Terms and Conditions of Service

Contract parties and identification

This contract binds the following parties:

• The Provider: Email Marketing Panamá, Panama corporation domiciled at Atrium Tower, Floor 15, Calle 54, Obarrio, Panama City, hereinafter EMP. The complete legal identification is published at legal-notice-en.html.
• The Client: natural or legal person who contracts any of the services provided by EMP, identified in the specific commercial proposal signed between the parties. For the purposes of this contract, "Client" also refers to the user persons assigned by the contracting organization to operate the service.

This contract is complemented by the specific commercial proposal signed by the parties, which documents the specific contracted service, the applicable rate plan, the functional and technical scope, and any particular condition agreed. In case of divergence between these general terms and the specific commercial proposal, the latter prevails on what is expressly agreed, keeping the rest of the general terms without modification.

Acceptance, term and modifications

2.1 · Acceptance

Acceptance of these terms occurs through one of the following mechanisms: (a) signing of specific commercial proposal that incorporates these terms by reference with active link to the published version; (b) start of effective use of any active EMP service, even without specific commercial proposal signature; (c) express electronic acceptance via checkbox and timestamp record in client account.

The representative of the contracting organization declares being empowered to legally bind the organization with the acceptance of these terms. EMP may request documentary proof of that power when there is reasonable doubt.

2.2 · Contract term

The contract comes into force from the acceptance date and remains in force during the period agreed in the specific commercial proposal (monthly with automatic renewal, annual with automatic renewal, or fixed defined term). The contract automatically renews at the close of each period for an identical period unless notice of non-renewal is given with at least 30 calendar days advance notice before expiration.

2.3 · Modifications

EMP may modify these terms to reflect regulatory changes, operational service adjustments, internal administrative decisions or lessons learned from operations. Modifications are notified to the client with at least 30 calendar days advance notice before entry into force via email to the contact channel designated in the contract and via prominent notice on the main page of the site. Modifications affecting economic obligations of the client or material reduction of service scope entitle the client to terminate the contract without penalty within the notice period, with right to data transfer pursuant to section 10.

Scope of contracted service

The functional, technical and operational scope of the contracted service is documented in the specific commercial proposal signed between the parties. EMP provides the service in accordance with the technical documentation published on the site for the corresponding product, and according to the particular agreed conditions.

The catalog of main services covers: email marketing platform with verified audiences, dedicated SMTP infrastructure (PowerMTA, KumoMTA), transactional SMTP relay, deliverability audit, migration from mainstream platforms, DMARC and BIMI monitoring, forensic email investigation, and Law 81 compliance services. The detailed technical and commercial documentation of each service is published on the product-specific pages of the site.

Modifications to the scope of the service during the term of the contract are made through written addendum to the specific commercial proposal. The addition of complementary services generates rate adjustment in accordance with the rate in force at the time of the addendum.

Obligations of the parties

4.1 · Obligations of EMP

• Provide the contracted service in accordance with the published technical specifications and the particular conditions agreed in the commercial proposal.
• Maintain service availability in accordance with the SLA applicable to the contracted product (section 7).
• Attend queries and requests from the client through the designated channels, within the agreed response times.
• Notify the client with reasonable advance notice of any scheduled maintenance event that may affect service availability.
• Implement and maintain the technical and organizational security measures documented in section 9 of the Privacy Policy.
• Process personal data that the client entrusts to EMP in accordance with the processor regime documented in section 12 of this contract.
• Notify the client without undue delay of any security breach affecting their data.

4.2 · Obligations of the Client

• Pay the agreed amounts within the agreed terms pursuant to section 6.
• Provide EMP with the information and data necessary for the provision of the service, with truthfulness and accuracy.
• Comply with the acceptable use policy documented in section 5 and refrain from using the service for prohibited purposes.
• Maintain the confidentiality of the access credentials to the service account and immediately notify any unauthorized access.
• Comply with the legal obligations applicable to its commercial activity and to the processing of personal data of its data subjects pursuant to Law 81 of 2019.
• Ensure that it has the appropriate legal basis (data subject consent, contract execution, assessed legitimate interest) to process the personal data of its data subjects before loading them to the EMP platform.
• Notify EMP of any claim received from a personal data subject related to the provided service.

