Terms and Conditions for the provision of Omnivery services

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:

Services provided
Registration and conclusion of the Agreement
Conditions for provision of Omnivery Service
Compulsory content of Communications
Technical requirements and conditions
Payment for Services
Term for provision of Services and term of Agreement
Personal data and confidentiality of information
Quality of Service, complaints and complaints handling
Liabilities
Special provisions for agency Customers
Final Provisions
Terms and Conditions

Services
provided

  1. We provide the Omnivery service, an online message transport platform with Application Programming Interface (the “API”) that enables you to communicate directly with your existing and potential customers (the “Recipients”) and track the efficiency of these actions (hereinafter the “Omnivery Service”).
  2. We also provide, based on your individual orders approved by us, other requested services (the “Additional Service”, and jointly the Omnivery Service and the Additional Service the “Services”). 
  3. The Services are described in detail in the Specification.

Registration and conclusion of the Agreement

  1. To initiate the provision of Services to you, you must conclude the Agreement with us and consent to these Terms.
  2. The Agreement is concluded at the moment of its signing by the second contracting party.
  3. 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. 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.

Conditions for
provision of Omnivery Service

  1. You must comply in all material aspects with all applicable 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 or with good manners (the so-called “boni mores”) in the mentioned states, governing the provision and use of the Omnivery Service (together the “applicable laws”).
  2. You must ensure that the content of the communications sent through the Omnivery Service to the Recipients (the “Communication”) does not violate the applicable laws (in particular statutes on advertising regulation and statutes on protection of public order, public health, state security, consumers, minorities, personal data and privacy rights).
  3. If you use the images, text or other elements protected by rights of third parties, in particular copyright, industrial and moral rights, in the Communication, you must, in cases where provided by the applicable laws, obtain at the latest on the commencement of the distribution of the Communication to the Recipients at your own expense and in accordance with the law an appropriate consent of authorized persons (e.g. authors of works, trademark owners, publishers and other authorized persons). At our request, you are obliged to provide such consent to us for inspection.
  4. You must ensure that the Communication used for the direct or indirect promotion of the products, services or image of an enterprise of a natural or legal person (the “Commercial Communication”) sent to its Recipients is not in a form of a spam (hereinafter the “Spam”) and meets the industry standards and recommendations. The Spam is especially, the following:
    1. any Communication sent to the recipient in violation of the applicable laws and these Terms
    2. any Communication that does not contain the mandatory content of Communication, referred to in the Article “Compulsory content of Communications”
    3. any Commercial Communication sent without the consent of the Recipient to have its data used for the purpose of sending the Commercial Communication 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 Commercial Communications from you.
    4. any Commercial Communication relating to products or services that are not provided by you or are not similar to products or services in connection of which sale you have obtained the Recipient’s contact information, unless the Recipient has expressed their prior consent with such Commercial Communication.
  5. We may apply rate limits or suspend message delivery to review the content of the Communication in order to verify compliance with applicable laws and the Terms.
  6. You may not send e-mail Communications 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 Communications.
  7. You must ensure that the Communication 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 % Number 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 spam traps

    If the Communication sent by email fails to comply with the statistical parameter “Spam Traps”, you will be subject to a contractual penalty in the amount specified by the Specification.

    Non-compliance of any of the Measured indicators may result in contract termination unless you will demonstrate a sufficient effort to comply with set values.
  8. You must ensure that the Commercial Communication in the form of an SMS message will be sent to the Recipients only during working hours of the Recipient‘s local time; with our prior consent. You may send the Communication in the form of an SMS message outside of this time period if theSMS messages do not contain the Commercial Communication and their content is transactional in nature.
  9. If we identify that the Communication or its content is, according to our opinion, inconsistent with the rules contained in this Article “Conditions for provision of Omnivery Service”, we may (i) remove such Communication, (ii) remove such content from the Communication, (iii) disable Services on an offending sending domain, or (iv) completely stop providing Services to you.
  10. We may set limits on the message size, message length, sending rate and number of messages allowed. These limits may be set differently depending on the sending domain, the message channel (email, SMS, RCS, Viber) as well as the message content (transactional, commercial).
  11. 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 (hereinafter the “Software”). You may not copy, distribute, sell or modify the Software, reverse engineer the Software, extract its source code or attempt to do so, unless you have our written permission or applicable law allows you to do so. 
  12. We will send messages that comply with these Terms through the Service, but we are not responsible for their delivery to Recipients. Third-party filtering services or custom policies of recipient email services may prevent timely or successful delivery of messages. We are not responsible for message delays or message non-delivery caused by internet connection issues, filtering, custom policies or misconfigurations by receiving services.
  13. All limitations and prohibitions on sending Commercial Communications contained in this Article “Conditions for provision of Omnivery Service” apply also to any commercial communication sent directly by you or by any third party on behalf of you. 
  14. 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 commercial communications by electronic means/email by the affiliate partners.

