SUBJECT MATTER AND ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE
The aim of these Terms and Conditions of Use (hereafter referred to as “Terms and Conditions”) is to inform the user (hereafter referred to as “the User”) of:
the means and conditions of access and availability of this application on iOS (iPhone, iPad, iPod Touch), known as “Wizzpic” (hereafter referred to as “the Application”), as outlined below;the mutual obligations and guarantees of the parties regarding the various functions offered by the Application.
The use or even viewing of the Application, implies the User’s undertaking to comply with these Terms and Conditions.These Terms and Conditions shall therefore apply wholly to the User who shall expressly declare his or her recognition thereof, to the exclusion of all other terms and conditions.These Terms and Conditions can be accessed at any time from the Application and shall, where appropriate, take precedence over any other contradictory version or document.Any amendment to these Terms and Conditions are binding on the User of the Application, with effect from their being published online.
The User is strongly advised to regularly refer to the most recent version of these Terms and Conditions, which are accessible from the Application. The User shall be deemed to have accepted the latest version upon each login.All changes or new versions of Application services shall be subject to these Terms and Conditions.
PROVISION OF THE APPLICATION
These Terms and Conditions shall therefore unconditionally and unreservedly apply to users of services accessible by downloading the mobile Application known as “Wizzpic”, since the stores on which it is broadcast.
This Application is published by YONÂH (hereafter referred to as “YONÂH”), a simplified public limited company with a capital of €10,000 registered with the Nanterre companies’ register under No 809 869 647 RCS, and whose registered offices are based at Saint Cloud (92210) France, 4 rue Dailly, represented by Mr Simon Sidney Cohen, chief operating officer.
The “Wizzpic” application allows its users to communicate in a simple, entertaining and practical way via hidden photos and videos known as “Wizz”. Users must “chat” (communicate using the keyboard) to reveal photos. The Application is downloadable onto suitable iPhone, iPad, iPod Touch and other mobile devices.
The Application has a number of different modes with content and themes changing over time.
Generally speaking, the Application gives the User the ability to hide and reveal photographs.
Using this visual messaging system, the User can send and gradually reveal hidden photos/videos by sending chat (text) or other forms of communication (e.g. games, emoticons, word puzzles, etc.).
This Application also enables the User to create their own gallery of private photos, by importing their own visual content. When they create this gallery, Users can only access their photos using their own unique PIN code.
USE OF THE APPLICATION / PERSONAL DATA
In order to be able to use the Application, the User must have mobile access and an Apple (iPhone/iPod tTouch/iPad) terminal, possible connection charges for which the User shall bear sole responsibility.
In order to make full use of access to the Application and its social networking functions (creating a profile from which personal images can be sent), the User has the option to sign up via the Application, by filling out a subscription form with the relevant personal information (first name, surname, Users’s address and date of birth, a valid email address, unique login/username and password).
The User also has the option to sign up at any point when they wish to post an image on the Application.
The User shall not reveal their password to any third party. In such instances, Yonah can in no way be held liable for unauthorised access to a User’s account.
In addition to this identifying information, the User may be asked for further information as part of their profile personalisation.
The collection of such data will enable Yonah to manage individual accounts so as to better determine User requirements.
In order to protect the User’s privacy and personal data, it is recommended that the username which will be seen by other Users does not contain any personal information.
Moreover, the login selected shall not (a) infringe any intellectual property rights;(b) infringe the right to personal privacy or any other personal rights; (c) impersonate the identity of another person or User; (d) breach public order, public decency or any other prevailing legal statue or regulation.
The User shall undertake to supply information which is current and accurate.
Moreover, the User shall undertake to regularly update any data submitted upon subscription and to inform Yonah as soon as possible of any changes which may affect their status within the Wizzpic “community”.
In accordance with the provisions of the French government Act of 6 January 1978, amended by the Act of 6 August 2005, any User whose personal data is thus processed shall be entitled to exercise the right of access and rectification of any data relating to them to object to the processing of any data relating to them by Yonah. Each User may exercise these rights by sending an alert message to WIZZPIC.COM(report abuse).
Yonah reserves the right to delete the account of any User failing to comply with these Terms and Conditions, in the case, inter alia, of registering false information when registering or using their account, or when an account remains dormant for a period of over 12 months.
In such cases, excluded members shall not be entitled to claim related compensation or damages.
Once these conditions are met and the member approved by YONÂH, they shall have access to a secure personal space.
CONTENT DISPLAYED ON THE APPLICATION
4.1 Content displayed by Yonah
- Right of User
Yonah grants the User the private, non-collective, non-commercial and non-exclusive rights of user for the contents of the Application. This licence is granted to the User in consideration of the above-mentioned obligations.
- Intellectual Property
The contents of this Application as well the elements created for the purpose of the animation and functioning of the Application and (this list being non-exhaustive): the Application architecture, navigation, design, screens, display or services are the exclusive property ofYONÂH and its partners and as such are protected by French and international intellectual property law.
Subject to the user right licence granted above, the User shall refrain from either the total or partial reproduction or use of any of the elements of the content or structure of the application itself, without the express prior written permission of YONÂH.
Consequently, any representation or reproduction thereof, whether in whole or in part, carried out without YONÂH’s consent, shall be deemed unlawful and liable to constitute an offence of forgery under the provisions of article L.335 – 2 of the Intellectual Property Code, punishable by up to 3 years imprisonment and a fine of €300,000.
The same applies to trademarks, whether figurative or otherwise, as displayed on the Application, whether these be registered trademarks or not, belonging to (or licensed to) either YONÂH or to third parties.
The mention or display of these trademarks on the Application shall in no way constitute, whether implicitly or explicitly, the granting of user rights, nor any licence or authorisation for their use; except where prior express written consent has been granted by YONÂH or any relevant third parties.
