The present General Terms and Conditions of Sale are an integral part of the Contract concluded between MAILSOAR, limited liability company organized under the laws of France, with a share capital of 1,000 euros, registered under number 884 139 544 RCS Lyon, having its registered office at 558 Chemin du Panorama, 69300, Caluire-et-Cuire, France (hereinafter the “Service Provider” or “MAILSOAR“; SIRET number: 884 139 544 00016 / intra-community VAT number: FR10884139544) and the Client (hereinafter the “Client“).

MAILSOAR is specialized in the assistance, advice and support of its Clients in the information technology field and more particularly in the assistance, advice and support of its Clients in the implementation and realization of their Emailing Campaigns.

The Client could have access to all the information which it considers necessary, relating to the Services proposed and provided by MAILSOAR and is solely responsible for the adequacy of the Services proposed by MAILSOAR to its needs. In any event, the Client acknowledges that the Services proposed by MAILSOAR correspond and are in adequacy with its needs and expectations.

The present General Terms and Conditions of Sale apply throughout the duration of the Contract concluded between MAILSOAR and the Client.

1. Contractual documents

The Contract comprises the following documents in descending order of importance:

  • The Subscription Form for the Services of Deliverability proposed by MAILSOAR and signed by the Client.
  • The Pricing Schedule.
  • The present General Terms and Conditions of Sale of MAILSOAR.

The documents listed above constitute the entirety of the agreement between the Parties (i.e., the Contract), with regard to the object of the Contract and replace and cancel all declarations, negotiations, commitments, oral or written communications, acceptances, and prior agreements between the Parties, relating to the same object.

The Contract shall prevail over any other document and over the Client’s documents, including any terms and conditions of purchase.

The Contract may only be modified by means of a written amendment signed by the Parties by a duly authorized representative, except in the cases expressly referred to in Article 13.4 of these General Terms and Conditions of Sale.

A reference to a document, standard, legislative provision, code, or any other document implies any modification or update of this document, standard, legislative provision or code.

2.Definitions

2.1        For the needs of the present Terms and Conditions of Sale, all capitalized terms (whether in the singular or plural) used in these Terms and Conditions of Sale, and more generally in the Contract, shall have the following definition:

Emailing Campaign(s) ” refers to the emailing campaigns carried out by the Client.

General Terms and Conditions of Sale ” refers to the present General Terms and Conditions of Sale MAILSOAR relating to the Services of Deliverability.

Client(s) ” designates one (or, if necessary, several) Client(s) of the Company MAILSOAR. A Client is a natural person or a legal entity which has signed, for the needs of its activity, a Contract with MAILSOAR.

Data(s) ” designates any type of data and/or information, of any nature whatsoever, which are transmitted and/or communicated, by any means whatsoever and/or to which one of the Parties gives access to the other Party, on any support whatsoever, within the framework of the Contract for the needs of the realization of the Services.

Subscription Form ” refers to the subscription form that is sent by MAILSOAR to the Client, at the Client’s request.

Pricing Schedule ” refers to the pricing schedule of MAILSOAR, attached to Appendix n°1 of the Contract.

Infrastructure ” designates a software used by the Client for the needs of its Emailing Campaigns.

Partner(s) ” designates any partner entity or service provider of MAILSOAR intervening within the framework of the Contract, in any manner whatsoever, in particular for technical and/or operational needs, alongside MAILSOAR.

Service(s) “ or ” Deliverability Service(s) ” refers to all the services provided by MAILSOAR under the Contract. These services are functions of the Service(s) selected by the Client. The Services are referred to in Article 5 of the present General Terms and Conditions of Sale.

MAILSOAR ” or ” Service Provider ” refers to MAILSOAR, a limited liability company organized under the laws of France, with a share capital of 1,000 euros, registered under number 884 139 544 RCS Lyon, having its registered office at 558 Chemin du Panorama, 69300, Caluire-et-Cuire, France.

Third-Party ” means any person other than the Service Provider and/or the Client.

3. Object of these General Conditions of Sale

The purpose of these General Terms and Conditions of Sale is to define the rights and obligations of the Parties under the Contract as well as the terms and conditions for the performance of the Contract.

4. Limary

4.1            The Client accepts and acknowledges that the Subscription Form for the Services of Deliverability proposed by MAILSOAR Company has been sent to it by MAILSOAR Company by e-mail, at its request and that the Services referred to in the said Subscription Form correspond to the Services that it has selected after discussions with MAILSOAR Company.

