Introduction
Smart Business Canada is a privately registered company, provides internet services via its website www.smartbusinesscanada.ca
The purpose of these terms and conditions is to outline the terms of use of Smart Business Canada’s services.
Any specific conditions negotiated between Smart Business Canada and the user take precedence over these terms and conditions.
Scope of Smart Business Canada’s services
Smart Business Canada provides internet services via its dedicated platform, marketed through its website www.smartbusinesscanada.ca website.
User account management
The use of Smart Business Canada’s services requires an online account to be set up.
The user is responsible for the accuracy of the information provided and undertakes to update all pertinent information or advise Smart Business Canada immediately of any change to his/her situation.
The user will take all necessary steps to maintain the confidentiality of access to his/her account.
In the event of fraudulent use of his/her account, the user undertakes to immediately notify Smart Business Canada and change his/her access password.
Any costs resulting from unauthorized use of the user’s account will be at the user’s expense until such time as Smart Business Canada has been notified.
Smart Business Canada will under no circumstances be responsible for any material or immaterial damage resulting from the use of an account by a third party, with or without the user’s authorization.
Smart Business Canada archives all messages sent and received via its platform. Distribution lists are maintained from the time the user opens and correctly updates his/her account. Smart Business Canada protects the integrity, confidentiality and the administrative, material and technical security of all of the user’s personal information.
Financial conditions
Subscribing to Smart Business Canada’s services commits the user to paying the purchase price for the services selected in his/her country of residence.
Unless stipulated otherwise, the price of the services subscribed to will be paid at the time of subscription and in the currency in which they are invoiced.
Prices displayed on the website do not include charges and are exclusive of VAT. Additional charges shown on the invoice will be based on the user’s country of residence and any applicable statutory or regulatory provisions.
Use of services
Compliance with applicable regulations
Each party declares that it will comply with the regulations applicable to its activities.
In general terms, the user guarantees that the information sent via Smart Business Canada’s services does not contravene any applicable statutory or regulatory provisions or the provisions of any international agreement, particularly those in force in Canada, in the country in which the user operates and in the country of residence of the people on the distribution lists, or the rights of any third party.
For information purposes only and without this list being exhaustive, the sending of emails and SMS to customers is subject to the following rules:
- United States: Telemarketing Sales Rule, Federal Telephone Consumer Protection Act, Can-Spam-Act.
- In France: articles L.34-5 of the Postal and Electronic Communications Code and L.21-34-1-1 of the Consumer Code.
- In Italy: Codice in Materia di Protezione dei Dati Personali
- In Spain: the Ley 34/2002, de 11 de julio, de Servicios de la Sociedad de la Información y de Comercio Electrónico and the Ley Orgánica 15/1999, de 13 de diciembre, de Protección de Datos de Carácter Personal.
- In the United Kingdom: The Privacy and Electronic Communications (EC Directive) Regulations 2003.
In Canada: Canada’s anti-spam legislation (CASL)
The user’s intellectual property rights
The user authorizes Smart Business Canada to use his/her name, brand and visual identity solely for the purposes of carrying out its services.
The user guarantees Smart Business Canada:
- that he/she has the full power and authority to use and grant intellectual and industrial property rights and that these rights are in no way assigned, compromised, encumbered or attributed to a third party;
- that he/she has not and will not, through assignment to a third party or any other means, undertake any action likely to compromise the use of intellectual or industrial property rights;
- that he/she has not and will not introduce into his/her campaigns any sequence, reproduction or resemblance likely to violate third party rights;
- that no litigation or lawsuit has been filed or is pending that would compromise intellectual property rights.
Moreover, the user undertakes to protect Smart Business Canada from any complaint by a third party or any accusation made against it arising from the failure to abide by this article.
SendinBlue’s intellectual and industrial property rights
All programs, services, processes, designs, software, technology, brands and trademarks, and inventions that appear on the website, are accessible via the website or via Smart Business Canada’s services are the property of Smart Business Canada or its licensors.
The user undertakes not to use, in any way, shape or form, the website, services or any of the above-mentioned items for purposes other than those foreseen in the present document.
Protection of third party personal data
The use of Smart Business Canada’s services by subscribers to these services is strictly personal and may not be rented out or transferred to a third party free of charge or for a fee.
Any use of services that is liable to damage, disable or overload Smart Business Canada’s infrastructure or the networks connected to Smart Business Canada servers, or hamper the use of the service for other users, is prohibited.
Any unauthorized attempt to access services, other accounts, IT systems or other networks connected to a Smart Business Canada server or one of its services by hacking or any other means is prohibited.
The use of services with the aim of selling products or services related to illegal or fraudulent activities or encouraging such activities, in particular but not limited to illegal drug-related activities, hacker programs, instructions for assembling or creating bombs, grenades or other weapons, material containing violence against children or encouraging violence is prohibited.
Any use of services that contravene the regulations applicable to telemarketing, email marketing, anti-spam, anti-phishing and personal data protection is prohibited.
Any use of services that violates third party rights is prohibited.
