Terms & Policies
Last update on March 7, 2019
Preamble
SMASH & CO, a simplified joint stock company with a sole partner and with a paid up capital of €575,000, enrolled on the Trade and Companies Registry of Lyon, under number 828 889 493, whose head office is located at 2 rue Claire – 69009 Lyon (hereinafter referred to as “SMASH & CO”), publishes and operates the Internet site accessible at the following address https://fromsmash.com (hereinafter referred to as the “the SITE”).
The SITE offers a new generation file transfer service and additional services in the framework of the Premium version.
ANY USE WHATSOEVER OF THE SITE OBLIGATORILY IMPLIES UNRERSERVED ACCEPTANCE BY THE USER OF THE PRESENT GENERAL CONDITIONS OF USE (GCU).
Article 1. Definitions
In the present GENERAL CONDITIONS OF USE, the terms mentioned below have the following meanings:
”CLIENT”: means any physical or legal person subscribing to SMASH PREMIUM SERVICES.
“ACCOUNT”: means the interface hosted on the SITE on which all the data supplied by the CLIENT are collected. Access to the ACCOUNT is done via USER NAMES.
“GENERAL CONDITIONS OF USE” or “GCU”: means the present contractual conditions made available on the home page of the SITE, in order to provide a framework for its use by any USER.
“GENERAL CONDITIONS OF USING THE PREMIUM SERVICE” or “GCU PREMIUM”: means the general conditions of service regulating the Premium offer. It is hereby stipulated that there is a BtoC version of the GCU and a BtoB version of the GCU.
“USER NAMES”: means the email address and password chosen by the CLIENT, required to access their ACCOUNT on the SITE.
“PARTIES”: means the couple SMASH & CO and the USER.
“SITE”: means the internet SITE accessible at the address https://fromsmash.com. The SITE groups all the web pages, services and functionalities proposed 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 via 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 object of the present GENERAL USER CONDITIONS concluded between SMASH & CO on the one hand, and the USER on the other, is to stipulate the contractual provisions relating to the respective rights of the PARTIES in the framework of using the SITE and all the SERVICES offered on it.
Article 3. Acceptance of the general conditions
The use of the functionalities of the SITE and the SERVICES implies acceptance of the present GCU.
Thus, the USER undertakes to read the present GCU carefully when accessing the SITE and is invited to download them, print them and keep a copy.
It is hereby specified that the present GCU are referenced at the bottom of each page of the SITE by a hypertext link and can be consulted at any time.
Article 4. Technical specifications
By using the SITE, the USER acknowledges that they have the means and competences to use the SITE.
The equipment necessary for accessing and using the SERVICES and the SITE are at the charge of the USER, likewise for the telecommunications costs incurred by their use.
Article 5. Conditions of access and registration
Any USER can access the SITE and benefit free of charge from the SERVICES described in article 6.1 of the present GCU.
The USER wishing to become a CLIENT is invited to follow the registration procedure set out hereinbelow.
Article 5.1. CLIENT registration procedure
Ant USER wishing to benefit from the SMASH PREMIUM offer described in article 6.2. of the present conditions must create an ACCOUNT before becoming a CLIENT.
By clicking on “subscribe”, the USER is invited to provide the following information:
ACCOUNT information:
Email address
Password
Invoicing information:
Name
First name
Name of company (optional)
Address
Intracommunity VAT number (optional)
Payment information:
PayPal
Type of credit card, number, expiry date, security code
The USER wishing to become a CLIENT undertakes to provide SMASH & CO with precise, honest and updated data that do not impede in any way whatsoever the rights of third parties, and to communicate to SMASH & CO any update required of the data communicated during their registration.
Their data can be updated using the “Profile” tab of their ACCOUNT.
Lastly, the USER must validate the Premium GCU before finalizing their registration, that is to say their subscription to the Premium offer.
The email address and the password chosen by the CLIENT are their USER NAMES.
The CLIENT is wholly responsible for the exactitude and updating of the data communicated in the framework of opening and managing their ACCOUNT.
Article 5.2. USER NAME management
The CLIENT is solely responsible for using their USER NAMES and the actions performed through their ACCOUNT.
If a CLIENT discloses or uses their USER NAMES in a way contrary to their purpose, SMASH & CO may cancel the ACCOUNT without notice or compensation.
In no way whatsoever can SMASH & CO be held liable in the case of theft of the CLIENT’s identity. Any access and action performed in the CLIENT’s ACCOUNT shall be presumed to be made by the CLIENT, insofar as SMASH & CO does not have the technical resources to allow it to verify the identity of persons having access to its SITE through an ACCOUNT, nor is obliged to do so.
