TERMS OF SERVICE
Article 1 CritSend Service Level Agreement
CritSend guarantees that mails sent to any of CritSend's designated servers are sent out in less than 5 minutes when the Customer is using the service as per the setup instructions and within the Terms Of Service. Where "sent" is defined as the acknowledgement of delivery in the SMTP session from the recipient server, except when Customer is sending more than 250,000 messages per hour (unless larger throughput is previously agreed upon by via email to CritSend), or when CritSend has identified their email as suspicious, or the recipient server is unavailable, or the internet infrastructure to reach the recipient server is damaged. Should the guarantee not be reached by CritSend and the Customer want compensation, it is the responsibility of the Customer to notify CritSend within 30 days of the breach of guarantee. Upon the Customer's request if mail speed service guarantee has been breached by CritSend, Customer may request a Service Credit. A Service Credit is a credit provided to the Customer for sending mails free of charge. Service Credits will be issued for the amount of mails that did not meet the mail speed guarantee.
CritSend guarantees that the Customer will have 99.9% availability to the CritSend service. This availability guarantee is only valid when the Customer is using the CritSend service as per the setup instructions and within the CritSend Terms of Service. This availability guarantee is ineligible in the following cases: incorrect Customer setup, incorrect use of service by Customer, problems caused by Customer equipment, sotware or technology and/or the equipment, software or technology from a third party other than a third party under our direct control, or suspension or termination of access to CritSend's service.
When the availability rate for the Customer measured during one month, is lower than 99.9%, the Customer may request a Service Credit. A Service Credit, is a credit provided to the Customer for sending mails free of charge. The amounts are calculated by applying a Service Credit percentage to the number of emails sent by the Customer during the billing month for which the availability rate was lower than agreed to by CritSend. This percentage is 10% when the availability rate remains equal to or greater than 99.9%, and 25% when the availability rate is lower than 99.9%. The Service Credit may be used, at the choice of the Customer, either by sending additional mails during the contract, by extending the contract until the Credit is depleted, or by issuing a credit on the sent invoice. To be granted, the Service Credit must reach a minimum value of 50 Euros excluding tax. If availability was affected by factors other than those used in our error rate calculation, we reserve the right to grant a Service Credit for an amount which is at our sole discretion.
CritSend reserves the right to block or delay certain emails to prevent damage to its future overall capacity and to ensure the receipt of mails sent by its intermediary. It is the responsibility of the Customer to ensure this capacity of the CritSend service with preliminary testing. CritSend agrees to destroy the copies of sent mails within no more than 30 days. Transaction logs may be saved for up to six months.
Article 2 Customer Obligations
The CritSend services may only be used for lawful purposes. The Customer agrees to apply all reasonable means to prevent the spam generation and to respect good practices in terms of e-mailing and to comply with CritSend's Anti-Spam Policy.
Spammers are prohibited from using our service. You must have the permission of your recipients to send emails. You must not use purchased email lists. You agree not to use our service to send spam. You also agree not to send any obscene or pornographic images or content.
We have several antispam tools available including abuse reports. We take them very seriously, and will take action to stop the issue quickly. We reserve the right to shut down the customer's account at any time, for any reason. We urge the customers to be familiar with Anti-Spam laws such as
- US CAN-SPAM Act (http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business)
- European directive 2002/58/CE, Article L34-5 French P&T Code (CNIL http://www.cnil.fr/dossiers/conso-pub-spam/fiches-pratiques/article/la-prospection-commerciale-par-courrier-electronique/) By using CritSend, Customer agrees to the following:
- Not to spam.
- Not to send affiliate marketing or multilevel marketing emails
- Not to violate the Anti-Spam Laws
- Respect all local and international laws for both the locale of your company and of the recipient.
- Send emails only to recipients who have consented to receiving messages from you and that have not asked to be removed from your list.
- Know the source of every email address that you are sending to, and do NOT send emails that you have acquired through purchased lists or spiders.
- Not to send messages containing viruses, spiders, worms, trojan horses or malicious routines.
- Not to engage in libel, defamation, discrimination, disparagement, personal attack, insults, whether based on race, ethnicity, gender, sexual preference, religion, creed, other such activities.
- Not to create a false identity for the purpose of misleading others
- Not to send emails in connection with pyramid schemes, gambling, poker, multilevel marketing, chain letters, junk emails.