Acceptable use policy

The client commits to using EMP services exclusively for legitimate commercial purposes and in accordance with applicable law. The following practices are expressly prohibited and their breach entitles EMP to suspend the service without prior notice pursuant to section 8:

5.1 · Absolutely prohibited practices

• Spam: sending bulk emails to recipients who have not given prior, express and informed consent under Law 81 of 2019. This includes lists acquired from third parties without the verified legal basis of the original consent, lists obtained by scraping, lists obtained through exchange without valid transfer of the lawful basis.
• Phishing and impersonation: sending emails that impersonate the identity of persons, brands or entities to induce recipients to reveal personal data, credentials or financial information.
• Malware distribution: sending emails with attachments or links that distribute malicious software, trojans, viruses, ransomware or any malicious code.
• Commercial scams: pyramid schemes, Ponzi schemes, financial fraud, deceptive investment offers, fake prizes, fake lotteries, "Nigerian scam" and variants.
• Unlawful content: material that incites racial, religious, ethnic, sexual hatred; child pornography; material that promotes terrorism or violence; content protected by copyright without authorization of the holder; material that violates commercial or industrial secrets of third parties.
• Unauthorized financial services: offering investment services, cryptocurrencies, forex, online casinos or other financial services subject to specific regulation without the corresponding regulatory authorization.
• Controlled substances: offering medications without authorized medical prescription, illicit drugs, steroids, unapproved pharmaceutical products.

5.2 · Practices that require prior validation

The following activity categories require prior written validation from the EMP compliance team before the start of the service. EMP may accept the service with particular conditions (dedicated deliverability tier, IP segregation, reinforced monitoring) or reject the service if the activity does not fit the acceptable risk profile.

• Regulated financial services (banking, insurance, securities) with authorization from the corresponding regulatory entity
• Pharmaceutical products legally commercializable with current health regulation
• Legal services with applicable professional regulation
• Online gambling in jurisdictions where they are legal with valid local license
• Legal adult products (over 18) with age verification of recipients
• Recreational or medicinal cannabis in jurisdictions where it is legal with local authorization

Economic conditions and billing

6.1 · Rate and payment terms

The rates applicable to the contracted service are those published on the site at the time of subscription and those agreed in the specific commercial proposal. Rates are expressed in US dollars (USD) and do not include applicable taxes that may correspond according to the jurisdiction of the client. Billing is done in advance with monthly or annual frequency according to the contracted plan.

Payments must be made within 15 calendar days following the invoice issuance date. Delay in payment generates compensatory interest of 1% monthly on the outstanding balance and entitles EMP to suspend the service pursuant to section 8 after 30 calendar days of delay.

6.2 · Rate modifications

EMP may modify rates to reflect changes in operating costs, market adjustments or expansions of the service scope. Modifications are notified with at least 60 calendar days advance notice before entry into force in the next billing cycle. The client may terminate the contract without penalty within the notice period if it does not accept the rate modification, with right to data transfer pursuant to section 10.

6.3 · Accepted payment methods

EMP accepts the following payment methods: bank transfer to Panama or international account according to client destination, Visa/Mastercard/American Express credit card through PCI-DSS Level 1 gateway, ACH where applicable, stable cryptocurrencies (USDC, USDT) on Ethereum or Polygon networks with prior coordination with the financial area. Bank and payment processing expenses are borne by the client unless EMP has selected the payment method.

6.4 · Refunds

EMP does not refund amounts invoiced for already-elapsed service periods. Early terminations of the contract entitle to the end of the service at the close of the current billing cycle, without prorated refund of the unused fraction. Exception: when the termination is consequence of substantial breach attributable to EMP, the client has right to prorated refund of the unrendered fraction of the current cycle.

Service levels (SLA) and credits for breach

EMP commits to maintaining the following Service Level Agreements (SLA) calibrated per product. Measurement is done on a calendar monthly window in UTC time. Breach of an SLA within the measurement window entitles the client to billable credit against the next billing cycle, in accordance with the specific table of each product. Credits are not exchangeable for money nor transferable to third parties, except in case of contract termination where the unapplied fraction is offset against pending charges.

7.1 · SLA table by product

7.2 · SLA operational definitions

• Availability: percentage of monthly time during which the service responds to valid requests within the expected operational parameters. Measurement is done from independent monitoring points geographically distributed. A downtime is counted from the first confirmed detection until the verified restoration of the service.
• Events excluded from calculation: scheduled maintenance windows notified with at least 72 hours advance notice; incidents derived from client acts (incorrect configuration, prohibited content, exceeding the agreed quota); force majeure under section 13; incidents derived from client last-mile telecommunications providers; incidents derived from destination mailbox providers (Gmail, Microsoft, Yahoo) when the problem originates in their systems.
• Scheduled maintenance windows: EMP reserves monthly scheduled maintenance windows of up to 4 hours in Panama overnight (02:00-06:00 Panama time), notified with at least 72 hours advance notice to the client designated channel. These windows do not affect the SLA calculation.
• Support response time: time elapsed from the opening of the ticket through the designated channel until the first substantive response from the support team. Full resolution of the incident is subject to the complexity of the problem and does not constitute specific SLA except by particular agreement in commercial proposal.

