General terms and conditions of sale and use
As of 16 March 2022

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smsmode^© offers mobile messaging communication services to business customers under the conditions set out below.

YOU ACKNOWLEDGE THAT THESE TERMS AND CONDITIONS ARE BINDING AND THAT YOU ACCEPT THEM. OTHERWISE, YOU ARE NOT AUTHORIZED TO USE THE SERVICES OF SMSMODE^©.

 

1. Definitions

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• Customer: any natural or legal person ordering the right to use the Services for business purposes and committing to these General Terms and Conditions, including natural person users who use the Services in the name and on behalf of the Client.
• Ordering: any order for the right to use the Services by the Customer, accepted by smsmode^©The order may be placed online on the Internet Site or directly with the Customer. Orders may be placed online on the Internet Site or directly with smsmode^© by e-mail or on paper, as the case may be.
• General Terms and Conditions or Contract: these general terms and conditions of sale and use of the Services and any document attached to or referred to in these General Terms and Conditions, in particular the Order and the applicable Special Terms and Conditions.
• Special Conditions: the special conditions subscribed to by the Customer, in particular according to the Services ordered and considered as annexed to these General Conditions.
• Recipients: persons to whom the Client addresses a Message in the context of the use of the Services.
• Data: data or information used or created by the Customer in the course of using the Services, including Personal Data.
• Personal Data: personal data that can directly or indirectly identify a natural person within the meaning of the regulations in force.
• Messages : messages or electronic communications that may be sent by the Customer via the Services provided by smsmode^©as described in the applicable Special Conditions.
• Services : Message sending services provided by smsmode^© to the Customer as described in these General Terms and Conditions and in the applicable Special Terms and Conditions.
• Website: accessible at www.smsmode.com.
• smsmode^Calade Technologies, a limited liability company whose head office is located at 37 rue Guibal, Pôle Média Belle de Mai, 13003 Marseille, registered with the Marseille Trade and Companies Registry under number 478 715 766, represented by Ludovic POGNON.

 

2. Purpose and scope

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Unless otherwise expressly agreed in writing by smsmode^©The purpose of these General Terms and Conditions is to define the terms and conditions of use of the Services by the Customer.

Use of the Services is subject to acceptance and compliance with these General Terms and Conditions (including applicable Special Terms and Conditions).

Acceptance of these General Terms and Conditions (including applicable Special Terms and Conditions) by one of the Customer's agents or employees is deemed expressed in the name and on behalf of the Customer by a duly authorized person.

 

3. Description of Services

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The Services subscribed by the Customer are described in detail in the applicable Special Terms and Conditions.

To use the Services, the Customer must:

• Have Internet access (high-speed Internet access is recommended);
• Have ordered the Services concerned;
• Comply with any other prerequisites specified in the Special Conditions or communicated by smsmode^©.

In general, all technical resources and telecommunication costs necessary to access and use the Website and Services are the sole responsibility and under the sole liability of the Customer. Unless otherwise agreed in writing, the Services do not include installation, configuration, adaptation, customization, or suitability of the Services to the specific needs of the Customer, nor training services.

Access to the Services by the Customer is by means of unique, non-disclosable and strictly personal identifiers. The Customer is solely responsible for the use of these identifiers by third parties, and guarantees in this respect smsmode^© against any request and/or action based on the use, fraudulent or otherwise, of these identifiers. To prevent fraudulent use of the identifiers, the Customer undertakes to choose a password providing a high level of security in accordance with the standards and recommendations currently in force.

smsmode^© reserves the right to develop the Services, in particular by making new functions available, or by modifying or removing certain functions, or by changing the applicable rates, after informing the Customer. smsmode^© will provide the customer with a summary description of major changes within one month.

Any other services to be provided to the Customer must be agreed in writing in advance. 

smsmode^© grants no other warranty than those expressly mentioned in these Terms and Conditions.

 

4. Financial conditions

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The Customer may take out a subscription, or not, under the conditions specified in the Special Terms and Conditions applicable to the subscribed Services. 

Any issue regarding an invoice must be notified in writing, giving the reasons therefor, within 15 days of receipt of the invoice, failing which the invoice will be deemed to have been accepted by the Customer. Any delay in payment with respect to the agreed due date shall give rise, without notice, to the application of interest at a rate equal to an annual rate of 10% per day, as well as compensation for collection costs, which may not be less than €40, without prejudice to any other rights and remedies.

