Last updated 29/01/2019
Scope of application.These general conditions apply, without restriction or reservation to services offered by SAS Sarbacane Software located at 3 Avenue Antoine Pinay, Parc d'activité des 4 vents in Hem (France, 59510) - RCS Lille Métropole 509 568 598 (hereinafter "Sarbacane"), namely: All services requiring the use of the Mailify software, all versions combined (hereinafter the "Software") and all accessory services provided by our services: campaign management, creation of templates, etc. (hereinafter, the "Service(s)"). By exception, services may be subject to other general conditions. In this case, they are the subject of specific information.
Object.Their purpose is to set the terms and conditions under which Sarbacane delivers the Services and to define the obligations and responsibilities of any User (means any physical or legal person creating an account on the Sarbacane Website or via its Services) and that of Sarbacane. They may be supplemented by special conditions. These must be explicitly accepted by the Parties. In the event of contradictions, the special conditions prevail over the general conditions. Sarbacane and the User are also referred to hereinafter together as "the Parties", and individually as "the Party".
In descending order of priority as follows: the specific conditions, if any, these general conditions and its appendix: the processing agreement on personal data, the order elements (order form or online subscription), together constitute the contractual basis, ( hereinafter the "Contract") applicable between the Parties. Any other document or information from Sarbacane (in particular advertising brochures, communication media) is for information purposes only and is not binding. Any condition imposed by the User, in particular general purchase conditions, shall, in the absence of express acceptance, be unenforceable against Sarbacane.
The Contract applies to any use of the Services, including those free of charge.
In the context of any use of the Services and the Software, the User acknowledges that he has read, understood and expressly and unreservedly accepted the entire Contract.
The Parties expressly declare that they are and will remain independent commercial and professional partners.
The general terms and conditions and the agreement to process personal data are accessible at any time on Sarbacane's website www.mailify.com (hereinafter the "Site") and will prevail, if necessary, over any other version or any other contradictory document.
The main Service allows the User to create, manage and analyze their automatic email and SMS (Short Message Service) campaigns, if necessary for the latter.
In particular, it allows the sending of e-mails and SMS messages (based on the list of countries available for the latter and depending on the version of the Software used) (hereinafter "Messages"), subject to full payment of the price, at the User's request and in accordance with the provisions below.
Options and other Services detailed below may also be subscribed or used by the User, depending on the version of the Software used.
2.1 Necessary Resources. In order to benefit from the Services, the User must have an Internet network, create a customer account, subscribe to an offer and install the Software on their computer or access the Web version on a browser at mailify.app. Depending on the subscription purchased, features or versions of the Software may not be available.
2.2 Trial offer. As part of the first creation of an account, the User benefits from a trial version for a limited period of time (according to information displayed on the Mailify website). As soon as the trial period ends, the user must enter into a Contract in order to continue using the Services.
Sarbacane offers various subscriptions, as outlined in detail on the Site.
3.1 Principle. The subscription contract comes into effect on the date the order is validated by Sarbacane, for an initial period chosen at the time of the order by the User. At the end of the initial period, the subscription is automatically renewed for successive periods of the same duration as the initial period chosen, unless terminated by the User under the conditions below.
Disabling automatic renewal. The User may, at any time, deactivate the automatic renewal of their subscription. For this deactivation to be effective and taken into account for the current subscription period, the User must send their request by contact form, at the latest one working day before the end of the current subscription period.
Consequences. When the User requests the deactivation of automatic renewal within the specified time limits, the subscription continues until the end of the current period and is not renewed. Consequently, at the end of their subscription, the User loses the benefit of the Services and any remaining credits, as well as access to the Software. Unless otherwise requested in writing by the User, their campaign data may be kept by Sarbacane for a maximum period of six months. The User must in any case export all their data as a precaution before the end of their subscription.
No partial or full reimbursement will be granted, even in cases of non-use.
Modification of the subscription. The User can always change subscription under the conditions outlined in their online account.
The User will not use more than one subscription on the same account. Subscribing to a new offer automatically terminates and replaces the prior subscription underway, in the event of which no reimbursement will granted.
E-mail/SMS packages. The End User may subscribe to additional email credit packs and/or SMS credit packs, subject to a current subscription and subject to the payment of it. Credits remain valid until used, as long as the User has a valid subscription.
Value of an email credit and an SMS credit – countdown. A (1) usable email credit allows you to send an (1) email of less than 195 Kb to a recipient. Beyond this size, an additional credit for each 195 Kb extra is required.
