recipient, by which the Recipient may withdraw the consent to the use of its electronic contact for sending of the Marketing Messages. This link must be usable by the Recipient for at least 30 days after the message was sent.
Messages sampling and suspension. We do random sampling of Messages to identify their compliance. If we discover that your Messages do not contain the compulsory content listed above, we will always try to contact you to rectify the situation. In these cases, we may (i) suspend the domain from further sending of the Messages or (ii) completely suspend the provision of the Omnivery Service to you.
Unsubscribe options. While you are required to add unsubscribe links to your Marketing Messages there are many other technical means to unsubscribe that lead directly to us, eg. list-unsubscribe headers, feedback-loops, spam reports etc. We will act on these requests and suppress the recipients accordingly and the information will be passed to you using webhooks (if set). If the Recipient informs us, on the basis of the Marketing Messages received from you, that they do not wish to receive the Marketing Messages any further, or if they withdraw the consent to the use of their electronic contact for the sending of the Marketing Messages, we will add the Recipient to the suppression list to prevent further Marketing Messages to be sent. We may proceed in the same way also if the Recipient informs us that the Messages received by them do not contain the terms stipulated by these Terms or in the Recipient‘s opinion are the Spam.

VIII. Applicable Legal Requirements

Compliance across jurisdictions. Your Recipients may reside anywhere around the globe and internet makes no distinction between them. The laws on the other hand differ country by country. You need to make sure you meet the laws that may affect the Messages you send in all likely jurisdictions - eg. at least in the most likely destination countries you can reasonably expect your Recipients to reside in. For this reason, sending of Messages by you and the content of the Messages you send must comply with all Applicable Laws.
3rd party content. The fact that you have downloaded an image, logo or any text for free doesn’t necessarily mean you are free to use it and distrubute it. Make sure you have all rights for the intended use of such content as required by the Applicable Laws. You must obtain these rights at the latest on the commencement of the distribution of the Messages to the Recipients at your own expense. At our request, you are obliged to provide proof of obtaining these rights to us for inspection.
Data protection legislation. Your company may be subject to various laws and regulations - from GDPR, CASL to CCPA and you must always comply with the laws on personal data protection and adopt, maintain, publish, and act in accordance with the privacy policy that is fully compliant with these laws. Our Services are tailored to comply with all of the major legislations, but some of the legal requirements (such as informing your Recipients about processing of their data and setting internal retention periods) must be fulfilled directly by you. For this reason, you should always consult with your legal team prior to sending any Messages.
Sender identification and contact details. Every now and then recipients may ask us to identify who the sender is and ask for a contact email. We believe in transparency and the recipients have the right to know who to contact. For this reason, you must keep your contact address and telephone number in your account settings up to date. We may share these contact information with your Recipient upon the Recipient‘s request.
No right to our software. You acknowledge that by conclusion of the Agreement you did not obtain any other right to software used by us during the operation of the Service. You may not copy, distribute, sell or modify this software, reverse engineer this software, extract its source code or attempt to do so, unless you have our written permission or the Applicable Laws allows you to do so.

IX. Conditions for provision of Bot Detection Service

Service definition. As the Additional Service, the Bot Detection Service enables you to identify indications of any non-human interactions with messages through the API calls. With the use of the Bot Detection Service, any submitted interactions will be extended with information about whether available information indicates that the interaction was done by human or a robot.
Permitted usage. You may use the results of the Bot Detection Service to analyse genuine user interactions with your Messages for the improvement of your statistics and reporting data.
Prohibited uses. It is prohibited to use the Bot Detection Services for the following purposes:

analysing artificially generated interactions or any interactions which data have been altered;
redirecting hyperlinks for the Recipients based on the results of the Bot Detection Service;
creating any alternative of the Bot Detection Service based on its results;
caching the detection results and applying the results for interactions other than originally used to retrieve the result;
reverse engineering of the internal functioning of the Bot Detection Service.