7.3 · Credit claim procedure

The client requests the credit by sending written claim to the commercial contact channel within 30 calendar days following the close of the breached month. The claim must include identification of the ticket or incident, time window of the breach and specific credit request pursuant to table 7.1. EMP responds in 10 business days confirming or rejecting the claim with justification. The approved credit is applied as deduction against the next invoice of the cycle. Claims filed outside the 30 calendar day period do not generate right to retroactive credit.

Service suspension for client breach

EMP may totally or partially suspend the service without prior notice, with immediate subsequent notification, in any of the following cases attributable to the client:

• Breach of the acceptable use policy documented in section 5, particularly the sending of spam, phishing, malware or unlawful content.
• Payment delay greater than 30 calendar days from the invoice due date, pursuant to section 6.
• Serious risk of damage to EMP shared infrastructure or to the sending reputation of other clients, particularly when the client behavior generates blocks at main mailboxes (Gmail, Microsoft, Yahoo) or mass complaints.
• Request from competent authority ordering suspension with specific identification of the client or content sent.
• Reasonable suspicion of client credential compromise being used for unauthorized sending.

The suspension notification is sent to the client designated channel with identification of the cause and the remediation procedure when applicable. Suspension for delay is automatically lifted upon regularization of the pending payment plus accrued interest pursuant to section 6. Suspensions for breach of the acceptable use policy are lifted only after specific evaluation of documented remediation and express acceptance by the client of the commitment of non-recurrence. Recurrence entitles EMP to terminate the contract with just cause pursuant to section 9.

During the suspension period, the client payment obligations remain in force, except when the suspension is consequence of substantial EMP breach attributable exclusively to the provider, in which case the SLA breach credit regime under section 7 will apply.

Contract termination

9.1 · Ordinary termination by non-renewal

Either party may terminate the contract at the close of the current period without need for just cause, by notice of non-renewal sent to the designated channel of the other party with at least 30 calendar days advance notice before expiration. Ordinary termination entails the right of the client to data transfer pursuant to section 10.

9.2 · Early termination with just cause

Either party may terminate the contract early with just cause in the following cases:

• Substantial breach by the other party not cured within 30 calendar days following formal written notice identifying the breach.
• Insolvency, bankruptcy or receivership of the other party, declared by competent authority.
• Effective cessation of commercial activity of the other party for more than 60 calendar days without prior notice.
• Supervening legal impossibility to provide the service due to applicable regulatory change or final administrative resolution.
• Client: rate modification by EMP not accepted under section 6.2; contractual modification by EMP affecting material obligations not accepted under section 2.3.
• EMP: client recurrence in breach of the acceptable use policy after suspension and previous commitment of non-recurrence.

9.3 · Effects of termination

Termination produces the following effects:

• Cessation of service provision on the effective termination date.
• Settlement of pending amounts under section 6, including the fraction of the current cycle when the termination is ordinary by non-renewal.
• Activation of the data transfer procedure to the client under section 10.
• Cessation of personal data processing by EMP as processor, except for legally required retention periods.
• Maintenance of clauses that by their nature must survive termination: confidentiality, intellectual property, liability limitation, applicable jurisdiction.

Data transfer at closing

The client has the right to recover the personal and operational data entrusted to EMP during the provision of the service, in structured, commonly used and machine-readable format. EMP facilitates the exercise of this right during a period of 30 calendar days from the effective termination date, in accordance with the following procedure:

• Request: the client requests the transfer by email to the commercial channel within 30 calendar days following termination, indicating preferred format (CSV, JSON, SQL dump) and secure delivery channel (encrypted SFTP, encrypted cloud storage, direct download with reinforced authentication).
• Delivery window: EMP delivers the data within a maximum of 10 business days from the request. For exceptional volumes (over 50 GB), the window may be extended to 20 business days with prior notice to the client.
• Scope of transferred data: contacts loaded by the client with their custodied attributes; campaigns sent with sending metadata and aggregated metrics; account configurations and templates created; service event records (opens, clicks, unsubscribes) during the contractual period; support records and communications with EMP. Data derived from EMP proprietary processing (Panama Scorer™, deliverability models, segments generated by proprietary algorithms) are not transferred since they are protected by intellectual property.
• Subsequent deletion: after confirmed transfer to the client, EMP proceeds to secure deletion of client data in its active systems within 30 additional calendar days, except for legally required retention periods documented in section 6 of the Privacy Policy (5 years for contractual and tax data, 12 months for security logs).
• Cost: data transfer in the standard formats mentioned is free. Requests for custom formats or specific structures required by the client destination platform may generate additional cost quoted case by case, not exceeding the equivalent of 20 hours of technical work at standard rate.