The Client acknowledges having access to the Contract in its entirety prior to its signature and in particular of the Pricing Schedule and the General Terms and Conditions of Sale.

4.2            The Client signs the Contract via an electronic procedure set up by MAILSOAR or remotely by the exchange of e-mails.

For this reason, the Parties acknowledge that all documents exchanged between them and signed by electronic means or by exchange of e-mails will be authentic and valid between them, in the same way as paper copies signed and exchanged in a handwritten way.

The Parties acknowledge that the technical process of electronic signature implemented makes it possible to guarantee and constitute proof of: (i) the identification of the signatory of the document, (ii) the preservation of the integrity of its contents, (iii) the preservation of the confidentiality of the Data and contents, and (iv) the time stamping of dispatch and receipt.

The Parties expressly waive the right to challenge the admissibility, validity, and probative value of the electronic signature process. The Parties also acknowledge that documents signed by electronic means will be admitted as originals before the courts and will be proof of the contents they contain, proof that is admissible, valid, and enforceable between them, in the same way, under the same conditions and with the same probative force as a document that bears a handwritten signature, in accordance with Articles 1366 to 1368 of the French Civil Code.

The electronic signature certificate is available to the Parties, and in any event, upon simple written request by the Client.

The Parties may also sign the Contract on paper.

4.3            By signing a Contract with MAILSOAR and in order to be able to benefit from the Service(s) of Deliverability to which the Client subscribes, the Client undertakes to inform and/or hand over at the time of the signature of the Contract and/or to send to MAILSOAR (by e-mail), at the latest within eight (8) days following the signature of the Contract (hereafter the “Registration Data”):

  • A certificate of incorporation of the signatory legal entity (or the equivalent when the Client is a company under foreign law or a natural person).
  • a copy of the identity document of the legal representative of the signatory person (it being specified that only the legal representative may sign the Contract in the name and on behalf of the Client, unless it is expressly agreed otherwise between the Parties, and in particular after communication to MAILSOAR of a valid delegation of power).
  • a bank statement and the SEPA (direct debit) authorization when a direct debit has been set up between MAILSOAR and the Client within the framework of the Contract.

4.4            The Client accepts and acknowledges that MAILSOAR is entitled to refuse to allow the Client to benefit from the Service(s) of Deliverability that it offers and which is (or are) the subject of the signed Contract even if the latter has sent it all the above-mentioned documents, in particular in the hypothesis where MAILSOAR has reasonable and/or legitimate doubts as to the accuracy and/or the truthfulness of the information communicated by the Client within the framework of his subscription to the Service(s) of Deliverability and in particular with regard to its identity and/or his rights on the Data object of the Contract. In such a case, MAILSOAR may terminate the Contract according to the terms and conditions stipulated in Article 9 of the present General Terms and Conditions of Sale.

4.5         In the event that the Client wishes to benefit from the Service(s) of Deliverability proposed by MAILSOAR for several companies (or entities), the Client shall conclude with MAILSOAR a Contract for each concerned company (or entity).

4.6            The information and/or documents referred to in Article 4.3 of the present General Sales Conditions (i.e., the Registration Data) must, throughout the duration of the Contract, be valid, exact and sincere.

Any modification, whatever its nature and/or scope, of any of the information contained in the documents referred to in Article 4.3 of the present General Terms and Conditions of Sale or in the header of the Subscription Form must be communicated in writing to MAILSOAR by the Client as soon as possible and at the latest three (3) working days after the said modification. The Client may send this new information by e-mail to the following e-mail address: pierre@mailsoar.com.

5.Service(s) of Deliverability proposed by MAILSOAR

5.1 General presentation of the Service(s) of deliverability

MAILSOAR offers to its Clients Service(s) of Deliverability to accompany them in the improvement and optimization of their Emailing Campaigns.

The Service(s) of Deliverability proposed by MAILSOAR consist in three (3) main Services.

The Service Provider is bound to an obligation of means within the framework of each of these Services of Deliverability. Expressly, the Client accepts and recognizes that the Service Provider is not held to an obligation of result and renounces, in an irrevocable and final way, to claim that MAILSOAR would have been held, in any way, to any result in its respect and related to the deliverability of its Emailing Campaigns or to the achievement of its marketing objectives.