A (1) usable SMS credit allows you to send one (1) SMS in Metropolitan France with a maximum size of 160 characters. If the number of characters of an SMS is between 161 and 300, then two (2) SMS credits are required. If the number of characters of an SMS is between 301 and 450 characters maximum, then three (3) SMS credits are required.
According to the article above, the number of credits required to send (1) an SMS with fewer than 161 characters varies depending on the destination. It is the User's responsibility to regularly check the corresponding list of destinations provided on https://www.mailify.com/sms-marketing. Sarbacane can modify the list of destinations at any time by adding or removing destinations. Sarbacane may also change the price listing of the destinations without notice, the latter depending on the pricing of third-party operators.
The User is informed that credits used are deducted upon sending messages and not upon receipt. Credits will also be deducted for test messages.3.2 Options
Principle. The ordering, renewal and use of options by the User requires that he has a subscription.
For Users with a monthly subscription, any option ordered or activated is concluded for an initial period of one year and is automatically renewed, subject to a current subscription, for successive periods of one year, unless terminated by the User under the same conditions as those of their subscription.
For Users with an annual subscription, any option ordered or activated is concluded for the remaining term of the current subscription, and is automatically renewed on the date of renewal of the current subscription for successive one-year periods, unless terminated by the User under the same conditions as those of their subscription.
Any option included in the subscription packages must be activated by the User. No partial refund of the subscription will be made if the User does not use the option.
Subscription to a Customized Domain Name. A personal domain name makes it possible to personalize the mailing address of the emails as well as the links contained in the body of the message. Thus, the User may configure their own domain by following the integration instructions provided by Sarbacane, or subscribe directly to the option allowing the User to rent a customized domain name, subject to availability and acceptance of the accredited registrar and the Registry/Registration Authority and the supervisory authorities.
At the request of the User, Sarbacane will then send the registration request to the accredited registrar.
The User is informed that the processing times and acceptance of the request (at the latest within 24 working hours) by the registrar are beyond the control of Sarbacane and that it can not, as such, be responsible a delay. Sarbacane undertakes to reimburse the User for any transaction that cannot be completed if the transaction may be cancelled and reimbursed by the Registry. (Example: If the domain name is no longer available for registration upon receipt of payment).
For convenience purposes, the domain name is registered in the name of Sarbacane software. The latter acts on behalf of the End User and does not use or intervene in the choice of registered domain names. The End User has an exclusive right to use the registered domain name, in order to personalize the shipping address for their emailing and the links contained in the body of messages. However, at any time, the User may have full management of the domain name registered on their behalf, by requesting its transfer to the following address: sales[at]mailify.com. Sarbacane will communicate to the User all the necessary information. The effective transfer will automatically terminate the option. No refund of sums already paid under the option will be made. Also, no dicount will be applied to the subscription price.
Dedicated IP address. The dedicated IP addresses are exclusively of a nature to be used in the context of sending e-mailing campaigns with the Software.
Additional users. To share data and/or credits between several Users, it is necessary to subscribe to the option in sufficient number and based on the Users’ needs.
These Services are available on order or can be added to a subscription.
Extra Services. Sarbacane offers extra Services, including the creation and management of emailing and SMS campaigns, template updating, training and support around the E-marketing strategy (services on a fee-for-service or successive execution basis), details of which can be found on the Sarbacane website or from the sales department.
Services may have a duration defined at the time of the order and take effect as from the validation of the latter by Sarbacane. Following the confirmation of the order by Sarbacane, a consultant will contact the User within 2 to 3 working days, excluding public holidays.
By "Deliverable(s)" below, we mean the completion of element(s) that Sarbacane performs on behalf of the User. It is mainly of an electronic nature (e-mail and SMS templates, statistical reports, etc.). Depending on the service, Sarbacane will submit to the User elements showing the visual aspect of these within the limits provided when the order is placed. After acceptance by the User within the time limit, any request for modification will be subject to additional invoicing.
Training. On-site training must be the subject of a training agreement concluded between the Parties. Any training cannot take place without Sarbacane receiving the necessary documents within the required time limit. These trainings are likely to be taken care of by the training organizations without Sarbacane being able to guarantee it.
Distance learning does not meet the criteria for possible support from training organisations. Distance learning sessions will only be carried out by telephone and by remote control on the User's computer, which is essential for the training. The User agrees in advance to this remote control, which is strictly necessary for training purposes, and will first configure the security settings of their computer to allow access.
