lemcal General Terms & Conditions of Use
as of June 29, 2023
THESE GENERAL TERMS OF SERVICE (the « Terms ») are a legal and binding agreement between lempire SAS, a French corporation (« lempire » or « lemcal » or « We » or « Us » or « Service Provider ») and you, or if you represent an employer or client, then the employer or client (« You » or « Client »), governing your use of lemcal’s website (https://www.lemcal.com), the emailing services and all other related services that lempire provides (collectively the « Services »).
lempire reserves all rights to change or update these Terms at any moment and at its sole discretion, by posting on its Website or by providing any other notice, if possible at least 30 days before its entry into effect, and your rights under these Terms will be subject to the most current version posted on the Website at the website, the emailing services and all other related services that lempire provides (collectively the « Services »).
PLEASE CAREFULLY READ THESE TERMS. BY SUBSCRIBING OR BY ACCESSING OR USING THE WEBSITE OR THE SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THE AGREEMENT BEING THE FOLLOWING DOCUMENTS, LISTED BY ORDER OF PRIORITY:
- Specific Terms (defined below in article 1), if any;
- These Terms;
- Sending Policy (Anti-Spam Policy);
The Services are exclusively reserved for a professional use and are not available to minors under the age of 18.
Article 1. Definitions
Each capitalised term herein shall have the meaning given below unless otherwise expressly stated.
« Assistance Services » means any consulting services, development, configuration and settings assistance provided by Service Provider in order to allow Client to access and use the Service, including integration of an API into its own website or implementation of an « SMTP-IMAP » protocol for email transfers. Assistance Services include Consulting Services, On-boarding and training services, as well as all related services.
« Data » means Client’s electronic data, whether or not personal data, which are collected, managed, processed and/or shared by Client and Service Provider, and which may be intended for third parties, through the Service access and use rights.
« Service » means the lempire externalised application solution that is hosted on the servers and/or cloud that Service Provider designates and that Client may execute remotely. The Service offers various features, including, but not limited to, management of emailing campaigns with real-time monitoring of sent email deliverability, sending and managing, transactional emails. Service Provider expressly reserves the right, at any time during the term of the Agreement, to adapt, arrange and/or modify any of the components granting access and use rights to the Service and the associated documentation, provided that the maintenance and support commitments are complied with for these operations. Similarly, lempire may, at any time, discontinue providing a platform deemed undesirable and/or obsolete and migrate services to a new infrastructure; in which case, lempire will endeavour to inform You as early as possible and invite You to migrate your account to the new infrastructure.
« Intellectual Property Right » means all industrial property and copyrights including patents, trademarks, designs and models, copyrights (audiovisual effects, graphic interfaces, preparatory design material, software and source code, specifications and ancillary documentation).
« Specific Terms » means all specific terms and conditions mutually agreed with the Client stating in particular the financial and technical elements specified in quotation.
« Website » means the web pages associated with the technological features of the Service described in the Service Documentation that can be accessed by and configured for and/or by Client, especially the “Admin” interface, in accordance with the Agreement.
Article 2. Support and Service Levels
2.1 We shall use reasonable efforts, in accordance with customary state of the art principles, to ensure that emails sent by You are properly routed to their recipients’ electronic mailboxes. To this end, We shall provide You with an online automatic monitoring service, enabling You to update and modify your mailing lists and emailing campaigns in real time.
You may also subscribe to additional recommended services in order to improve the Service. Such additional services shall be invoiced separately and shall be provided only after your prior acceptance of a quotation and are as referenced in the Specific Terms.
2.2 Support and Service Levels
You shall be responsible for appointing an administrator (the « Administrator »), who shall be in charge of collecting information and assistance requests from your users and for trying to respond to them.
We shall provide second level support fort he Service (« Support »), consisting of (i) responding to the Administrator’s requests for information and support in connection with use of the Service, or (ii) resolving anomalies arising from use of the Service that the Administrator has not been able to fix despite its best first level support efforts.
The Administrator is to create a Support ticket by sending a request to: email@example.com including as much detail as possible relating to the request for Support, it being agreed that only the Administrator may contact/access the Support service.
