términos y condiciones
The following terms and conditions (“Terms of Service") apply to the Services to be delivered by Hikari INC Technologies, Inc., a Medellin corporation (“Hikari INC") on its own behalf and on behalf of its Subsidiaries (collectively “Hikari INC Group”), to the customer ordering the Services or identified in the Service Order (“Customer" or “you").
PLEASE CAREFULLY READ THESE TERMS. BY SUBSCRIBING TO OUR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THIS AGREEMENT.
The Services are exclusively reserved for a professional use and are not available to minors under the age of 18.
1. DEFINED TERMS
The following words, when capitalized, have the meaning stated:
“Affiliate" means any entity that is owned or that owns a party, or that is under its common control.
“Agreement" means, collectively, the Service Order, these Terms of Service, and each of the other documents referenced in these Terms of Service.
“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. “Configuration Requirements" means those specifications as required to perform the Services, such as a required reference architecture, documentation or software version.
“Control Panel" means the customer portal accessible to Customer containing, among other information, the pricing terms applicable to Customer’s use of the Services and users designated to receive support. “Customer Configuration" means any Customer configuration or information technology system needed to enable the Services or to which the Services relate.
“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 Services and that are specifically identified in a Service Order as Deliverables and described therein.
“Intellectual Property" means patents, copyrights, trademarks, trade secrets, software and source code, specifications and ancillary documentation and any other proprietary intellectual property rights. “Personal Data" means any: (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.
“Representatives" means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, agents. “Services" means the services identified in a specific Service Order. Services which are provided on an on-going basis over a defined term are referred to as “Recurring Service" and Services which are provided on a one-off basis are referred to as “One Time Services".
“SLA" means any provision providing a specified credit remedy for an identified failure to deliver or provide the Services to the identified standard.
“Service Order" means the document which describes the Services you are purchasing, including any online order, process, or tool through which you request or provision Services. “Subsidiaries” means the following entities owned or controlled by Hikari INC Technologies, Inc.: Mailjet SAS and its subsidiaries.
2. SERVICES & SUPPORT
2.1 General. Hikari INC will provide the Services in accordance with the Agreement and all applicable laws. Hikari INC shall have no obligation to provide Services for Customer Configurations which do not meet the Configuration Requirements. Hikari INC 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.
2.2 Service Level Agreement. Hikari INC guarantees that the Services (meaning any or all of the API, SMTP and Outbound Delivery services listed on our 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 your given monthly fee for the Services for each 30 minutes of Services unavailability (after the first .01%) in a given monthly period.
2.3 Credit Limitations. You are not entitled to any credit if you are in breach of the terms governing your use of the Services until you have cured the breach. You are not entitled to any credit if downtime would not have occurred but for your breach of these Terms of Service, including violation of the AUP (referenced below). You are not entitled to any credit for downtime or outages resulting from denial of service attacks, virus activity, hacking attempts, or any other circumstances that are not within our control. In addition, to receive a credit, you must make the request by creating a support ticket in the Control Panel within thirty (30) days following the end of the downtime. You must show that your use of the Services was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in these Terms of Service to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of the fees for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods.
2.4 Delivery & Filtering. Hikari INC will use commercially reasonable efforts to deliver your email messages, but cannot guarantee delivery. Third party filtering services and other policies of recipient email services may prevent successful delivery of your messages. While our Service does provide some email filtering services designed to filter spam it does not provide virus scanning, it is recommended that you employ additional security measures to protect against spam, email phishing attempts and email infected with viruses. You acknowledge that the limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. Hikari INC Group is not responsible for any damages arising from the failure of the Service’s filtering services to filter unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient. Furthermore, You acknowledge that Hikari INC does not control the transfer of Data via the internet, and cannot be held responsible for delays or delivery problems arising from internet or other outside connection issues.
2.5 Unsupported & Test Services. Hikari INC may designate Services as non-standard", “reasonable endeavours" or “best efforts", or with like designation (collectively “Unsupported Services"). Hikari INC makes no representation or warranty with respect to Unsupported Services except that it will use good faith efforts as may be expected of technicians having generalized knowledge and training in information technology systems. Hikari INC has no guarantee of results in this regard. Hikari INC Group shall not be liable to you for any loss or damage arising from the provision of Unsupported Services and SLAs shall not apply to Unsupported Services, or any other aspect of the Customer Configuration that is adversely affected by Unsupported Services. If you use any Services that have been designated as a “Test", “Beta" or “early access" or with like designation then your use of those Services is subject to the Hikari INC Test Terms set forth at https://www.Hikari INC.com/legal/terms.
