General terms of use and privacy policy

Date of publication: May 2017

 

GENERAL PROVISIONS

SMASH is a website which is accessible at the URL https://fromsmash.com (hereafter the Website). It is detained and operated by 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 transfer of files is referred to as Smash(s) (hereafter the Smash(s)).

These General Terms of Use (hereafter General Terms) govern the relations between the users of the Website (hereafter the « Users »), who connect to the Website should they use the offered services or not, and the company operating the Website (together the Parties).

The General Terms are governed by French law and are 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.

SMASH reserves the right to modify without notice the content of these General Terms. The User is therefore required to consult them regularly.

All modifications of the provisions of the General Terms will apply without indemnity even if a direct or indirect damage occurs.

 

APPROVAL OF GENERAL TERMS

The present General Terms appear on the Website. The User is therefore deemed to have accepted the entire provisions of the General Terms as soon as he connects to the Website and when he maintains connection to the Website, for more than 15 consecutive minutes.

The User who refuses application of the General Terms must immediately close the connection to the Website.

 

HOW THE SERVICE WORKS

Once uploaded, the files are installed on the servers of SMASH where they will remain accessible during 7 consecutive days, or 30 days if the User has subscribed to a Smash Business account.

Amazon Web Services is responsible for the storage of the files as per the conditions of its confidentiality policy accessible here.

IMPORTANT: it is highly recommended that the Users and Clients previously read this policy before performing any Smash(s).

At the expiry of the 7-day or 30-day period, the files are automatically deleted from the servers of SMASH in order to leave enough space to allow further transfers to be made.

The transfer capacity of files via SMASH is unlimited in terms of size. However, if the size is very consequent, the time of uploading may be impacted.

The maximum number of recipients per transfer is unlimited. 

 

LIMITATION OF LIABILITY OF SMASH

SMASH has an obligation of best efforts for the performance of these General Terms. 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.

The User acknowledges 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.

 

PUBLICATION OF FILES

SMASH promotes a loyal and respectful use of the Internet network, regarding legal obligations and morality.

Yet, SMASH

(i) Does not have the possibility to control the content of the files uploaded, exchanged and published by the 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.

In this respect, SMASH is subject to the legal status of web hosting provider as defined by French law, more specifically Statute n°2004-575 dated 21 June 2004, Loi de Confiance dans l’Economie Numérique (LCEN). According to this status, SMASH cannot be held liable for any direct or indirect consequences of the publication, exchange and/or uploading of files with an illicit content (see reduced liability system provided by articles 6-2 and 6-3 of the LCEN Statute).

UNLESS OTHERWISE PROVIDED BY LAW, AND IN ACCORDANCE WITH ITS POLICY OF RESPECT OF BUSINESS SECRECY, NON DISCLOSURE AND NON INTERFERENCE, SMASH IS EXEMPTED FROM ANY RESPONSIBILITY IN RESPECT OF ALL OF THE CONTENT OF THE SMASH(S) AND THE USE MADE BY THE CLIENT, AS WELL AS DIRECT AND INDIRECT CONSEQUENCES FOR THE CLIENTS OR THIRD PARTIES.

In accordance with the provisions of the French LCEN Statute, any person can inform SMASH of any illicit content by reporting an alert under the following strict conditions.

All reports must be made preferably in writing at the address: privacy@fromsmash.com and must imperatively contain the following indications:

  • Date of the report,
  • Identity (name, surname, address, date of birth, email address etc.) of the person making the report,
  • Detailed description of the reported item, and detailed reasons why the item is illicit,
  • Precise localisation of this item (such as URL),
  • Copy of the written report previously sent to the author, editor of the illicit item if he is identified or identifiable.

Upon receipt of the report, the services of SMASH, once they have checked that the report is grounded, will make their best efforts to remove the file with an illicit content, as specified in the notification, within a reasonable delay.

Reports that do not comply with the above indications shall not be processed by the services of SMASH.

 

USER’S OBLIGATIONS

The User commits to follow SMASH’s philosophy, and in this respect, to refrain from publishing illicit files on the Website and more generally to refrain from directly or indirectly affecting the rights of any third parties.

As regards the transfer of files, it is strictly forbidden to infringe in any way on copyrights and other rights attached to the files.

