Thank you for your interest in the SMTP Debug Tool.
SMTP Debug Tool provides certain services relating to the transmission of email messages through the website located at http://smtpdebug.com and other similar sites as may be designated by us (each, the “Site” or collectively, the “Sites”) (the “Service”).
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such an entity to these terms and conditions, in which case the terms “you”, “your” or “Customer” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Service.
PLEASE READ THIS AGREEMENT CAREFULLY. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE YOU (1) HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) IF AN INDIVIDUAL, ARE 18 YEARS OR OLDER; AND (3) MEET THE OTHER QUALIFICATIONS SET FORTH IN THIS AGREEMENT.
The following words, when capitalized, have the meaning stated:
“Affiliate" means any legal entity that a party owns, that owns a party, or that is under its common ownership. “Ownership" means, for the purposes of this definition, control of more than fifty percent interest in an entity.
“Business Day" means Monday through Friday, excluding public holidays, in the country whose laws govern the Agreement.
“Confidential Information" means non-public information disclosed by one party to the other in any form that (i) is designated as “Confidential"; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
“Control Panel" means the customer portal accessible to Customer containing, among other information, the pricing terms applicable to Customer’s use of the Service and users designated to receive support.
“Customer Configuration" means an information technology system that is the subject of the Service or to which the Service relates.
“Customer Data" means all data which you receive, store, or transmit on or using the Customer Configuration.
“Deliverables" means the tangible or intangible materials which are prepared for your use in the course of performing the Service and that are specifically identified in a specific Order as Deliverables and described therein.
“Intellectual Property" or “IPR” means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights.
“Representatives" means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents.
“Sensitive Data" means any of: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data), PII (or other like term) under applicable data protection or privacy law, and includes information that by itself or combined with other information can be used to identify a person, (ii) trade secrets, (iii) financial records (iv) other sensitive, regulated, or confidential information.
“Service" means the SMTP Debug Tool. Service which is provided on an on-going basis over a defined term are referred to as “Recurring Service" and Service which is provided on a one-off basis are referred to as “One Time Service".
“SLA" means any provision providing a specified credit remedy for an identified failure to deliver or provide the Service to the identified standard.
“Customer Configuration Requirements" means those specifications identified by SMTP Debug Tool as required to perform the Service, such as a required reference architecture or software version as described in your Order or Terms of Service.
General. The Company will provide the Service in accordance with the Agreement and all laws applicable to the Company. The Company’s obligation to provide Service is contingent on verification that you at all times satisfy the Company’s credit approval criteria. The Company shall have no obligation to provide Service for Customer Configurations which do not meet the Customer Configuration Requirements. The Company will provide support only to those individuals designated in the Control Panel and is not required to provide any support directly to your end users.
Service Level Agreement. The Company guarantees that the Service (meaning any or all of the API, SMTP and Outbound Delivery services listed at the Site) will be available 99% of the time in any given monthly billing period, excluding maintenance. You are entitled to a credit of 5% of your given monthly fee for the Service for each 1 hour of Service unavailability (after the first 1%) in a given monthly period.
Delivery & Filtering. The Company will use commercially reasonable efforts to deliver your email messages, but the Company does not guarantee delivery. Third-party filtering services and other policies of recipient email services may prevent the successful delivery of your messages.
Anti-Spam Measures. The Company reserves the right to take any and all measures it deems necessary or appropriate in its sole discretion (whether legal, technical or otherwise) to prevent the Service from being used to send unsolicited email (i.e. “spam”) and to address complaints by third parties regarding the sending of such email. Without limitation, you agree that the Company may in its sole discretion suspend or cancel your account if it suspects that your account is being used to send unsolicited email.
Generally. You may use the Service for commercial purposes only and may not use the Service in any situation where failure or fault of the Service or the Customer Configuration could lead to death or serious bodily injury of any person or physical or environmental damage
Data Backup. SMTP Debug Tool shall not back up any of your data. It is your responsibility to ensure the integrity and security of Customer Data and to regularly backup and validate the integrity of backups of Customer Data in an environment separate from the Customer Configuration.
Rules of Use and Permitted Uses. You agree that you will at all times use the Service in a manner consistent with: these Terms and other applicable rules, policies, and guidelines established by the Company in respect of the Service. Misuse or unauthorized use of the Service and its related systems or networks, or of any information or material available through the Service is strictly prohibited and the Company reserves the right, at its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend or cancel the account of any user who is using, or who the Company reasonably believes is using, the Service in violation of these Terms.