In general, the User undertakes to provide Sarbacane, within the required time limits, with any information, useful indication and any element requested (in particular text, image in the context of e-mailing creation or information on the products and services that the User wishes to promote, the public he wishes to reach, etc).
Any behaviour or action by the User resulting in a delay or non-performance of the service cannot be attributed to Sarbacane and will give Sarbacane the right to terminate the service at the client's expense as provided for in Article 14.
When Sarbacane makes softwares, applications, features or any other component available in Beta version, the following stipulations apply:
Sarbacane may, in all discretion, propose to any voluntary User to test Beta versions free of charge, in order to identify any possible malfunction.
As such, the User agrees : (i) to only use elements in Beta versions for testing and improvement purposes ; (ii) not to let anyone other than themselves use it; (iii) not to disclose any information relating to Beta versions. This information is confidential and constitutes, as such, trade secrets. Furthermore the User agrees (iv) to inform Sarbacane in good faith of its reactions and suggestions as a result of use of the Beta versions. All comments, feedbacks, ideas and more generally any response from the User as part of the Beta versions will be the exclusive property of Sarbacane. The User agrees (v) not to publish or make accessible by any means its comments to the public except with the prior consent of Sarbacane, and the User agrees (vi) to maintain any full backup of its system and data prior to the use of Beta versions.
The access procedures and the characteristics of the Beta versions are freely defined by Sarbacane, and can be modified by them at any time. Sarbacane may temporarily limit, suspend or discontinue access and maintenance to Beta versions at any time and inform the User so by any means.
The User accepts that Beta versions may include known or unknown bugs and that the data synchronized by the User may be erased, reset at any time and that, depending on the case, Beta versions may damage the User's equipment. The User alone will bear the consequences and risks of any nature whatsoever related to the use of Beta versions.
Sarbacane is obligated to inform the User of the risks associated with the use of the Beta version. Once given the warnings, the User acts knowingly by accessing the Beta versions.
Assistance. If necessary, assistance is available during Sarbacane’s working hours through different means and according to the subscription subscribed (see Site), to advise and support the User if any technical difficulties arise in connection with the Services.
Before making any request, the User must read the documentation and FAQs made available on the Site; apply the procedures described; and check whether their difficulties do not depend on non-compliant use of the Services or their own equipment, infrastructure, network, Internet connection.
Each request is registered with a tracking number. As part of the management of requests, the User agrees that the assistance may connect to the User's account and perform any operation necessary to try to resolve the difficulties encountered according to the information and system data available to Sarbacane. The assistance undertakes to inform the User of the progress of their request.
Thus, by contacting the assistance, the User undertakes (i) to communicate any necessary information requested by the assistance for the understanding and resolution of the difficulties encountered and to remain available in case of need; (ii) to remain courteous and to use the assistance in a non-abusive manner; (iii) to respect all the advice and recommendations communicated as part of the assistance.
Unless specific conditions apply, Sarbacane does not give any guarantee of intervention time and incident resolution as part of the assistance.
Coaching. Sarbacane also provides assistance for the configuration of the Sarbacane account and the use of the Software, advice & best practices on campaigns, assistance on sending campaigns, recommendations on the email marketing strategy, depending on the subscription subscribed.
This support does not include the supply of Deliverables, the latter being the subject of ancillary services subject to specific invoicing.
Updates. Sarbacane makes corrections and evolution to its Software itself. Therefore, intervening or having a third party intervene with the Software is prohibited. Depending on the Software version used, these updates may be automatically downloaded and installed to the User’s computer upon opening the Software. Users hereby waive any other prior version. Moreover, Sarbacane reserves the right to modify and adapt their Software. The Contract does not grant users any right to demand evolutional updates or new versions of the Software. The Parties acknowledge that software may contain errors and that not all errors are economically correctable or that it is not always necessary to correct them. Sarbacane does not therefore guarantee that all failures or errors in the technologies, including the Software, will be corrected. It is the User's responsibility to take all measures to establish appropriate troubleshooting plans and to take all appropriate measures to minimize the harmful consequences related in particular to a possible interruption of operation or a possible loss of data generated by the Software as a result of its use.
7.1. Order. The User may place an order online in the shop after logging in to their account or via a purchase order established by our services. The User acknowledges having read and accepted, without reservation, the general conditions and its appendix in force, by means of a checkbox in the online ordering process or by means of their signature on the commercial proposal including a reference to the general conditions. The general conditions and its appendix in force will be applicable to all the Subscribed Services used by the User.