2.6 General Disclaimers. Hikari INC makes no commitment to provide any services other than the Services stated in the Service Order. Hikari INC is not responsible to you or any third party for unauthorized access to your Customer Data or for unauthorized use of the Services that is not solely caused by Hikari INC’s failure to meet its security obligations in Section 4 (Security and Data Privacy). Hikari INC 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. Hikari INC expressly reserves the right, at any time during the term of the Agreement, to adapt, arrange and/or modify any of the components granting access and use rights to the Service and the associated documentation, provided that the maintenance and support commitments are complied with for these operations. Similarly, Hikari INC may, at any time, discontinue providing a platform deemed undesirable and/or obsolete and migrate services to a new infrastructure; in which case, Hikari INC will endeavor to inform you as early as possible.
2.7 Open Source Software. Hikari INC may use certain open source software within our systems (for example Linux, OpenStack, and software licensed under the Apache, GPL, MIT or other open source licenses, collectively “Open Source Software") and makes no representation or warranty whatsoever regarding any such software or with regard to any third party products or services which may be recommended for your consideration or provided to you in connection with the Services.
3. CUSTOMER OBLIGATIONS
3.1 Generally. You may use the Services for commercial and professional purposes only and may not use the Services in any situation where failure or fault of the Services or the Customer Configuration could lead to death or serious bodily injury of any person or physical or environmental damage. You will enable Hikari INC’s reasonable method for access to the Customer Configuration for the purpose of performing the Services and invoicing. You must cooperate with Hikari INC’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date. You agree that your use of any Customer Configuration provided by Hikari INC will comply with the Acceptable Use Policy (the “AUP") at https://www.Hikari INC.com/legal/aup. You agree that you are solely responsible for the suitability of the Services and your compliance with any applicable laws, including export laws and data privacy laws. You also agree to ensure that your own users comply with this Agreement.
3.2 Documentation. You agree to comply with the Hikari INC Group documentation found on the respective website and agree that Hikari INC may establish new procedures for your use of the Services as it deems necessary for the optimal performance of the Services. An individual email message may not exceed the per-message size limit (including attachments) of 25MB or it may be permanently lost.
3.3 Data Backup. Hikari INC shall only back up data to the extent stated on a Service Order. 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 on an environment separate from the Customer Configuration.
3.4 Suspension of Services. Hikari INC may suspend the Services without liability if: (i) Hikari INC reasonably believes that the Services are 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 Services or your Services are accessed or manipulated by a third party without your consent, (iv) Hikari INC is required by law or by a regulatory or government body to suspend the Services, or (v) there is another event for which Hikari INC reasonably believes that the suspension of the Services is necessary to protect the Hikari INC network or our other customers. You agree that if the Services are reinstated after a suspension for non-payment or for your breach of the Agreement (including the AUP), you will pay a reinstatement fee of $100.
4. SECURITY AND DATA PRIVACY
4.1 Generally. Hikari INC shall provide the Services in accordance with the security and privacy practices set forth at https://www.Hikari INC.com/legal/privacy-policy/ and any additional security specifications identified in the Service Order or these Terms of Service. You must use reasonable security precautions in connection with your use of the Services, including appropriately securing and encrypting Personal Data stored on or transmitted using the Customer Configuration. Customer Data is, and at all times shall remain, your exclusive property. Hikari INC will not use or disclose Customer Data except as materially required to perform the Services or as required by law. Customer agrees not to provide Hikari INC with any sensitive personal data or protected health information or other information that can be deemed sensitive personal data or protected health information without obtaining Hikari INC’s prior written consent and entering into a separate agreement with Hikari INC governing the transmission of such information in connection with Customer’s use and benefit of the Services.
4.2 Content Privacy. You acknowledge and understand that the Services may include the transmission of unencrypted email in plain text over the public internet. You are responsible for encrypting any Personal Data you use in conjunction with the Services. Email sent using the Services 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 Services include support for TLS, content may be transmitted even if the recipient does not also support TLS, resulting in an unencrypted transmission.
4.3 Data Protection Addendum. In the course of providing the Services under this Agreement, Hikari INC may process certain Personal Data on your behalf and in such cases, the Parties agree to comply with the terms in the Data Processing Agreement (“DPA”), that include the standard contractual clauses, as available by following the link on our GDPR page, and as may be amended from time to time; such DPA shall become part of the Agreement.
5. INTELLECTUAL PROPERTY
5.1 Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. If you provide Hikari INC with your pre-existing Intellectual Property (“Customer IP"), then you hereby grant to Hikari INC, during the term of the applicable Service Order, a limited, worldwide, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Customer IP solely for the purpose of providing the Services. You represent and warrant that you have all rights in the Customer IP necessary to grant this license, and that Hikari INC’s use of such Customer IP shall not infringe on the Intellectual Property rights of any third party.
