SMSlink Pacific (SARL registered with the RCS of Nouméa under number 1 625 367 with its head office at 11 rue des Frères Maestrati, 98 800 Nouméa, New Caledonia, and SMSlink Pacific PF SARL registered under number TAHITI G17560 with its head office at 38 avenue du Maréchal Foch, 98713 Papeete BP 40335 Fare Tony, French Polynesia) operates a marketing and/or transactional SMS solution via its website smslink.pro (hereinafter “SMSlink Pacific”).
These General Terms of Use are intended to define the terms of use of SMSlink Pacific Services. They constitute a legal and binding agreement between SMSlink Pacific and any user of the platform www.smslink.pro (the “User”). Unless otherwise stipulated, the prices of the Services subscribed to are paid at the time of subscription and in the currency in which they were invoiced, in accordance with the financial conditions detailed here: https://smslink.pro/#tarifs
The unit prices of SMS depend on market rates applied by our suppliers and may therefore change during the execution of the contract. Any price increase is immediately applied to Users after notification from our supplier.
To access, browse, or use our Services, the User must agree to be unconditionally bound by these General Terms of Use. The User may accept the Terms of Use by clicking to accept them when such an option is made available through any agreement, electronic form, or user interface, for any Service offered by SMSlink Pacific, or simply by actually using the Services. By subscribing to or using the Website, the Platform, or the Services, the User is deemed to have read and unreservedly accepted the current version of these Terms of Use and declares and warrants that its legal representative is at least 18 years old and has the legal right and capacity to enter into these Terms of Use. Where Users access the Services on behalf of a legal entity, the User declares and warrants that its representative is authorized to act on behalf of the legal entity and to bind it to these Terms of Use.
Any special terms possibly negotiated between SMSlink Pacific and the User shall prevail over these General Terms of Use.
The terms used in this document are defined as follows:
“User” means any individual or legal entity using SMSlink Pacific Services.
“Services” means the features made available to Users via the Site.
“Processor” means the company that processes data on behalf of a data controller. SMSlink Pacific acts as a processor by making its Services available to Users, who determine the purposes and means of the processing. Likewise, SMSlink Pacific may use subprocessors (“sub-processor”) to process data on its behalf.
“User data” means the data processed by SMSlink Pacific on behalf of Users in the course of providing the subscribed Services.
“Personal data” means information relating to an identified or identifiable natural person.
“Parties” means SMSlink Pacific and the User.
SMSlink Pacific provides marketing and/or transactional SMS, authentication solutions, through its sending platform, marketed via the Website.
Using SMSlink Pacific Services requires creating an online account.
The User is responsible for the accuracy of the information provided and agrees to update such information or to promptly notify SMSlink Pacific of any changes to their situation.
The User must take all necessary measures to maintain the confidentiality of access to their account.
In case of fraudulent use of the account, the User agrees to immediately inform SMSlink Pacific and to promptly change their access password.
Costs arising from such unauthorized use will be borne by the User until they have notified SMSlink Pacific of such use.
SMSlink Pacific shall not, under any circumstances, be liable for material or immaterial damages resulting from use of the account by a third party, whether authorized by the User or not.
SMSlink Pacific retains messages sent through its platform on behalf of the User. Distribution lists are maintained as long as the User properly manages and updates their account. SMSlink Pacific protects the integrity, confidentiality, and administrative, physical, and technical security of the User’s personal information.
Subscribing to SMSlink Pacific Services obligates the User to pay the price corresponding to the selected Services and their country of residence.
Unless otherwise stipulated, the prices of the subscribed Services are paid at the time of subscription and in the currency in which they were invoiced, in accordance with the financial conditions detailed here: https://www.smslink.pro/#tarifs
Prices displayed on the Website are exclusive of taxes; they do not include TGC or VAT. Additional charges are applied on the invoice depending on the User’s country of residence and the applicable legal and regulatory provisions.
Once connected to the platform, or when subscribing to an offer by email (commande@smslink.pro), the User may also purchase SMS credits. The unit price of SMS depends on market rates applied by our suppliers (OPT.NC and ONATI PF), and may therefore change during the contract. Any price increase is immediately applied to Users after notification from our supplier.
Each Party declares that it complies with the regulations applicable to its activity.
In general, the User guarantees that the information sent via SMSlink Pacific Services does not contravene any legal, regulatory, or international convention provisions applicable to them, including but not limited to those in force in New Caledonia, France, the State in which the User carries out its activity, and the State in which the recipients reside, nor third-party rights.
Sending SMS to clients and prospects is subject to data protection and electronic marketing regulations, including but not limited to:
In New Caledonia: Article 261-6.
