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").
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.
2 - Subscription
The User may order a monthly subscription and choose the quantity of monthly email credits they need (fixed price package) as per the offers in effect on Jackmail’s website.
The subscription is valid for a 30-consecutive-day period that starts from the day the order is confirmed by Sarbacane Software.
This subscription is renewed automatically every 30 days, upon a monthly pre-payment debited from their bank card for this purpose, as agreed by the User.
When an automatic renewal occurs, if the User has a positive amount of remaining credits from the previous period, credits will be lost when the new period begins.
The User may terminate the subscription at any time through their user account. The request for termination should be made official the day before the expiration/renewal date of the subscription at the latest, beyond which date the termination will be applied to the following renewal cycle with no reimbursement to User, whether partially or entirely.
2.1 - 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.
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.
4.2 - Prices
The applicable price is that which is in effect on the website on the date the order is made.
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
Credits are credited 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
The User hereby undertakes to communicate exact information upon registration through the creation of an account and upon any order. If there are any voluntary or involuntary errors or omissions in the transfer of information communicated by the User, 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 Software immediately and provide any updated information.
The User is responsible for the payment of all sums invoiced for their orders. In the event of a payment incident upon attempting to make a debit, the User acknowledges and expressly agrees that Sarbacane Software may attempt a debit again on the following day and each time a debit fails until the fifth day.
The User undertakes to observe all instructions from Sarbacane Software in its documentation as well as all advice and recommendations communicated by Sarbacane Software.
The User is personally liable at their own cost for the acquisition, installation, maintenance, connection and security of the different configuration elements and telecommunications resources needed to access the Service. If using an extension or extensions, they shall be configured by the User at their exclusive liability pursuant to the instructions in the documentation and/or support made available.
The User maintains ownership of all intellectual and industrial property rights to any content provided by them for the use of the Service. This particularly includes their email address database, the content of their messages, the name and logo of their business, all names, logos, service and product names, designs and models, slogans and copyrights, patents, trademarks and, more generally, any other intellectual property right.
The User is exclusively liable for the data transmitted for use with Jackmail (email address, email content, etc.). Likewise, the User is solely liable for collecting the email addresses used, their validity and compatibility with Jackmail.
More generally, the use of the Service is solely the responsibility of the User.
The User is solely liable 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.
The User is prohibited from any misleading between themselves and Sarbacane Software and will not lead anyone to believe Sarbacane Software participates in the content sent and the marketing of their products and/or services.
Any account assignment is prohibited without express authorization from Sarbacane Software.
6.1 Respect for the Laws in Effect
Sarbacane Software strictly prohibits the use of their Jackmail Service to engage in any illegal or illicit activities and to send or store illegal content.
* - Respect for Anti-Spam and Personal Data Protection Laws *
When using Jackmail, the User must comply with all legal and regulatory privacy, personal data and electronic communication provisions. In particular, the User hereby undertakes to observe the Data Protection Law. As Sarbacane Software is acting herein as the subcontractor, the User is considered solely liable for the processing of any data used under the scope of the Service offered by Sarbacane Software.
The User may not use Jackmail to send direct email campaigns without prior, free and specific consent from the recipients of the messages if they are sent to personal email addresses, unless the intended recipients are already clients of the user and if the email campaigns are related to products or services which are similar to the ones already provided by the user.
The User undertakes to provide recipients of their campaigns with a means to unsubscribe from any future electronic communications in each email sent. The User undertakes to process opt-out requests at no cost quickly and no later than 5 days after receipt of a request and to update their contact lists as a result.
* - Respect for intellectual property rights
The User hereby guarantees to Sarbacane Software that the illustrations/images and email address databases used for the emailing campaigns are free of rights or that the User holds all rights and all necessary authorizations to use them.