Any loss, misappropriation, or unauthorized use of the CLIENT’s USER NAMES and their consequences are the sole responsibility of the CLIENT, the latter being bound to inform SMASH & CO without delay by email addressed to: hello@fromsmash.com
Article 5.3. Subscription cancelation
The CLIENT can close their ACCOUNT at any time by sending an email to the address: hello@fromsmash.com
Article 6. Services
By using the SITE, the USER can Smasher, that is to say send files to an unlimited number of USERS.
The SMASH FREE SERVICE can be used by any USER free of charge.
To use the SMASH PREMIUM SERVICE, the USER must become a CLIENT in conformity with the provisions of article 5.1. of the present conditions and to the General Conditions of Service available here: https://fromsmash.com/es/essential/general-terms-of-sale
Article 6.1. SERVICES offered to all USERS: SMASH FREE
By clicking on the “S” tab, the USER can Smasher, meaning upload files in view to transferring them to another USER, with no limit on size or the number of addressees.
The USER must upload the file(s) and can add as many files they like by clicking on the “+ add” tab.
The USER must then choose the way they want to share their file or files. That is to say:
By email
By link
Article 6.1.1 Sharing by email
The USER must fill-in the following information:
Their email address;
Their name (optional);
The email address(es) of the addressees, knowing that the number of addressees is unlimited per transfer;
A subject (optional);
A message (optional).
At this stage, the USER can also use the following SERVICES:
They can customize the file downloading page. They can only choose a logo and screen background offered by SMASH & CO. If they want to add their own logo and screen background, the USER must become a CLIENT;
Customize the waiting message that will be displayed during the downloading of the files. They can only choose a logo and screen background offered by SMASH & CO. If they want to add their own logo and screen background, the USER must become a CLIENT;
Change the duration of the SMASH’s validity to keep control of its use for marketing and security requirements; however, the duration by default is 7 days and the use of the Smash Free SERVICE allows a maximum duration of validity of 14 days. At the end of the duration of validity, the files will be automatically deleted from SMASH & CO’s servers.
Add a password;
Activate / Deactivate the preview of the files;
Activate / Deactivate downloading notifications.
By clicking on “Smasher”, the file transfer starts immediately.
The initial USER receives an email at the email address filled-in to inform them of the SMASH transfer, and they are notified immediately the file has been downloaded by one of the addressees.
The addressee USER receives an email at the email address filled-in notifying them that they can download their files. The size of the file, the file storage expiry date and, possibly, the sender’s message are mentioned in this email.
The USER is wholly responsible for the exactitude of the email addresses communicated when using SMASH FREE.
Article 6.1.2 Sharing by link
The USER must fill-in the following information:
Their email address;
A title (optional);
A personalized link (optional).
At this stage, the USER can also use the SERVICES mentioned previously when they share their file(s) by email.
By clicking on “Smasher”, the file is transferred immediately.
Once the files have been loaded, the USER can copy the SMASH link.
The USER also receives an email at the email address filled-in to obtain a copy of the SMASH link and be informed that an upload has been performed.
Article 6.2. SERVICES offered to CLIENTS: SMASH PREMIUM
In addition to the SERVICES available in the SMASH FREE offer, the CLIENT may access the following SERVICES:
They can benefit from priority transfers, that is to say files larger than 2 GB, without restriction, and by priority in the transfer queue;
They can extend the file storage expiry date to 30 days.
Using their ACCOUNT, the CLIENT can also benefit from the following functionalities via their administration interface:
They can personalize the design of the file downloading page with a logo and screen background. To use this SERVICE, the CLIENT must click on the “Personalization” tab available on the administration interface;
They can personalize the content that will be displayed when their addressees are downloading their files. To use this SERVICE, the CLIENT must click on the “Promotional content” tab, then the “Create a campaign” tab available on their administration interface;
History of SMASHS;
They can delete the SMASHS they no longer wish to remain accessible;
Follow-up invoices;
Manage staff members authorized to Smasher, it being stipulated that they need only fill-in their email address in the transfer form of their SMASHS. To use this SERVICE, the CLIENT must click on the “staff members” tab available on their administration interface.
The subscription for SMASH PREMIUM SERVICES is subject to the General Conditions of Premium Services accessible at the following address: https://fromsmash.com/es/essential/general-terms-of-sale
Article 7. Obligations of the parties
Article 7.1. Obligations of the USERS
In the framework of using the SITE, each USER undertakes not to disturb public order and to conform to the laws and regulations in force, and to conform to the rights of third parties and the provisions of the present GCU.