In France: Articles L.34-5 of the Postal and Electronic Communications Code, and L.122-8, L122-9, and L122-10 of the Consumer Code.
The User authorizes SMSlink Pacific to use their name, brand, and visual identity solely for the purpose of performing the Services.
The User guarantees SMSlink Pacific:
All programs, services, processes, designs, software, technologies, trademarks, trade names, and inventions on the Website, accessible via the Site or through SMSlink Pacific Services, are the property of SMSlink Pacific or its licensors.
The User agrees not to use the Site, Services, or any of the aforementioned elements for any purpose other than those provided for herein.
For the purpose of providing the Services, SMSlink Pacific has access to the information contained in the SMS distribution lists created by Users in their personal accounts, as well as the content of SMS sent to their distribution lists through the Services. This information contains personal data relating to third parties.
As the creator of the distribution list, the User is the data controller of the personal data in this list within the meaning of the applicable regulations. As such, if the User is established in the European Union, or if their distribution list contains personal data of EU citizens, the User warrants to SMSlink Pacific that they comply with Regulation No. 2016/679 of 27 April 2016 (the “GDPR”) as well as Law No. 78-17 of 6 January 1978 on Information Technology, Data Files and Civil Liberties, and in particular:
It is specified that the User is solely responsible for managing the retention periods of the personal data they upload to the SMSlink Pacific platform, and it is their responsibility to delete the data once its retention period expires. SMSlink Pacific’s sole responsibility is to delete this data at the end of its contractual relationship with the User.
Furthermore, the User agrees not to include in the distribution lists uploaded to the SMSlink Pacific platform any so-called “sensitive” personal data within the meaning of Article 9 of the GDPR, and in particular no health data, nor any data relating to criminal convictions and offences, social security numbers, or bank card numbers. SMSlink Pacific can under no circumstances be held responsible for the presence of such personal data on its platform, or for the consequences that may result. In case of a breach of this clause, the User will be solely responsible for any consequences and undertakes to indemnify and, where applicable, compensate SMSlink Pacific.
SMSlink Pacific has taken all necessary precautions to preserve the security of personal data and, in particular, to prevent it from being distorted or damaged or accessed by unauthorized third parties.
Furthermore, access to processing via SMSlink Pacific Services requires authentication of persons accessing the data, using an access code and an individual password, sufficiently strong and regularly renewed.
SMSlink Pacific acts as a processor on behalf of the User and undertakes to comply with the obligations described in the Appendix “Data Processing Agreement.”
In this context, it is specified that:
The User expressly agrees that recipient behavior regarding these SMS may be processed by SMSlink Pacific (tracking open rates, click-through rates, and bounce rates at the individual level) in order to improve the effectiveness of email campaigns.
The User expressly understands and agrees that the Services are provided “as is” and “as available” on the platform, with all their defects and imperfections. SMSlink Pacific makes no warranty regarding the Service, either on its own behalf or on behalf of its service provider, and expressly disclaims all implied warranties, including any warranty of fitness for a particular purpose or non-infringement of third-party rights. SMSlink Pacific makes no representation of any kind that the Services will meet the User’s specific requirements, achieve expected results, be compatible or work with other software, applications, systems, devices, or services, operate without interruption, meet any performance or reliability standards, or be error-free, or that any errors or defects can or will be corrected. SMSlink Pacific does not guarantee that the Services will be uninterrupted, timely, secure, error-free, or virus-free.
The use of SMSlink Pacific Services as a result of subscribing to said Services is strictly personal and may not be rented, assigned free of charge, or for consideration to a third party. Without prior authorization, use of SMSlink Pacific is limited to one account per User.
Any use of the Services likely to damage, disable, or overload SMSlink Pacific’s infrastructure or networks connected to SMSlink Pacific servers, or to interfere with other Users’ enjoyment of the Services, is prohibited.
Any attempt to gain unauthorized access to the Services, other accounts, computer systems, or other networks connected to an SMSlink Pacific server or any of the Services, through hacking or any other method, is prohibited.
The use of the Services for the purpose of selling products or services related to illegal or fraudulent activities, or encouraging such activities—including but not limited to activities related to illegal drugs, pirated programs, bomb-making instructions, grenades, or other weapons, materials involving child violence, or encouraging violence—is prohibited.
Any use of the Services contrary to applicable regulations on telemarketing, email marketing, anti-spam, anti-phishing, personal data protection, and/or contrary to SMSlink Pacific’s anti-spam and/or privacy policy is prohibited.
Any use of the Services that infringes third-party rights is prohibited.