The Client accepts and recognizes that the Services of Deliverability proposed by MAILSOAR consist essentially in consulting, advice, and support Services.

In addition, the Client accepts and acknowledges that it subscribes to the Services proposed by MAILSOAR to accompany it in the realization of its Emailing Campaigns, which will be directly realized and implemented by the Client.

5.2 The Service of “Audit of Deliverability”

5.2.1     The Service of Audit of Deliverability consists in the carrying out and realization by MAILSOAR of an Audit of Deliverability of the Infrastructure(s) used by the Client within the framework of its Emailing Campaigns.

The Deliverability Audit Service comprises and includes:

  • the Analysis of the Client’s Infrastructure(s), according to the terms chosen by the Client in the Subscription Form signed with MAILSOAR.

The analysis of the Client’s Infrastructure(s) includes:

  • A technical analysis which consists of a verification of the authentications, a panel test and if necessary, any other test that may give additional information on the quality of the setup, the IP, the domain, and the technical dimension of the Infrastructure’s deliverability.
  • An analysis of the Client’s Data, which consists of an analysis and reprocessing of mailing statistics.
  • A content Analysis, which consists of an analysis of the most frequently sent content with regard to the correct reception of the message in the main mailbox.
  • Recommendations for the improvement of the deliverability of the Client’s Emailing Campaigns: these recommendations are presented in the form of conclusions, recommendations, and a list of actions to be taken to implement each recommendation.

The Deliverability Audit Service does not and does not include:

  • the implementation of the recommendations.
  • the performance of extensive testing such as a study of the placement of e-mails from an entire transactional library (unless prior agreement is reached before the audit).
  • subscription to any third-party monitoring service. Or
  • any other service or action not explicitly mentioned.

The Deliverability Audit will be presented by MAILSOAR to the Client directly during a meeting and will be sent to him on digital support.

5.2.2     In order to benefit from the sending of the Audit of Deliverability by MAILSOAR, the Client must have previously proceeded the payment of the invoice(s) that will have been issued by MAILSOAR, according to the pricing agreed with the Client in the Contract.

The invoice(s) sent by MAILSOAR are payable according to the terms and conditions referred to in Article 6 of these General Terms and Conditions of Sale.

5.3 The “Implementation of recommendations” Service

5.3.1     The Recommendations Implementation Service mainly consists in assisting the Client in implementation the Recommendations resulting from the Audit of Deliverability.

The Recommendations Implementation Service comprises and includes:

  • Content enhancement: which consists of a review of the Client’s library and the emails sent. The Service Provider determines their placement and, if necessary, makes suggestions to modify their content to ensure an inboxing in the main mailbox.
  • Reputation enhancement: which consists of better organization of the Client’s mailings to send only to the most committed and valid emails in the Client’s database so that the reputation of the domain, IP, or both, rises to a level that allows good inboxing.
  • Program Improvement: which consists of improving the Client’s sending schedules in order to maximize mailings to contacts with a good level of engagement, while maximizing segment size without compromising deliverability.
  • Adjustment of the Client’s mailing practices: which consists of working with the Client’s teams to bring the Client’s mailing practices and KPIs in line with the Client’s industry standards, as well as the best practices recommended by ESPs, filters, blacklists & other email control entities.

Recommendation Implementation Service does not and does not include:

  • Implementation of long term KPI monitoring tools.

5.3.2     The invoice(s) sent by the MAILSOAR Company are payable according to the terms and conditions referred to in Article 6 of the present General Terms and Conditions of Sale.

5.4 The “Support Service”

5.4.1     The Support Service mainly consists in assisting the Client in the implementation of its Emailing Campaigns

The Support Service comprises and includes:

  • Regular checks and monitoring of Key Performance Indicators (KPIs): The Service Provider implements tracking tools for placement, IP/domain reputation and authentication. The Service Provider tracks the performance of the Client’s Infrastructure and collects KPIs in a dashboard to monitor progress and identify trends before they become a threat to the Client’s Infrastructure.
  • Template Enhancement: The Service Provider is working to enhance the Client’s existing library as well as the new emails that need to be sent to ensure optimal placement across the entire base.
  • Client support, including troubleshooting deliverability issues, setting up a long-term strategy for maintaining and improving services and developing software tools to support and improve the emailing process: The Service Provider works with the Client to develop a short, medium- and long-term strategy to define objectives to be achieved and maintained. The Service Provider is available 24 hours a day, 7 days a week to intervene in emergencies that may arise.