Access to service. Provision of the Bot Detection Service is subject to our approval and is not available by default. Access to the Bot Detection Service may be terminated in case of actual or suspected violation of these Terms.
Delay of results. You understand that we artificially delay delivery of the results of the Bot Detection Service to prevent its misuse.
Indicative nature of results. The results of the Bot Detection Service are only indicative based on the information available at the specific time of interaction, effective at the time of the timestamp provided in the API call or the time of the request if timestamp is not provided. Accuracy of the results is proportional to quality and scope of data provided in the API call by you.

X. Technical requirements and conditions

Technical requirements. To be able to use the Omnivery Service properly, you must meet following technical requirements: (i) a having a software capable of communication with a supported Omnivery Service API as required and set out by documentation on the website, (ii) having the latest web browser capable of accessing the Omnivery Service User Interface. User interface functionality may be limited and/or some features may not be fully available when using unsupported browsers and devices.
API functions. The scope of API functions is defined by documentation found on our website. It may vary over time and you are responsible for updating your integration according to the documentation when necessary.
Statistics availability. Sometimes detailed statistics related to Omnivery Services may not be available, for example number of opened messages for SMS, spam complaints from Gmail, as these channels and/or providers don’t provide such data. Statistical data may also be unavailable due to legal limitations.
SMS sender ID. You may ask us to assign the so-called “SMS sender ID” in SMS messages also known as Alpha-sender (therefore, you will not be identified in the SMS messages by a phone number, but by a text mark - name of your choice up to 11 alphanumeric characters). However, SMS sender ID is not available in all countries and mobile networks and we can only arrange the SMS sender ID where the mobile networks offer this feature. For these reasons, you are not legally entitled for assignment of this SMS sender ID and your request may be denied due to technical limitations.
Dedicated IP address. You may ask us to assign dedicated IP addresses. But you are not legally entitled for this assignment, and it is at our sole discretion whether we will assign you these IP addresses. Any IP addresses assigned by us will be solely used by you during the use of the Omnivery Service. Any assigned IP addresses will remain with us.

XI. Payment for Services

Fees amount. The Services fees for your plan are defined in the Specification or your most recent plan selection in your account.
Calculation of fees. We will base the calculation of the Omnivery Service fee on our usage records. In case of certain Services, the basis of the calculations is the Event, which (i) in case of the Message is your request for sending the Message in relation to each of the Recipients and (ii) in case of Bot Detection Service is each request for bot detection of each individual interaction. The number of delivered Messages does not have an impact on the payment calculation. In case of SMS messages and possibly other messages according to the Specification, the calculation will be based on the billing from the respective providers.
SMS fees. Messages sent through the SMS are divided into multiple messages according to the conditions of the respective operator; calculation of the fee will always be based on the billing from the respective operator.
Invoices. You will pay the Services fee on the basis of an invoice (tax document), issued by us and sent to you by email, either by a wire transfer or through a payment system. The due date of the invoice issued by us is always stated on the relevant invoice and is at least 14 days after the invoice was issued.
Setup fee. You may also be required to pay the Omnivery Service setup fee, as defined in the Specification; in such cases, the Omnivery Service will be activated only after receiving this fee.
Access suspension. We may suspend access to the Omnivery Service when you are in default with payment of any Services fee. If you are in default for more than 45 days, we may also suspend access to your account. None of this affects your obligation to pay the agreed Services fee. You may request unsuspension of the account after the settlement of all payable obligations, within three calendar months from the date of the account suspension. We may charge you the setup fee according to the Specification for the unsuspension of the account.
Late payment interest. If you are in default with any payment payable to under the Agreement, you will also pay us a late payment interest of 0.1% of the amount due for each commenced day in default, but in no event higher than the maximum legal rate permissible under the Applicable Laws.
Objections against invoicing. You may raise any objection against the invoice issued by us only in writing and within 10 days from its delivery. You may also approve the invoice and the invoiced amount by not raising any objections within this time period. If your objections sent to us in accordance with the provisions of this section of the Terms are justified, we will issue to you a corrected invoice without an undue delay.

