In the event of contradiction, the French version always takes precedence over the version translated into another language.
SMSFactor.com, SMSFactor.ch, SMSFactor.be and SMSFactor.it (hereinafter ‘the Site’) are published by INFOMOTIV, SASU registered with the RCS d'Antibes under number 520 158 783 00032, whose registered office is at 126 avenue Léon Bérenger-06700 Saint Laurent du Var - France.
Intra Community VAT identification number: FR16520158783 (hereinafter ‘the Company’).
The purpose of these General Terms and Conditions of Sale and Use (hereinafter ‘CGV’) is to define the terms and conditions under which the Company is offered for sale under the name SMSFactor divers services (hereinafter ‘the Services’) via the Site to any person who, as a professional, wishes to make a purchase via the Site (hereinafter ‘the Client’).
The General Terms and Conditions consist of these provisions that apply to all Services, the following Special Terms and Conditions of Services and the terms of the Privacy Policy, all of which form the Agreement between the Client and the Company (hereinafter the ‘Agreement’).
The LCAs constitute a contractual agreement between the Client and the Company.
Before ordering on the Site, the User must create an account on the Site. When creating the account, the User acknowledges having read and accepted the general terms and conditions of sale and the privacy policy.
The acquisition of a Service via the Site therefore implies the Client's full acceptance of these Terms and Conditions.
For Services that require the signature of an offline Purchase Order, the Client must sign the Terms and Conditions in a handwritten manner or via an electronic signature. By sending the CGV document signed by email to the Company, the Client acknowledges having read the CGV and undertakes to comply with them without reservation.
The Company retains the right to amend these CGV at any time, in order to comply with any new regulations or in order to improve the use of the Site.
As a result, the applicable CGV will be those in force on the date of the order by the Registered Client. The Client will receive the version of the CGV accepted by email.
Order form : means the order form approved and signed by the Client to subscribe to certain Services offered by the Company.
Customer : means any User of the Site who is of age or has the legal capacity to enter into a contract and who has accepted the CGV without reservation either by ticking the box provided for this purpose or by signing the CGV accompanying the Purchase Order. The Client may be a natural person or a legal person, who enters into a contract as a professional. Once the Account has been created, the Client has access to the Platform as Administrator and may use the Service (s) subscribed.
Account : means the account created by the Client upon registration in order to have access to the Platform.
Sub-Account : means the sub account created by the Client, once the Account has been created, in order to have access to the services already ordered and settled via the Platform.
Recipient : means the person who receives the SMS message sent via the Platform at the Client's request.
Platform : means the Saas platform that can be accessed via the Site or at https://secure.smsfactor.com and https://beta.smsfactor.com, including the API at api.smsfactor.com and the additional modules from which the Customer uses the subscribed Services.
Services : refers to the services presented on the Site.
Site : designates the SMSFactor.com, SMSFactor.ch, SMSFactor.be and SMSFactor.it sites accessible at the URL addresses https://www.smsfactor.com ; https://www.smsfactor.be ; https://www.smsfactor.it ; https://www.smsfactor.ch.
Company : means the publisher of the Site that sells the Products online.
User : means any internet user browsing the Site.
The Services are presented on the Site by the Company with details of the various functionalities for each Service. To know the specific terms and conditions of each Service, the Client must read the Special Service Terms and Conditions that follow these Terms and Conditions.
The Company reserves the right to change the selection of the Services presented on the Site at any time.
Each Service is presented on the Site in the form of a description of its main features and is accessible via the Platform.
The Client has access to the Services subscribed once he has created his account on the Platform and has selected a confidential and personal identifier and password.
The Company invites the Client to comply with CNIL's recommendations in choosing the password to ensure the security of the account (https://www.cnil.fr/en/passwords-minimum-security-recommendations-businesses-and-citizens).
The prices shown on the Service factsheets presented on the Site are expressed in euros (€), including taxes (including tax), in application of the VAT in force on the day of the order.
Any change in the VAT rate may be passed on to the price of the Services.
The Company reserves the right to change its prices at any time, it being understood that the price shown on the Site on the day of the order will be the only applicable to the Client for the subscription period of the service concerned.
Prices and fees (fixed and variable) may change over time.
Once the service is subscribed, the Company reserves the right to impose new prices on the Client, subject to notification by email or via the platform.