In the event of non-compliance with this article, Smart Business Canada reserves the right to immediately block the user from accessing its services and delete all of the information in his/her account without notice, refund, or other compensation.
Responsibilities and guarantees
Smart Business Canada’s liability and guarantees
Except in cases of force majeure, Smart Business Canada guarantees the user that it will provide its services in accordance with these terms and conditions.
Any compensation due by Smart Business Canada to the user or a third party as a result of an incursion of liability by Smart Business Canada, its subsidiaries or its partners while acting in accordance with the present document, shall not exceed the price paid by the user in exchange for the service(s) that gave rise to the aforesaid liability.
Under no circumstances does Smart Business Canada guarantee the user any anticipated economic benefits for images or information in respect of emails or SMS sent under the terms of the present document.
Smart Business Canada does not systematically monitor the content of messages sent by the user to his/her distribution lists, which remain the user’s responsibility.
Under no circumstances can Smart Business Canada be held responsible vis-à-vis third parties for damage resulting from the sending of emails or SMS from the user’s account, in whatever capacity.
The user’s liability
The user is solely responsible for the content of emails or SMS sent to his/her distribution lists in accordance with the terms of the present document.
The user may be held responsible for any non-compliance with these terms and conditions or Smart Business Canada’s confidentiality or anti-spam policies, or any statutory or regulatory provisions arising from an applicable international agreement.
The user will protect Smart Business Canada from any damage, complaint or legal recourse by a third party as a result of the user violating these terms and conditions or Smart Business Canada’s confidentiality or anti-spam policies, or any statutory or regulatory provisions arising from an applicable international agreement.
Changes to terms and conditions of use, and Smart Business Canada’s policies and products
Smart Business Canada may be required to amend these terms and conditions of use, its anti-spam and confidentiality policies, and its products.
When the user logs onto his/her account, he/she will be informed of any changes that have been introduced and invited to accept them in order to continue to use Smart Business Canada’s services.
The latest version of the terms and conditions of use, anti-spam and confidentiality policies and Smart Business Canada’s product offering can be viewed at any time on the www.sendinblue.com website.
Duration/Termination
This contract is valid for an indefinite period.
It can be terminated by the user from his/her personal account at any time.
Upon termination by the user, any sums paid in exchange for Smart Business Canada’s services remain due to Smart Business Canada, including any unused sending quotas.
In the event that the user does not comply with these terms and conditions, Smart Business Canada’s confidentiality or anti-spam policies, or any statutory or regulatory provisions arising from an applicable international agreement, Smart Business Canada reserves the right to terminate the contract subject to a 15-day notice period.
The termination does not require a notice period in the event of non-compliance with article ‘Use of services’ of the present document.
Force majeure
A party’s liability may not be invoked if the non-fulfilment or delay in meeting one of the obligations outlined in these terms and conditions arises from a case of force majeure.
Force majeure refers to any external or unforeseeable event or act of God as recognized by the jurisprudence of the Canadian courts, making it impossible for either party to fulfil its obligations or causing the fulfilment of these obligations to be excessively costly.
Without this list being restrictive, the following events will be expressly considered cases of force majeure, in addition to those commonly cited by the jurisprudence of the Canadian courts:
- wars; armed conflicts; riots; demonstrations; sabotage; acts of terrorism:
- total or partial strikes within or outside the company, a supplier or a national operator; lock-outs; transport or supply blockages for whatever reason;
- natural disasters resulting in the destruction of infrastructure such as fires, storms, floods and water damage;
- governmental or statutory restrictions; statutory or regulatory modification of forms of marketing; the suspension, cancellation or revocation of any authorization by any competent authority;
- interruptions to the Smart Business Canada network or to that of its subcontractor or supplier caused by a computer breakdown or telecommunications blockage, whether this be the result of an external attack, an interruption to the service provider’s services or other irregularity, or any other event not attributable to Smart Business Canada, its subcontractor or supplier preventing the normal operation of services;
- electrical power outages lasting more than 48 hours
Each party will notify the other party by registered mail with delivery receipt in the event of any case of force majeure.
Protection of the user’s personal data
Information gathered by Smart Business Canada (a privately held company) within the scope of its commercial relationship with the user will be processed and used for:
- commercial and accounting management under the contract;
- business development management;
- the compiling of sales statistics and the monitoring of regulatory compliance relating to data protection;
The user may also, for legitimate reasons, object to the processing of data concerning him/her.
By subscribing to Smart Business Canada services, the user also accepts Smart Business Canada’s ‘Confidentiality/Personal Data Protection Policy’.
Partial nullity of the contract
The cancellation of one or more of the clauses in the contract will not invalidate the contract in its entirety provided that the balance and overall intent of the agreement are preserved.
Applicable law/assignment of jurisdiction
The contract is governed by Canadian law alone.
Any dispute among the parties arising from the validity, interpretation and/or execution, termination or breach of the contract may be submitted by either party to the Commercial Court in Canada. This also applies in the event of emergency proceedings, third party appeals and/or multiple respondents.