XII. Term for provision of Services and term of Agreement

Agreement term. The Agreement is concluded for a term defined in the Specification. The Omnivery Services are provided throughout the whole term of the Agreement.
Services termination. The Additional Services may be terminated separately in accordance with the agreed term of their provision. The Omnivery Service cannot be terminated separately as in case of its termination, the Agreement term terminates automatically on the same date. With the end of the Agreement term, the provision of all Services is terminated.
Fixed-term services. When the Omnivery Service is provided or the Agreement is concluded for a fixed-term and neither us or you communicate to the other contracting party by registered letter delivered no later than three months prior to the end of fixed-term that it does not agree with further provision of the Omnivery Services or with further duration of the Agreement term, the agreed fixed-term is automatically extended for the same period, at the last day of the stipulated fixed-term.
Indefinite-term services. The Service provided or the Agreement concluded for an indefinite-term may be terminated by both of the contracting parties, even without a cause. The notice of termination must be delivered in writing to the other contracting party by registered letter or email. The notice period is three months and starts running on the first day of the month following the month in which the notice of termination was delivered to the other contracting party.
Termination by agreement. The provision of the Service or the term of the Agreement may at any time be terminated by the mutual agreement of both parties.
Termination for breach. We may terminate the provision of all Services and the Agreement immediately in the event of a material or repeated breach of the Agreement, these Terms or the Conditions for the processing of personal data by you. The material breach of these Terms by you is in particular your default with any payment under the Agreement for more than 30 days, or sending the Messages through the Service to the Recipients in violation of these Terms or the Agreement. The notice of termination sent on this basis by us will be delivered to you in writing by registered letter or by email.
Suspension of Services. We may suspend the Services for the without liability in case (i) there is an attack on the Omnivery Service or its infrastructure, (ii) your account is believed to be used by unauthorized third party, (iii) the suspension is required by the Applicable Laws or regulatory or government body, (iv) we believe the suspension is necessary to protect our network and other customers.
Termination based on vetting. We may also terminate the Agreement immediately if you are deemed not-qualified by us during the vetting process. The qualifications include but are not limited to: sending reputation, privacy practices, message content and sending practices and frequency.

XIII. Personal data and confidentiality of information

Our processing as data controller. In accordance with the laws on personal data protection, we as a data controller process data about your actions within the Omnivery Service, including description and time of any action, responsible user and IP address, Messages sent by you, your payments for the Services, your identification and contact details provided during time of registration, conclusion or performance of the Agreement, records of mutual communication between the you and us, and information otherwise communicated by the you. This also includes data about your employees or subcontractors, if applicable, especially identification and contact details of your users, including their name, surname, password, photo or avatar. We process these data for the purposes of the provision of Services and the performance of the Agreement (for the Agreement term, based on the contract performance and our legitimate interest), improvement of our offerings based on usage (for 6 months, based on our legitimate interest), protection from unlawful use of the Services (for 6 months, based on our legitimate interest), promotion and marketing of the Services (for the Agreement term, based on our legitimate interest), fulfilment of our legal duties (based on compliance with our legal obligations), and for the internal evidence and protection of our rights and claims (until the expiry of the limitation period relating to the obligations arising out of any breach of these Terms or the Agreement, based on our legitimate interest). The provision and processing of these data is necessary for the conclusion of the Agreement and the proper performance of our obligations. In the event of failure to provide such data, the Agreement will not be concluded.
Data subject rights. Any natural person whose personal data are processed by us as a data controller according to the previous paragraph is entitled to request access to their personal data or their rectification, addition and erasure. Moreover, they are entitled to request processing limitation, explanation of processing and to raise objections against data processing. They also have the right to data portability, the right to lodge a complaint against the processing of personal data with the Office for Personal Data Protection and other rights granted to them under the Applicable Laws.
Your declaration of compliance. You declare that on the date of conclusion of the Agreement and as a data controller of Recipients‘ personal data, you have fulfilled all your obligations under the laws on personal data protection and undertake to perform these obligations throughout the term of the Agreement.
Information in your privacy policy. You are obliged to include information about our identity and our roles as data processor in your privacy policy.
Pseudonymization of data. You are obliged to pseudonymize the identity of data submitted to Bot Detection Service (especially email addresses) whenever possible to maximize level of protection of personal data.
Our role as data processor. We as a data processor, within the meaning defined in the laws on personal data protection, will process Recipients‘ personal data for you. The terms of this processing and more detailed information are contained in the Conditions for the processing of personal data, which form an annex to the Agreement.
Confidentiality. You and us undertake not to disclose to third parties the information obtained from the other contracting party during the performance of this Agreement, in particular information on the Services fees. The employees of the contracting parties and persons in a similar position, members of the contracting parties’ bodies and in relation to your confidential information our suppliers are not considered third parties.