After 30 calendar days from termination without client request, EMP proceeds to secure deletion of client data without additional prior notice, except for legally required retention periods. Loss of the transfer right by client inaction releases EMP from any liability over the subsequent availability of the data.

Liability limitation

11.1 · Quantitative limitation

The aggregate liability of EMP towards the client derived from this contract, for any cause and under any legal theory (contractual breach, non-contractual liability, breach of warranties, indemnification), is limited to the amount effectively paid by the client to EMP during the 12 months immediately preceding the event giving rise to liability. This limitation applies to the maximum allowed by the applicable Panama law and does not affect those cases where mandatory legislation establishes a different regime.

11.2 · Exclusion of indirect damages

Under no circumstances will EMP be liable for indirect, consequential damages, loss of profit, loss of commercial opportunity, loss of commercial reputation, loss of data when the client has not maintained reasonable backup copies, nor for any damage that exceeds the limits of reasonable foreseeability under article 991 of the Panama Civil Code.

11.3 · Exceptions to the limitation

The above liability limitation does not apply in the following cases:

• Damages caused by willful misconduct or gross negligence of EMP duly accredited.
• Substantial breach of personal data security obligations resulting in a breach attributable to EMP.
• Third-party intellectual property infringement for content directly provided by EMP (does not apply to content sent by the client).
• Any case where mandatory Panama law prohibits the liability limitation.

11.4 · Client indemnification

The client will keep EMP harmless from any claim, demand or proceeding initiated by third parties derived from: content sent by the client through the service; client breach of the acceptable use policy; client breach of personal data protection obligations over its data subjects; any infringement of third-party intellectual property by client content; any claim from a client personal data subject when the cause of the claim is not attributable to processing by EMP as processor.

The indemnification covers reasonable legal costs, indemnifications imposed by final judgment or agreed settlement, administrative fines and any other direct expenses derived from the procedure. The client directs the defense with reasonable assistance of EMP, except when interests conflict, in which case each party assumes its own defense.

Personal data processing · DPA

When the provision of the service implies that EMP processes personal data on behalf of the client (typically in email marketing platform, SMTP relay, dedicated servers), the parties sign a Data Processing Agreement (DPA) that documents the specific processor regime pursuant to article 24 of Executive Decree 285/2021 regulating Law 81 of 2019, and to article 28 of Regulation EU 2016/679 (GDPR) where applicable. The DPA is incorporated into this contract as annex and prevails over these terms in what is expressly agreed on personal data processing.

12.1 · Roles of the parties

• The Client acts as data controller regarding the personal data of its data subjects (final subscribers, client commercial prospects, contacts loaded on the platform). The client determines the purposes and essential means of processing.
• EMP acts as data processor processing data on behalf of the client pursuant to the documented instructions of the client, through the contracted platform. EMP does not determine the purposes nor the essential means of processing; it executes the service on the data entrusted by the client.

12.2 · Obligations of EMP as processor

• Process personal data only in accordance with the documented instructions of the client, except for applicable legal obligation that prevails.
• Ensure that persons authorized by EMP to process the data have committed to confidentiality or are subject to equivalent legal obligation of confidentiality.
• Adopt the technical and organizational security measures documented in section 9 of the Privacy Policy, calibrated to the processing risk.
• Assist the client, to the extent possible, in serving requests for exercise of data subject rights under articles 17 and following of Law 81.
• Notify the client without undue delay of any security breach affecting their data, with the information necessary for the client to comply with its obligation to notify ANTAI under article 30 of Decree 285/2021.
• Assist the client in carrying out data protection impact assessments (PIA) when applicable under article 31 of Decree 285/2021.
• Suppress or return to the client the personal data processed at the close of the contract under the transfer procedure documented in section 10.
• Make available to the client the information necessary to demonstrate compliance with the processor obligations, and allow and contribute to reasonable audits by the client or by auditor designated by the client, with reasonable advance notice and under confidentiality obligation.