- Respond within 36 hours to any messages and/or phone calls we may have regarding spam complaints or recipient and ISP abuse inquiries.
We have several anti-spam tools available including abuse reports. We take them very seriously, and will take action to stop the issue quickly. We reserve the right to shut down the Customer's account at any time, for any reason. We also reserve the right to prevent the delivery of any email that we suspect is spam. We will warn our customers as quickly as possible in this case so that they may take action against further of such messages. We reserve the right to terminate our service with the Customer with or without cause and with or without warning. If the service is permanently terminated, and upon written request from the Customer within ten days from termination of the Contract, that will serve as a waiver of any claim against CritSend or its officers, we will refund any prepaid fees for the amount of unused email deliveries, less EUR 100 as administrative fees.
You agree to indemnify CritSend and its officers, directors, employees, agents, distributors and affiliates from and against any and all third party claims, demands, liabilities, costs, or expenses, including reasonable attorney's fees, resulting from your breach of any of the provisions of the CritSend Terms of Service or the CritSend Anti-Spam Policy.
Article 3 Billing and Payment Conditions
Customers purchase CritSend email credits for the amount of emails they wish to send through CritSend. Payment for service is required in advance. Customers have 3 years from date of purchase to use their email credits.
Article 4 Termination of Service by CritSend
CritSend reserves the right to update, change, revise, suspend or discontinue service with or without notice.
Article 5 Customer Warranties and Limitation of liability
EXCEPT AS SET FORTH IN THESE TERMS OF SERVICE, CRITSEND MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
THE CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SERVICE. CRITSEND IS NOT RESPONSIBLE FOR ANY LOSS, DAMAGE OR COST (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL AND PUNITIVE DAMAGES) WHICH THE CUSTOMER INCURS DUE TO ITS USE, OR INABILITY TO USE, THE SERVICE.
IN NO EVENT SHALL CRITSEND’S TOTAL LIABILITY ARISING EXCEED THE AMOUNT OF THE LAST PURCHASE PAID BY THE CUSTOMER IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. CRITSEND WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF CRITSEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 6 Data Protection and Confidentiality
CritSend agrees to employ all reasonable means to protect the confidentiality of data sent by the Customer. The reasonable means for data protection are state of the art for civil mass electronic communication, and may evolve with the progress of technology. CritSend will not sell Customer data. Unless specifically authorized by the Customer, CritSend does not keep nominative data of the Customers' recipients nor data sent by the Customer, except for purposes of quality of service, and this data is kept only for up to one month. CritSend may keep a list of unsubscribed addresses and addresses that submitted spam reports and the customer may request this list to be destroyed at any time. CritSend maintains anonymized data for billing and analytics purposes.
CritSend does keep company information of the Customer for the purpose of billing and contacting the Customer. CritSend does not sell this information. The Customer may request that this information be destroyed at any time.
Article 7 Industrial and Intellectual Property of CritSend
The tools developed by CritSend and implemented to achieve the contract provisions are the exclusive property of CritSend. The Customer may not use them outside of the execution of this contract without a written agreement from CritSend. The Customer may not create any copy, provide them to any third party or use them for any other application, in whatsoever part of the world the Customer may not reproduce, register or use any part of the CritSend name, nor the names or services of CritSend, nor its logos, copyrights or brands. These same rules apply to the tools and technologies belonging to the third parties and subsidiaries of the CritSend system. The Customer is required to treat these tools and technologies as if belonging to CritSend.
Article 8 Relations between parties
No agency, partnership, joint venture, or employment is created as a result of the Terms of Service and you do not have any authority of any kind to bind CritSend in any respect whatsoever.
Article 9 Applicable law
This site is controlled and/or operated by CritSend from its offices within the Republic of France. This Agreement shall be governed by, construed and enforced in accordance with the laws of the France, without regard to its conflicts of law principles. This Agreement shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is hereby excluded.
You also acknowledge and agree that CritSend will fully cooperate with any law enforcement authorities or court order requesting or directing CritSend to disclose information or materials in our possession.
Article 10 Claims and Dispute Resolution
In case of a dispute, the plaintiff must submit a claim by registered mail with delivery confirmation within 30 days following the date of the appearance of the contended issue. The parties will seek an amicable solution. In case of failure of this attempt within 30 days following the dispute declaration by the plaintiff, the parties may resort to litigation.
This version was updated May 11, 2011.