General Conditions of Services
Last update August 25, 2022
Preamble
The present general conditions of the PREMIUM service apply to any subscription to the SMASH PREMIUM SERVICE, taken out by a physical person having professional status (hereinafter referred to as “the CLIENT”) on the internet site https://fromsmash.com of SMASH & CO, a simplified joint stock company with a sole partner with a paid up capital of €575,000.00, enrolled on the Registry of Trade and Companies of Lyon, under number 828 889 493, whose head office is at 2 rue Claire – 69009 Lyon, email: sales@fromsmash.com (hereinafter referred to as “SMASH & CO”).
The SITE offers a new generation file transfer service and additional services in the framework of the PREMIUM version.
The present GCS can be accessed and printed at any time via a hypertext link available on the homepage of the SITE.
IMPORTANT: Any subscription to the SMASH PREMIUM SERVICE taken out on the SITE obligatorily implies unconditional acceptance by the CLIENT of the present general conditions of services.
Article 1. Definitions
In the present General Conditions of PREMIUM Services, the terms used hereinafter have the following meanings:
“SUBSCRIPTION”: means the subscription by the CLIENT to the SMASH PREMIUM SERVICE under the conditions of the present GCS. Two types of SUBSCRIPTION are offered by SMASH & CO.
“CLIENT”: means the co-contractor of SMASH & CO, who declares they are a professional person or entity as defined by French law and jurisprudence. By virtue of this, it is expressly intended that the CLIENT shall act in the framework of their usual commercial or non-commercial activity.
“ACCOUNT”: means the interface hosted on the SITE on which are grouped all the data supplied by the CLIENT. Access to the ACCOUNT is done using USER NAMES.
“GENERAL CONDITIONS OF USE” or “GCU”: means the contractual conditions made available on the homepage of the SITE, which provide a framework for its use by any USER.
“GENERAL CONDITIONS OF THE PREMIUM SERVICE” or “GCS”: means the present general conditions of service giving a framework to the Premium offer and applicable to professional CLIENTS.
“USER NAMES”: means the email address and the password chosen by the CLIENT, needed to access their account on the SITE.
“PARTIES”: means the couple SMASH & CO and the CLIENT.
“SITE”: means the internet SITE accessible at the address https://fromsmash.com. The SITE groups all the web pages, services and functionalities offered to the USERS.
“SMASH FREE”: means the SERVICES offered by SMASH & CO and which can be used free of charge via the SITE by any USER.
“SMASH PREMIUM”: means the SERVICES accessible only to a CLIENT that has previously paid a subscription.
“SMASHS”: means file transfers performed vis the SITE.
“SERVICES”: means all the services offered by SMASH & CO to USERS via the SITE, and notably the capacity to perform SMASHS.
“USER”: means any person who accesses and browses on the SITE, whether they are a CLIENT, user of the SMASH FREE offer or simple internaut.
Article 2. Object
The present General Conditions govern the SUBSCRIPTION to the SMASH PREMIUM SERVICES via the SITE.
The CLIENT is clearly informed and acknowledges that the SMASH PREMIUM SERVICE is intended for consumers and professionals, but that the present General Conditions of Services govern only the SUBSCRIPTION to the Services subscribed to by a professional.
Article 3. Acceptance of the general conditions
The CLIENT undertakes to read the present conditions carefully and accept them before paying their SUBSCRIPTION.
The present GCS are referenced at the bottom of each page of the SITE by a link and can be consulted and expressly accepted before taking out the subscription. The CLIENT is invited to read, download and print the General Conditions and keep a copy of them.
SMASH & CO advises the CLIENT to read the present GCS before taking out a new SUBSCRIPTION, as the latest version of said General Conditions of Service apply to any new SUBSCRIPTION to SMASH PREMIUM.
By clicking on the first button “Subscribe” and then on “Pay” to confirm their subscription, the CLIENT acknowledges that they have read, understood and accept the GCS without limitation or condition.
Article 4. Information to the client
The CLIENT acknowledges that they have checked the correspondence of the offer and the SERVICES to their needs and that they have received from SMASH & CO the necessary information and advice to subscribe to the present contract in full cognizance.
Article 5. Subscription to SMASH PREMIUM
To subscribe to SMASH PREMIUM, the USER must create an ACCOUNT in order to become a CLIENT, in conformity with the provisions of article 5.1. of the General Conditions of Use at the following address: https://fromsmash.com/de/essential/terms-policies.
