General Terms of Sale
Date of publication: September 2017
Smash is a website which is accessible at the URL https://fromsmash.com (hereafter the Website) for the transfer(s) of file(s), those files referred to as Smash(s) (hereafter Smash(s)) between online users.
The present General Terms (hereafter General Terms) govern the relations between the online users who create an account (hereafter the Client) and subscribe to the Smash Premium offer (hereafter the Offer) and the company that offers these services (the company Smash & Co, a simplified joint stock company with a share capital of Euro 400,000, registered under number 828 889 493 of the Commercial registry of Lyon, having its head office at 2 rue de la Claire, 69009 Lyon, France (hereafter SMASH)).
The Client and SMASH are together referred to as the Parties.
The General Terms are governed by French law and applicable worldwide.
In the event one of the provisions of the General Terms were declared null and void or deemed unwritten by any law, rule or regulation or as a consequence of any Court ruling, all of the other provisions would remain applicable.
The General Terms have been translated in several languages. In case of differences of interpretation, it is agreed that only the French version shall prevail.
APPROVAL OF GENERAL TERMS
The Client declares having fully and entirely acknowledged the present General Terms and his full and entire acceptance is given when he ticks the box "I have read and undertake to the general terms" on the Website.
CHARACTERISTICS OF THE SMASH PREMIUM ACCOUNT
Besides the free access to the service, there is a payable Offer called Smash Premium, presented here.
The Client can, at its discretion, adds users (hereafter the Other User(s)) in order to authorize them to use Smash Premium.
The Smash Premium account is strictly personal.
The Client must ensure that the email address provided is, and remains, valid. It is the Client's responsibility to keep his user name and password confidential and secure.
The Client shall be held liable for any use of his password or Smash Premium account and any activity arising from his account, should this activity have been authorised by him or not. In this respect, the Client must remain cautious as to the protection of his connection data, which must not be disclosed to third parties.
The use of Smash Premium services requires subscription to the Internet, which is not included in the Offer and is the Client's responsibility. The Client acknowledges that it is his responsibility to acquire the technical equipment necessary to access to the services, and that it is not included in the price as defined by the article "Price".
To subscribe to the Smash Premium Offer, the Client must previously have created an account.
CREATION OF THE ACCOUNT AND ACCESS TO THE PREMIUM
To create a Smash Premium account, the Client must sign up by providing his email address, his password, his billing data as well as his bank details.
The Client acknowledges having read the General Terms and fully and entirely accepts them by ticking the box: "I have read and undertake to the general terms".
The acceptance of the offer by the Client is confirmed, with the click process, by the confirmation of the order. Before clicking on the “Pay” button, which constitutes confirmation of the order with obligation to pay, the Client ensures that the order and its amount are in line with his expectations. Then, payment is made.
The Contract enters into effect at the date of subscription of the Offer by the Client.
The contract is tacitly renewable for the same period (1 month).
The Client shall retain the right to rescind the contract to suspend the tacit renewal, being stated that the termination will be effective on the anniversary day of the implementation of the Contract, the invoices emitted in the meantime remaining due.
Contract termination is initiated by the Client, who must request it by clicking the “unsubscribe” button, located in the “Subscription” tab of his account.
The prices are:
- VAT included in Euros,
- VAT excluded in Dollars.
The price of the Subscription is the price mentioned on the Website at the time of payment, available here. Only the characteristics mentioned in the description of the Subscription are included in the price, exclusive of any other service.
The total amount due by the Client is indicated by the “Pay” button.
SMASH reserves the right to modify its prices at any time, yet guarantees to the Client the application of the price in effect on the date of the order.
MEANS AND METHODS OF PAYMENT
The price is collected at the date of payment on the Website, by the methods of payment accepted by STRIPE, online payment solution (in principle, all credit cards) liable for securing the payment.
The payment is made via a secured solution, which integrates an SSL (Secure Socket Layer) encryption process.
The general terms of STRIPE are accessible here.
After the payment, an electronic invoice is issued by SMASH. It is accessible to the client in the thumbnail "Invoice"; of the interface of his account.
SUSPENSION OF THE ACCESS TO THE SERVICES
SMASH reserves the right to immediately and automatically suspend the access to the Smash Premium services, in particular in the following events:
- To proceed to a technical intervention, in order to improve the Website or to proceed to any maintenance operation;
- In case of emergency;
- In the event of a breach of the general or particular terms of SMASH applicable to the Client's Subscription;
- In the event of an attempt to attack or an attack to the security of the services of SMASH;
- If the use of the services of SMASH by the Client presents a risk to the security of the Website, is unusual, or considered by SMASH as fraudulent;
- In the event of a payment incident;
- In case requested by a judicial or administrative authority.
As far as possible, SMASH will inform the Client by email at the address provided at the date of subscription of the suspension and the delay of the suspension.
In this case, SMASH is relieved of its obligation to provide the services attached to the Offer and cannot be held liable for any possible loss sustained directly or indirectly by the Client during this suspension.