Compliance with Laws. You represent and warrant that your use of the Service will comply with all applicable laws and regulations, including without limitation, all applicable anti-spam and privacy laws (collectively, the “Regulations”). For greater certainty, the Regulations may include depending upon your use of the Service, but will not necessarily be limited to, CAN-SPAM, CASL, and GDPR. You will be solely responsible for determining whether the Service as used by you comply with the Regulations, and you acknowledge and agree that the Company will not be liable for any use of the Service by you that violates the Regulations.
Consents. You further represent and warrant that you will not use SMTP Debug Tool for any purpose other than testing and debugging SMTP sessions.
Suspension of Service. The Company may suspend the Service without liability if: (i) the Company reasonably believes that the Service is being used in violation of the Agreement; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on the Service or your Service is accessed or manipulated by a third party without your consent, (iv) the Company is required by law or by a regulatory or government body to suspend the Service, or (v) there is another event for which the Company reasonably believes that the suspension of the Service is necessary to protect the the Company network or our other customers. You agree that if the Service is reinstated after a suspension for non-payment or for your breach of the Agreement you will pay a reinstatement fee of $75.
Term. The Agreement shall continue until terminated in accordance with its terms or the termination of the final Order, whichever is later. Unless otherwise stated in the applicable Order, each Plan has an initial 30-day term and shall automatically renew on initial term expiry on a rolling thirty-day basis unless either party provides the other with written notice of non-renewal at least thirty days prior to the expiration of the then-current term.
Termination for Convenience. For Recurring Service, unless otherwise stated in the Agreement, you may terminate all or part of any Order for convenience at any time by giving the Company at least ninety days advance written notice; subject to an early termination fee equal to the monthly recurring fee times the number of months remaining in the then-current term of the Order for the Service that has been terminated.
Termination for Cause. Either party may terminate the Agreement or the affected Order(s) for cause on written notice if the other party materially breaches the Agreement and, where the breach is remediable, does not remedy the breach within thirty days of the non-breaching party’s written notice describing the breach.
Either of us may terminate the Agreement and the Order(s) on written notice if the other enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts.
Notwithstanding anything to the contrary in the Agreement, the fees for the Service shall become due immediately on such an occurrence.
Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Service. If you provide the Company with your pre-existing Intellectual Property (“Customer IPR"), then you hereby grant to the Company, during the term of the applicable Order, a limited, worldwide, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Service) to use the Customer IPR solely for the purpose of providing the Service. You represent and warrant that you have all rights in the Customer IPR necessary to grant this license, and that the Company’s use of such Customer IPR shall not infringe on the Intellectual Property rights of any third party.
Created by the Company. Unless otherwise specifically stated in the applicable Order, and excluding any Customer IPR, the Company shall own all Intellectual Property created as part of providing the Service or contained in the Deliverables. Unless otherwise specifically stated in the Agreement, and subject to your payment in full for the applicable Service, the Company grants to you a limited, non-exclusive, non-transferable, royalty-free right and license (without the right to sublicense) to use any Deliverables, and during the term of the Order any Intellectual Property (excluding any Third Party Software and any Open Source Software), provided to you by the Company as part of the Service for your internal use as necessary for you to enjoy the benefit of the Service.
Open Source. In the event the Company distributes any open source software to you as part of the Service (for example Linux, OpenStack, and software licensed under the Apache, GPL, MIT or other open source licenses, collectively “Open Source Software") then such Open Source Software is subject to the terms of the applicable open source license. To the extent there is a conflict with these Terms of Service, the terms of the applicable open-source license shall control.
Third-Party Software. The Company may provide third-party software for your use as part of the Service or to assist in our delivery of the Service (“Third Party Software"). Unless otherwise permitted by the terms of the applicable license you may not (i) assign, grant or transfer any interest in the Third Party Software to another individual or entity, (ii) reverse engineer, decompile, copy or modify the Third Party Software, (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software, or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing this Agreement. You may only use Third Party Software provided for your use as part of the Service (identified on the Order) on the Customer Configuration on which it was originally installed, subject to any additional restrictions identified in these Terms of Service or Order. You are prohibited from using Third Party Software which the Company installs in order to assist our delivery of the Service. Upon termination of the Order, you will permit removal of the Third Party Software. The Company makes no representation or warranty regarding Third Party Software except that the Company has the right to use or provide the Third Party Software and that the Company is in material compliance with the applicable license.