 

Compulsory content
of Communications

  1. You must ensure that all Communications sent through the Omnivery Service include the following:
    1. designation of the person who has ordered the distribution of the Communication 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);
    2. information that the Communication sent is the Commercial Communication; with our prior consent, you are not obliged to do so if the Communication is not a Commercial Communication but transactional Communication in nature;
    3. in case of the Communication sent by email, the sending email address which must be functional and reachable by recipients;
    4. a valid contact, at which the Recipient may directly and effectively request not to receive any further Commercial Communications from you (in case of the Communications by email an email address, in case of the Communications by SMS message a telephone number, if the number is different from the number from which the SMS message was sent, etc.), instructions for using this contact and, if applicable, a link to the your website with contacts. 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. You are not required, with our prior consent, to provide the contact for un-subscription in the Communications (this exception applies to the Communications that are not the Commercial Communications);
    5. 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 Commercial Communications. This link must be usable by the Recipient for at least 30 days after the message was sent. You are not required, with our prior consent, to provide an unsubscribe link in Communication that is considered to have transactional content (message that does not contain Commercial Communication);
    6. in the case of the Communication containing information on the prices of goods or services, a clear definition of whether or not the prices are inclusive of value added tax and other charges or not, and the amount of such taxes and charges;
    7. 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.).
  2. 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.
  3. If we discover that your Communication does not contain the compulsory content listed above, we may (i) suspend the domain from further sending of the Communications or (ii) completely suspend the provision of the Omnivery Service to you.
  4. 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.
  5. If the Recipient informs us, on the basis of the Communication received from you, that they do not wish to receive the Communications any further, or if they withdraw the consent to the use of their electronic contact for the sending of the Commercial Communications, we will add the Recipient to the suppression list to prevent further Commercial Communications to be sent. We may proceed in the same way also if the Recipient informs us that the Communication received by them do not contain the terms stipulated by these Terms or in the Recipient‘s opinion are the Spam.

Technical
requirements and conditions

  1. The following technical requirements must be met for proper use of the Omnivery Service: (i) a software capable of communication with a supported Omnivery Service API as required and set out by documentation on the website, (ii) 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.
  2. 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.
  3. The terms of delivery of the Communications may vary from one email service provider to another for the duration of the Agreement, which we cannot influence in any way. 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.
  4. For some Omnivery Services, detailed delivery statistics may not be available due to technical or legal limitations of these Omnivery Services.
  5. You may ask us to assign the so-called “SMS sender ID” in SMS messages (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). But you are not legally entitled for assignment of this SMS sender ID and your request may be denied due to technical limitations.
  6. 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.

Payment
for Services

  1. The Services fees for your plan are defined in the Specification or your most recent plan selection in your account.
  2. We will base the calculation of the Omnivery Service fee on our usage records. The number of delivered Communications 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.
  3. Communications sent through the SMS messages are divided into multiple SMS messages according to the conditions of the respective operator; calculation of fee will always be based on the billing from the respective operator.
  4. 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.
  5. 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.
  6. 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. 
  7. 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 applicable law. 
  8. 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 without any objections 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.

Term for provision
of Services and term
of Agreement

  1. The Agreement is concluded for a fixed-term or for an indefinite-term, as agreed by you and us. The Omnivery Services are provided throughout the whole term of the Agreement.
  2. 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.
  3. 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.
  4. 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. 
  5. The provision of the Service or the term of the Agreement may at any time be terminated by the mutual agreement of both parties.
  6. 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 Communication 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.
  7. We may suspend the Services 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 law or regulatory or government body, (iv) we believe the suspension is necessary to protect our network and other customers.
  8. 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.

Personal data and confidentiality of information

  1. In accordance with the laws on personal data protection, we as a data controller process data about your actions within the Service, including description and time of any action, responsible user and IP address, Commercial Communications 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.
  2. 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.
  3. 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. 
  4. 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.
  5. 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.

Quality of Service, complaints and complaints handling 

  1. We may at any time suspend the provision of the Services or access to the Services (i) for the purpose of performing the scheduled or unscheduled maintenance, modification or updating of the Services; (ii) in case of Internet malfunctions, power network failures or technical malfunctions your part, hardware failures as well as other circumstances of a technical nature which we may influence or whose solution requires third-party cooperation; (iii) in order to minimize damage or prevent damage to Services or any equipment and systems on which of the provision of Services depends (hereinafter 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. We are not obliged to notify you of any Maintenance, but we will always make reasonable effort to inform you in advance. The Services unavailability caused by the Maintenance is not considered a Services defect.
  2. 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 Maintenance. You are entitled to a credit of 5% of the given monthly fee for each 30 minutes exceeding the 0.01% allowed service unavailability.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

Liabilities

  1. Within the limits provided by the applicable law, 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, willful misconduct or gross negligence. 
  2. You are fully responsible for any damage (material and non-material) caused to us by breach of the Agreement, these Terms or applicable law, 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.
  3. 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.

Special provisions
for agency Customers

  1. If you are the advertising agency or another company (the “Agency”) 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.
  2. You are obliged to ensure that your obligations under the following Articles of these Terms: (i) Conditions for Provision of Omnivery Service, (ii) Compulsory content of Communications, and (iii) Personal data and confidentiality of information 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.
  3. The provisions of the Agreement governing the relationship between us and you shall apply equally to the relationship between the us and you as an Agency and you are directly liable for paying the cost for the provision of the Services under this Agreement.
  4. 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 Agency account. Our rights to take any measures against you as an Agency for breach of this Agreement which he would otherwise have against a non-Agency customer, are not affected.

Final Provisions

This current version of the Terms is valid and effective from November 1st, 2021.