After online confirmation of the order by the User or receipt of the written acceptance of the order, a validation message is sent to the User's email address. To prevent the risk of fraud, a delay may occur. Sarbacane has signed a contract with a secure electronic payment partner. As such, Sarbacane does not directly store credit card numbers. Sarbacane and its partner may perform a number of controls that may require investigating the origin and content of a transaction.
Sarbacane may need to ask the User for additional information, in which case they are obliged to provide answers as soon as practicable.
In case of refusal of the credit card payment authorization by the accredited organizations or in the event of non-payment, Sarbacane reserves the right to suspend or cancel the order. Sarbacane also reserves the right to refuse an order from a User who has not fully paid a previous order or with whom a payment dispute is pending.
Once the User meets the definition of the 'Consumer', as stated in the french consumer Code, a withdrawal period of 15 days commences from the confirmation of Sarbacane of the finalizing of their order. However, when the User uses the ordered Service(s) before the end of the 15-day period or in the case of an order of a domain name, they lose the possibility to exercise the right of withdrawal in accordance with the Consumer Code.
7.2 Price – Payment. The applicable price is the one in force on the day of invoicing. The price indicated does not include taxes; therefore, the taxes in effect will be added.
Our products are payable upon ordering, directly online on the site by indicating a credit card number (SSL secured mode) or any other payment method possible on the date of the order or renew. In case of refusal of authorization of payment by
credit card from accredited organizations or in case of non-payment, Sarbacane reserves the right to suspend or cancel the order.
In accordance with Article L. 132-2 of the Financial Code, the commitment to by card is irrevocable. By providing their banking information, the User authorizes Sarbacane to debit their card or bank account for the amount relating to the Services and options. On each renewal date, the amount of the Services will be deducted automatically from the credit card details or from the bank account, to which the User expressly agrees. In the event of a payment incident, the User acknowledges and expressly agrees that Sarbacane will issue a new debit the next day if the attempt still fails and until the fifth day. In the absence or error of payment by credit card or debit, the User undertakes to pay the amounts due, by any means, upon receipt of invoice.
Invoices will be available for downloading through the customer’s account, to which the User agrees.
In the event of a delay, full or partial payment default by the User, a collection fee of €40 per invoice will be applicable ipso jure, as well as delay penalties ipso jure equal to 25% of the annual amount on the day following the invoice due date. No discounts are granted for early payment.
Principle. Access and credits are delivered on the day that the full payment of is received by Sarbacane (except for domain names), unless the Parties have agreed otherwise in a written agreement during the order.
Ancillary services.The delivery period announced at the time of order starts to run from the transmission by the User of all the elements, information and documents essential to Sarbacane for the performance of the Service. Any Deliverable will only be definitively transmitted to the User on the day of receipt of full payment of the price by Sarbacane, unless otherwise agreed in writing between the Parties at the time of the order.
9.1 The User hereby declares that they:
- have the power and capacity necessary to bind themselves to Contract. When an account is created and used by a person in the name and on behalf of the User, it guarantees that Sarbacane has the necessary power and capacity to represent and commit the User ;
- became aware of the specifics and constraints, including technical ones, of the Services (including the specifics and limits of each subscription and Software), through the Site. The User acknowledges having verified the Services are adequate for their needs and having received all of the information and advice necessary from the company Sarbacane to knowingly subscribe ;
- hold all rights and all of the necessary authorizations to use and communicate the illustrations/images and email address databases used via the Services ;
- are personally liable at their own cost for the acquisition, installation, maintenance, connection and security of the different configuration elements and telecommunications resources (including Internet connexion) needed to access the Services. If using API or extensions or downloaded version of the Software, they shall be configured by the User at their exclusive liability pursuant to the instructions in the documentation and/or assistance made available ;
- have backed the data up on one or more reliable mediums prior to any use before they activated the Service and agrees to perform any periodic backup of their data during the use of the Services.