Infringement. If the delivery of the Service infringes the intellectual property rights of a third party and the Company determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Service or Deliverable such that they do not infringe, then the Company may terminate the Order on thirty (30) days’ notice and will not have any liability on account of such termination except to refund amounts paid for unused Service (prorated as to portions of Deliverables deemed infringing).
Content Privacy. You acknowledge and understand that the Service includes the transmission of unencrypted email in plain text over the public internet. You are responsible for encrypting any sensitive data you use in conjunction with the Service. Email sent using the Service may be unsecured, may be intercepted by other users of the public internet, and may be stored and disclosed by third parties (such as a recipient’s email service provider). Although Service include support for TLS, content may be transmitted even if the recipient does not also support TLS, resulting in an unencrypted transmission.
The Company makes no commitment to provide any services other than the Service. The Company is not responsible to you or any third party for unauthorized access to your Customer Data or for unauthorized use of the Service that is not solely caused by the Company’s failure to meet its security obligations in Section 7 (Security). At your request the Company may provide services that are not required by the Agreement, any such services shall be provided AS-IS with no warranty whatsoever.
The Company and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose and non-infringement.
The Company makes no representation or warranty whatsoever regarding Open Source Software or with regard to any third-party products or services which the Company may recommend for your consideration.
Routing Data. Your email messages and other items sent or received via the mail service will include information that is created by the systems and networks that are used to create and transmit the message including information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information (“message routing data"). You agree that the Company may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that the Company may disclose message routing data to third parties in aggregate statistical form, provided that the Company does not include any information that could be used to identify you.
Usage Data. The Company collects and stores information related to your use of the Service, such as use of the Website, API, SMTP and filtering choices and usage. You agree that the Company may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that the Company does not include any information that could be used to identify you.
Direct Damages. Notwithstanding anything in the Agreement to the contrary, except for liability arising from death or personal injury caused by negligence, willful misconduct, fraudulent misrepresentation or any other loss or damages for which such limitation is expressly prohibited by applicable law, the maximum aggregate monetary liability of the Company and any of its Representatives in connection with the Service or the Agreement under any theory of law shall not exceed the total amount paid for the Service that is the subject of the claim in the twelve months immediately preceding the event(s) that gave rise to the claim.
Indirect Damages. Neither party (nor any of our Representatives) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. Neither of us is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill or reputation.
SLA Credits. The credits stated in any applicable SLA are your sole and exclusive remedy for the Company’s failure to meet those guarantees for which credits are provided. The maximum total credit(s) for failure to meet any applicable SLA for any calendar month shall not exceed one hundred (100) percent of the then-current monthly recurring fee for the Service. Credits that would be available but for this limitation will not be carried forward to future months. You are not entitled to a credit if you are in breach of the Agreement at the time of the occurrence of the event giving rise to the credit until you have remedied the breach. No credit will be due if the credit would not have accrued but for your action or omission.
You acknowledge that the Service, Sites, the Company Software, and the databases, software, hardware and other technology used by or on behalf of the Company to provide the Service and operate the Sites (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of the Company and the Company. You will not, and will not permit any third party to: (1) access or use the Service or the Sites, in whole or in part, except as expressly provided in this Agreement; (2) use the Site, Service or any Software to harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (3) use the Site, Service or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Service; (4) use automated scripts to collect information from or otherwise interact with the Site, Service or any Software; (5) use the Site, Service or any Software to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Service, Technology, or any Software; (6) distribute, sell, resell, lend, loan, lease, license, sub-license or transfer any of Your rights to access or use the Service or any Software, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line Service to third parties, or otherwise make the Service or any Software, or access thereto, available to any third party; (7) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Service, Technology or any Software; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Service, Technology, or any Software; or (9) interfere in any manner with the operation or hosting of the Sites, Service, Technology or any Software, or attempt to gain unauthorized access to the Sites, Service, Technology or any Software. You will not allow any access to or use of the Service by anyone other than Your authorized Customers, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
By You. You hereby indemnify, defend, and hold harmless the Company and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your accessing or using the Site, Service, Software, Your Content, the Company Content, any email or other communication generated or sent through the Service, or any breach of this Agreement. the Company will provide You with notice of any such claim or allegation, and the Company will have the right to participate in defense of any such claim at its expense.
IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SERVICE (OR ANY CONTENT PROVIDED THROUGH THE SITES OR SERVICE), EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE. COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICE PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO THE COMPANY HEREUNDER IN 1 (ONE) MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $100). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT THE COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Logs Record Retention. You acknowledge and agree that the Company may, in its sole discretion, permanently erase log records (e.g. copies of emails sent and certain information relating to SMTP tests results), and the Company has no obligation to retain such records.
User Content Retention. The Company may, in its sole discretion, permanently erase any User Content and any other information or materials associated with your account if your account is suspended or cancelled for thirty (30) days or more.
No Abuse or Overuse of the API. Abuse or excessively frequent requests to the Company via the API may result in the temporary or permanent suspension of your account's access to the Company API. The Company, in our sole discretion, will determine abuse or excessive usage of the API. We will make a reasonable attempt to warn you via email prior to suspension. You may not share API tokens to exceed the Company's rate limitations. You may not use the Company API for spamming purposes.
The Site and communications sent through the Service may contain links to third-party sites that are not under the control of the Company, and the Company is not responsible for any content on any linked site. If you access a third-party site from the Site or from a communication sent through the Service, then you do so at your own risk. The Company provides links only as a convenience, and the inclusion of the link does not imply that the Company endorses or accepts any responsibility for the content on those third-party sites. The Company welcomes links to the Site.
Claims of Infringement. Just as the Company requires users of the Site to respect the IPR of the Company, its affiliates, and other third parties, the Company respects the IPR of Customers of the Site and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Site without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
ECOMZ Holding Limited
Address: Georgiou Karyou, 6B, office/flat 6B, Dasoupoli, Strovolos,
Attn: Copyright Infringement Agent
Please provide the following information to the Company’s Copyright Infringement Agent:
Your routine communications to the Company regarding the Service should be sent to your account team using the Control Panel. To give a notice regarding termination of the Agreement for breach, indemnification, or other legal matter, you must send it by electronic mail and first-class post to:
ECOMZ Holding Limited
Address: Georgiou Karyou, 6B, office/flat 6B, Dasoupoli, Strovolos,
The Company’s routine communications regarding the Service and legal notices will be posted on the Control Panel or sent by email or post to the individual(s) you designate as your contact(s) on your account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
Unless otherwise agreed in the Order, you agree that the Company may publicly disclose that it is providing Service to you and may use your name and logo to identify you in promotional materials, including press releases. You may not issue any press release or publicity regarding the Agreement, use the Company name or logo or other identifying indicia, or publicly disclose that it is using the Service without the Company’s prior written consent.
Neither party may assign the Agreement or any Orders without the prior written consent of the other party except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control. The Company may use its Affiliates or subcontractors to perform all or any part of the Service, but the Company remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if the Company performed the Service itself. You acknowledge and agree that Company’s Affiliates and subcontractors may be based outside of the geographic jurisdiction in which you have chosen to store Customer Data and if legally required the parties will enter into good faith negotiations of such agreements as are necessary in order to legitimize the transfer of Customer Data.
Neither party will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, war, riot, insurrection, epidemic, strikes or labor action, terrorism, or other events beyond such party’s reasonable control, provided that such events last no more than thirty days.
The Agreement shall be governed by the laws of Cyprus without regard to its choice or law or conflict of law’s provisions. All legal actions in connection with the Agreement shall be brought in the courts located in Nicosia, Cyprus. Any legal actions in connection with the Agreement where the Customer is located within the United States shall be brought in the courts located in Manhattan, New York, NY, USA.
Notwithstanding the exclusive jurisdiction provision above, you agree that the Company may seek to enforce any judgment anywhere in the world where you may have assets. No claim may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that neither the Company or Customer will bring a claim under the Agreement more than two years after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
The prevailing party in any action or proceeding relating to this Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees.
Changes. The Company reserves the right to modify, supplement or replace these Terms, effective upon posting an amended version on the Site or notifying you otherwise. Your continued use of the Service following the posting of changes to these Terms or receipt of notice will mean that you accept and agree to such changes. You are responsible for regularly consulting the current version of the Terms prior to your use of the Service.
Severability. If any part of the Agreement is found unenforceable, the rest of the Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. The use of the word “including" means “including without limitation".
The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.