INFORMATION OF THE CLIENT AND CONFORMITY OF THE SERVICE
The Client acknowledges having checked that the Offer fits his needs and having received from SMASH the information and advice necessary to subscribe to this undertaking knowingly.
The services provided comply with the applicable provisions regarding health or safety of persons, fair-trading and protection of consumers at the moment of their placing on the market.
LIABILITY AND GUARANTEE IN RESPECT OF THE SERVICE
SMASH makes its best efforts for the performance of the General Terms. In this respect, theClient declares that he accepts the characteristics and limits of an online service, and acknowledges in particular:
i. That he is aware of the hazards of online consultation, in particular in respect of answering time;
ii. That he is the sole responsible for his access to Internet;
iii. That he must take the necessary measures to ensure that the technical characteristics of his computer and/or computer network, permit the access to the services of SMASH and that it is his responsibility to take all necessary measures to protect his own data and/or software from possible viruses, malware, circulating on the Internet or contracted by any other electronic means.
Amazon Web Services is in charge of the storage of the files as per its confidentiality policy accessible here.
IMPORTANT : it is highly recommended to all Users and Clients to read the policy before performing any Smash(s).
SMASH MAKES ITS BEST EFFORTS TO OFFER AN OPTIMAL GUARANTEE OF SECURITY OF THE TRANSFERRED DATA. THE TECHNICAL SPECIFICITIES OF THE INTERNET NETWORK DO HOWEVER NOT ALLOW A TOTAL INFALLIBILITY OF THE SECURITY SYSTEM AND DO NOT PERMIT TO AVOID CERTAIN INTERRUPTIONS OR TEMPORARY SUSPENSIONS OF PUBLICATIONS. IN SUCH A CASE, THE USER IS IMMEDIATELY INVITED TO REPORT ANY DYSFUNCTIONS ON THE WEBSITE TO THE MAINTENANCE DEPARTMENT OF SMASH WHO WILL PROCESS THIS REQUEST WITHIN THE BEST DELAYS.
IF NOTIFICATIONS ARE NOT MADE IN DUE COURSE, SMASH CANNOT BE HELD LIABLE.
SMASH MAKES ITS BEST EFFORTS TO CORRECT MISTAKES OR OMMISSIONS AS SOON AS POSSIBLE FURTHER TO THEIR NOTIFICATION. HOWEVER SMASH DOES NOT MAKE ANY PROMISE, GUARANTEE, OR DECLARATION, OF ANY FORM WHATSOEVER IN RESPECT OF THE SUBSCRIPTION, THE SERVICES OF SMASH, OR ANY CONTENT PRESENT ON THE WEBSITE.
IN ANY EVENT, SMASH MAY NOT BE HELD LIABLE FOR THE DIRECT OR INDIRECT DAMAGE THAT COULD BE CAUSED BY THE USE OF SMASHS.
The Parties agree that, among others, is considered as indirect damage, any moral or commercial loss, loss of profit, of turnover or revenue.
In any event, SMASH cannot be held liable if the non performance or improper performance of the Contract is attributable:
i. To the Client,
ii. Or to the unforeseeable and insurmountable action of a third party to the Subscription,
iii. Or in a case of force majeure.
LIABILITY IN RESPECT OF THE CONTENT OF THE SMASH(S)
The Client acknowledges and accepts that further to the transmissions, SMASH:
(i) Stores content, files and other information at the request and with the authorisation of its users,
(ii) Acts solely as a passive intermediary and/or hosting provider in respect of the uploading, storage and distribution of this content,
(iii) Does not have an active role and does not provide any assistance in respect of the presentation and use of this content, files and other information.
The Client is solely responsible for all files transiting via Smashs.
UNLESS OTHERWISE PROVIDED BY LAW, AND IN ACCORDANCE WITH ITS POLICY OF RESPECT OF BUSINESS SECRECY, NON DISCLOSURE AND NON INTERFERENCE IN CORRESPONDENCE, SMASH IS EXEMPTED FROM ANY RESPONSIBILITY IN RESPECT OF ALL OF THE CONTENT OF THE SMASH(S) AND THE USE MADE BY THE CLIENT, WHO REMAINS THE SOLE PERSON LIABLE.
The Client refrains from publishing, transferring or loading any file that contains elements which are illicit or any element of any form or nature which is contrary to morality, law, regulation or case law applicable in France and within the European Union.
The Client acknowledges, among others, and without limitation, that SMASH:
(i) Cannot be held liable, among others, in case of incorrect entry of the data;
(ii) Is not required to examine the content of the files that the Client transfers to detect inappropriate content, content that may infringe third party rights or that may breach the present General Terms;
(iii) Cannot be held liable if the Client uses the Website to upload, copy, distribute, promote or communicate to the public in any way content that may be infringing, injurious, defamatory, pornographic, that advocates or incites to violence, terrorism, racial, ethnic, cultural or religious hatred, to committing an offence or crime, that breaches, copies, distorts or infringes third party rights or contradicts the law, regulations, court decisions, any illegal content or content that may be contrary to the law according to SMASH's appreciation, or any content or file of any nature whatsoever which may contain viruses, Trojan horses, spyware programs, advertisements or any other unsafe or malicious components, which may overload, damage or disrupt the Website, servers or networks that are part of the Website.