9.2 Without prejudice to any stipulations of these terms, the User undertakes to:
- comply with the laws and regulations in force and not to infringe the rights of third parties or public order. The User must comply with the legal and regulatory provisions relating to the respect of privacy, personal data and electronic communications ;
- comply with Sarbacane 's anti-spam policy ;
- communicate exact information upon registration through the creation of an account and upon any order and throughout the duration of their relationship with Sarbacane. If there are any voluntary or involuntary errors or omissions Sarbacane will not be held liable for any billing errors, delays or failed deliveries. If any of the information provided changes, the User hereby undertakes to inform Sarbacane immediately and provide any updated information ;
- to be responsible for the payment of all sums invoiced for their orders ;
- not to use the Services to route affiliation campaigns. By “affiliation” campaign is meant any campaign aimed at promoting a service or product not commercialized by the sender for performance-based compensation (on the basis of a certain number of clicks, postings, visits, forms completed, commissions for online sales generated, etc.) ;
- not to use mass prospecting databases (CD-ROM, DVD of hundreds of thousands of email / addresses phone numbers, sold on the Internet, etc.) ;
- not to use the Services for sending and hosting content which is violent, obscene, illegal, pornographic, defamatory, harmful or discriminating nor content aimed at promoting certain sensitive activities such as online gaming, offers to make money, clairvoyance, weight loss, etc.
9.3 Without prejudice to any stipulations of these terms, the user is the sole responsible party for :
- safeguarding and using their account ID and password. Sarbacane will not be held liable for any consequences of any disclosure, even if accidental, of their code and/or ID to a third party ;
- the management of their accounts including data and credit sharing with these accounts ;
- its use of the Services, including information, and content sent, used, generated, their operations and updates, within this framework. Similarly, the User is solely responsible for the collection of the email addresses and telephone numbers used, their validity and compatibility with the Services and their obligations with regard to the regulations and legislation in force;
- the materials and telecommunications, including Internet connexion, to access to the Services;
- the choices they make in terms of text and visual content and the elements they communicate as part of the Deliverables produced by Sarbacane (in particular graphic design; template update, etc.), as well as the implementation of procedures ;
- using the third services that may be offered via the extensions. When the User does so, it does not involve Sarbacane in any contract and thus Sarbacane can't be held responsible for any dispute involving third parties and including the availability of third services, guarantees, declarations and other obligations such third parties are bound to ;
More generally, Sarbacane does not make any commitments to third parties. The User is solely responsible for the relationships they may have with third parties (prospects, customers, partners, suppliers, employees, etc.). It guarantees Sarbacane against any complaint, claims, actions of third parties that may involve Sarbacane.
9.4 Any transfert of account by the User is prohibited without express prior authorization from Sarbacane.
User is prohibited from any misleading between themselves and Sarbacane and will no lead anyone to believe Sarbacane participates in the content sent and the marketing of their products and/or services.
The User warrants Sarbacane against all complaints, actions and claims that Sarbacane may be used as a result of the breach, by the User, of their obligations including (i) fraudulent use of the Services laws and regulations in force, (ii) in case of violation of the rights of third parties. They undertake to intervene and to compensate Sarbacane for any losses, costs and/or convictions, including reasonable fees for Sarbacane's counsel and/or awards, damages, including by settlement agreement, that it may have to bear as a result.
Irrespective of the lack of obligation to do so yet for security reasons and in order to verify proper use of the Services and the Contract, Sarbacane reserves the right to automatically receive a copy of the Message sent by the User with each
campaign launched through the Software, a condition expressly accepted by the User.
Sarbacane reserves the right to use these copies to identify the sender of a campaign launched with the Software pursuant to the terms of the law. Campaigns sent may, therefore, be subject to prior moderation before definitively sent to recipients. Thus, the User must create a new campaign considering the recommendations and instruction provided by said service if a campaign is denied by the moderation service. Users may be reallocated their credits for the denied campaign at the sole discretion of Sarbacane.However, it is understood that this power shall not be aimed at rejecting or minimizing the User’s liability for the use of the Services as the User is the sole liable party.
Preservation of the rights of the User. The User retains ownership and full rights of intellectual property over any content provided by them while using the Services. This includes their database of email addresses, phone numbers, the content of their messages, the name and logo of their company, all names, logos, names of services and products, designs, slogans and copyrights, patents, trademarks and more generally any other intellectual property rights belonging to them.
Preservation of the rights of Sarbacane Software and User's rights of use. In general, the Software and the Site and the content thereof (especially the images, sound, text and other information, modules, extensions available through the Software) are the respective property of Sarbacane Software or its suppliers/partners.
Sarbacane grants the user a non-exclusive and non-transferable right to use the Software, content including images, and technologies made available, hereinafter referred to as the "License", throughout the duration of the Software trial period and throughout the duration of the subscription contracted by the User.