12.3 · Sub-processors

EMP uses sub-processors (technology providers that process data on behalf of the processor) for specific functions such as cloud infrastructure, geographic redundancy, monitoring and observability. The detailed list of active sub-processors is available to the client in the signed DPA. EMP notifies the client with at least 30 calendar days advance notice of any incorporation or replacement of relevant sub-processor. The client may reasoned-object to a new sub-processor within the notice period; in case of unresolved objection, the client may terminate the contract without penalty with right to data transfer.

12.4 · International transfers

International data transfers derived from the use of sub-processors domiciled outside Panama are made with the safeguards documented in section 8 of the Privacy Policy: adequacy decision when applicable, EU-US Data Privacy Framework for the United States when the sub-processor is adhered, Standard Contractual Clauses when corresponding. Supplementary technical measures (in-transit and at-rest encryption, key segregation) apply when data could be subject to mass extraterritorial requirements.

Force majeure and fortuitous event

Neither party will be liable for breach of obligations under this contract derived from force majeure or fortuitous event under article 34D of the Panama Civil Code. The following constitute cases of force majeure or fortuitous event, without limitation:

• Natural disasters (earthquakes, hurricanes, floods of extraordinary scale).
• Armed conflicts, acts of war declared or not declared, acts of terrorism.
• Pandemics or health emergencies declared by competent authority with restrictive measures affecting operations.
• Widespread outages of electricity, telecommunications or internet at national or regional level not attributable to the provider diligence.
• Government decisions or administrative resolutions that temporarily prohibit the activity or access to critical infrastructure.
• Massive coordinated cyberattacks on critical internet infrastructure (DNS root, BGP, root certifying authorities) whose consequences extend beyond the environment controllable by EMP.
• General strikes declared by sectoral unions affecting essential services for operation.

The party affected by force majeure will notify the other party in writing within 5 business days following the occurrence of the event, identifying the cause, the scope, the measures adopted to mitigate the impact and the estimated duration. The affected obligations are suspended during the force majeure period. If the event extends beyond 60 continuous calendar days, either party may terminate the contract without penalty with right to data transfer under section 10.

Payment obligations for services effectively provided before the event are not affected by force majeure. Windows affected by force majeure are excluded from SLA calculation under section 7.2.

Applicable law and jurisdiction

14.1 · Applicable law

This contract is governed and interpreted in accordance with the laws of the Republic of Panama. The main applicable rules are:

• Civil Code of the Republic of Panama (Law 2 of 1916 with its amendments)
• Commercial Code of the Republic of Panama (Law 2 of 1916 with its amendments)
• Law 51 of July 22, 2008 on Electronic Commerce
• Law 81 of March 26, 2019 on Personal Data Protection
• Executive Decree 285 of May 28, 2021 regulating Law 81
• Law 64 of October 10, 2012 on Copyright and Related Rights
• Law 35 of May 10, 1996 on Industrial Property

14.2 · Ordinary jurisdiction

For the resolution of disputes arising from this contract that are not voluntarily submitted to arbitration under section 14.3, the parties submit to the exclusive jurisdiction of the competent civil courts of Panama City, with express waiver of any other forum that could correspond to them. For clients domiciled in the European Union or jurisdictions where mandatory law establishes a protective consumer forum, the applicable mandatory forum prevails.

14.3 · Optional CeCAP arbitration

The parties may voluntarily opt to submit disputes arising from this contract to arbitration administered by the Panama Conciliation and Arbitration Center (CeCAP) of the Chamber of Commerce, Industry and Agriculture of Panama, in accordance with its rules in force at the time the arbitration procedure starts. The option for arbitration requires specific written agreement between the parties through addendum to the contract or express clause in the commercial proposal.

Characteristics of CeCAP arbitration when the parties choose it:

• Seat: Panama City, unless otherwise agreed between the parties.
• Language: Spanish, unless otherwise agreed between the parties.
• Number of arbitrators: one (disputes up to USD 100,000) or three (disputes above), unless otherwise agreed.
• Nature: arbitration at law under applicable Panama law.
• Character: the arbitral award is final and binding on the parties, with express waiver of any appeal except those expressly provided in Law 131 of 2013 on International Commercial Arbitration of Panama.
• Costs: borne by the losing party, unless different distribution provided in the award.

14.4 · Prior conciliation

The parties agree to attempt to resolve in good faith any dispute through direct conciliation during a minimum period of 30 calendar days before initiating judicial or arbitral action. Conciliation is requested in writing to the designated channel of the other party identifying the disputed matter and the proposed solution. This prior conciliation period does not apply when there is risk of imminent prescription of the action, operational urgency justifying interim measures, or when the other party has expressly refused conciliation.