Indeed, in the event that the terms of supply of the subscribed service were manifestly modified, particularly as a result of a significant fluctuation of the elements making up the price and in general, if the economic circumstances on which the Parties had based themselves at the time of the conclusion of this contract, evolved in such a way that its execution by one of the Parties would have unfair onerous consequences, the Company may, upon 10 clear days' notice, adjust the price of the services to take into account fluctuations in the fees incurred by the Company for the provision of the service in question.
The revised prices will be applicable at the end of the 10 clear days notice. For prepaid packs, the total cost will be adjusted and invoiced to the Client.
In the event that the Client is refused by registered letter AR within the 10 days indicated above, the Parties will work together to adapt the terms of execution of these CGV to the new situation in a fair manner.
If no agreement is reached within 10 days of the implementation of this clause, the agreement may be terminated by either Party upon 10 days' prior notice.
According to the Services, the Client pays on a monthly or monthly basis or on the basis of a monthly subscription. Monthly subscription pricing is available on our appointment reminder pricing page. The Company will inform the client if any management fees are applicable.
5.1. For SMS Routing, SMS Appointment Reminders, SMS Mail to SMS and SMS Poll
Online ordering :
Before ordering, the User must create an account on the Site. To do so, they must choose a personal and confidential login and password.
Once the account has been approved, the Client, if he/she wishes to order or consult his/her account (order status, profile, etc.), must identify himself/herself using his/her identifiers at each visit to the Site.
The Client selects the Service (s) he/she wishes to order from the ‘basket’ and selects the desired terms and conditions.
Then, the fees are calculated according to the options chosen and are submitted to the Client, before the validation of his/her order.
Any order is worth accepting the prices and descriptions of the Services offered via the Site.
The Company will acknowledge receipt of the order as soon as it is validated by sending an e mail.
In certain cases, including non payment, incorrect information or other problems on the Client's account, the Company reserves the right to block the Client's order until the problem is resolved.
Online payment :
Payment by the Client may be made by bank card/Paypal/cheque or wire transfer.
The Client guarantees the Company that he/she has the necessary authorisations to use the rules he/she has chosen for his/her order, when registering his/her order.
Before paying his/her order, the Site offers him/her a summary step to check all the information, and then invites him/her to validate his/her order by clicking on the ‘Confirm my order’ button. This last click forms the final conclusion of the contract. Once approved, the Client receives an order form by email confirming the recording of his/her order.
The Client is then redirected to the appropriate secure interface (that of his/her bank) in order to securely inform his/her bank card references. If the payment is accepted, the order is recorded and the contract definitively formed. Payment by bank card is irrevocable.
Upon receipt of the payment, the order will be processed and the Client will be notified by e mail.
If the Client wishes to contact the Company, he may do so either by mail to the following address: Residence Home 2-126 avenue Léon Bérenger -06700 Saint Laurent du Var; or by e mail via our contact form.
Once the order has been validated by the Client, no cancellation will be possible, except under the terms of the withdrawal right set out below.
Online payment is advantageous for the Client: Unless otherwise specified, the Services are directly functional and usable. Failing this, the Services are only activated once the payment has been received by the Company.
The order form :
Before ordering, the User must create an account on the Site. To do so, they must choose a personal and confidential login and password.
Once the account has been approved, the Client, if he/she wishes to order or consult his/her account (order status, profile, etc.), must identify himself/herself with his/her login details at each visit to the Site.
The Client indicates to the Company's customer service the Service (s) he/she wishes to order and will receive an Order Form with the desired terms and conditions, depending on the prices presented.
Then, once the Order Form has been completed, the Client signs it and the VCs to validate the order.
Any order is worth accepting the prices and descriptions of the Services on the Order Form.
The Company will acknowledge receipt of the order as soon as it is validated by sending an e mail.
In certain cases, including non payment, incorrect information or other problems on the Client's account, the Company reserves the right to block the order. Customer until the problem is resolved.
The price to be paid by the Client is set according to the overall volume and may be reassessed if his/her application is amended. The settlement is made at the order, once the Purchase Order has been validated.