Article 3. Use of the Services
3.1 Use of the Services
You shall comply with the terms and use restrictions, if any, set out in these present Terms, and in the Operating Policies. You shall be responsible for ensuring that your users also comply with said Terms and use restrictions.
You shall not interfere with or disrupt operation of the Service and shall comply with the Agreement for access to and use of this service.
You subscribe to the Services in your name and on your behalf, and You are not entitled to send via our Services promotional emails for a third-party, nor to assign the use of all or part of the Services to your own customers, even for free;
As an indirect lemcal subscriber, You subscribe to the Services in Your name but on behalf of your own clients with the objective of managing and/or reselling lemcal to your clients. Specific Terms will be applicable to this usage, including that You must use sub-accounts to separate email traffic of your own clients using the Services and are responsible for the necessary support for the End Users.
Depending on the pricing plan, users can connect multiple email addresses to each lemcal seat:
- Teams on the “Starter” can connect up to 1 email address to each lemcal seat.
- Teams on the “Pro” can connect up to 5 email addresses to each lemcal seat.
You shall keep confidential and secure all credentials, User IDs and passwords associated with your account, and to immediately notify Us of any unauthorized use of your account, or of any theft or loss of credentials allowing access to the account. Each account is personal and can only be accessed and used by You or the users duly authorized by You. You recognize and acknowledge that You may be liable for any unlawful, wrongful or fraudulent use of the account, and You shall indemnify and hold Us harmless against any action or claim arising from such a use. We reserve the right to request proof of your identity or authority before granting access to your account.
You shall be solely and wholly liable (i) for any Data, information or content, in particular the content of emails, or newsletters sent by You through the Service, including if such content is provided by a third party, such as an SMTP relay or via the routing of an entire infrastructure (hereinafter collectively referred to as « Content »), and (ii) for the Content’s compliance with the regulations in force in accordance with article 4 below.
You acknowledge and warrant that the Content, whether in whole or in part, shall in no event:
- infringe, misappropriate or violate any right, especially any Intellectual Property Right, of any third party whatsoever;
- contain any virus or program designed to cause damage, intercept or misappropriate any system or Data or personal data in a fraudulent manner;
- contain any unlawful, bullying, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature or any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable laws or regulations ;
- contain any sensitive personal data, including social security number, individually identifiable health or health insurance information, bank account information or credit card information;
- be false, misleading or inaccurate; or,
- be in breach with the Operating Policies.
You acknowledge that We have the right, but not the obligation, to monitor the Service and any Data submitted to the Service. To comply with legal obligations in this respect, We may take any actions (including removing Content or denying routing of certain Data and emails) We reasonably believe are necessary to prevent unlawful activity in connection with the Service.
You expressly acknowledge and agree that lemcal shall not be liable for any loss or destruction of the Content, including the Data, and that You shall be responsible for ensuring that You have proper backups thereof.
3.4 Sending Policy
You undertake to comply with Our Sending Policy and, in particular, You acknowledge that You have been informed that in the event of breach of the provisions of this Policy, or if We receive an unusual number of complaints, We shall be entitled to terminate your subscription and/or close the master account or any associated sub-account, in which case You shall not be entitled to claim any refund or compensation.
We also reserve the right to temporarily limit your sending – which means that your daily and total emails sent will be limited in number and You will need to take the necessary measures to ensure that your practices comply with our Policy and requirements – before lemcal can lift the temporary sending limit and allow You to send your desired volumes. A temporary sending limit subsequent to a breach of your contractual obligations means that You will remain liable for the payment of the amounts contractually due during the limitation period despite the limitation on your email sending options and no refund whatsoever will be made.
Article 4. Compliance with the Law
You (i) shall comply with all laws and regulations in force that are applicable in any country from which You access the Website and/or use the Service, as well as in any country to which You send emails, and (ii) shall indemnify and hold Us harmless from any action brought against Us, judgment entered against Us or loss We may sustain due to Your non-compliance with applicable laws and regulations.
Furthermore, You agree to reimburse Us for any action or formality We may be required to carry out to comply with a legal demand or request from an administrative or judicial authority in relation to your use of the Service.
