Last updated 25/05/2018
The purpose of this document is to establish the terms and conditions under which SAS Sarbacane Software, with a principal place of business at 3 Avenue Antoine Pinay, Parc des 4 vents in Hem (59510) - RCS Lille Métropole 509 568 598, provides users (hereinafter referred to as "user") with services (hereinafter referred to as "Services") associated with all versions of its software Mailify, Desktop or Sunrise, (hereinafter referred to as “Software”) and define the obligations and responsibilities of both the customer and Sarbacane Software under this scope.
Sarbacane Software and the user shall be referred to hereinafter jointly as "the Parties" or individually as "the Party".
These general conditions, any special conditions, and the agreement of treatment of personal data, together constitute the contractual base, hereinafter the "Agreement" applicable between the Parties. The Agreement applies to any use of the Services, including free of charge versions. As indicated above, this document may be supplemented by special conditions. These will have to be explicitly accepted by the Parties. In case of contradictions, the special conditions prevail over the general conditions. Any condition posed by the User, including the terms of purchase, will, in the absence of express acceptance, be unenforceable against Sarbacane Software.
As part of any use of the Services and the Software, the User acknowledges having read, understood and accepted expressly and without reservation, all of these contractual provisions.
The main Service allows the User to create, manage and analyze their automatic email and SMS (Short Message Service) campaigns (based on the list of countries available for the latter and depending on the version of the software used), subject to full pre-payment and pursuant to the stipulations hereinafter. Other Services and Options, itemized below, may also be subscribed or used by the user, subject to availability.
In order to benefit from the Services, the user must have an Internet network, create a customer account, select the software version as well as subscribe an offer in accordance with their needs. Certain Services may not be available due to the software version installed.
Upon creating an account for the first time, the user will be able to use a trial version of the software and emailing Service limited to a validity period (as detailed on Mailify’s website). As soon as the trial period ends, the user must enter into a Contract in order to continue using the Services.
Monthly and yearly subscriptions are available as outlined in detail on the Site.
The subscription contract comes into effect on the date the order is validated by Sarbacane Software for either a month or a year based on the contract period selected by the User.
At the end of the initial subscription period, the subscription is tacitly renewed for successive periods of the same duration as the initial period chosen, unless terminated by the User conform the conditions below.
A subscription with a "minimum commitment period" is a contract with an initial subscription period that is determined when the order is made and associated with a monthly payment. When such initial period comes to an end, the subscription renews automatically for successive periods of one month, unless terminated by the User under the conditions below.
The User may terminate the subscription at the end of each period, subject to submitting their application to Sarbacane Software by contact form, no later than one working day before the end of the subscription period. After this period, the subscription will be renewed automatically for a new period and the subscription will expire at the end of this new period.
When the contract terminates, the Services and remaining credits are definitively lost, and the User can't access the software any more. Unless the customer requests otherwise upon written notification, their campaign data will be saved by Sarbacane Software for a maximum of 6 months.
No partial or full reimbursement will be granted, even in cases of non-use.
The User may subscribe to side packs of emails or SMS subject to payment once all their credits have been used or at any time. Side credits remain valid as long as the user is using a subscription with a valid period underway.
The User can always change offers under the conditions outlined in their online account.
In case the subscription is renewed or another subscription is ordered, any credits not used during the current subscription period may be carried over to the following period as explained below:
The User will not use more than one subscription on the same account. Subscribing to a new offer cancels and replaces the prior subscription underway, in the event of which no reimbursement will granted.
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 Software can modify the list of destinations at any time by adding or removing destinations. Sarbacane Software 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 the calculation of the number of credits needed is done at the time of the sending and not at the reception of the Messages by the recipients. The mailing tests are also subject to a credit count.
The customer is informed that credits used are deducted upon sending messages and not upon receipt. Credits will also be deducted for test messages.
Other than the emailing Service, Sarbacane Software offers the following Services and Options as per the software version used by the customer:
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 Software, or subscribe directly to the Service 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 Software 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 Software and that it can not, as such, be responsible a delay. Sarbacane Software 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).
This option is concluded for an initial period of one year, starting from the registration date of the domain name in the registrar's databases, and renews itself automatically for successive one-year periods, unless terminated by the User by contact form, at the latest one working day before the end of the current period, including the first. However, at any time, the User may have the complete management of the registered domain name for their account, by requesting their transfer to the following address: sales[at]mailify.com. Sarbacane Software will provide the User with all the necessary information. The transfer will automatically terminate the option. No refund of amounts already paid under the option will be made.