Payment terms :
Payment must be made at maturity, without discount (even if settlement is early)
Payment terms are:
In the event of late payment and payment of sums due by the Client beyond the fixed time limit, and after the payment date shown on the invoice sent to the Client, late payment penalties corresponding to three (3) times the legal interest rate in force on the date of issue of the invoice (the ‘Rate’) applied to the amount of the price appearing on the invoice, will automatically and ipso jure be acquired by the Company, without any formality or prior formal notice. More specifically, late payment penalties will be calculated as follows: [ (Rate) x amount inclusive of tax] x [ number of days of delay/365].
In addition to late payment penalties and in accordance with the provisions of Article L.441-10 of the French Commercial Code, a lump sum payment for recovery costs in the amount of forty euros (€40) will be due, ipso jure and without prior notification, by the Client, in the event of late payment. The Company reserves the right to ask the Client for additional compensation if the recovery costs actually incurred exceed this amount, upon presentation of the supporting documents.
Any late payment on an order will open the right for the Company to immediately suspend any other order placed by the Client, without prior notification.
Any late payment exceeding a period of 30 days will open the right for the Company to immediately suspend the service concerned, without prior notification.
These late payment penalties and the recovery indemnity will be due without prejudice to any other action that the Company would be entitled to bring against the Client in this respect.
In case of non compliance with the payment conditions set out above, the Company further reserves the right to suspend the performance of its obligations under the Services and to reduce or cancel any discounts granted to the latter.
6.1 Delivery and technical prerequisites :
The Recipient's telephone number must comply with the conditions for receiving the services provided by its operator or by the manufacturer of its mobile phone: The Recipient's telephone must be switched on, be in a coverage area, be configured in reception mode and have sufficient free memory to receive an SMS message.
In the event of failure to receive, the Company may not be held liable under any circumstances if these conditions have not been met.
The delivery to the Client's mobile service operators of messages leaving the Platform is immediate. The Recipient will receive the SMS according to the terms and time limits imposed by the operator.
The SMS service is used to send messages to mobile phone networks that the Company does not control. As a result, the Company may not guarantee the delay in receiving the SMS message by the Recipient.
The Company undertakes to provide a service consistent with that ordered. However, it may make changes to the order service that are linked to technical developments.
6.2 Limitability and timing of the Platform :
The Company undertakes to make its Platform accessible 7 days a week, 24 hours a day, unless it is interrupted, whether scheduled or not, for maintenance purposes or in the event of force majeure.
In the event of an incident affecting the Platform and rendering it unusable for the Customer, the Company guarantees that the Service will be restored within a maximum of 24 hours from receipt by the Company of the Customer's email notifying it of the malfunction.
In the event of an incident affecting the transmission of SMS messages and making it impossible to send SMS messages, the Company undertakes to credit the customer's account for the number of SMS messages unduly deducted or to deduct them from the final invoice.
Failing this, the customer will be entitled to terminate the contract without indemnity or notice, and to reimbursement of any advance payments or units.
Under no circumstances will the Customer be entitled to claim any compensation for damages arising from this interruption.
In France, mobile direct marketing campaigns are governed by article L.34-5 of the French Post and Electronic Communications Code and article L.121-20-5 of the French Consumer Code.
Consequently, the Customer may not use the Services to send SMS for marketing purposes without the prior, free and specific consent of the Recipient, at defined times: Monday to Friday from 8am to 8pm and Saturday from 10am to 8pm.
The sending of SMS marketing messages is therefore prohibited outside the times specified above, on Sundays and public holidays. If the Customer initiates campaigns during these periods, the Customer is informed that the message will be sent during the next authorized period. The Company cannot be held responsible for the delayed dispatch of campaigns scheduled at times that do not comply with the regulations, and full responsibility for this fault lies with the Customer.
In all cases, customers using the Service to send SMS messages abroad must comply with the legislation in force concerning the sending of SMS messages in the country concerned.
In accordance with article L.221-18 of the French Consumer Code, the Client has a period of fourteen working days from the date of ordering the Service(s) to exercise his right of withdrawal and obtain a refund of the price paid without penalty.
The Client may exercise their right of withdrawal using the following form:
Model retraction form
For the attention of the Company "ADDRESS TO BE COMPLETED" E-mail: "TO BE COMPLETED
I hereby notify you of my withdrawal from the contract for the service below:
The Client undertakes to use the Site Services in accordance with the provisions of these Terms and Conditions.