In the event You become aware of a violation by any third party of any provision of these Terms or of any laws or regulations and, in particular, if You become aware of a security breach by a third party or discover a security breach, You shall immediately notify Us by any means, including by sending an email to firstname.lastname@example.org
Article 5. Plans – Financial Terms
We offer various options to our Clients, including free and paid plans, with or without a fixed commitment period. You can find these options and the relevant pricing on our website at: www.lemcal.com The pricing of these plans is available in US Dollars and Euros.
5.1 Free plans
Free plans are non paid subscriptions subject to use restrictions (maximum limits to the number of daily and monthly emails and support ticket requests, restriction on API calls, etc.); these use restrictions are set forth on our Website.
You may at any time terminate your free plan or upgrade to a paid plan.
5.2 Paid plans ("Starter" & "Pro")
Paid plans are without any fixed-term commitment and have lower use restriction limits than the self-service free subscriptions. Premium features can also be added to these plans.
Your paid subscription shall be due and payable either on a monthly or yearly basis in advance from the date of your first paid subscription and will be automatically renewed thereafter on the same basis, subject to the full payment in advance of the fees due. You may not re-subscribe to the same paid monthly plan within twenty-one (21) days for the same account.
You may at any time terminate Your paid self-service plan. We nevertheless draw your attention to the fact that lempire shall not reimburse You the unused fees paid for a started month or year, even on a pro rata basis; it is then Your responsibility to anticipate the termination of Your plan to make it effective at the most convenient time.
Payment may be made by credit card, or direct debit. You authorize lempire to charge the credit card or bank account You provide to Us for any and all costs and amounts that You owe Us for the Services.
5.3 Paid plans "Pro"
"Pro" paid plans have a fixed-term commitment (generally set to 12 months), even lower use restriction limits than our other paid plans and offer more custom solutions. Premium features can also be added as well as Assistance Services.
When You subscribe to an "Pro" paid plan, the financial conditions that are applicable to You (fees, schedule and payment terms) are set forth on the Specific Terms signed by You. Fees for the Service consist of a fixed fee (« Minimum Annual Fee ») and a variable fee («Variable Fee »), if any, depending on the volume of emails processed on behalf of Client. Unless otherwise stated, the Minimum Annual Fee is non-cancelable and non-refundable for any reason whatsoever.
Us or Yourself may terminate the plan at the end of each term (anniversary date), by giving prior a three (3) month notice. You will remain responsible to pay all amounts due to Us until the termination effective date. In the absence of such a termination, the plan shall be automatically renewed for the same fixed term, and You shall be invoiced according to the initial schedule payment not including any overage charges.
Service Provider or Yourself may also terminate the plan in advance in the event the other Party materially breaches the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of a notice of such breach, sent by certified mail, return receipt requested. Notwithstanding the foregoing, termination may be immediate in the event of the following circumstances: Client’s non-compliance with the Anti-Spam Policy in accordance with provisions of Article 6.3 of these present Terms; in the event of a breach of any laws and regulations ; in the event of a breach or attempted breach of the security of the Website; or, in the event of fraud or attempted fraud in connection with use of the Website or the Service.
5.4 Common provisions for all paid plans
The plan fees do not include the cost of equipment and Internet access enabling use of the Service, the costs of which shall be borne by You.
Client Account Services fees, if any, are specified on the purchase order and/or the special terms. They do not cover, and You agree to separately reimburse Us for all out-of-pocket expenses incurred by Us in connection with the Client Account Services including: (i) travel expenses, including airfare, car rental and travel time exceeding four hours per week; (ii) accommodation expenses, including the cost of hotels; (iii) meal expenses, including breakfast, lunch, and dinner; (iv) translation and/or interpretation services; and, (v) costs of materials. Client Account Services fees shall be invoiced when the purchase order is signed. They are non-cancelable and non-refundable.