Sarbacane and its suppliers/partners retain ownership and full rights to the technologies and any content made available under the Services. This includes the Software (All Versions, SAAS and downloadable) owned by Sarbacane, the documentation, the name and logo of Sarbacane, all names, logos, names of services and products, designs, slogans and copyright, patents, trademarks, image banks, modules, and more generally any other intellectual property right.
Users undertake to observe the property wording indicated on the Software, mediums or documentation and any technology made available.
Users are prohibited from disseminating, assigning, renting, leasing, sub-licensing, giving or distributing any and all of the software and Services to a third party in any way whatsoever. This License does not include the right to collect or use information contained on the Site or through the Services for purposes prohibited by Sarbacane, to compete with Sarbacane, create derivative work based on any content obtained through the Services. In particular, Users are prohibited from publishing, copying or using the image gallery or images for any other purposes other than is required for their email or sms campaigns. Likewise, translating, adapting, assembling, dismantling, compiling, reverse engineering, arranging or modifying the Software and exporting or merging it with other software outside the situations allowed by French law is prohibited.
Using any equipment, device, software or other means to by-pass or delete any restrictions on the use or to active functionalities is prohibited.
Any use of the Software and the Services contrary to the intended purpose (for which they have been designed) is strictly prohibited.
Users may re-download the runnable file from the Site in order to obtain a backup copy. Any other means is strictly prohibited.
Sarbacane undertakes to perform its obligations diligently in accordance with the best practices in its profession and is only bound by a best efforts obligation.
- As part of the main emailing Service, Sarbacane Software undertakes to make the best possible efforts to deliver the User’s emailing/ SMS campaigns within a reasonable time, on request, but does not guarantee the commercial or marketing success of the emailing/ SMS campaign or any actual opening or deliverability rates.
In fact, the User is informed that operators, over which Sarbacane has no control, are involved in the delivery of Messages.
To the extent possible, Sarbacane makes all efforts to ensure the operability and continuity of its Services. Nevertheless, the Software including the features, and Services may individually or entirely be temporarily interrupted for maintenance or any other reason without Sarbacane being held liable in any way. To the extent possible, any interruptions will be communicated to Users, by any means.
Sarbacane not guarantee that its Software and Services will meet the performance requirements and/or that they will operate non-stop without any bugs.
The User is informed that, depending on the total weight of their campaign, its delivery may be slowed down in order to ensure the proper management of the processing of campaigns by the infrastructures.
Unless otherwise stated in writing at the time of ordering, Sarbacane does not guarantee that its Services meet the User's specific specifications or needs.
WHERE AUTHORIZED BY APPLICABLE LAWS, THE CONTENT, SOFTWARE, APPLICATIONS, RESULTS, AVAILABILITY IN CONNECTION WITH OR THROUGH THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", "WITH ANY POSSIBLE ERRORS" WITHOUT ANY WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPLICIT OR IMPLICIT.
Sarbacane is liable for the poor performance of its obligations. Nonetheless, Sarbacane will not under any circumstance be held liable for :
- damage resulting from the non-compliance by the User of their obligations under the Contract ;
- damages partially or fully resulting from improper, malicious and/or abnormal use by the User of the Services including due to negligence, errors, defects and/or non-observance of given tips and recommendations ;
- immaterial, indirect, accessory, special or moral damages and, particularly, damages resulting from a loss of profits, a loss of opportunity, a loss of exploitation, revenue shortages or deprived use ;
- damages resulting from the use by the User of programs in connection with the Services not provided or supported by Sarbacane which may affect the Services or user’s Data.
- damages resulting from the use of all or part of the Services by the user when Sarbacane for any reason whatsoever following a difficulty recommends the suspension of use ;
- damages connected to an intrusion or fraudulent maintenance by a third party of the system or the illicit extraction of data despite the implementation of security means pursuant to the current state of technology as Sarbacane is only liable for best effort undertaking as concerns known security techniques ;
- damage related to a loss or deterioration of data, insofar as the User retains responsibility for the proper performance of their backups ;
- damage not resulting exclusively and directly from Sarbacane's failure, in particular the failure including by action, omission or negligence of any third party (excluding Sarbacane's subcontractor) : Internet access providers, operators, or the failure of third-party services available via extensions.
The User acknowledges that Sarbacane has no control over the transfer of the User's data via the public telecommunications networks used by the User to access the Services and in particular the Internet network. The User acknowledges and accepts that Sarbacane cannot ensure the confidentiality of data when it is transferred to the said public networks. Consequently, Sarbacane may under no circumstances be held liable in the event of, in particular, the misappropriation, capture, corruption of data, or any other event likely to affect them, occurring during their transfer on public telecommunications networks.