The CLIENT can choose between the following two offers of SUBSCRIPTION:
A Pro SUBSCRIPTION, billed at 10 euros per month exclude taxe or 72 euros per year;
A Team SUBSCRIPTION, billed at 25 euros per month exclude taxe or 180 euros per year.
As from their SUBSCRIPTION, the CLIENT benefits from all the SMASH PREMIUM SERVICES.
Article 6. SMASH PREMIUM SERVICES
Article 6.1. Characteristics of SMASH PREMIUM SERVICES
The SERVICES offered by SMASH & CO via the SITE allow the USER to perform SMASHS, that is to say upload files in order to transfer them to another USER, without limit of size or number of addressees.
By subscribing to SMASH PREMIUM, the CLIENT can use the following additional SERVICES:
They can perform priority transfers, that is to say large files exceeding 2 GB, without restriction, and in priority in the processing queue file;
They can increase the duration of file storage up to 30 days.
Using their ACCOUNT, the CLIENT can also benefit from the following functionalities via their administration interface:
They can customize the design of the file downloading page with a logo and screen background. To use this SERVICE, the CLIENT must click on the “Customization” available on their administration interface;
They can customize the content that will be displayed during the downloading of files by your addressees. To use this SERVICE, the CLIENT must click on the “Promotional content” tab, then “Create a campaign” tab available on their administration interface;
History of SMASHS;
The deletion of SMASHS they no longer wish to remain accessible;
Follow-up invoices;
Manage staff members authorized to Smash, it being stipulated that said staff members need only fill-in their email address in the send form of their SMASHS. To use this SERVICE, the CLIENT must click on the “staff members” tab available in their administration interface.
Article 6.2. SMASH PREMIUM procedure
After registering and taking out the SUBSCRIPTION, the CLIENT can login their ACCOUNT using their USER NAMES by clicking on the “Login” tab.
At this stage, the CLIENT can access all the additional SERVICES and SMASH, that is to say transfer files to the addressees they choose and access all the SERVICES.
By clicking on the “SMASH” tab, the CLIENT can upload the file(s) they choose.
The CLIENT must then choose the way they want to share their file(s). That is to say:
By email
By link
Article 6.2.1 Sharing by email
The CLIENT must enter the following information:
Their email address;
Their name (optional);
The email address(es) of the addressee(s), knowing that the number of addressees is unlimited per dispatch;
A subject (optional);
A message (optional).
At this stage, the CLIENT can also use the following SERVICES:
Customize the design of the file downloading page with their own logo and screen backgrounds;
Customize the waiting message that will be displayed during the downloading of the files with their own image and/or video contents;
Modulate the expiry date of their SMASH to maintain control of its use for marketing or security purposes, it being stipulated that the duration by default is 7 days and that using the SMASH PREMIUM SERVICE allows a maximum storage expiry period of 30 days. At the end of the expiry period, the files are automatically deleted from the servers of SMASH & CO.
They can add a password;
They can Activate / Deactivate the preview of the files;
They can Activate / Deactivate the downloading notifications.
The CLIENT is invited to check the contents of their transfer (including the files selected, the addressee’s email address, the expiry date), before Smashing.
By clicking on “SMASH”, the file is transferred immediately.
The CLIENT will receive an email at the email address filled-in informing them that the SMASH has been sent to the addressee(s).
Once the SMASH has been performed, the CLIENT can perform as many transfers they want during the period of their SUBSCRIPTION.
Article 6.2.2 Sharing by link
The CLIENT must enter the following information:
Their email address;
A title (optional);
A customized link (optional).
At this stage, the CLIENT can also use the SERVICES mentioned previously above when they share their file(s) by email.
By clicking on “SMASH”, the file is transferred immediately.
Once the file(s) has/have been uploaded, the CLIENT can copy the SMASH link.
The CLIENT also receives an email at the email address filled-in in order to have a copy of the SMASH link and be informed that a download has been performed.
Article 6.3. Acknowledgement of receipt
Once all the steps described above have been completed, a page is displayed on the SITE in order to acknowledge receipt of the SUBSCRIPTION. A copy of the acknowledgement of receipt of the SUBSCRIPTION is sent automatically to the CLIENT by email, provided that the email address entered on the inscription form is correct.
Article 6.4. Invoicing
When making the order, the CLIENT must enter the information required for invoicing.
After payment, an invoice in electronic format is issued by SMASH & CO and made available to the CLIENT via the “Invoice” tab of the interface of their ACCOUNT.