Any delay in payment (i) will allow us to recover and without notice late interest, any collections fees and other amounts as allowed by law and (ii) may immediately, after notice, temporarily suspend access to and use of the Service and/or terminate your subscription. All amounts payable are quoted excluding taxes. You shall pay any and all taxes imposed by any government on the amounts payable for the Services, or reimburse Us in the event We have paid such amounts, for which You are personally responsible.
lempire reserves the right to change the Services fees by notifying You by email with at least a thirty (30) day notice. If You do not accept the new fees as notified to You, You shall cease all use of the Services on or before the last day of the monthly period already paid at the date of the notification and terminate your plan. For fixed term plans, the fees applicable are the ones in force on the date of your order; the new fees will be applicable to You only on the renewal date of your plan.
You agree not to seek lempire's liability and not to dispute payment for the sending of Your emails, even in the event any of them are blocked by a third party and do not reach their recipient as You would have desired.
Article 6. Termination
6.1 Right of withdrawal
The Services are reserved exclusively for a professional use and any regulations on consumer or retraction rights are not applicable to the Services.
6.2 Termination and/or deletion of an account upon lempire’s initiative
lempire may terminate your Account and the performance of Services at its sole discretion under the following circumstances:
- at any time and for any legitimate reason for a free plan provided reasonable notice is given; or,
- after You have been notified by lempire following any breach of laws or regulations or these Terms, including but not limited to: if payment or partial payment of any sum due by You is not received by lempire; in the event of a payment incident; when using the Services to send emails that do not comply with the Sending Policy; in the event of a breach or attempted breach of the Website security; or, in the event of fraud or attempted fraud when using the Website.
6.3 Consequences of the termination
Upon expiration or termination of your account for any reason whatsoever, all amounts still owed by You, shall become due and payable immediately. We will not refund any prepaid fees and will charge You the full amount that We would have been entitled to charge for the remaining term.
Article 7. Intellectual Property – Access and Use Rights
The service name lemcal and all trademarks referenced on the Website, without limitation, are among the registered trademarks of Service Provider. You are not allowed to use any such trademarks without Service Provider’s express written agreement. All Website content, including graphics, logos, page headers, icons, and service names are the property of Service Provider and its affiliates. Other trademarks that appear on the Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Service Provider.
All elements on the site, such as graphic elements (including graphical interface), logos, headers, icons, service names,literary content, computer programs, etc. are protected by copyright laws, and remain the full property of their authors. You are not allowed to use the content or design of the site without Service Provider’s express written agreement. You may not use, copy, modify, create or distribute a derivative work. Concerning the computer programs used, You also cannot reverse engineer, decompile or otherwise attempt to extract the source code of our platform. Any activity that infringes terms of the Agreement violates copyright law and will be prosecuted according to the current applicable laws.
7.3 Right of Access and Use
Subject to full payment of all fees when due for any paid plans, lemcal authorises/grants You a limited, non-exclusive, non-transferable, personal and temporary right to access and use the Service. This grant of rights shall not be deemed an assignment of any intellectual property rights.
7.4 Exclusive rights
lemcal has the exclusive right to intervene to adapt, arrange and/or modify any of the components of the Service and in particular, to correct any errors. lemcal remains the owner of all intellectual property rights, protecting, where appropriate, the works and services performed by Us in connection with our Services, as well as all associated documentation, but also all copies of such works and services, their derivatives, modifications and enhancements.
7.5 Intellectual property related to the Data
In the case where the Data (with the exception of personal Data) are protected by an Intellectual Property Right, You grant to lemcal, free of charge and for the duration of this Agreement, and for an unlimited period after the end of the Agreement, a right to use the Data that are collected, managed, processed and/or shared by You in connection with the Services. You are informed that this Data will be used by lemcal to improve the Services, except if you specifically ask to opt-out of Services improvement program.
Article 8. Warranties
lempire makes all reasonable efforts to deliver a functional Service and substantially compliant with its documentation, but does not guarantee an error or “bug” free service. If You notice a non-compliance issue, You must notify lempire as soon as possible and lempire undertakes to make every reasonable effort to remedy the non-compliance issue,as this is Your only recourse.
lempire also ensures that Support Services will be provided, where appropriate, according to the description given in the Specific Terms signed by You, where applicable, and proper codes of practice, as the Service Provider is only bound by an obligation of means in this instance.