XIV. Quality of Service, complaints and complaints handling

Suspension due to Maintenance. We may at any time suspend the provision of the Services or access to the Services for the purpose of performing the Maintenance. We will make reasonable efforts to ensure that the duration of the Maintenance is as short as possible, in particular by distribution of individual server load, running servers in independent locations, redundant connections of servers to the Internet, etc. The Services unavailability caused by the Maintenance, after the lapse of notification period described above, is not considered a Services defect.
Notification of Maintenance. We will notify you of any Scheduled Maintenance at least 24 hours in advance and of any Unscheduled Maintenance at least 2 hours in advance. The Services unavailability caused by the Maintenance, after the lapse of notification period described above, is not considered a Services defect.
Availability guarantee. We guarantee that the Omnivery Service (all API functions, SMTP and message delivery services listed on status page) will be available 99.99% of the time in any given monthly billing period, excluding duly notified Maintenance. You are entitled to a credit of 5% of the given monthly Omnivery Service fee for each 30 minutes exceeding the 0.01% allowed Omnivery Service unavailability.
Service defects and their remedy. If due to our actions (i) the Service is provided with defects or (ii) the Service is not provided, you are entitled to make a complaint with regard to these defects with us within 5 calendar days from the date when you discovered or could have discovered this defect. We will handle this complaint within a period of 10 working days from the delivery of your written complaint us and, as far as reasonably possible, remedy the defect without an undue delay. You are required to provide us with all the cooperation necessary for this purpose. If the complaint is legitimate, the defective or non-delivered part of the Service will not be charged. The provisions of the applicable law governing the rights arising from liability for defects are not applicable to relations between the you and us as they are replaced by the provisions of this paragraph of the Terms.
No liability for unavailability caused by Maintenance. We are not liable for any preclusion or limitation of the use of the Services by you caused by the Maintenance and are not liable to pay for any damage (material or non-material damage) caused thereby.
No liability for loss of data. We are not responsible for any damage or loss of data of individual Customers and are not obliged to cover any damage (material or non-material) caused by it; this does not exclude our liability for the leakage of such data to a third party, unless this was caused in whole or in part by your actions. We will make reasonable efforts, such as compliance with security policy, regular data backup etc., to protect the data and to prevent damage to this data or loss or leakage of this data.
Notifications of security incidents. We are required by the Applicable Laws to notify you of any security incidents. We will follow the most up-to-date legal requirements for incident notification.
Changes to API. All our documented APIs have a minimum of 1 year end-of-life notification. You are fully responsible for updating your integration with our latest API version prior to the date of end-of-life set in our notification.
No other commitments. The only commitments we make about the Services are described in the Agreement, these Terms and their Annexes. We do not make any other commitments about the Services.