Any delay in payment in relation to the agreed due date will give rise to the application of penalties equal to an annual rate of 10% per day of delay, and of an indemnity for collection costs of a minimum fixed amount of €40, without the need for any prior formal notice, and without this clause precluding any action aimed at collecting the debt. All costs incurred as a result of this default will be or remain the responsibility of the defaulting debtor. In addition, in the event of late payment, smsmode^© may suspend or terminate the contract.

 

5. Term and termination

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The term of the Agreement and termination conditions are set out in the Special Terms and Conditions applicable to the Services subscribed.

In general, the Agreement may be terminated (for any reason whatsoever) in its entirety or only for one type of Service at the discretion of the party terminating the Agreement.

At the end of the Agreement for whatever reason, whether early or upon expiry of its term, the Customer shall cease using the Services concerned by the termination and, in the case of the termination of all Services, its account will be deleted. The Customer shall be personally responsible for recovering the Data, which will be automatically deleted 3 months after termination of the Agreement, unless otherwise required by law.

• Early termination :
  In the event that a party contravenes the provisions of the General Conditions and/or the Special Conditions, the complaining party may terminate the contract, automatically, by right and without any formality, 30 (thirty) days after a formal notice by registered letter with acknowledgement of receipt has remained without effect or, as the case may be, immediately if the breach invoked is not susceptible of remedy.
• Suspension :
  On the other hand, smsmode^© reserves the right, in accordance with the stipulations herein, to suspend the Customer's right to access the Services, without notice or compensation, in the following cases
  • The Customer’s breach of Clause 6 or the applicable Special Terms and Conditions;
  • Any act of hacking or illegal attempt to use information on the network caused by or originating in the Customer’s account; 
  • Information provided by the Customer to create its account is incorrect;
  • Non-payment of all or part of the sums owed by the Customer to smsmode^© after due date ;
  • In application of a legal or regulatory injunction or provision applicable to smsmode^© or one of its suppliers;
  • If required for maintenance or safety purposes (including smsmode^© will endeavour, if possible, to notify the Customer);
  • In the event of suspension of the supply of Services by the supplier(s) of smsmode^©.

  This suspension shall be without prejudice to the other rights of smsmode^© and without indemnity.

 

6. Obligations of Customer

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The Services are intended for professional use. The Customer must be of legal age and be able to provide proof that he/she belongs to a company if requested to do so by smsmode^©.

The Client undertakes to comply with the recommendations of the professional advertising regulatory authority (Autorité de Régulation Professionnelle de la Publicité - ARPP) regarding the rules governing advertising campaigns. In particular, the Client must notably provide clear and unequivocal, legible and/or audible information allowing:

- Identification of the advertisement ;

- Identification of the advertiser.

The Customer is informed that telecommunication operators may block SMS/TTS that do not comply with the rules defined by the ARPP and/or when fraudulent sms (identity theft, phishing, smishing and others) are detected. smsmode shall not be held responsible for such blockings that telecommunication operators may implement without prior consultation with smsmode or the Customer.

Furthermore, the Customer also undertakes to use the Services in accordance with national and international regulations, and in particular not to use them to post, send or transmit any content:

• Of a violent nature or likely to undermine human respect and dignity, equality between men and women, the protection of children and adolescents, including through the production, transport and dissemination of messages of a violent or pornographic nature or likely to infringe human dignity;
• That encourages the commission of crimes and misdemeanours;
• That encourages the consumption of prohibited substances;
• That causes or is likely to cause discrimination, hatred, violence because of race, ethnicity or nationality;
• That is illegal, harmful, threatening, abusive, harassing, defamatory, abusive, vulgar, obscene, that threatens the privacy of others or is likely to offend the sensitivity of certain persons; 
• That is misleading, including by usurping the name or corporate name of other persons;
• That infringes the rights of third parties, such as but not limited to, any manufacturing secret, professional secrecy, confidential information, trademark, patent and in general any industrial or intellectual property right or any other right concerning information or protected content;
• Including, without this list being exhaustive, computer viruses or any other code or program designed to interrupt, destroy or limit the operation of any software, computer or telecommunication systems, or that constitutes spam.

In general, the Customer agrees to comply with these General and Special Terms and Conditions, not to infringe in any way whatsoever any rights belonging to third parties, not to use or distribute content prohibited by law and not to interfere with or disrupt the operation of the Website or the Services.