The Client browsing the Site is solely responsible for the use of the Site, the information it contains and the Services to which it subscribes. The Client is also responsible for the use made by any third party to whom he or she has provided his or her identifiers and instructs to use the Services via the Platform.
The Client undertakes to use the Services with discernment, in accordance with the laws in force in France.
In this respect, the Client is solely responsible for the use he or she makes of the telephone number of the Recipient, and in particular undertakes to have his or her informed consent before sending the content of the message to him or her, in accordance with the regulations in force in France.
The Client undertakes, in particular, to respect the regulations in force in France and in particular the provisions relating to consumer law and the protection of personal data (Data Protection Act and GDPR) and, as such, not to include in the content of the message any data that is sensitive or that is detrimental to the privacy of individuals.
The SPAM, unsolicited for commercial purposes, is strictly prohibited by French operators. In the event of a complaint to the operators, SMSFactor may require the Client to obtain, within 48 hours, proof that the recipient of the message has agreed to receive advertising from the latter. In the event that the Client is unable to provide such evidence, he may be fined €1000 by text message sent and classified as SPAM, and SMSFactor reserves the right to terminate immediately and without notice the agreement entered into with the Client, without reimbursement of any text messages that may be settled in advance.
The Client guarantees that he has collected the opt in of contacts before importing the contact file into the Platform.
The Client is solely responsible for sending the message to the mobile number indicated at the time of his order and for the content of the messages so sent; the Company can not be held liable in this respect.
The Company reserves the right to suspend any Account of a Client who does not comply with the provisions of these CGV and this, without notice, compensation or reimbursement of advance payments and/or SMS paid in advance.
Therefore, the Company can not be held liable for any wrongfulness, or the inadequacy of the information transmitted via the Site by the Client.
The Company shall not be liable for the use made by the Client of the Services presented on the Site.
The Company shall not be liable in the event of non performance or poor performance of these VMS either by the Client or by a third party, including telephone operators with whom the Company deals for the sending of SMS messages, or for an act of force majeure as defined in Article 13 below.
The Company may not be held liable in the event of default by a module external to the Platform or restrictions imposed by the telecommunications operators or the equipment of the recipient of the messages.
In any event, for all damages, except in the case of fraud or wilful misconduct on its part, the Company's liability towards the Client in respect of any guarantee or on any basis, is limited to the amount actually collected by the Company in exchange for the location or Services subscribed giving rise to the claim. Having brought his responsibility into play.
The Company owns the Site and the Platform, in their technical, graphical, textual or other components. In particular, the Site and the Platform are accessible through software and databases owned or over which the Company has intellectual property rights.
These Terms do not grant the Client any intellectual property rights of any kind on the Site, the Platform, their components or the trademark of the Company.
The Client undertakes to indemnify the Company against any damages resulting from the violation by it of any of its intellectual property rights, resulting in particular from non compliance with these Terms and Conditions.
Personal data protection is governed by the Privacy Policy, which forms an integral part of these General Terms and Conditions.
With respect to personal data processed by the Company as a subcontractor within the meaning of Article 28 of the GDPR, the provisions of the Personal Data Outsourcing Agreement apply. The Personal Data Outsourcing Agreement is available here.
Subsequent Transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the exporter. In addition, the data may only be disclosed to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘subsequent transfer’), if the third party is bound by these Clauses or agrees to be bound by the appropriate module, or if:
The management of cookies is governed by the Privacy Policy, which is an integral part of these Terms and Conditions.
No Party may be held liable for the non performance or delay in the performance of any of its contractual obligations resulting from a case of force majeure within the meaning of Article 1218 of the Civil Code that occurred after the validation of these CGV (the ‘Force Majeure Case’).
For the purposes of this Article, the Parties expressly agree that the following events constitute, in particular, a Force Majeure Event (non exhaustive list):
14.1 Termination for failure to perform a sufficiently serious obligation
In addition to the termination assumptions provided for in any other provision of the General Terms and Conditions of Sale, the order may, in accordance with the provisions of Article 1224 of the Civil Code, be terminated ipso jure by either Party, in the event of non performance, poor performance or delay in the sufficiently serious performance of any of its obligations by the other Party and this, without prejudice to any damages and interest.