The Accompaniment Service does not and does not include:

  • The service only includes the services mentioned above. Any new item, responsibility or project will have to be mutually agreed before becoming contractual.

5.4.2     The invoice(s) sent by MAILSOAR are payable according to the terms and conditions referred to in Article 6 of the present General Terms and Conditions of Sale.

6.Cost of the Services of Deliverability and payment

6.1 Liminary

The cost of each Service selected by the Client is indicated on the Subscription Form sent by MAILSOAR to the Client, at the Client’s request.

The cost of the Services selected by the Client consists of, as the case may be:

  • in the case of the Audit of Deliverability Service (Article 5.2 of the present General Terms and Conditions of Sale) and the Implementation of Recommendations Service (Article 5.3 of the present General Terms and Conditions of Sale): the cost corresponds to the working hours devoted by the Service Provider on behalf of the Client within the framework of the realization of the Service concerned.

The amount of the hourly rate is set out in the Pricing Schedule attached as Appendix No.1 to the Contract.

  • in the case of the Support Service: the cost corresponds to a fixed monthly fee.

The amount of this monthly fee is indicated in the Pricing Schedule attached as Appendix No. 1 to the Contract

The Pricing for the Services offered by MAILSOAR, whether hourly rates or a monthly fee, are indicated on the Pricing Schedule in euros excluding taxes.

The cost of the Services is indicated in euros and payable in euros.

 

 

6.2 Terms of Payment of the cost of Services

Payment of the cost of each of the Services subscribed to by the Client shall be made by banking wire transfer (or via electronic process as PayPayl, TransferWise or through any other mean accepted among the Parties) upon receipt of the corresponding invoice and no later than fifteen (15) working days following receipt of the corresponding invoice by the Client.

Each invoice shall mention the cost of the Services in euros exclusive of tax and the legally applicable Value Added Tax (VAT) or, where applicable, the exemption from which the Client benefits.

In the event a direct debit has been set up between the Parties, all costs related to a payment by the Client (or a refusal to pay / direct debit) shall be borne by the Client. In this respect, the Client undertakes to ensure that his bank account is funded. In the event that, during the execution of the present Contract, a transaction is refused, for any reason whatsoever, the Client undertakes to reimburse all the costs which would come to be invoiced to MAILSOAR as well as all the costs linked to the refused payment.

MAILSOAR draws the attention of the Client to the fact that in the event a payment incident occurs (whatever its cause and/or its origin, which would not be imputable to MAILSOAR and which would result in the non-payment to MAILSOAR of a sum due under the terms of the Contract), MAILSOAR will be entitled to suspend the Service(s) to which the Client has subscribed under the terms of the Contract without the Client being able to invoke any prejudice of whatsoever nature against MAILSOAR.

MAILSOAR also draws the attention of the Client to the fact that the suspension of the Services may not constitute a termination of the Contract, as referred to in Article 9 of the present General Sales Conditions. Consequently, the Client accepts and acknowledges that MAILSOAR will be entitled to continue to invoice the monthly payments due under the Contract until its term (Support Service), it being the Client’s responsibility to regularize the incident at the origin of the suspension of the Service as soon as possible in order to obtain the lifting of the suspension the Service.

6.3 Invoicing and late penalties

Invoices issued by MAILSOAR shall be dematerialized and sent to the Client, either directly by MAILSOAR or by a Partner of MAILSOAR, also by e-mail. The invoices will be archived by MAILSOAR in compliance with the applicable regulations.

Unless expressly authorized by MAILSOAR, under no circumstances may the amounts due be subject to any reduction, whether by compensation, counterclaim, adjustment, or other intervention.

The Parties expressly accept that the electronic invoice(s) issued within the framework of the Contract shall take the place of the original invoice(s) in accordance with article 289 of the French General Tax Code. The Client expressly waives the right to contest the validity of electronic invoices drawn up in execution of the Contract and these General Terms and Conditions of Sale by the sole fact that these invoices have been drawn up and transmitted electronically.

The Client may request at any time that MAILSOAR sends him a paper invoice detailing the monthly payments paid and those to come under the Contract.