5.2 Created by Hikari INC. Unless otherwise specifically stated in the applicable Service Order, and excluding any Customer IP, Hikari INC shall own all Intellectual Property created as part of providing the Services or contained in the Deliverables. Unless otherwise specifically stated in the Agreement, and subject to your payment in full for the applicable Services, Hikari INC 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 Service Order any Intellectual Property (excluding any Third Party Software and any Open Source Software), provided to you by Hikari INC as part of the Services for your internal use as necessary for you to enjoy the benefit of the Services.
5.3 Open Source. In the event Hikari INC uses any Open Source Software to you as part of the Services, then such 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.
5.4 Third Party Software. Hikari INC may provide third party software for your use as part of the Services or to assist in our delivery of the Services (“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 Services (identified on the Service Order) on the Customer Configuration on which it was originally installed, subject to any additional restrictions identified in these Terms of Service or Service Order. You are prohibited from using Third Party Software which Hikari INC installs in order to assist our delivery of the Services. Upon termination of the Service Order, you will permit removal of the Third Party Software. Hikari INC makes no representation or warranty regarding Third Party Software except that Hikari INC has the right to use or provide the Third Party Software and that Hikari INC is in material compliance with the applicable license.
5.5 Infringement. If the delivery of the Services infringes the intellectual property rights of a third party and Hikari INC determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services or Deliverable such that they do not infringe, then Hikari INC may terminate the Service Order on ninety days’ notice and will not have any liability on account of such termination except to refund amounts paid for unused Services (prorated as to portions of Deliverables deemed infringing).
6.1 Fees. You agree to pay the fees for the Services based on the rates and charges set forth in your Control Panel or Service Order, as applicable. Fees are due within thirty (30) days from the invoice date. If you have arranged for payment by credit card, Hikari INC may charge your card or account on or after the invoice date. If your undisputed payment is overdue for more than thirty (30) days, Hikari INC may suspend the Services and any other services you receive from Hikari INC on written notice. Hikari INC shall undertake collection efforts prior to any suspension. Invoices that are not disputed within one hundred and twenty (120) days of the invoice date are conclusively deemed accurate. Fees must be paid in the currency identified in your Control Panel or Service Order, as applicable. You are solely responsible for all wire transfer and other bank fees associated with the delivery of payments to Hikari INC. Hikari INC may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and may charge you for any cost or expense arising out of our collection efforts.
6.2 Fee Increases. Hikari INC may revise the pricing terms that apply to your use of the Services at any time by providing you with notice pursuant to Section 11 of these Terms of Service. With respect to Customers that are not party to a then-effective Service Order (i.e. self-service Customers), such rate changes will be effective immediately upon the posting of an update to your Control Panel. With respect to Customers that are party to a then-effective Service Order (i.e. custom contract Customers), Hikari INC reserves the right to increase rates or charges for the Services, provided, however, that any such revised rates or charges assessed to you for Services under such Service Order will not become effective until the commencement of the next renewal term of such Service Order (and the Service Order will be deemed amended to reflect such increased rates or charges). If at any time a third party license or service provider directly or indirectly increases the fee they charge Hikari INC for your use of Third Party Software or services, Hikari INC may increase your fees by the same percentage amount on sixty (60) days’ advance written notice (for either self-service or custom contract Customers).
6.3 Taxes. All amounts due to Hikari INC under the Agreement are exclusive of any value added, goods and services, sales, use, and like taxes, (collectively, “Tax"). You must pay Hikari INC the Tax that is due or provide Hikari INC with satisfactory evidence of your exemption from the Tax in advance of invoicing. You must provide Hikari INC with accurate and adequate documentation sufficient to permit Hikari INC to determine if any Tax is due. All payments to Hikari INC shall be made without any withholding or deduction for any taxes except for withholding (or similar) taxes imposed on income that may be attributable to Hikari INC in connection with its provision of the Services that you are legally required to withhold and remit to the applicable governmental or taxing authority (“Local Withholding Taxes"). You agree to timely provide Hikari INC with accurate factual information and documentation of your payment of any such Local Withholding Taxes. Hikari INC shall remit such cost to you in the form of a credit on your outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes.
6.4 Reimbursement for Expenses. Unless otherwise agreed in the Service Order or otherwise provided for in the Control Panel, if any of the Services are performed at your premises, you agree to reimburse Hikari INC for the actual substantiated out-of-pocket expenses of its Representatives.
7. TERM AND TERMINATION
7.1 Term. The Agreement shall continue until terminated in accordance with its terms or the termination of the final Service Order, whichever is the later. Unless otherwise stated in the applicable Service Order, each Service Order 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. Unless otherwise stated in the Agreement, o automatic renewal will be applicable for any SMS messaging packages which are due and payable in advance for the desired volumes and all SMS messaging packages shall expire if not used after a period of twelve months.
7.2 Termination for Convenience. For Recurring Services, unless otherwise stated in the Agreement, either party may terminate all or part of any Service Order for convenience at any time by giving the other party at least ninety (90) days advance written notice;