Except as otherwise provided for in the General Terms and Conditions of Sale providing for immediate termination or when it is not possible to remedy the breach, the early termination may take place one (1) months after the sending of a formal notice to perform without effect and notified to the defaulting Party.
However, it is expressly agreed between the Parties that the Client, as the debtor of an obligation to pay under these General Terms of Sale and any order, will be validly in accordance with the provisions of article 1344 of the Civil Code, the obligation is only due.
14.2 Termination for force majeure
The automatic termination of the Force Majeure Case order provided for in ARTICLE 12 may take place without notice and without any of the Parties being entitled to any compensation, after the Party has sent the termination of a Notification indicating to the other Party its intention to avail itself of this Article.
14.3 Effect of termination
Once termination is effective, the Client no longer has access to the Services or to his Account or to the data contained in the Account.
Regarding the duration of data processing, the Client must consult the Privacy Policy.
The conclusion, interpretation and validity of the GCS are governed by French law.
The Company shall propose, as far as possible, the prior recourse to a mediator in order to find an amicable solution in the event of a dispute.
In any event, the Company is competent to hear any dispute relating to the present, including, but not limited to, any dispute relating to its validity, interpretation, enforcement and/or termination and its consequences, the courts under the jurisdiction of the Court of Appeal of Antibes. This clause will apply, even in summary proceedings, incidental claims, multiple defendants or in the event of an appeal for security.
Post Paid billing is open to Clients who have subscribed to the following Services:
Terms and conditions of sale
For customers requiring a certain regular volume of SMS messages per month, a back to back and a package may be set up.
Post Paid invoicing necessarily results in a monthly payment as a payment for the SMS consumed by the Client. This payment will only be possible subject to the conclusion of a contract in addition to the CGV. In this agreement, the unit rate per country, an estimate of the overall price, a provision assessed according to the monthly consumption of SMS and the implementation of a payment by automatic debit with the payment expiry date will be defined.
If the Client has a reserve of SMS acquired on the Platform, in particular through the purchase of a pack, the Client will only be invoiced after exhaustion of this reserve.
Consumed SMS messages
Prices are based on overall volume and are subject to change in the event of a change in demand.
Prices and fees (fixed and variable) may change over time .
Once the service is subscribed, the Company reserves the right to impose new prices on the Client, subject to notification by email or via the platform without delay.
Monthly invoicing is based on the count of the number of units consumed; in this respect, only the count posted by the counter set up on the Platform will be considered in the event of a dispute.
The Client may know the details of the consumption that can be provided on simple request or downloaded on the Platform under the heading ‘History’.
Tariffs are negotiated at the inception of the contract for the countries requested by the Client.
If no price is negotiated for a particular country, in this case a default rate applies - it is available at the following address.
Terms and conditions of sale
The subscription and use of the Service is free of charge, excluding the cost of sending SMS messages by the Client, excluding the cost of connecting to the Service on the Internet.
The Client undertakes to pay the amount due to the Company for the purchase of a Pack by Bank Card, Paypal, credit transfer or check. Details of the prices for the different packages can be found in the fee schedule on the Site.
The Client is aware by accepting these terms that he/she purchases a quantity of text messages with a deadline for use, as indicated in ‘Valid date of the packages.’ As a result, no full or partial repayment can be made for any type of payment method.
In the case of a purchase by a Bank Card, invoicing occurs at the time of the transaction or shortly thereafter. For any other type of payment, text messages are made available upon receipt of the payment on the Company's account.
If a Client wishes to receive these SMS messages before receiving the payment, this will be possible with the agreement of the Company and the signature of a purchase order.
Date of validity of the Packs
Packs have a period of validity of 12 months from the subscription of the Pack and can be used by the Client during this period as he wishes.
At the end of the 12 months, even if the Client has not sent any SMS, the unused SMS will be definitively deleted without the Client being able to claim any compensation or reimbursement thereof.
SMS sent abroad
As a matter of principle, SMS sent abroad is blocked, the Service being limited to the Client's country of registration.
For any sending abroad, the Client must request a specific authorization from the Company.
Any sending of SMS messages abroad without prior authorisation will necessarily result in an additional price calculated by the Company and invoiced to the Client.
The Client may, in order to know the price of sending an SMS abroad, have communicated the price charged by the Company on simple request, this price necessarily varying depending on the country/DOM/TOM concerned.
