Today’s post is the third in a series on contractual terms that clients want but usually cannot get due to harsh reality. Thus far, we have considered Delivery Service Level Agreements1 and Inbox Guarantees.2 Today, we turn our attention to send rate guarantees.
Occasionally, a company will try to get an ESP to agree to a rate guarantee. The terms of the contract amendment will usually look something like this:
The ESP will insure that all mail is delivered to the Client’s recipient list within 60 seconds of the time that the Client queues it.
Now, that seems to make some sense. The client obviously thinks the mail they are sending is important, both to them and, perhaps, to the recipient. Because of this, they want to see it delivered in a timely manner.
For some mail, this even makes sense. For instance, Woot.com has some time-sensitive deals on its site. It makes sense that they would want to see their mail delivered well before the deal expires.
So, why do terms like this not fly? Again, it has to do with the reality of the email space. Email is not an instantaneous medium. Things can happen fast, but they don’t have to. Most mail transfer agents (mail servers) are configured to stop sending mail after 3 or 4 days. There is a reason for this default behavior: the reality of the Internet is such that things may take some time to happen.
As we have mentioned on previous days, many things can go wrong. Not everything will mean that a message can never be delivered, but it may mean that it cannot be delivered in the next minute, hour, or even day. Things along this line would include:
Footnotes
- Undersea cables are being cut. You might remember that in early 2008, this happened to several cables.3
- Mail servers are down. From time to time, the connection cannot go through because the mail server receiving the email is not accepting any email.
- Poor reputation. If a sender has a poor reputation, their messages may be blocked or deferred for a period, perhaps even until off-peak hours on the receiving server.
- Technical issues. The AOL Postmaster Blog4 points out that a server may not be down but still may not be receiving mail at the expected rate.
There are, of course, other things that could contribute to not being able to send all of the mail you want to send as fast as you want to send it. But all of these things combined mean that it is unrealistic to expect an ESP to agree to send mail with anything other than “best effort.”
Footnotes
- Mickey Chandler, Asking for the Impossible: SLAs, Spamtacular (May 11, 2010), https://www.spamtacular.com/2010/05/11/asking-for-the-impossible-slas/. ↩︎
- Mickey Chandler, Asking for the Impossible: Inbox Guarantees, Spamtacular (May 12, 2010), https://www.spamtacular.com/2010/05/12/asking-for-the-impossible-inbox-guarantees/. ↩︎
- Ryan Singel, UN Official Feeds Cable Cut Sabotage Speculation, Wired (Feb. 19, 2008) (archived July 3, 2009), https://web.archive.org/web/20090703145236/http://www.wired.com/threatlevel/2008/02/un-official-fee/. ↩︎
- Margot Romery, Internet Inbound Mail Delay, AOL Postmaster Blog (Apr. 27, 2010) (archived Oct. 31, 2012), https://web.archive.org/web/20121031084912/http://postmaster-blog.aol.com/2010/04/27/internet-inbound-mail-delay/. ↩︎
About the Author
Mickey Chandler is a Consultant & Attorney with over 28 years of experience in Email Deliverability & Privacy Law. He has a strong background in email authentication infrastructure (SPF, DKIM, DMARC), ISP and mailbox provider relations, anti-spam policy and compliance, CAN-SPAM and state anti-spam law gained through overseeing the Abuse & Compliance team at Salesforce Marketing Cloud, originating the ISP relations role at Informz (now part of Higher Logic), and working in the fight against spam since 1997. He holds a B.A. in Government, a B.S. in Computer Information Systems, and a J.D. from the University of Houston Law Center. He is a certified CIPP/US professional and a certified CIPM professional.