You declare, warrant and agree, in lempire’s favor, that: (1) You have the right and authority to subscribe and use the Services, and accept these Terms, and if You accept the Agreement on behalf of a corporation or other entity, to link that company or other entity hereunder; (2) You have the right and executing authority of your obligations under these Terms; and, (3) all Data, information or content that You provide to lempire in the context of your access to the Website and use of the Services is accurate and up-to-date.
Furthermore, You acknowledge that lemcal does not control the transfer of Data via the internet, and cannot be held responsible for delays or delivery problems arising from internet or other outside connection issues.
Article 9. Limitation of Liability
The Service, as well as the Website may include links to other websites or other Internet sources. In so far as We can not control these sites and external sources, lempire cannot be held responsible for the availability of such external websites or sources, and may not be held liable in any way for the content, advertising, products, services or other materials on or available from such external websites or sources. lempire provides links only as a convenience, and such inclusion of any link does not imply that We endorse the linked websites or any part of their content. In addition, lempire cannot be held responsible for the behavior or actions of other users, nor for any proven or alleged damage or loss subsequent to or in connection with access to, use of or the fact of having relied upon the content, products or services available on such external sites or sources.
lempire will be freed from the performance of Services, following an event of Force Majeure, as defined in article 11.5 of these Terms.
Furthermore, for maintenance reasons, lempire may suspend temporarily access to the Services; in such cases, lempire will endeavor to notify You and to keep the length of the interruption to a minimum.
In any event, lempire (including its third party suppliers, employees or representatives) may not, under any circumstances, be liable for indirect or consequential damages of any kind,including and without limitation, loss of revenue, profits, chance, business interruption, or Data loss, even if the parties were informed of the possibility of such damages.
Moreover, as to any indirect lemcal subscriber, in no event shall lemcal be liable for any End User, in particular in the event of temporary or permanent suspension of the Services due to non respect of the lemcal Sending Policy by Yourself or the End User.
In all cases, lempire’s total liability is limited, all damage combined, to the amount paid by You to lempire, if any, for use of the Website and Services during the twelve (12) months preceding the date on which the damage occurred. This limitation does not apply to damage due to bodily injury (including death) or to willful misconduct or gross negligence.
You acknowledge that You have subscribed to the Services with knowledge of (i) the risks related to them, and (ii) the level of risk accepted by You. The prices applicable have been agreed upon inconsideration of this article, which is integral to the economic balance of the Agreement.
Article 10. Confidentiality
Service Provider and You undertake to treat as confidential, and to not reproduce or disclose, other than for the sole purposes of performing the Agreement, the information and documents exchanged between them as well as any disclosures obtained during thisAgreement.
Both Parties shall also oblige all contracting parties, subcontractors, client or any third party to maintain confidentiality with the same reasonable care standard as its own confidential information.
Both Parties acknowledge that any breach of its obligations with respect to confidential information may cause the other party irreparable injury for which there are inadequate remedies at law, and that the injured party shall be entitled to seek equitable relief in addition to all other remedies available to it. Client shall not disclose to a third party the results of any performance tests conducted on the Service, without the prior written consent of Service Provider.
Excluded from the obligation to maintain confidentiality is information that is generally available to the public or whose disclosure is required for legal reasons, or due to a judicial or administrative ruling.
Article 11. Miscellaneous
11.1 Transfer of the Agreement – Change of Control
For the avoidance of doubt, it is hereby reiterated that Client has a personal, temporary, non-transferable and non-exclusive right to access and use the Service.
Under these conditions, it is expressly agreed that Client shall not transfer the Agreement or any right derived from the access and use of the Service to a third party, whether by a contribution, assignment, concession, merger, demerger, loan or otherwise, including without consideration, or within the group to which Client belongs, without Service Provider’s prior written agreement.
Service Provider reserves the right to use subcontractor(s) of its choice to provide the services in connection with the Services, and shall remain liable to Client for the performance thereof in accordance with the present Terms and subject to the reservations stipulated in theAgreement.
11.3 Entire Agreement
These Terms, including the Operational Policies along with any purchase order and/or special conditions, constitute the entirety of the commitments between You and us. It establishes all of the Parties’ rights and obligations and supersedes all prior oral or written commitments that directly or indirectly concern the subject matter of the agreement between us. This Agreement binding us may only be modified by a written amendment which is signed and designated as such by both Parties (You and us).