(iv) Cannot be held liable if the Client attempts to violate or avoid data or authentication security measures implemented by SMASH; accesses or attempts to access to data or documents which are not intended to be used by him.
It is the Client's responsibility to protect himself against any violation of business secrecy or confidentiality of correspondences, when using the services provided by SMASH.
SMASH is responsible for the correct performance of obligations arising from the Contract within the limits of the compensation provided for by the Commercial code and the Consumer code, if the Client is a consumer.
RESPONSIBILITY OF THE CLIENT IN RESPECT OF LABOUR LAW
If the Client who gives access to his account to Other Users is also an employer subject to the French Labour Code, SMASH reminds the Client that it is the Client's responsibility:
i. to proceed to all applicable legal and regulatory formalities, such as but not limited to, those in respect of labour law or to be made to the CNIL, in relation to the use of SMASH in this context.
ii. to provide an IT charter that governs the use of access of Other Users. As per article L.1321-5 of the Labour Code, the IT charter constitutes an appendix to the internal rules. The subject of this charter is, in particular:
- To provide that the use of SMASH is strictly professional;
- To specify the liability of the employees that are users;
- To provide for a use of the IT system in conformity with the applicable laws and regulations;
- To secure the IT system;
- To provide for the modalities of the right to disconnect.
THE CLIENT EMPLOYER IS LIABLE TOWARDS SMASH OF ALL OF THE CONTENT OF THE SMASH(S) SENT IN THIS CONTEXT AND SMASH EXCLUDES ALL LIABILITY IN THIS RESPECT, AS SMASH DOES NOT HAVE ANY CONTROL ON THE SAID CONTENT.
PROTECTION OF PERSONAL INFORMATION AND DATA
In accordance with article 34 of the French Statute of 6 January 1978, all Clients have the right to access, modify, correct or delete the personal data concerning them that can be exercised at all times, upon justification of their identity, via the following email address: firstname.lastname@example.org.
RIGHT OF WITHDRAWAL
In accordance with the Consumer code, the Client has a right of withdrawal if he is considered as a consumer as per the Consumer code, or is entitled to benefit from these provisions as per the code.
In order to exercise his right of withdrawal, the Client has a delay of fourteen (14) days as from the signature of the Contract, without having to motivate his decision.
In this respect, the Client must send an unambiguous written message to SMASH at the following email address: email@example.com mentioning his name and email address.
The Client can use the withdrawal form available hereafter, although it is not mandatory.
If validly exercised, the right of withdrawal allows the Client to obtain reimbursement of the services concerned by the exercise of this right.
However, as per the Consumer code, when performance has started, upon the Client's explicit request, before the end of the delay of withdrawal, the Client pays to SMASH an amount corresponding to the service provided, until communication of his decision of withdrawal.
SMASH will proceed to reimbursement at the latest fourteen (14) days upon written receipt of the decision of withdrawal, using the same method of payment as the method used for the initial transaction.
All claims must be sent within the best delays,
- By registered letter with acknowledgement of receipt, together with, when possible, the supporting documentation, at the following address: SMASH and Co, 2 rue de la Claire 69009 Lyon, France,
- Or by email at the address: firstname.lastname@example.org.
SMASH will make its best efforts to send a response to the Client within a reasonable delay.
CLAIM CONDITIONS FOR CONSUMER CLIENTS
In the event of a dispute, the Client considered as a consumer must first send its request to the client service of SMASH at the following email address: email@example.com.
In case of failure or non response of SMASH within two months, the Client can refer the dispute to a mediation service.
The Parties to the Contract remain free to accept or to refuse mediation and, if mediation is chosen, to accept or refuse the solution retained by the mediator.
In case of failure, the dispute will be brought before the Court having jurisdiction as detailed below.
APPLICABLE LAW AND JURISDICTION
The General Terms, their application, non-performance and interpretation, are governed by French law. If any dispute, of whatsoever nature, be it relative directly or indirectly to (and not limited to) the validity, interpretation, enforcement or non performance of the General Terms, arises between the Parties, THEY EXPRESSLY AGREE TO BRING THE DISPUTE, EVENFOR INTERIM MEASURES, BEFORE THE COURTS WITHIN THE JURISDICTION OF THE COURT OF APPEAL OF LYON, UNLESS OTHERWISE PROVIDED BY LAW.
The General Terms are protected by the provisions of the French intellectual property Code and competition law. Any person who reproduces them fully or partially may be prosecuted before Civil or Criminal Courts.