In accordance with the provisions of Article L.441-10 of the French Commercial Code, in the event of delay and/or non-payment, MAILSOAR may invoice the Client with late payment penalties fixed at a rate equal to the interest rate applied by the European Central Bank to its most recent refinancing operation increased by 10 percentage points, applicable to all sums due from the first day of delay and until their complete payment. A lump-sum compensation of forty (40) euros will also be payable.

7.Materiel /Immaterial resources provided by MAILSOAR

MAILSOAR does not provide the Client with any material or immaterial means or materials other than those possibly referred to in the description of each of the Services that it offers and to which the Client has subscribed.

MAILSOAR does not supply and/or provide the Client with any telephone installation, terminal equipment, software, or even a computer for the realization of its Emailing Campaigns. In this respect, the Client undertakes towards the Service Provider to have, at least during the whole duration of the Contract, the material and immaterial resources and means necessary for the good realization of its Emailing Campaigns.

All the costs of telephone connections and Internet access, or software or Infrastructure(s), of whatever nature, shall be borne by the Client.

8.Guarantees

8.1 MAILSOAR ‘s Guarantees

MAILSOAR does not grant the Client any guarantee other than those possibly mentioned in the present General Terms and Conditions of Sale.

By express agreement between the Parties, the obligations which weigh on MAILSOAR are obligations of means.

THE CLIENT ACCEPTS AND RECOGNIZES THAT THE SERVICES PROPOSED BY MAILSOAR ONLY INCLUDE SERVICES OF ASSISTANCE, SUPPORT AND ADVICE OF THE CLIENT IN THE IMPROVEMENT OF THE DELIVERABILITY OF ITS EMAILING CAMPAIGNS.

MAILSOAR does not guarantee to its Clients an improvement of the deliverability of their Emailing Campaigns or a result as for their Emailing Campaigns. MAILSOAR does not carry out Emailing Campaigns in the name and/or on behalf of its Clients.

Therefore, the Client accepts and recognizes that MAILSOAR does not guarantee him with any particular delay in the improvement or level of deliverability to be reached.

8.2 Collaboration and Guarantees of the Client

The Client undertakes to collaborate actively with MAILSOAR for the good execution of the Contract, in particular by allocating the necessary human and technical resources and by answering as soon as possible the questions, of whatever nature, which will have been submitted to it by the Service Provider. The Client also undertakes to provide the Service Provider, as soon as possible, with any information requested by the Service Provider in connection with the Services.

The Parties undertake to act at all times in good faith and to be transparent towards each other and to take all necessary steps (unless unreasonable or disproportionate) to ensure the proper performance of the Contract.

The Client assures and guarantees to MAILSOAR to have taken knowledge of and to be in conformity with the regulations applicable as regards the collection and processing of Third-Party Data, in particular as regards the Third-Party Data that it transmits and/or communicates and/or to which it gives access, in any manner whatsoever and on any support whatsoever, to the Service Provider within the framework of the Services. In particular, the Client guarantees MAILSOAR against any complaint, of any nature whatsoever, which would be formulated by a Third Party against MAILSOAR with regard to the Data that the Client transmits and/or communicates and/or to which it gives access to MAILSOAR within the framework of the Services and more generally, within the framework of the Contract.

In addition, the Client undertakes to always declare to MAILSOAR any anomaly, of any nature whatsoever, which would occur during the duration of the Contract within the framework of an Emailing Campaign in order to allow MAILSOAR to accompany it as well as possible within the framework of the Support Service (if the Client has subscribed to this specific Service).

9. Termination of the Contract

MAILSOAR may terminate the Contract at any time, ipso jure and with immediate effect, in the following cases:

  • the Client does not communicate to MAILSOAR all the information and/or documents referred to in Article 4 of the present General Terms and Conditions of Sale.
  • MAILSOAR has reasonable and/or legitimate doubts as to the accuracy and/or truthfulness of the information communicated by the Client within the framework of its registration (Article 4 of the present General Terms and Conditions of Sale).
  • the Client does not respect and/or repeatedly fails to fulfil its obligation of collaboration, as referred to in Article 8 of the present General Terms and Conditions of Sale.
  • the information and contents, and in a more general way the Data, of any nature, communicated by the Client and/or to which the Client gives access to the MAILSOAR Company are, by their nature, object and/or scope, immoral, contrary to good morals, to the law or the regulation in force and/or to the public order.