Moreover, the User guarantees to hold Sarbacane Software unharmed from any court action relating to the use of the Service which may harm one or more third parties, especially including but not limited to actions for infringement of a third-party patent. In such case, the User agrees to defend Sarbacane Software, at their own cost. Users shall pay all damages and fees and expenses Sarbacane Software is condemned to pay by a court decision on the basis of such allegations as well as any fees and other expenses connected to such proceedings.
6.2 - Usage Limitations
Besides the obligation of observing all legal obligations and prior to any subscription, the User acknowledges and agrees to the limitations established without any exception.
6.2.1 - General Matters
Sarbacane Software does not authorize the routing or maintenance of affiliation campaigns through its Service. Affiliation campaign shall mean any campaign aimed at promoting a service or product not commercialized by the sender but made for performance-based compensation (based on a certain number of clicks, postings, visits, forms completed, commissions for online sales generated, etc.).
Sarbacane reserves the right to deny routing and hosting of the User’s campaigns upon detection of the use of mass prospecting databases (CD-ROM, DVD of hundreds of thousands of email addresses sold on the Internet, etc.), to send email campaigns to these contacts, in particular when they do not respect the French Data Protection Authority’s recommendations for electronic prospecting including in cases of suspicion.
Furthermore, Sarbacane Software does not authorize the use of its Service to send and host content which is violent, obscene, pornographic, defamatory, harmful or discriminating nor content aimed at promoting certain sensitive activities such as online gaming, casinos, offers to make money, clairvoyance, weight loss, etc.
6.2.2 - Moderation
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.
6.3 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 Software performs its obligations pursuant to the rules of trade for this sector and is only liable for its best effort undertaking.
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 a failure by the User to observe these conditions;
- Damages partially or fully resulting from improper, malicious and/or abnormal use by the User of the Services 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;
- 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.
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 observe the User’s obligations outlined in articles 6.1 and 6.2, 6.3 of the provisions herein ;
- 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.
If the User fails to observe any other obligation not indicated above, especially as concerns the non-payment of the price, Sarbacane Software reserves the right to suspend their account(s) and access to the Service without any compensation for the User after the User is notified by any means (mail, email...) with a formal notification to proceed and the failure is not fixed within the period indicated.
These provisions do not release the User from the payment of any sums due during the suspension of the Service. The suspension does not mean Sarbacane Software 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 breach of articles 6.1, 6.2 and 6.3 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.
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 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
Sarbacane Software is prohibited from communicating the Data to anyone other than those who must know them in order to manage and provide the Service. Thus, Data is not transferred to any third party except those who participate in the management and provision of the Services. Nonetheless, Sarbacane Software will transfer any information and Data requested upon an order by a court and/or government authority.
Sarbacane Software hereby undertakes not to use such Data except to perform its obligations under the terms herein and with respect to the conditions of this article.
Data is retained during commercial relation with the User, except in case Data must be retained to comply with legal obligations.
Sarbacane Software agrees not to edit or disclose any content of any messages sent by a User to any third party recipient without the User's prior permission, unless (i) as required by law; (ii) in compliance with legal authorities or proceeding; (iii) to enforce this Agreement; and/or (iv) to protect the rights and/or property of Sarbacane Software, its licensors or any other third party. You nevertheless acknowledge and agree that technical processing of the messages may be required in order to send and receive such message, to conform to the technical requirements of connecting networks, to conform to the limitations of the Service and their equipment, to conform to other similar technical requirements.
Pursuant to the French Data Protection Law of January, 6 1978 (modified by French Law of August, 6 2004 on personal data protection), the User has the rights of access, rectification and legitimate opposition as of personal data collected concerning them. These rights may be exercised by contacting Sarbacane Software at the following email address, attaching a copy of the individual’s identity card: email@example.com
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.
Sarbacane Software may also modify the prices at any time. When 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.
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 the 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.
16 - Proof
The computerized records saved in the Sarbacane Software computer systems or that of their partners under reasonable conditions of security shall be considered proof of notification, order and payments between the Parties.