The lack of use of a domain name does not give right to any refund.
Domain names associated with specific subscriptions shall be activated by the User during the initial subscription period. They remain valid as long as the User's subscription is valid.
The subletting of a dedicated IP address is concluded for a period of one year, from the order confirmation by Sarbacane Software, and is renews itself automatically for successive periods of one year, unless terminated by the User by contact form, at the latest one working day before the end of the current period, including the first.
The exclusive nature of dedicated IP addresses is to be used as part of the sending of email campaigns with the Software. The dedicated IP addresses included in certain subscription formulas must be activated by the User during the initial subscription period and will remain valid for as long as the User has a valid subscription.
When Sarbacane Software makes softwares, applications, features or any other component available in Beta version, the following stipulations apply:
Sarbacane Software 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 Software 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 Software. 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 Software, 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 Software, and can be modified by them at any time. Sarbacane Software 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 Software 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.
Sarbacane Software offers users all types of technical documents on the Internet site.
If necessary, technical assistance (support) is available to advise and assist the User if any technical difficulties arise.
The User can reach the technical support during the days and hours of opening by various means (see website of Mailify).
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.
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. This delay depends on our electronic payment partner, Sarbacane Software does not retain any credit card number.This partner carries out a number of checks and may, if necessary, alert our services on the need to investigate the origin and content of a transaction. Sarbacane Software may need to ask the User for additional information, in which case they are obliged to provide answers as soon as possible. In case of refusal of the credit card payment authorization by the accredited organizations or in the event of non-payment, Sarbacane Software reserves the right to suspend or cancel the order. Sarbacane Software 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 Consumer Code, a withdrawal period of 15 days commences from the confirmation of Sarbacane Software of the finalizing of his 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, he loses the Possibility to exercise the right of withdrawal in accordance with the Consumer Code.
The applicable price is that which is in effect on the date ordered. 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.
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 Software to debit their card or bank account for the amount relating to the Services and options. On each renewal date, if the User has not terminated the Service(s), 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 Software 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 customer agrees.
In the event of a delay or full or partial payment default by the customer, 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.
The credits are delivered on the day that the full payment of is received by Sarbacane Software, unless the Parties have agreed otherwise in a written agreement during the order.
If any of the information provided changes, the user hereby undertakes to inform Sarbacane Software immediately and provide any updated information.
Sarbacane Software 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 Software.
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.
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.
In general, the software 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 Software grants the user a non-exclusive and non-transferrable 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 Contract contracted by the user.
Sarbacane Software and subcontractors/partners shall maintain ownership and all rights connected to the technologies it makes available to users as part of the Services as well as all content made available by Sarbacane Software. This particularly includes the software (all versions, web and desktop/Mac), the exclusive property of Sarbacane Software, and also documentation, Sarbacane Software’s name and logo, Mailify’s name and logo, all names, logos, names of services and products, designs and models, slogans and copyrights, patents, trademarks 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 Software, to compete with Sarbacane Software, 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.
MAKING THE SOFTWARE AVAILABLE TO THE PUBLIC THROUGH THE INTERNET OR ANY OTHER COMPUTERIZED COMMUNICATION SYSTEM WITHOUT PRIOR WRITTEN AUTHORIZATION FROM SARBACANE SOFTWARE IS PROHIBITED.
Any use of the software and the Services contrary to the intended purpose (for which they have been designed) is strictly prohibited.
The License is limited to one personal use per end user. As a result, any resale or commercial use of the Services or any other means to seek financial gains through providing the Services to a third party without prior written consent from Sarbacane Software is strictly prohibited.
Sarbacane Software makes corrections to its software itself. Therefore, intervening or having a third party intervene with the software is prohibited. 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 Software reserves the right to modify and adapt their software.
This License does not grant users any right to demand evolutional updates or new versions of the software.
Users may re-download the runnable file from the Site in order to obtain a backup copy. Any other means is strictly prohibited.
- For all of its services, the company Sarbacane Software performs its obligations pursuant to the rules of trade for this sector and is only liable for its best effort undertaking.
- As part of the main emailing Service, Sarbacane Software undertakes to deliver the customer’s emailing/ SMS campaigns on request via electronic means subject to the use of a sufficient number of prepaid credits but does not guarantee the commercial or marketing success of the emailing/ SMS campaign or any actual opening or deliverability rates.
To the extent possible, Sarbacane Software 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 Software being held liable in any way. To the extent possible, any interruptions will be communicated to customers.
Sarbacane Software does not guarantee that its software and Services will meet the performance requirements and/or that they will operate non-stop without any bugs or
Sarbacane Software does not guarantee that its software and Services will meet the user’s particular 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.
The Parties hereby acknowledge that the software may contain errors and that not all errors can be corrected financially nor is there always a need to correct them. Therefore, Sarbacane Software does not guarantee that all of the defects or errors in the technologies used for the software will be corrected. As a result, users must take all measures to establish adequate breakdown plans and take any appropriate action to minimize the consequential damages particularly linked to possible interruptions in the use or possible losses of data generated by the software through its use.
Sarbacane Software is liable for the poor performance of its obligations. Nonetheless, Sarbacane Software will not under any circumstance be held liable for:
All things considered, Sarbacane Software’s financial liability shall be limited to the amount of the sums actually paid by the customer to Sarbacane Software 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.
Neither Sarbacane Software nor the user may be held liable for any failure or delay in the performance of all or part of the contractual relationship 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 Software 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, lock outs.
Any situation of force majeure shall suspend each of the parties’ obligations for the period during which such situation persists. Nonetheless, either Sarbacane Software 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.
Sarbacane Software reserves 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:
These provisions do not release the user from the payment of any sums due during the suspension of the Service(s). The suspension does not mean Sarbacane Software waives its right to cancel.
The user may cancel their subscription and options subscribed to in the manner and under the conditions outlined herein and upon ordering. 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 Software 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 recipients or if the customer 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.
Even if Sarbacane Software 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 Software be held liable.
Any 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 predudice to Article 12, damages caused to the other Party or to any third 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.
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 Software is required to process personal data on its behalf but also on behalf of the User. The measures implemented by Sarbacane Software, when it acts as controller, are specified on the website.
When Sarbacane Software 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 website.
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 Software 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.
The user acknowledges Sarbacane Software has no control over the transfer of the User’s data via public telecommunications network the user uses to access to the Services, and in particular the Internet.. The user acknowledges and agrees that Sarbacane Software cannot guarantee the confidentiality of the Data during transfer thereof over said public networks. Consequently, Sarbacane Software can not, under any circumstances, be held liable in the event, and in particular of misappropriation, capture, or corruption of data, or any other event likely to affect the latter, occurring during their transfer on public telecommunication networks.
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.
In the event of modifications of the general terms and conditions, the User may terminate the Services free of charge, in derogation of the terms of the general terms and conditions which stipulate otherwise, by sending registered letter with acknowledgment of receipt from Sarbacane Software within a period of thirty days from the entry into force of these amendments. Beyond this period, the User will be deemed to have accepted the changes. However, any modification resulting from the law or the regulations can not be considered as giving right to cancellation.
Sarbacane Software may also modify the prices at any time. When the price modifications are applicable to contracts underway, the user will be informed one month in advance of 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 contract 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 Software reserves the right to charge any new regulatory, administrative or fiscal tax or any increase in said taxes without prior notice without any cancellation possibilities for the user.
Sarbacane Software is authorized to mention the user’s business name and corresponding logos as trade references through any communications medium.
Sarbacane Software 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 Software.
illustrating or demonstrating of the achievements of Sarbacane Software. 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 email@example.com.
The computerized records saved in the Sarbacane Software computer systems or that of its partners under reasonable conditions of security shall be considered proof of notification, order and payments between the Parties.
As part of its activities, Sarbacane Software may use subcontractors. In this case, Sarbacane Software remains the sole contact and the only person liable to the User in the conditions and under the reservations provided for in the contractual provisions.
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 General/Special Conditions of the Contract will remain in full force and effect
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 general and specific terms and conditions of the Contract as the case may be, nor may it give rise to a waiver of any right in the future.
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.
All contractual relationships between Sarbacane Software and the user are subject to French law.
In lack of an amicable agreement, any disputes shall be subject of the exclusive competence of the Commercial Court of Lille Metropole, even for cases of incidental claims, guarantee claims or involving multiple defendants.