The USER undertakes to conform to the philosophy of SMASH & CO. In this respect, they shall abstain from disseminating illegal files on the SITE and in a general way not violate directly or indirectly the rights of third parties.
Regarding file transfers, SMASH & CO formally forbids USERS from any form of violation of copyright and other rights inherent to files.
Each USER is obliged to:
Behave loyally and in good faith with regard to SMASH & CO and third parties;
Be honest and sincere with the information supplied to SMASH & CO and, when the occasion arises, to other USERS;
Use the SITE in conformity with its object as described in the present GCU;
Not to misappropriate the object of the SITE to commit illegal acts, offences or violations of the law punished by the Penal Code or any other law;
Respect the private life of third parties and the confidentiality of exchanges;
Respect the intellectual property rights of SMASH & CO bearing on the elements of the SITE and, when appropriate, the intellectual property rights of other USERS;
Not to seek to violate the meaning of articles 323-1 and following of the Penal Code regarding the automated data processing systems implemented on the SITE;
Not to modify the information onlined by SMASH & CO or by another USER;
Not to use the SITE to carry out mass unsolicited emails (for advertising or other reasons);
Not to transmit data intended to decrease, disorganize, slow down or interrupt the normal operation of the SITE.
In conformity with the legal and regulatory provisions in force and in conformity with the law of July 29,1981, relating to press freedom, the USER undertakes not to transmit contents that:
Denigrate SMASH & CO or the USER;
Disturb public order and good morality;
Are of a harmful, defamatory, racist, xenophobic, revisionist nature or which harm the honor and reputation of others;
Incite discrimination, hate of a person or group of persons due to their origin or their belonging or not belonging to a specific ethnic group, nation, race or religion;
Threaten a person or a group of persons;
Are of a pedophilic nature;
Incite violations of the law, a crime or terrorist actions or which constitute an apology for war crimes or crimes against humanity;
Incite persons to commit suicide;
Permit third parties to procure directly or indirectly pirated software, software serial numbers, software designed for committing acts of piracy and the hacking of computer and telecommunication systems, viruses and other logic bombs and in a general way any software used to harm the rights of third parties and the safety of persons and property;
Are of a commercial nature (prospection, solicitation, prostitution, etc.).
Article 7.2. Obligations of SMASH & CO
The general obligation of SMASH & CO is one of resources. SMASH & CO cannot be held to account for any obligation of result or additional resources of any sort whatsoever.
SMASH & CO undertakes to implement every resource needed to ensure continuous access and use of the SITE 24 hours a day 7 days a week.
SMASH & CO shall do its utmost to offer an optimized guarantee to secure the data transferred. SMASH & CO nonetheless draws its USER’s attention to the fact that the current Internet communication protocols do not allow the sure and continuous transmission of electronic messages (messages, documents, the sender’s and the addressee’s identities).
In the event of failure, the USER is immediately invited to report any fault on the SITE to the maintenance services of SMASH & CO which will process the request within the shortest possible time.
The USER acknowledges that they are responsible for taking all the measures necessary to ensure the technical characteristics of their computer and/or their computer network, allow them to access the services of the SITE and that they are responsible for taking all the appropriate measures required to protect their own data and/or software from contamination by possible viruses and malware circulating on the Internet or contracted by any other electronic means.
Article 8. Responsibility
Article 8.1. General principles
SMASH & CO declines any responsibility in particular:
if it is impossible to temporarily access the SITE due to technical maintenance operations or to updating published information. The USERS acknowledge that SMASH & CO’s responsibility cannot be invoked in the case of malfunctioning or interruptions of said communication networks;
in the case of viral attacks, illicit intrusion in an automated data processing system;
in the case of abnormal use or illegal operation of the SITE by a USER or a third party;
regarding the content of the Internet sites of third parties to which the hypertext links present on the SITE are attached;
in the case of non-compliance with the present GCU imputable to the USERS;
in the case of delay or non-performance of its obligations, when the cause of delay or non-performance is linked to a force majeure such as defined in article 9 of the present GCU;
in the case of an external cause not imputable to SMASH & CO;
in the case of an illicit action by a USER, or due to a breach of contract by the USER;
regarding the contents of SMASHS and the use made of them by the USERS.
In the case of abnormal use or the illicit utilization of the SITE, the USER is solely responsible for the damage caused to third parties and the consequences of the claims and actions that it may incur.
The USER is also solely responsible for the contents of their Smashs.
Article 8.2. Host status
The USER is hereby informed that SMASH & CO:
(i) has no means of controlling the content of the files uploaded and downloaded, exchanged and published by the USERS;
(ii) acts purely as a host in the framework of uploading, storage and distribution of this content;
(iii) plays no active role and supplies no assistance in the framework of presenting and using these contents, files and other information.