If any one of the provisions of the Agreement is deemed void under any legal principle, law or regulation, or is invalidated by a court decision, it shall be severed from the Agreement, but the other provisions of the Agreement shall remain in full force and effect.
11.5 Force Majeure
lempire shall not be responsible for any default or delay due to extraordinary events beyond its control including, without limitation, strikes, lock-outs, shutdown of internet connections by Internet provider, cyber-attacks on the Website (« Force Majeure »).
If a Force Majeure event occurs, this Agreement shall be automatically suspended during the time the Force Majeure event continues, and neither Party shall be liable to the other for non-performance or delay in the performance of required obligation(s) due to the Force Majeure event, provided the non-performing Party gives prompt written notice of its inability to perform specified obligation(s) due to the event and uses reasonable efforts to resume its performance of its obligation(s) as soon as possible. It is agreed that the other Party may, during the time the Force Majeure event continues, similarly suspend performance of its obligations until such time as the non-performing Party resumes performance of its obligation(s).The Parties shall meet in order to jointly determine the conditions for resuming performance of the Agreement as soon as possible. If a Force Majeure event continues for more than a period of sixty (60) days, the Agreement may be terminated by either Party, by giving notice by certified mail, return receipt requested, effective immediately, if the impacted obligations are material obligations under the Agreement. Notwithstanding the foregoing, in no event shall a Force Majeure event.
11.6 Governing Law – Jurisdiction
These Terms are subject to French law. Failing amicable settlement, any difficulties related to their interpretation or validation, and any dispute between us will be the exclusive jurisdiction of the Paris courts, notwithstanding multiple defendants or third party claim.
Article 12. Your Data
"Your Data" means any data and content stored or transmitted via the Services by or on behalf of you or your end-users (which may include data you elect to import from third party services you use). This includes messages you send, files you upload, comments on files, and anything else you enter or upload into lemcal.
In order to use our lemcal Services, you must link a 3rd party email account to your lemcal Services account and we require that you grant us certain rights with respect to Your Data. For example, with your permission (which you are granting by using the Services), the lemcal Service's software will obtain access to your email account in order for you to being able to send emails via lemcal Service and Service to check for replies on emails you sent. You retain full ownership of Your Data. We do not claim any ownership to any of it.
As well we need to be able to transmit, store and copy Your Data in order to display it to you and your teammates, to index it so you are able to search it, to make backups to prevent data loss, and so on. Your acceptance of this ToS gives us the permission to do so and grants us any such rights necessary to provide the service to you, only for the purpose of providing the service (and for no other purpose). This permission includes allowing us to use third-party service providers (such as Amazon Web Services) in the operation and administration of the service and the rights granted to us are extended to these third parties to the degree necessary in order for the service to be provided.
You are solely responsible for your conduct, the content of Your Data and your communications with others while using the Services. For example, it’s your responsibility to ensure that you have all rights and permissions needed to comply with these Terms and to avoid infringement or violation of any rights of others. You will be responsible for your users’ compliance with these Terms and will use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify us promptly of any such unauthorized access or use.
All emails uploaded to a lemcal account may be verified for their validity in order to provide high-quality deliverability standards, lower bounce rates, and maintain a high deliverability reputation for our customers. Email addresses that are detected as invalid will be blocked by the system and the user will not be able to send emails to this address via lemcal. In order to provide this safeguard service to our customers, lemcal can use data regarding the status of email validity and deliverability (i.e. bounced, invalid, valid, risky) for any email that is imported or added manually to an account to improve the internal email validation functionality.
You acknowledge that lempire has no obligation to monitor any information on the Services and that we are not responsible for the accuracy, completeness, appropriateness, safety or legality of Your Data or any other information or content you may be able to access using the Services.
You acknowledge that lempire processes personal data on your behalf as a processor within the meaning of the GDPR. These terms and conditions incorporate the Data Processing Agreement (DPA). By signing these terms and conditions, the Customer accepts the DPA. You can always ask us to sign a version by contacting our DPO at the following address : email@example.com
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