Article 6.5. Order date
The date of the order is the date on which SMASH & CO acknowledges receipt online of the SUBSCRIPTION taken out by the CLIENT.
Article 6.6. Fair use of SMASHS storage
Our SMASH SERVICE provides the ability to store files ephemerally. However, this feature is governed by fair use. If the CUSTOMER uses this feature more than 99% of the other customers, i.e. very large files are stored for a long period of time, we may, at our discretion, ask you to delete transfers that do not comply with the SMASHS fair use storage policy, ask you to switch to a more appropriate subscription, or terminate your ACCOUNT, upon written notice.
Article 7. Financial conditions
Article 7.1. Price
The CLIENT will find on the SITE the prices displayed in Euros including tax for all the SERVICES.
The prices include in particular the value added tax (VAT) in force on the date of taking out the SUBCRIPTION. Any modification of the applicable rate may have an impact on the SERVICES counting from the date of entry into force of the new rate.
The rate of VAT applicable is given in percentage of the value of the SERVICE.
The price of the SUBSCRIPTION is that indicated on the SITE at the time of payment. SMASH & CO reserves the right to modify its prices at any time, while guaranteeing the CLIENT the application of the price practiced on the day of the order.
Article 7.2. Conditions and means of payment
The price is paid on the day of payment on the SITE, according to the means of payment accepted by STRIPE, an online payment solution (in principle, all bank cards) that is responsible for securing said payment.
The CLIENT can also pay via PAYPAL, whose general conditions are accessible at the following address: https://www.paypal.com/fr/webapps/mpp/ua/useragreement-full
The CLIENT certifies to SMASH & CO that they possess all the authorizations necessary to use the means of payment chosen.
The payment is ensured by a secured solution that incorporates an encryption process in SSL mode (Secure Socket Layer).
The General Conditions of STRIPE can be accessed at the following address: https://stripe.com/fr/legal
SMASH & CO will take every measure required to guarantee the security and confidentiality of the data transmitted online in the framework of online payment on the SITE.
Consequently, it is hereby stipulated that all the information concerning the payment supplied on the SITE is sent to the bank of the SITE and is not processed on the SITE.
Article 7.3. Delay or refusal of payment
If the bank refuses to debit a card or other means of payment, the CLIENT must contact the Client Service of SMASH & CO in order to pay the order for the SUBSCRIPTION using any other valid means of payment.
If, for any reason whatsoever, opposition, refusal or other, the transfer of the money due by the CLIENT proves to be impossible, the demand for SUBSCRIPTION shall be cancelled.
Article 8. Term
According to the SUBSCRIPTION offer chosen by the CLIENT, the present contract is concluded for a term of (1) month, or for a term of twelve (12) months.
The SUBSCRIPTION shall then be renewed automatically and tacitly for the same term, unless the CLIENT requests its cancelation during the term in progress.
The cancelation of the SUBSCRIPTION must be done by the CLIENT, who does so by clicking on the “unsubscribe” button located in the “Subscription” tab of their ACCOUNT.
The cancelation shall only become effective on the anniversary date of taking out the SUBSCRIPTION, and the invoices issued up to this date shall remain due.
SMASH & CO grants itself the right to automatically delete a CLIENT's files 28 days after the end of the SUBSCRIPTION.
Article 9. The client’s responsibility according to labor laws
When the subscribing CLIENT who gives access to their ACCOUNT to other USERS is also an employer subject to the Labor Code, SMASH & CO reminds the CLIENT that they are responsible for:
i. Carrying out all the legislative and regulatory formalities in force, in particular and not limited to labor laws and to the CNIL, stemming from the use of SMASH & CO in this framework.
ii. Provide a Computer Charter regulating the use of access by other USERS. In application of article L.1321-5 of the Labor Code, the Computer Charter represents an addition to the rules of procedure. The object of this text is notably:
To ensure that the use of the SERVICES is reserved for strictly professional uses;
To set out the responsibility of salaried users;
To ensure that utilization is carried out in conformity with the computer system with respect to the legislative and regulatory provisions;
To secure the computer system;
To ensure the conditions of the right to disconnect.
SMASH & CO recalls that the other staff member USERS are subject to the General Conditions of Use of SMASH & CO, which can be accessed on the following address: https://fromsmash.com/de/essential/terms-policies, in the same way as the CLIENT.