The Customer acknowledges and accepts that it is responsible for the Data and content created, stored or disseminated as part of the use of the Services, to the exclusion of any liability on the part of smsmode^© or its suppliers.

In particular, the Client undertakes to use the Services only with regard to Personal Data concerning the Recipients that it is authorised to process, in compliance with the regulations in force, in particular concerning Personal Data, the collection of telephone numbers and canvassing or the sending of Messages and, where applicable, with the consent of the Recipient. It also undertakes to use, on a mandatory basis, devices allowing the Recipient to oppose the receipt of prospecting Messages or, if applicable, the processing of their Personal Data. An sms confirming the unsubscribing is mandatory on the marketing channel. It is sent automatically from the account that sent the marketing message, at the Customer's expense.

If the Customer becomes aware of a probable or proven breach of this article or of the applicable Special Conditions, the Customer undertakes to inform smsmode^© in writing. Likewise, the Customer undertakes to inform smsmode^© in writing of any request or communication from the competent authorities relating directly or indirectly to the provision or use of the Services by sending a copy of the said request or communication and/or all information relating thereto.

The Customer undertakes to use the Services only for its own needs and in particular not to resell all or part of the Services, alone or with other services, to third parties, unless expressly agreed by smsmode^©. The Customer warrants that the information provided is accurate and true. He undertakes to modify his account information in the event of any change.

The Customer undertakes to guarantee smsmode^© and its suppliers from any direct or indirect damage resulting from the Customer's breach of the General Terms and Conditions or the applicable Special Terms and Conditions, and in particular from any action brought against it, or any complaint lodged against it, by a third party, as a result of the Customer's use, or under the control of the Customer's identifier, of the Services under conditions that do not comply with the General Terms and Conditions, the applicable Special Terms and Conditions or the law. This warranty covers any amount that smsmode^© (or its suppliers) would be required to pay for any reason whatsoever, including legal fees and court costs.

 

7. Obligations of smsmode^©

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smsmode^© undertakes to provide and supply the Services in accordance with current French and European legal and regulatory provisions, and with the practices and rules of the IT services profession.

In particular, smsmode^© undertakes to :

• Comply with the legal obligations specific to the secrecy of correspondence sent by means of telecommunications, the violation of which is sanctioned by the provisions of Articles L.226-15 and 432-9 of the French Criminal Code, subject in particular to the provisions of the French Act No. 91-646 of 10 July 1991);
• Ensure the security, confidentiality and integrity of Messages and Personal Data concerning the Recipients communicated by the Customer under the conditions detailed in the "Personal Data" Appendix and, where applicable, the applicable Special Conditions;
• Provide the Services and make them accessible 24/7, excepted for interruptions, scheduled or otherwise, for security, maintenance or resulting from force majeure.

The Customer declares that he is aware of the specific characteristics and delivery times of the various Services offered by smsmode^©.

The obligations of smsmode^© are obligations of means. In particular, smsmode^© undertakes to use all available means to meet these deadlines, and to inform the Customer of any malfunction as soon as possible.

 

8. Personal Data

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The provisions applicable to the processing of Recipients' Personal Data by the Customer (data controller) and by smsmode^© (subcontractor) are set out in the Appendix "Personal Data" at the end of these General Terms and Conditions.

The provisions applicable to the processing of Personal Data provided by the Customer by smsmode^© (data controller) for the performance of these General Terms and Conditions are set out in the privacy policy of smsmode^© available on the Website.

 

9. Confidentiality and intellectual property

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In addition to the applicable provisions on Personal Data, the parties agree to keep confidential and not to use for their own benefit any information of a confidential nature, including, but not limited to, any trade secrets, proprietary information, commercial and financial details and any other information of commercial value (hereinafter "Confidential Information").

This article does not apply to Confidential Information which the recipient party can demonstrate is in the public domain or of which it was already aware at the time of its disclosure, that falls into the public domain subsequently other than by a breach of this clause or that came into the possession of the recipient party legally via a third party.

If an authority or a court requests Confidential Information, the parties will contact each other and cooperate to minimize the possible negative effects of such disclosure.

The Customer acknowledges that, should an authority or a court request smsmode^© or any of its suppliers to disclose information relating to the Customer or the use of the Service, smsmode^© or the supplier will be obliged to comply and provide this information.