The User refrains from publishing, transmitting or uploading any file containing statements or other elements of an illicit nature, such as but not limited to elements that:

  • are insulting, derogatory, racist, sexist, xenophobic, revisionist, defamatory, or that compromise the integrity, honour, reputation or file of any person or entity,
  • are pornographic, pedophile, or that compromise private or public interests or file,
  • affect public order,
  • infringe the rights of one or several third parties, such as intellectual property rights (copyright), industrial property rights (trade marks and designs, patents…) or file rights of persons,
  • advocate or incite to hatred, to committing an offence or crime, incite to suicide or self-harm,
  • preach hatred, war crimes, crimes against humanity, or acts of terrorism,
  • breach confidentiality of correspondences, professional secret, or confidentiality of investigations,

More generally, any element of any form or nature, which is contrary to morality or applicable rules and regulations.

Moreover, the User must refrain from collecting personal data concerning other Users to which he may have access, and to make any illicit and/or commercial use of this data.

 

PROTECTION POLICY OF THE RIGHTS OF SMASH

The User must understand the following:

Several rights are likely to be attached to a file:

  • Copyright (intellectual property rights),
  • Image rights of the persons on animage,
  • Image rights of artistic creations (such as but not limited to paintings, sculptures, pictures, furniture, decorative items etc.) featuring on the image and protected by an intellectual property right if they are the principal subject of the image,
  • Trademark, design and patent law.

In this respect, Users are notified that they must, prior to any transfer, uploading or exchange of files on SMASH, ensure that they hold the entirety of rights or, if applicable, have acquired the rights attached thereto.

They remain solely liable for actions in response, in particular in case of counterfeiting or other prejudice to the rights of third parties, resulting from a transfer of files that they have initiated.

On its side, SMASH commits to guarantee the total confidentiality of the files uploaded and transferred between Users. No other person, with the exception of Users/Senders or Users/Recipients chosen by the User/Sender will have access to the files.

SMASH will refrain from trading in any way the files uploaded and exchanged between the Users.

 

PROTECTION OF PERSONAL DATA AND INFORMATION

For the purpose of the activity of the Website, the User/Sender must provide personal information for identification, such as his name, surname, email address, together with the same information concerning the User/Recipient.

SMASH refrains from trading this data to third parties and from implementing any mailing policies or newsletters even to promote its own activities.

This data processed automatically is used exclusively for the purpose of the Website.

In accordance with French Statute n°78-17 dated 6 January 1978 on data protection and freedom modified by Statute 2004-801 dated 6 August 2004, SMASH has filed a declaration (n°1942171) to the Data protection and freedom national commission (Commission Nationale de l’Informatique et des Libertés - CNIL) as regards collection and processing of the nominative information concerning the Users.

In accordance with article 34 of the French Statute of 6 January 1978, all Users have the right to access, modify, correct or delete the personal data concerning them that can be exercised at all times, upon justification of his identity, via the following email address: privacy@fromsmash.com.

The User is informed that in case of death, and as soon as SMASH is duly informed, upon justification, the personal data concerning him will be suppressed within the best delays. The User can inform SMASH via email or courier of his will to communicate or not the data to a third party that he will designate.

 

USE OF COOKIES

SMASH may use cookies, such as but not limited to:

- The IP address (Internet protocol) of the device from which the User accesses to the Website,

- The specific activities on the Website, in particular the pages viewed and features used by the User.

Purpose: cookies are meant to facilitate browsing on the Website. They are temporary cookies and are not meant to collect personal and/or nominative information concerning the User.

Time of storage : the cookies are stored for 13 months.

The User is invited to accept this use of cookies. He can refuse. In this case, browsing on the Website may work with less fluidity.

 

PROTECTION OF THE ELEMENTS OF THE WEBSITE IN RESPECT OF INTELLECTUAL PROPERTY RIGHTS

The elements that appear on the Website, such as but not limited to the structure, articles, designs, photographs, illustrations, logos, brand and animations, together with these General Terms of Use are protected by French intellectual and industrial property law and competition law.

SMASH or third parties have the full ownership of these elements. Therefore, any reproduction, publication, full or partial transmission of these protected elements, whatever the purpose may be, is forbidden as it would breach the French intellectual property Code. Any person who violates intellectual or industrial property rights can be prosecuted before French Civil or Criminal Courts.

 

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, it shall be brought, even for interim measures, before the Courts within the jurisdiction of the Court of Appeal of Lyon, unless otherwise provided by law.

As regards consumers, in the event of a dispute, they may bring the matter before a mediation service.

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.