THE CLIENT EMPLOYER IS RESPONSIBLE TO SMASH & CO FOR ALL THE CONTENTS OF THE SMASHS SENT IN THIS FRAMEWORK AND SMASH & CO DECLINES ANY RESPONSIBILITY FOR SAID CONTENTS, CONSIDERING THAT IT HAS NO CONTROL OVER THESE CONTENTS.
Article 10. Responsibility
The responsibility of SMASH & CO cannot be invoked in any way whatsoever in the case of non-performance or poor performance of the contractual obligations imputable to the CLIENT, in particular when taking out the SUBSCRIPTION.
SMASH & CO cannot be held responsible, or considered as having breached the present conditions, for any delay or non-performance, when the cause of the delay of non-performance is linked to a case of force as defined by the jurisprudence of the French Courts and Tribunals.
It is furthermore specified that SMASH & CO does not control the web sites that are directly or indirectly linked to the SITE. Therefore, it refuses any responsibility for the information published on them. The links to the web sites of third parties are only provided by way of indication and no guarantee is provided regarding their contents.
Article 11. Force majeure
The liability of SMASH & CO cannot be invoked if the non-performance or delay in the performance of one of its obligations described in the present GCU stems from a case of force majeure.
Force majeure occurs contractually when an event escaping the control of the debtor, which could not be reasonably foreseen when concluding the contract and whose effects cannot avoided by appropriate measures, prevents the debtor from performing their obligation.
If the incapacity is temporary, the performance of the obligation is suspended, at least if the resulting delay does not justify the cancellation of the contract. If the incapacity is definitive, the contract shall be cancelled by full right and the parties shall be released from their obligations in the conditions stipulated in articles 1351 and 1351-1 of the Civil Code.
Consequently, the SMASH & CO’s liability cannot be invoked in particular in the case of attack by computer hackers, the non-availability of hardware, supplies, spare parts, personal equipment and others; and the interruption, suspension, reduction or disturbances of electricity or any or all interruptions of electronic communications networks, as well as in the case of any circumstance or event outside the will of SMASH & CO occurring after the conclusion of the GCU and preventing performance in normal conditions.
It is hereby stipulated that should such a situation arise, the USER cannot claim the payment of any compensation and cannot take out any law suit against SMASH & CO.
In the case of occurrence of the events mentioned above, SMASH & CO shall do its utmost to inform the CLIENT as soon as possible.
Article 12. Personal data
In the framework of operating the SITE, SMASH & CO may collect data of a personal nature.
These data are necessary for the supply of SERVICES. The data are stored confidentially by SMASH & CO for the needs of the contract, its performance and compliance with the law.
Therefore, the USER is invited to consult the Confidentiality Policy, accessible at the following address: https://fromsmash.com/de/essential/privacy, which will give them all the information relating to the protection of personal data, and to the processes performed via the SITE.
In conformity with law no.78-17 of January 6, 1978, relating to computing and freedom and to Regulation (EU) 2016/679 of the European Parliament and Council of April 27, 2016, relating to the protection of physical persons regarding the processing of personal data and their unrestricted circulation, and annulling directive 95/46/CE (General Regulation on data protection known as RGPD), SMASH & CO ensures that the rights of the persons concerned are upheld.
It is hereby recalled that the USER whose personal data are processed benefits from rights to access, correct, update, ensure data portability and erase information concerning them, in conformity with the provisions of articles 49, 50 and 51 of the law on computing and freedom since amended, and with the provisions of articles 15, 16 and 17 of the European General Data Protection Regulations (GDPR).
In conformity with the provisions of article 56 of the law on computing and freedom, since amended, and the provisions of article 21 of the GDPR, the USER can also, for legitimate reasons, oppose the processing of the data concerning them, without it being necessary to provide a reason, and at no cost.
The USER can exercise their rights by sending an email to the address: privacy@fromsmash.com or a letter to SMASH & CO – 2 rue de la Claire - 69009 LYON, FRANCE.
For certain purposes, SMASH & CO shall have the capacity of subcontractor, since the CLIENT is responsible for processing. These items are stipulated in a separate subcontracting agreement, sent to the CLIENTS concerned beforehand.