The USERS acknowledge the capacity of SMASH & CO as a host in the meaning of article 6 I 2° of the law of June 21 2004 relating to trust in the digital economy known as LCEN.
By virtue of the above, SMASH & CO reserves the capacity to withdraw any content signaled to it and which it considers to be patently illicit in the meaning of article 6 I 2° of the law of June 21, 2004, relating to trust in the digital economy known as LCEN.
The notification of patently illicit contents by a USER or any third party must be done by email sent to the address privacy@fromsmash.com or by registered letter with acknowledgement of receipt to: SMASH & CO – 2 rue de la Claire – 69009 Lyon, France.
In conformity with article 6 I 5° of the law of June 21, 2004, regarding trust in the digital economy known as LCEN, in order for the notification to be valid, it must contain the following items:
the date of the notification;
if the notifier is a physical person: their name, first names, profession, home address, nationality, date and place of birth; if the notifier is a legal person: its status, name, head office, and its legal representative;
the names and home address of the addressee or, in the case of a legal person, its name and head office;
the description of the litigious acts and their precise localization;
the reasons for which the content should be withdrawn, comprising the mention of the legal provisions and the proof of the acts;
the copy of the correspondence sent to the author or editor of the litigious information or activities requesting their interruption, withdrawal or modification, or the proof that the author or editor could not be contacted.
On receipt of the notification, SMASH & CO’s services will act promptly to withdraw this information or render its access impossible after having verified the veracity of said notification.
Article 9. 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 under the conditions stipulated in articles 1351 and 1351-1 of the Civil Code.
Consequently, 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; or by the interruption, suspension, reduction or disturbances of electricity or any or all interruptions of electronic communications networks, or by 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 legal proceedings 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 10. Intellectual property
Article 10.1. 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 10.2 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 contents, 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 contents 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 contents 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 GCU 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 GCU.
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 11. Protection of 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/es/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 GDPR), 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 RGPD, 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 12. User service
Any question or claim regarding the use and operation of the SITE can be sent according to the following procedures:
By email to the following address: hello@fromsmash.com;
By letter to SMASH & CO – 2 rue de la Claire – 69009 Lyon, France.
Article 13. Validity of the GCU
If any one of the stipulations of the present CGU should be declared null and void with respect to a legal or regulatory provision in force and/or a decision of justice having authority of the subject judged, it shall be considered as not having been written but in no way shall this affect the validity of the other clauses which shall remain fully applicable.
Such a modification or decision in no way authorizes the USERS to forego reading the present GCU.
Article 14. Modification of the GCU
The present GCU apply to any USER browsing on the SITE.
The GCU may be modified and updated by SMASH & CO at any time, notably to adapt to changes in legislation and regulations.
The GCU applicable are those in force at the time of browsing on the SITE
Article 15. General provisions
If one of the PARTIES has not demanded the application of any one of the clauses of the present GCU, whether permanently or temporarily, this does not mean that it has renounced the enforcement of said clause.
In the case of difficulty of interpretation between one of the titles featuring as headings of the clauses, and any one of the latter, these titles shall be declared non-existent.
Article 16. Competence and applicable law
THE PRESENT GCU AND THE RELATIONS BETWEEN THE USER AND SMASH & CO ARE SUBJECT TO FRENCH LAW.
In the case of a dispute arising between SMASH & CO and the USER regarding the interpretation, performance or cancellation of the present GCU, the PARTIES shall attempt to reach an amicable solution.
If such be the case, the USER is first invited to contact the mediation service of SMASH & CO at the following address: hello@fromsmash.com
If no agreement is reached, an optional mediation procedure shall be proposed, applied in a spirit of loyalty and good faith in view to reaching an amicable agreement if any dispute occurs relating to the present contract, including regarding the subject of its validity.
In application of article L. 616-1 of the Consumer Code, SMASH & CO hereby communicates to the consumer the address of the consumer mediator relevant to their case. The USER can therefore contact:
[Name of the mediator to be filled-in], [Address of the mediator to be filled in], which can be entered via this link: [to be completed]
The PARTY wishing to implement the mediation process must have informed the other PARTY beforehand by registered letter with acknowledgement of receipt mentioning the elements of the conflict.
Since the mediation is not obligatory, the USER or SMASH & CO can withdraw from the process at any moment.
In the case where the mediation fails or is not considered, the dispute that would have given rise to the mediation shall be entrusted to the competent jurisdiction designated hereinabove.