In case of non-compliance with this article, SMSlink Pacific reserves the right to immediately block the User’s access to its Services and delete all account information without notice, refund, or any other form of compensation.
SMSlink Pacific reserves the right to refuse or limit the service to accounts that do not comply with its Terms of Use, communications company regulations, or that distribute unsolicited communications.
The following topics are prohibited on the SMSlink Pacific platform:
Accounts engaged in the following activities will only be validated under certain conditions:
Except in cases of force majeure, SMSlink Pacific guarantees the User proper performance of its services in compliance with these General Terms of Use.
The compensation, if any, owed by SMSlink Pacific to the User or to a third party, due to the liability of SMSlink Pacific, its partners, or its provider, in connection with the performance of these Terms, shall not exceed the price paid by the User for the Services that gave rise to such liability during the six (6) months preceding the occurrence of the event that caused the damage.
Under no circumstances does SMSlink Pacific guarantee the User the economic, image, or informational outcomes expected by the User from sending SMS under these Terms.
SMSlink Pacific does not systematically monitor the content of messages sent by the User to their distribution lists, which remains the sole responsibility of the User.
Under no circumstances may SMSlink Pacific be held liable to third parties for any damage resulting from SMS sent on behalf of the User, regardless of the reason.
The User is solely responsible for the content of the SMS sent to their distribution lists under these Terms.
The User’s liability may be incurred as a result of non-compliance with these General Terms of Use, SMSlink Pacific’s privacy and anti-spam policies, or any applicable legal, regulatory, or international provisions.
The User indemnifies and holds SMSlink Pacific harmless from any damage, claim, or third-party action arising from a breach by the User of these Terms of Use, SMSlink Pacific’s privacy and anti-spam policies, or any applicable legal, regulatory, or international provisions.
SMSlink Pacific may modify these General Terms of Use, its anti-spam and privacy policies, as well as its service offering.
In any event, the User’s continued use of the Services shall constitute acceptance of such modifications.
The Terms of Use, anti-spam and privacy policies, and their updates, as well as SMSlink Pacific’s offer with the latest modifications, are available at any time on the Website.
In the event of a substantial modification of these Terms, SMSlink Pacific may decide to inform the User by email or directly through their SMSlink Pacific account.
These General Terms of Use are in effect for an indefinite period.
The User may terminate their SMSlink Pacific account at any time by written request to support@smslink.pro or directly via the Website.
In case of termination by the User, amounts paid for any SMSlink Pacific Services remain due to SMSlink Pacific, even if the User has not used all the acquired quotas.
In case of breach by the User of these General Terms of Use, SMSlink Pacific’s privacy and anti-spam policies, or any applicable legal, regulatory, or international provisions, SMSlink Pacific reserves the right to terminate the User’s account with 15 days’ notice.
Termination shall occur without notice in case of breach of the article “Use of Services” of these Terms.
The Parties shall not be held liable if the non-performance or delay in the performance of any of their obligations described in these Terms of Use results from a case of force majeure.
Force majeure refers to any external, irresistible, and unforeseeable event as interpreted by French case law, preventing either party from fulfilling its obligations or making their performance excessively burdensome.
Expressly, the following shall be considered cases of force majeure, in addition to those usually recognized by French case law, and without limitation:
wars, armed conflicts, riots, insurrections, sabotage, acts of terrorism,
strikes (total or partial), internal or external to the company, at a supplier or at a national operator, lockouts, blockages of transportation or supply for any reason,
natural disasters leading to the destruction of infrastructure, such as fires, storms, floods, water damage,
governmental or legal restrictions, legal or regulatory changes to marketing methods, cases of suspension, cancellation, or revocation of any authorization by any competent authority,
interruptions in the SMSlink Pacific network, its subprocessor’s or provider’s network, due to computer breakdowns, blockages of telecommunications, whether caused by external attacks, service interruptions by the access provider, or other events beyond the control of SMSlink Pacific, its subprocessors, or providers, preventing normal performance of the Services;
power outages lasting more than 48 hours.
Each Party shall notify the other by registered letter with acknowledgment of receipt of the occurrence of any case of force majeure.
The information, including personal data, collected by SMSlink Pacific as part of its business relationship with the User is subject to computerized processing as detailed in SMSlink Pacific’s “Privacy Policy – Protection of Personal Data.”
The cancellation of one or more clauses of these Terms of Use shall not result in cancellation of the Terms as a whole, provided that the balance and overall purpose of the agreement can be preserved.
These Terms of Use are governed solely by French law.
Any dispute between the Parties concerning the validity, interpretation, performance, termination, or breach of these Terms of Use shall be submitted by the more diligent Party to the Commercial Court of Nouméa.