All things considered, Sarbacane software’s financial liability shall be limited to the amount of the sums actually paid by the customer to Sarbacane over the 12 months preceding the event that produces the damage, without distinction, except in the event of bodily harm, wilful misrepresentation or gross negligence.
The Parties shall not be held liable for any failure or delay in the performance of all or part of the Contract due to an event of force majeure if such fulfils the legal and jurisprudential conditions required to be considered force majeure pursuant to French law.
Moreover, Sarbacane and the User hereby expressly agree that the following shall be considered situations of force majeure : interruptions, a breakdown or the sabotage of means of communication, fire, flooding, extreme weather, damage, rioting, war, total or partial strikes, lockouts.
Any situation of force majeure shall suspend each of the Parties’ obligations for the period during which such situation persists. Nonetheless, either Sarbacane or the User may rescind the contractual relationship ipso jure eight (8) days after sending a registered letter with acknowledgement of receipt, notifying the other party of their decision if the situation of force majeure persists for more than thirty (30) consecutive days.
Suspension. Sarbacane the right to suspend the User from all access to the Services without prior formal notification without the User being able to claim any type of indemnity for such action in the following cases:
- If erroneous information is sent by the User;
- in situations of suspected intended fraud;
- failures to observe the law and regulation ;
- if complaints are received from email / sms recipients;
- if the User engages in behaviors and/or acts in a manner that may endanger the security and/or normal operation of the Services, e.g. through the use of databases.
- in case of late payment of more than 4 calendar days.
During the suspension period, the User is not exempt from all sums due which, as a result of the suspension, become immediately due. Once the suspension case is resolved, the Services will be accessible again within a reasonable time. The suspension does not mean Sarbacane waives its right to cancel.
Cancellation. The User may cancel their subscription and options subscribed to in the manner and under the conditions outlined in the Contract. Users may also request their accounts be deleted. Notwithstanding, such situation will result in the cancellation of all subscribed Services with the sums due immediately payable.
Sarbacane may, nonetheless, cancel any account or Service or option ipso jure without prior formal notification and without prior notice in the event of a failure to observe the law and regulation or if a complaint is lodged by email/ sms recipients or if the User engages in behavior and/or acts in a manner that may endanger the security and/or normal operation of the Service and/or Services collectively or individually e.g. through the use of databases.
In the context of ancillary services only (in particular services on a fee-for-service basis), in the event of repeated cancellation or non-return of the User following two reminders after ordering, Sarbacane shall be entitled to terminate the Service concerned automatically without notice. If a sum has been paid by the User, no refund will be made.
Even if Sarbacane does not suspend access or the Service or an account or cancel the subscription, the User will not be released of their liability and nor will Sarbacane be held liable.
Any subscription, credit or Service not consumed by the termination date or cancellation will be definitively lost. No reimbursement will be made. Cancellation due to a reason attributed to the customer will mean any sums due will be immediately payable.
Each of the Parties declare that it is insured, in particular for professional liability, with a reputable, creditworthy company and keeps all insurance policies up-to-date, to cover, without prejudice to Article 12 and 13, damages caused to the other Party and consequent upon the performance or non-performance of these. Each Party undertakes to provide the other Party at any time, on first request, with proof of the subscription of the insurances
Personal data. The Parties undertake to comply with the regulations in force applicable to the processing of personal data, in particular Law No. 78-17 of 6 January 1978, as amended, relating to data, files and freedoms and, in particular, the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, applicable from 25 May 2018.
Sarbacane is required to process personal data on its behalf but also on behalf of the User. The measures implemented by Sarbacane, when it acts as controller, are specified on the Site.
When Sarbacane processes personal data on behalf of the User, it acts as a subcontractor. This relationship between the Parties is governed by the Data Processing Agreement, available on the Site.
Confidentiality. Within the framework of the Services, the Parties are required to communicate confidential information to each other. "Confidential Information" means any information of any nature, in any form, whether confidential or otherwise, exchanged between the Parties in any manner whatsoever, in particular any technical, commercial, marketing and financial information, algorithms, internal documents, etc.
However, the following are not considered as information: the commercial references of each of the Parties and the work done by Sarbacane on behalf of the User, concerned by Article 18; as well as information: - which entered the public domain prior to the date of disclosure or communication or which will become public domain after disclosure and/or disclosure, without the cause being attributable to the disclosing Party; - it can be shown that they are already known to the Party before transmission; - which would have been developed independently of the Party; - which have been lawfully received from a third party, without breach of the contract.
Each Party undertakes to maintain the confidentiality of all or part of the Confidential Information received. However, each of the Parties is authorized to disclose any Confidential Information in the following cases: (i) for the purposes of the performance of the Contract, in particular with their personnel, subcontractors, stakeholders, within the scope of their respective authorizations; (ii) pursuant to a legal or regulatory provision; (iii) to respond to requests for communications from judicial and/or administrative authorities; and/or (iv) to protect their rights and/or properties or those of their partners, or any other third party; (v) in the case of prior written agreement or request of the other Party.
The Parties undertake to protect the Confidential Information by appropriate measures and treated with a degree of care at least equivalent to that applied to their own confidential information.
Principle. Sarbacane reserves the right to modify, at any times, the offers, Services and/or terms of these general terms, especially based on the evolution of technology and/or the law.
Any modifications shall be communicated on the Site and made known to users via said method. The user is asked to check the Site regularly.
Prices. Any changes apply to any new orders. When price changes are upward and are applicable to Services in use, the User will be informed in advance at least one month before the entry into force of the new rates, by any means. As soon as this information is provided, the User will have one month to cancel the Service concerned at no cost by sending a registered letter with acknowledgement of receipt. Beyond said deadline, the User will be considered to have agreed to the modifications. Nonetheless, Sarbacane reserves the right to charge any new regulatory, administrative or fiscal tax or any increase in said taxes or price determined by the operators, without prior notice without any cancellation possibilities for the user.
Service. When these modifications are likely to damage a Service in use, the User has, as from the entry into force of the modifications, 30 calendar days to terminate the Service concerned free of charge by sending their notification by registered letter with acknowledgement of receipt to Sarbacane. Beyond that, the User will be deemed to have accepted the modifications.
General conditions and exhibit. Any modification shall come into force as from its publication on Sarbacane's Site and shall, as far as possible, be notified to the User by any other means. When the modifications are unfavourable to the User, the latter has, as from the entry into force of the modifications, 30 calendar days to terminate the Contract automatically without charge, by sending its notification by registered letter with acknowledgement of receipt to Sarbacane. Beyond that, the User will be deemed to have accepted the modifications. However, any modification resulting from the law or the regulations and/or administration can not be considered as giving right to cancellation.
Modified general conditions apply to all Services previously subscribed by the User and still in progress, in order to ensure a uniform contractual package for all Services.
Advertising. Sarbacane is authorized to mention the user’s business name and corresponding logos as trade references through any communications medium. Sarbacane also reserves the right to present services performed on behalf of the User on any communication medium, for purpose of illustrating or demonstrating of the achievements of Sarbacane. These mentions are granted free of charge and can not be the object of any compensation or compensation in any way whatsoever. The User may terminate this authorization at any time by simple written notification to marketing[at]mailify.com
Proof. The computerized records saved in the Sarbacane computer systems or that of its partners (including logs, order form, online validation) under reasonable conditions of security shall be considered proof of notification, order and payments between the Parties.
Subcontracting. As part of its activities, Sarbacane may use subcontractors. In this case, Sarbacane remains the sole contact and the only person liable to the User in the conditions and under the reservations provided for in the Contract.
Severability.In the event that a clause of the contractual provisions of the Contract is declared invalid or unenforceable, that clause will be severed, and the remaining portions of the Contract will remain in full force and effect.
Non-Waiverability. It is formally agreed that any tolerance or waiver by one of the Parties to assert any right whatsoever may not constitute a modification of the Contract as the case may be, nor may it give rise to a waiver of any right in the future.
Titles. The titles are indicated for convenience only. If there is any contradiction between the title and the body of an article, the body of the article shall prevail.
Law and Competent Jurisdiction.The Contract and any documents resulting from it are subject to French law. In lack of an amicable agreement, any disputes relating to the validity, interpretation or execution of the Contract that may arise shall be subject of the exclusive jurisdiction of the competent courts within the jurisdiction of the Douai Court of Appeal, even in the event of an incidental claim, warranty claims or multiple defendants.
Translation. In the event of any discrepancy in interpretation between the language versions, the French version of the Contract shall prevail.
For any questions relating to these general terms or to obtain a PDF version, please send an email to: hello[at]mailify.com