Description of the service
The Company offers the Client the opportunity to rent prospect files according to several previously chosen criteria (age, gender, socio professional category, geographical area, etc.) to send a message to a whole category of recipients included in the file.
The Client is advised that:
Sending volumes :
As the databases held by the Company are updated on a regular basis, the Client notes that at the date of dispatch the number of Recipients in the leased file may have varied.
The Company undertakes that this change shall not exceed 10% of the initial volume of the leased file.
Terms and conditions of sale
To validate the launch of this file rental service, the Client must pay the entire price as soon as the order is made.
This payment may take the form of a check or a transfer.
The Company is not responsible for the content of the message sent by the Client to the Recipients.
Also, the Company wishes to remind the Client that it must comply with the following rules :
Each message must contain the STOP unsubscribe procedure, a sender name or a preamble to the content allowing easy identification of the Client, non misleading content and the Client's contact details in the text of the message.
It is the Client's responsibility to determine whether it is an alert SMS or a promotional SMS. The Client is free to add a means of unsubscription to each text message, regardless of the Alert or promotional qualification.
The Client undertakes that the content of the message does not infringe any third party rights, of any kind whatsoever, under French law and in particular personality rights (right to privacy, right to image, etc.) and intellectual property rights.
The Client guarantees the Company in particular that the content of the message does not constitute insult, defamation, unfair competition, parasitism, counterfeiting within the meaning of the French Intellectual Property Code or infringe loyalty, morality, human dignity or public order.
Each message sent by the Client must comply with all the legal and regulatory provisions applicable in France, in terms of law and ethics (particularly in terms of marketing and advertising).
If fraud is detected or suspected, the Company reserves the right to suspend the Client's message campaign (s). In particular, the Client undertakes to comply with all rules relating to the protection of personal data, in particular those ensuring the exercise of their rights by the persons concerned, namely the Addressees.
The distribution by the Company of the SMS in the name and on behalf of the Client can not under any circumstances presume that the SMS complies with the provisions of these conditions and can not engage the liability of the Company.
For any campaign conducted outside France, the Client acknowledges the legislation in force in the country where he/she will carry out this campaign for the execution of any promotional or commercial campaign, or for prospecting type consignments.
As such, it expressly exempts the Company from any liability in the event of a breach of foreign legislation.
For sending SMS messages outside Metropolitan France, STOP's policy may vary because some operators do not offer the response to the SMS.
However, the Company still offers a STOP LINK (internet link) to allow the Lessee to unsubscribe.
The Company offers the Client an SMS Service from its email box. This option is included in the price of an SMS package.
The Client may take advantage of the loans offered in order to carry out an email to SMS test in advance. This will be necessary before you purchase an SMS pack.
the Company cannot guarantee that the package will work properly on all mailboxes. Certain technical constraints, such as the use of a firewall, may prevent this service from working properly.
With regard to routing, SMSFactor relies on a specialised supplier to transform the routeing of an email into SMS. SMSFactor will handle the final routeing on the recipient's number. The company is therefore dependent on the response times of its supplier and therefore instantaneity is not guaranteed.
The APPOINTMENT REMINDER Service operates according to three subscription formulas:
The Company provides its Clients with a dedicated interface on which the Client will have his own account from which he will have to set the terms of the vote he wishes to launch.
The Client is solely responsible for the selected configuration and the information recorded on the account and in the management of the vote.
The Client may customise his account with texts, graphics, photographs, logos.
The Company and the Client will have to estimate the number of participants in the vote in order to establish as closely as possible the price of the service that will be invoiced. The invoice for the costs estimated by the Company and the Client must be paid by the Client before the event, i.e. before the completion of the vote.
The rates are as follows:
This Service is a micro payment solution on participants' mobile bills. The Client using the SMS + must provide participants with the following information:
The payment :
The company is paid by telephone operators within 3 months, the Client will receive his first SMS gain plus 3 months after the start of his use. Other transfers will be made monthly following the first payment.
The Company offers to rent virtual long numbers that allow Clients to have their own number. It is a standard 10 digit portable number that starts with 07.
This number requires several conditions in its use, such as:
The Client may communicate his/her file to the Company for analysis according to the following criteria: