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 the service associated with its product Jackmail (hereinafter referred to as “Service”).
The Contract applies to any use of the Service, including those free of charge.
Any condition imposed by the User, in particular general purchase conditions, shall, in the absence of express acceptance, be unenforceable against Sarbacane Software.
1 – Description of Jackmail
This Service enables the automatic sending of emails at the request of the User via a routing infrastructure hosted by Sarbacane Software, subject to full pre-payment and pursuant to the stipulations hereinafter.
In order to benefit from the Service, the User must have an Internet network, a WordPress account, create a user account and integrate the Jackmail plugin to WordPress Backoffice as well as have enough email credits in accordance with their needs.
Upon creating an account for the first time, the User will be able to use a trial version of Jackmail and emailing Service. This trial is limited and can be modified by Sarbacane Software anytime.
2 – Subscription
2.1 – Principle
The subscription contract comes into effect on the date the order is validated by Sarbacane Software, for an initial period (Monthly or annual plans) 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.
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, at the latest one working day before the end of the current subscription period.
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 Service and any remaining credits.
No partial or full reimbursement will be granted, even in cases of non-use.
2.2 – 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.
The User , 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.
2.3 – Value of an Email Credit
An email credit makes it possible to send an email not exceeding 195kB to a recipient. Beyond that size, an extra credit will be used to send an email in each 195kB increment. The User is aware that credits are used when the campaign is tested or sent, rather than when it is received.
3 – Support
Jackmail offers the User all types of technical documents on the website. If necessary, technical assistance is available to advise and assist the User in case any technical difficulties arise while using the Service.
The User may contact our technical assistance through a form on the website during business hours, as indicated on Jackmail’s website.
Before making any request, the User must read the documentation and FAQs made available on the website; 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 Software does not give any guarantee of intervention time and incident resolution as part of the assistance.
4 – Ordering – Prices
4.1 – Ordering
The User hereby acknowledges having verified the Service is adequate for their needs and having received all of the information and advice necessary from the company Sarbacane Software to knowingly subscribe.Any order placed with Sarbacane Software is formalized by a purchase order approved by the User online.
Orders are considered final as soon as a purchase order approved by the User is received by Sarbacane Software, subject to confirmation by Sarbacane Software validating the order. Orders may not be modified or cancelled after that date. Sarbacane Software reserves the right to cancel any order if fraud is suspected.
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, they lose the possibility to exercise the right of withdrawal in accordance with the Consumer Code.
4.2 – Prices
The applicable price is that which is in effect on the website on the date the order is made.
The Service is 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 Service. On each renewal date, the amount of the Service 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.
The price indicated does not include taxes; therefore, taxes in effect will be added.
In the event of a delay or full or partial payment default by the User, a collection fee of €40 per invoice will be billed and applicable ipso jure for commercial transactions, as applicable, as well as delay penalties ipso jure equal to 25% annually on the day following the invoice due date. No discounts are granted for early payment.
5 – Delivery
Access and credits are delivered to the account on the date full payment of the price is received by Sarbacane Software,unless otherwise agreed in writing between the Parties upon ordering.
6. User’s Obligations and Responsibilities – Rights Granted
6.1 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 Software has the necessary power and capacity to represent and commit the User ;
– became aware of the specifics and constraints, including technical ones, of the Service (including the specifics and limits of each subscription and Jackmail plugin), through the website. The User acknowledges having verified the Service is adequate for their needs and having received all of the information and advice necessary from the company Sarbacane Software 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 Service ;
– 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 Service. If using API or extensions or downloaded version of the Jackmail Plugin, 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 Service.
6.2 – 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 ;
– communicate exact information upon registration through the creation of an account and upon any order and throughout the duration of their relationship with Sarbacane Software. If there are any voluntary or involuntary errors or omissions Sarbacane Software 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 Service 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 illegal mass prospecting databases (CD-ROM, DVD of hundreds of thousands of email / addresses phone numbers, sold on the Internet, etc.) ;
– not to use the Service 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.
6.3 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 Software will not be held liable for any consequences of any disclosure, even if accidental, of their code and/or ID to a third party ;
– 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 used, their validity and compatibility with the Service and their obligations with regard to the regulations and legislation in force;
– the materials and telecommunications, including Internet connexion, WordPress account to access to the Service;
– using the third services that may be offered via the extensions. When the User does so, it does not involve Sarbacane Software in any contract and thus Sarbacane Software 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 Software 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 Software against any complaint, claims, actions of third parties that may involve Sarbacane Software.
6.4 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 Software and will no lead anyone to believe Sarbacane Software participates in the content sent and the marketing of their products and/or services.
The User warrants Sarbacane Software against all complaints, actions and claims that Sarbacane Software 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 Software 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.
However, it is understood that this power shall not be aimed at rejecting or minimizing the User’s liability for the use of the Service as the User is the sole liable party.
6.5 License and Intellectual property
The Jackmail WordPress plugin is distributed under the GPLv2 license.
The « EmailBuilder » editor and its content are the sole and exclusive property of Sarbacane Software and its partners. It is distributed under the property license (Emailbuilder License). The source code of the EmailBuilder is not distributed with Jackmail.
The terms « Jackmail », « EmailBuilder » and « Sarbacane Software » are registered Trademarks which are the property of Sarbacane Software. Using them without the consent of Sarbacane Software is prohibited.
7. Obligations – Limitations of Liabity
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 campaigns within a reasonable time, on request, but does not guarantee the commercial or marketing success of the emailing 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 the emailing campaign.
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.
7.1. No warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SARBACANE SOFTWARE, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM JACKMAIL SERVICE AND PLUGIN WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
7.2. “As is” and “As available” and “With All Faults”.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF THE JACKMAIL SERVICE AND PLUGIN IS AT YOUR SOLE RISK. THE JACKMAIL SERVICE, USER SUBMISSIONS AND ANY THIRD-PARTY MEDIA, CONTENT, PLUGIN, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE JACKMAIL SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
7.3. Platform Operation and Content.
SARBACANE SOFTWARE, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE JACKMAIL MATERIALS, USER SUBMISSIONS, SERVICES, OR ANY OTHER INFORMATION OFFERED OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
7.4. Limitation of Liability and Damages – Indemnification
Sarbacane Software is liable for the poor performance of its obligations. Nonetheless, Sarbacane Software will not under any circumstance be held liable for:
– Damages 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 Service including due to negligence, error, 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 profit, 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 Service not provided or supported by Sarbacane Software which may affect the Service or user’s Data ;
– damages resulting from the use of all or part of the Service by the User when Sarbacane Software for any reason whatsoever following a difficulty recommends the suspension of use;
– damages associated with 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 Software 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 ;
– damages not exclusively or directly resulting from a failure by Sarbacane Software, particularly a defect in the Internet network or a failure by a third party or even a defect in any element over which Sarbacane Software does not exercise complete control.
The User acknowledges that Sarbacane Software 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 Software cannot ensure the confidentiality of data when it is transferred to the said public networks. Consequently, Sarbacane Software 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.
Sarbacane Software’s liability shall be limited to the amount of the sums paid by the User to Sarbacane Software in the 12 months preceding the event that produces the damage, without distinction.
8 – Suspension – Cancellation
Sarbacane Software reserves the right to suspend the User from all access to the Service ipso jure 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 observethe law and regulation ;
– if complaints are received from email recipients ;
– if the User engages in behaviors and/or acts in a manner that may endanger the security and/or normal operation of the Service ;- 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 Service will be accessible again within a reasonable time. The suspension does not mean Sarbacane waives its right to cancel.
8.2 – Cancellation
The User may cancel the Service in the manner and under the conditions outlined herein and upon ordering. The User may also request their accounts be deleted. Notwithstanding, such situation will result in the cancellation of the whole subscribed Service with the sums due immediately payable.
Sarbacane Software may, nonetheless, cancel any account or Service 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 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.
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 subscription, credit not used by the termination date or cancellation will be definitively lost. No reimbursement will be made. Cancellation due to a reason associated with the User will mean any sums due will be immediately payable.
9 – Force Majeure
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 the 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.
10 – Confidentiality and Personal Data
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 Service, 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.
Any modifications shall be communicated on the website and made known to User via said method. The User is asked to check the website regularly.
Prices. Any changes apply to any new orders. When price changes are upward and are applicable to Service 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.
12 – Severability
13 – Non-Waiverability
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.
15 – Law and Competent Jurisdiction
All contractual relationships between Sarbacane Software and the User are subject to the 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.
16 – Proof
The computerized records saved in the Sarbacane Software computer systems or that of their partners
(including logs, order form, online validation) under reasonable conditions of security shall be considered proof of notification, order and payments between the Parties.
17 – 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.