For the needs of the present, are considered by MAILSOAR as immoral and/or contrary to good morals, in particular, the information and contents, of any nature whatsoever, which are threatening, insulting, odious, racist, homophobic, counterfeiting, false, pornographic, violent, offensive, indecent, obscene, aggressive or defamatory. This list is not exhaustive.

  • the Client infringes, in any way whatsoever, the rights, of whatever nature, of MAILSOAR, a Partner and/or Third-Party.
  • the Client uses, by whatever means, the Services proposed by the MAILSOAR Company, for immoral purposes, contrary to good morals, contrary to public order, to the law and/or to the general economy of the Contract.
  • the Client does not proceed with the payment of the sums due to MAILSOAR under the terms of the Contract and/or a payment is the subject of a payment incident.
  • the Client does not present or no longer has the necessary and specific competences for the execution of the Contract, either because it manifests a systematic opposition to the advice and Services provided by MAILSOAR, or because it refuses to follow and/or provide the instructions and/or information, of any nature whatsoever, necessary for the execution of the Contract.
  • MAILSOAR notes any act of piracy, fraud, or non-respect of the ethical, legal, or moral rules, imputable to the Client.
  • the Client is the subject of legal proceedings (and, in particular, criminal) on behalf of judicial and/or administrative authorities within the framework of its activity.
  • the Client is subject to a proceeding within the meaning of Chapter VI of the French Commercial Code.

The termination of the Contract on the part of MAILSOAR for any of the aforementioned reasons may result from the sole non-performance or failure, total or partial, of the Client to fulfil any of the aforementioned obligations.

In such a case, the Parties accept and agree in advance that MAILSOAR will not have to send the Client a prior formal notice. MAILSOAR will send to the Client, by e-mail, a notice of termination giving the reasons that led it to terminate the Contract. The termination will be deemed effective on the first day following the sending of the said e-mail by the Company MAILSOAR.

The Client whose Contract would be the object of such a termination, for one of the aforementioned reasons, accepts and acknowledges that it will automatically have to pay to the Company the totality of the sums remaining due to the MAILSOAR Company under the Contract and for the remaining duration of the Contract.

These stipulations do not prevent the Service Provider from taking any legal action against the Client that it deems necessary in order to obtain full compensation for all damages, of any nature whatsoever, that it may have suffered and/or will suffer as a result of and/or that is linked, directly and/or indirectly, to the actions of the said Client. MAILSOAR is free to exercise all the legal remedies of which it is the holder in order to obtain the compensation of all the damages, of whatever nature, direct and/or indirect, that it would suffer or would have suffered because of any failure and/or non-performance of the Client to any of the obligations stipulated in the Contract and/or any act of the Client which would be contrary to good morals, to the law or to the public order which would have been carried out by the Client within the framework of the Contract and/or through its use of the Services proposed by MAILSOAR.

In addition, it is expressly agreed and accepted between the Parties that the Contract being of a fixed duration, it cannot in any case be the subject of a cancellation on behalf of the Client except in the event of fault of a particular gravity on the part of MAILSOAR.

Except in the event of termination of the Contract by the Client, for fault of a particular gravity of MAILSOAR, all the amounts due under the Contract are due to MAILSOAR until the term agreed between the Parties.

10. Major Strength/ Force Majeure

Neither of the Parties may be held liable for non-performance of one of its contractual obligations due to the occurrence of a case of force majeure. Are cases of force majeure – in addition to those usually retained by the French courts – strikes, supply disruptions, fires, earthquakes, floods, wars, acts of terrorism or any other unforeseeable, irresistible, and external element are considered to be cases of force majeure.

If the impediment is temporary, performance of the obligation is suspended unless the resulting delay justifies termination of the Contract. If the impediment is permanent, the Contract shall be terminated by operation of law and the parties shall be released from their obligations under the conditions provided for in articles 1351 and 1351-1 of the Civil Code.

For the purposes hereof, the Parties accept and acknowledge that the Services may be performed remotely. Consequently, in the event that, because of an epidemic or pandemic, the government (or authority(ies)) of the French Republic (or that of the Client) would be led to take local or national measures intended in particular to limit the freedom of movement of individuals because of an epidemic and/or pandemic in the territory where the premises of MAILSOAR or of the Client are located, the Contract cannot be terminated for reasons of force majeure, the essential part of the Services being able to be carried out remotely.