The recipient party will return to the disclosing party all Confidential Information in the recipient party’s possession in any form upon termination or expiry of the Agreement.

The terms of this clause will survive the expiry or early termination of the Agreement, as long as the Confidential Information does not fall into the public domain

In addition, it is specified that the intellectual property rights to any software, information, technology or data whatsoever provided by one or other of the parties within the framework of the Agreement, shall remain the property of that party.

 

10. Liability

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• Client: the Client uses the Services under its entire and exclusive responsibility. In particular, the Customer is solely responsible for the use he makes of the Services and the Data he uses or communicates through the Services.
• smsmode^© : the parties acknowledge that, due to the complex nature of telecommunications networks and Services, the latter may be subject to undetected or unidentified malfunctions. The Contract is entered into by the parties with full knowledge of the possible existence of such malfunctions. smsmode^© is therefore only bound by an obligation of means, and may therefore only be held liable if it can be proved that it has not made all its resources available to the Customer in order to provide the Services in accordance with these General Terms and Conditions and the applicable Special Terms and Conditions. Being subject to an obligation of means, smsmode^© shall not be held liable for any damage whatsoever resulting from the unavailability of the Services that is not due to a proven fault on the part of smsmode^©.
  Under no circumstances, smsmode^© shall not be liable to the Customer for any consequential damages, including but not limited to loss of earnings, loss of business, profits, data, recordings or content, business interruption or inability to access, except as provided for in the applicable General Terms and Conditions and Special Terms and Conditions.
  The amount of damage for which smsmode^© may be held liable, under the conditions set out above, will be limited to the amount actually paid by the Customer for the provision of the Services concerned during the twelve (12) month period preceding the event which caused the damage.
  Any complaint concerning the performance, non-performance or improper performance of a Service must be notified in writing by the Customer to smsmode^© within 3 months of performance of the service or the date of the event causing the damage.
• Force Majeure: Neither party shall be liable for any breach of its obligations hereunder if such breach results from any act, fact or event beyond its control, in particular as a result of force majeure, including, without limitation, those events recognised as such by case law, and, without limitation: strikes, wars, import or export embargoes, lock-outs, accidents, fires, blockades, natural disasters, pandemics, disruptions, cuts and anomalies affecting transmissions through the telecommunications networks, delays, suspensions or interruptions of service by mobile telephone operators, orders from the Telecommunications Regulatory Authority imposing the total or partial suspension of GSM public radiotelephony, power cuts or any other technical difficulty or malfunction of the Internet network.
• Indemnification: Generally, each party shall indemnify the other party against all claims made by any third party in connection with the provision or use of the Services under this Agreement, provided that the party seeking indemnification (i) immediately notifies the other party of such third party claim, (ii) grants the other party control over the defence of such claim, (iii) does not enter into any negotiations or settlement without the consent of the other party, and (iv) co-operates in all respects with the other party in the defence of the claim.

 

11. Governing law, disputes and juridisction

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These General Terms and Conditions shall be governed by French law. In its relationship with the Customer, only the French version of these General Terms and Conditions shall be authentic.

In the event of a dispute relating to the validity, interpretation, performance or termination of these General Terms or Conditions or of the Agreement between the parties, the parties will try to resolve their dispute amicably. Failing this, within one month of the notification of the dispute by one party to the other party, the dispute will be submitted to the Commercial Court of Marseille, to which jurisdiction is expressly granted, even in the case of multiple defendants, emergency or summary proceedings. The dispute must be submitted within one year from the day the Party bringing the claim became aware or should have become aware of the facts on which its claim is based. The condition of amicable settlement will not apply in the case of summary or emergency proceedings.

 

12. General provisions

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Should any provision of this Agreement be null and void or unenforceable by virtue of a law, regulation or enforceable decision by a Court or competent authority, the parties expressly agree that the agreement shall not be affected by the invalidity of the aforementioned clause.

Failure by either party to require at any time the strict performance by the other party of any provision of these General Terms and Conditions may not be deemed to constitute a permanent waiver of such provision. Accordingly, each party may at any time request the strict and complete performance by the other party of this Agreement. The Customer grants to smsmode© the right to use and reproduce the name and logo of the Customer, for reference only, for any display or use on the Website or on any commercial media of smsmode©.

SPECIAL CONDITIONS OF SALE AND USE
OF THE SMS / TTS SENDING SERVICE