XV. Liabilities

Limitation of liability. Within the limits provided by the Applicable Laws, these Terms limit our liability for any damage caused by breach of the Agreement or these Terms. We won’t be, however, responsible for any losses not caused by our breach of the Agreement or these Terms. We won’t also be responsible for any loss of profits, business opportunities, revenues, goodwill, anticipated savings, indirect or consequential losses, or punitive damages. Provisions of these Terms do not limit our liability for death, personal injury, fraud, fraudulent misrepresentation, wilful misconduct or gross negligence.
Liability for breach. You are fully responsible for any damage (material and non-material) caused to us by breach of the Agreement, these Terms or the Applicable Laws, which includes any costs and expenses incurred as a result of third-party claims against us arising from this breach, including any damage caused to data subjects as defined in the laws on personal data protection, fines imposed by the Office for Personal Data Protection or other administrative authority and any costs connected with the Recipient’s complaints on you, and you will indemnify us and our directors, officers, contractors and employees for any such damage.
No limitation of further claims. Your payment of any contractual penalty or late payment interest under the Agreement or these Terms does not affect any of our further claims, including any claim for damage.

XVI. Special provisions for multi-tenant Customers

Applicability. If you are the advertising agency or another company (for the purposes of this article the “Multi-tenant Customer”) which requires provision of the Services under this Agreement for its individual clients who are separate legal entities (for the purposes of this article the “Client”), the following provisions of this Article will apply.
Liability for actions of Clients. You are obliged to ensure that your obligations under the Articles V-VIII, XIII of these Terms are fulfilled with regards to each of your Clients. You are liable to us for the proper performance of these obligations by and with regards to your Clients.
Relationship with Clients and fees. The provisions of the Agreement governing the relationship between us and you shall apply equally to the relationship between the us and you as a Multi-tenant Customer and you are directly liable for paying the cost for the provision of the Services under this Agreement.
Consequences of breach. In the event of a breach of this Agreement caused by actions of a specific Client or regarding this Client, we may deny Service to a specific Client or a sending domain. In the event of a continuous or repeated breach of this Agreement by the actions of Clients or in case of a breach of this Agreement by you, we are entitled to apply the measures specified in this Agreement against your Multi-tenant Customer account. Our rights to take any measures against you as a Multi-tenant Customer for breach of this Agreement which we would otherwise have against a non-Multi-tenant Customer, are not affected.

XVII. Final Provisions

Changes to Documents. We may unilaterally alter the Documents whenever necessary; we are not, however, authorized to change the purposes and means of the processing of personal data specified in the Conditions for the processing of personal data or to raise the price of the Services which are provided to the you for the fixed-term until expiry of the agreed term. We will notify you of such changes of the Documents in writing or by email not less than 30 days before the changes will take effect. In cases where (i) change of the Specification is made in relation to the Services currently provided to the you or where (ii) change of the Terms or Conditions for the processing of personal data is made, you are entitled, within 10 days of receiving a notification of changes of the Documents from us, to refuse this change and, in case of the our disagreement with provision of the Services under the existing terms, to terminate the Agreement in writing for this reason with a 1 month notice period commencing on the first day of the month following the month in which the termination notice was delivered to us, even if the Services are provided for the fixed-term. In case when you do not refuse the change within this period and do not terminate the Agreement, you are deemed to have accepted the change.
Amendments to Agreement. Any amendment to the Agreement may be done only by written and numbered amendments concluded by authorised representatives of the contracting parties. You can request provision of other Services or changes of the existing Services by completing a new Specification. After our acceptance, the new Specification becomes the part of the Agreement. The Agreement replaces all former contracts, agreements or arrangements related to the subject matter of the Agreement agreed between us and you.
Definitions. Unless stated otherwise, any terms used in the Documents have the meaning given to them in the Agreement, and in case a term is not defined in the Agreement, they have the meaning given to them in these Terms.
Governing law and jurisdiction. The Agreement and all legal relationships between us and you arising out of or in connection with the provision of the Services to you will be governed by the law of Czech Republic. Courts of Czech Republic have exclusive jurisdiction to resolve any dispute arising out of or in connection with the Agreement.
Effect. This current version of the Terms is valid and effective from March 1st, 2025.