In such a hypothesis, the Parties will make every effort to adapt as well as possible the realization of the Services.

11. Intellectual property

The Client assures and guarantees to MAILSOAR that all information and Data, whatever their nature and/or their support, that it transmits and/or communicates to MAILSOAR and/or to which it gives access to MAILSOAR within the framework of the Contract are valid, exact, sincere.

The Client assures and guarantees to MAILSOAR that it has full and entire ownership and/or all the necessary rights and/or authorizations, whatever their nature, and in particular, but not limited to, administrative, conventional, legal and/or regulatory regarding the information and Data it transmits and/or communicates and/or to which it gives access to MAILSOAR for the good realization of the Services as well as to, if necessary, their possible treatment by MAILSOAR for the needs of the Contract. In the event that this guarantee should be modified or affected, in any way whatsoever, during the execution of the Contract, the Client undertakes to inform MAILSOAR as soon as possible, in writing, at the email address: pierre@mailsoar.com.

In any event, the Client assures and guarantees to MAILSOAR that it is aware of and complies with the regulations applicable to the collection and processing of Third-Party Data, in particular with regard to the Third-Party Data that it transmits and/or communicates and/or to which it gives access to the Service Provider within the framework of the Services.

The Client guarantees MAILSOAR against any complaint, of any nature whatsoever, which would be formulated by a Third Party against MAILSOAR as regards the Data that it transmits and/or communicates and/or to which it gives access to MAILSOAR within the framework of the Services.

The Client is solely responsible for the Data that it communicates to MAILSOAR and/or to which it gives access to MAILSOAR.

Any failure by the Client to comply with any of the aforementioned commitments may lead to the termination of the Contract according to the terms and conditions of Article 9 of these General Terms and Conditions of Sale.

In no case the transfer or the access given by the Client to MAILSOAR in relation to the Data shall imply and/or be interpreted as a transfer of rights, of any nature whatsoever, from the Client to MAILSOAR in relation to the Data concerned. MAILSOAR accepts and acknowledges that it is not the holder of any right regarding these Data, other than those which are possibly conferred to it by the Client, for the sole needs of the realization of the Services object of the Contract. In this respect, MAILSOAR commits itself in a firm and irrevocable way to use the Data communicated by the Client and/or to which it will be given access by the Client only for the needs of the realization of the Services object of the Contract. MAILSOAR undertakes in a firm and irrevocable way not to yield and/or transfer, on a purely free and/or expensive basis, completely or partially, the Data which will be communicated to it and/or to which it will be given access by the Client within the framework of the Contract.

12.Confidentiality

The Contract and all the information which will be exchanged between the Parties within the framework of its execution are and will remain confidential during all the duration of the Contract and after its expiry and/or its cancellation, whatever the cause, except for the good realization of the Services to which the Client has subscribed with MAILSOAR or the exercise of the respective rights of each of the Parties, within the framework of a litigation which could oppose them.

Under these circumstances, the Parties accept, recognize and guarantee each other that all the Confidential Information’s and/or exchanges which will be communicated and/or carried out and/or to which it will be given access between them are and will remain covered by the strict confidentiality.

For the purposes of this Article:

Recipient “: means the Party receiving the information.

Discloser “: means the Party which communicates the Information.

Confidential Information “: means Data and/or information owned or possessed by either Party, which is not in the public domain or has not yet been disclosed in tangible or intangible form, regardless of the manner and circumstances of its communication, including, in particular, the following information:

(i) information, inventions, designs, processes, procedures, formulae, improvements, technologies or methods.

(ii) samples, reports, data, know-how, work in progress, models, drawings/plans, photographs, development tools, specifications, software, source code, object code, flow charts and databases.

(iii) marketing strategies, plans, documentation and financial information or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activity of either Party and its related entities or subsidiaries.

(iv) trade secrets; plans relating to products or services and lists of Clients or suppliers.

Party” means either the Recipient or the Discloser.

Each Party undertakes to:

– not to disclose the Confidential Information, directly or indirectly, to a Third-Party.

– not to use the Confidential Information for purposes other than within the framework of the Contract.

– not to use the Confidential Information for its own account or by any person acting on its behalf in the context of a competing activity.

– not to fail to inform its staff and employees of the confidential nature of the Confidential Information and of the obligations and precautions which result from this.