Article 13. Claims
Any question or claim concerning the use or functioning of the SITE can be formulated according to the following producers:
By email to the following address: hello@fromsmash.com;
By letter to SMASH & CO – 2 rue de la Claire – 69009 Lyon, France;
Article 14. Intellectual property
Article 14.1. Ownership of the USERS’ intellectual property rights
A file may be subject to several rights:
Copyright (intellectual property right);
Image rights of the people possibly featuring on the images;
The image rights of works of art (such as, though not exhaustively, paintings, sculptures, images, furniture, decorative objects, etc.) possibly featuring on the image and protected by copyright from the moment they form the main subject;
The right of trademarks, patents, drawings and models.
Regarding this, the USERS are warned that they must, prior to performing any SMASH on the SITE, make sure they hold all the ownership rights or, if possible, gain possession of the rights pertaining to said files.
They are solely responsible for actions in response, in particular in the case of forgery or any other harm to the rights of a third party, that may occur through the transfer of a file performed by them.
On its side, SMASH undertakes to guarantee the perfect confidentiality of the files uploaded and transferred between the USERS, so that no other person except the sending USERS and the receiving USERS AS CHOSEN BY THE SENDING USER shall have access to said files.
SMASH also undertakes not to partake in any commerce of the files uploaded and exchanged between the USERS.
Whatever the case, SMASH & CO cannot be held liable for an act of forgery, given that it simply acts as host of the files published by the USERS.
Article 14.2. Ownership of SMASH & CO’s intellectual property rights
The USER acknowledges SMASH & CO’s intellectual property rights over its SITE, its components and the contents pertaining to it and renounces making any form of claim whatsoever over these rights.
The trademarks, logos, slogans, graphics, photographs, animations, videos, software solutions and texts and any other content of the SITE are the exclusive intellectual property of SMASH & CO and cannot be reproduced, used or represented without express authorization under pain of legal proceedings.
Any representation or reproduction, total or partial, of the SITE and its content, by whatever process whatsoever without the prior express authorization of SMASH & CO, is forbidden and shall constitute a forgery punishable according to articles L.335-2 and following and articles L.713-1 and following of the Intellectual Property Code.
In particular, SMASH & CO expressly forbids:
The extraction, by permanent or temporary transfer of all or a part, qualitatively or quantitatively substantial, of the content of its database on any medium, by any means and in any form whatsoever;
The reutilization, by making available to the public all or a part, qualitatively or quantitatively substantial, of the content of the database, whatever the form;
The reproduction, extraction or reutilization, by any means, of the contents (photographs, description, etc.) published by SMASH & CO or by a USER.
The acceptance of the present GCS signifies that the USERS acknowledge the intellectual property rights of SMASH & CO and that they are committed to respecting them.
SMASH & CO grants a personal, non-exclusive and non-transferrable license to the USERS that authorizes them to use the SITE and the information that it contains in conformity with the present GCS.
Any other utilization of the SITE and its contents is excluded from the scope of the present license and cannot be done without the prior express authorization of SMASH & CO.
Article 15. Validity of the General Conditions
Any modification of the legislation or regulations in force, or any decision of a competent court that invalidates one or more clauses of the present General Conditions shall not affect the validity of present General Conditions. Such modification or decision does not in any way authorize CLIENTS to ignore the present General Conditions.
Article 16. Modification of the General Conditions
The present General Conditions apply to any SUBSCRIPTION to the SERVICES taken out online on the SITE, as long as the SITE is available online.
The present General Conditions are dated precisely and may be modified and updated by SMASH & CO at any time. The General Conditions applicable are those in force at the time of taking out the SUBSCRIPTION.
The modifications made to the General Conditions do not apply to SUBSCRIPTIONS already taken out.
Article 17. Competence and applicable law
The Present General Conditions and the relations between the CLIENT and SMASH & CO are subject to French law.
The PARTIES shall attempt to reach an amicable solution to any dispute arising between them regarding the interpretation, performance or cancellation of the present General Conditions.
FAILING AMICABLE AGREEMENT WITHIN A PERIOD OF ONE (1) MONTH COUNTING FROM THE DATE WHEN ONE OF THE PARTIES MAKES KNOWN THEIR DISAGREEMENT, THE DISPUTE MAY BE PRESENTED BEFORE THE TRIBUNALS OF THE COURT OF APPEAL OF LYON WHICH ARE EXPRESSLY ASSIGNED AS HAVING COMPETENCY, NOTWITHSTANDING MULTIPLE DEFENDENTS OR THE INTRODUCTION OF THIRD PARTIES, INCLUDING FOR URGENT OR PRECAUTIONARY PROCEDURES, SUMMARY JUDGEMENT OR PETITION.