The duration of this Confidentiality undertaking is five (5) years from the signing of the Contract.

The Recipient shall return or destroy as soon as possible and without exceeding one (1) month, all Confidential Information, and copies thereof (reproduced or stored on any medium whatsoever), including all notes and all documents derived from the Confidential Information communicated under the Contract, on (i) the date of the expiry or termination of the Contract or (ii) any date on which the Discloser requests the Recipient to do so, whichever is the earliest.

13.Generals Stipulations

13.1 Subcontracting

MAILSOAR is entitled to subcontract all or part of its obligations under this Contract, to the Partner(s) of its choice for the performance of services other than the Services of Deliverability (for example, MAILSOAR may have recourse to a Partner for the sending of invoices and the collection of the sums due to it). With regard to the performance of the Services of Deliverability, MAILSOAR may only subcontract all or part of the said Services with the prior written consent of the Client.

13.2 Transfer

The Contract is concluded in consideration of the person of the signatory Client and cannot therefore be the subject of an assignment and/or transmission, free of charge or against payment, partial and/or total, on behalf of a Third Party without the prior written agreement of MAILSOAR. Any assignment or transfer, whatever its denomination and/or scope, direct or indirect, total or partial, carried out in violation of the stipulations of the present Article shall be null and void.

13.3 Notification / Election of domicile

All notifications, formal notices and, in general, all correspondence, of any nature whatsoever, relating to the interpretation, validity, performance and/or termination of the Contract must be sent by e-mail to the other Party at the e-mail addresses communicated at the time of signing the Contract, except in cases where it is expressly stated that sending a registered letter with acknowledgement of receipt is necessary.

13.4 Modification of the terms and Conditions of the present/these Generals Conditions  

The Client accepts and recognizes that the General Terms and Conditions are likely to evolve and be modified unilaterally and at any time by MAILSOAR, in particular for the needs of the Services which it proposes to its Clients or in order to improve and/or supplement the Services and/or to respect the law and the regulations in force.

Each last version of the General Conditions will be sent to the Client by e-mail. These new General Conditions of Use will be deemed to have been received the day after the sending of the said e-mail by the Company MAILSOAR. Without written return of the Client indicating to MAILSOAR Company that it refuses the new version of the General Conditions within one (1) month from the reception of the said e-mail, the Client will be considered to have accepted the new version of the General Terms and Conditions, which will then apply as from this date of acceptance.

The Client accepts and acknowledges that in the event it refuses the terms of the new General Terms and Conditions, the Contract may be terminated by MAILSOAR by operation of law in accordance with the terms and conditions set out in Article 9 of these General Terms and Conditions and, notwithstanding the provisions of the said article, no sum shall be due by the Client to the Company, the termination taking effect on the date of the Client’s refusal.

13.5 Non-Waiver

The fact that either of the Parties does not take advantage of a failure by the other Party of any of its obligations under the Contract shall not be interpreted as a waiver of the obligation in question.

13.6 Partial Invalidity

If any provision(s) of the Contract is (or are) held to be illegal, invalid, unenforceable, or invalid, void or considered as such under any law, regulation or court decision which has become final, it (they) shall be deemed to be unwritten and the other provision(s) shall remain in full force and effect.

In this event, the Parties shall make every effort to replace the cancelled clause in good faith with a lawful stipulation with a similar object and effect.

13.7 Titles

The titles of the articles of the Contract are for information purposes only and do not allow for interpretation of the content of the related stipulations under the Contract and/or these General Terms and Conditions of Use.

13.8 Independence of the Parties

The Contract shall not create any dependency and/or subordination between the Parties. Neither of the Parties may claim vis-à-vis third parties that it has the power to represent the other Party. Each of the Parties shall remain independent under the terms of the Contract.

13.9 Applicable law and Attribution of Competence

The Contract is subject to French law.

ANY DISPUTE AND/OR LITIGATION RELATING TO THE VALIDITY, INTERPRETATION, EXECUTION AND/OR TERMINATION OF THE CONTRACT SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COMPETENT COURTS WITHIN THE JURISDICTION OF THE COURT OF APPEAL OF LYON, NOTWITHSTANDING PLURALITY OF DEFENDANTS, INCIDENTAL CLAIM, WARRANTY CLAIMS, EMERGENCY PROCEEDINGS, BY INTERIM RELIEF OR BY PETITION.