As previously indicated, YONÂH and/or any relevant third parties may take legal action, including through courts, to ensure that their rights over these trademarks are upheld.
Finally, YONÂH reserves the right to send alerts to Users of the Application in order to keep them up-to-date on any changes, amendments or additions to their content. Such alert types are referred to as a “notification push”. In accordance with Apple guidelines, the User must give their express authorisation in order to receive such notifications. This authorisation shall be sought on first opening the Application.
4.2 User-generated Content
4.2.1 User Guarantees
Through the “My Gallery” function, the User can create their own collection of images by importing photographic content and integrating it into the range of images offered by the Application in a future version.
The User hereby acknowledges their full liability for any content they import and shall refrain from sending any content liable to infringe the rights of a third party, notably the intellectual property rights and the personality rights of the individuals depicted therein.
The User furthermore guarantees to Yonah that it shall hold all rights to use the image content which it has uploaded and that it shall have obtained all relevant authorisation to disseminate the image of the individuals depicted therein.
Similarly, and without the following items being exhaustive, the User shall not:(i) breach public order, public decency or cause offence to minors; (ii) exchange photographs which are defamatory, obscene, violent, pornographic or paedophilic in nature or which may otherwise contravene current laws and regulations.
The User guarantees Yonah against any recourse and/or proceedings which may be taken against them, by any individual affected by the dissemination of such images. The User shall consequently bear the totality of any charges or expenses relating to any possible proceedings;
YONÂH can in no event be rendered liable as a result of the illicit nature of such image “contributions”.
4.2.2 User content usage licence
In using the “My Gallery” function of the Application, the User grants toYONÂH a free, non-exclusive, worldwide usage licence for the term of legal copyright protection on all devices and in all formats (whether known or as yet unknown), for all intellectual copyright relating to content supplied by the User.
YONÂH may therefore freely reproduce, represent and adapt content imported by the User, including in other Application items as well as for the purposes of promoting the Application, by YONÂH and its partners.
4.2.3 Illicit content
The User can report the publication of any image content of which they become aware which may contravene current laws or regulations.
This action can be performed by clicking on the “Report Abuse” button, accessible in the “My Account” area of the Application; this button opens a new window for the User, enabling them to send a specific message to the Application moderation team.
Yonah reserves the right to withdraw content and to suspend a member’s access to the “Wizzpic” community, where it has come to its attention, by the above-mentioned process, that such content is clearly illicit or indeed at the request of the legal authorities.
In accordance with the provisions of Article 6-1-2 of the French Law on Confidence in the Digital Economy dated 21 June 2004, Yonah is not legally obliged to monitor content stored via the Application. Its only obligations under its content hosting role relate to the processing of data under data protection legislation and the removal of any obviously illicit content, as soon as it has been brought to its attention.
You accept that comments, suggestions, ideas or other information or documents regarding Wizzpic or the services which you supply, whether by post or otherwise (“Feedback”), are not confidential and shall become the sole property of Wizzpic. We shall have the right of unlimited use and the right to broadcast such feedback for commercial or other ends without either recognition or remuneration. You shall waive all possible rights over feedback (including copyright and moral rights). We love to hear from our users, but please do not share your ideas if you expect to be paid for them or if you wish to continue to possess or claim any rights over your ideas.
LIMITATION OF LIABILITY
5.1 Use of the Application by the User
Users shall bear sole responsibility for any damage, injury or loss, whether direct or indirect, of any kind whatsoever, whether or not arising from or in connection with fraudulent use of the Application, on their part.
The User shall therefore waive any legal action or appeal relating to any such damage, injury or loss.
5.2 Network functionality
Users agree that they understand and accept the technical specifications, constraints and limits required to use the Application.
It is therefore incumbent upon the User to take all necessary measures to ensure that the technical specifications of their mobile device or computer enable them to access Application services.
YONÂH undertakes to make its best efforts to ensure secure access, viewing and use of the Application in accordance with current technical regulations.
Access to the Application is available twenty four (24) hours a day, seven (7) days a week, except in the event of force majeure or events beyond Yonah’s control and any possible breakdown or technical maintenance work required to ensure optimal Application function notwithstanding, which may be carried out without prior notice being given to Users.
In any event, YONÂH can in no way be held liable for any temporary disruption to or problems with the Application, or its failure.
Whilst YONÂH undertakes to take the greatest care of visual content submitted by Users, it can in no case be held responsible for any alteration thereto.
APPLICABLE LAW, LANGUAGE, DISPUTES
These Terms and Conditions are governed by and subject to French law and are drafted in the French language. Where translations are available into one or more languages, only the French text shall be considered authoritative and binding in the event of a dispute.
Any dispute arising from the interpretation or execution of these Terms and Conditions shall fall under the sole jurisdiction of the Paris Courts, notwithstanding any possible proliferation of defendants or claims from third parties.
For all questions relating to Application functionality and/or these Terms and Conditions, Users may contact Yonah directly.
CAPACITY TO ACCEPT CONDITIONS OF USE
You confirm that:
– you are either over 13 years of age, that you are an emancipated minor or that you have the legal consent of your parents or legal guardian;
-that you are entirely competent and possess the legal capacity to enter into the terms, conditions, obligations, declarations, representations and guarantees stipulated in these Terms and Conditions of Use;
-you shall observe and comply with these Terms and Conditions of Use.
In all cases, you confirm that you are at least 13 years of age.
The WIZZPIC service is not aimed at children under 13. If you are under 13 years of age, you are not authorised to use the WIZZPIC service.
You confirm that you have not been designated by either the United States or European governments as a “terrorist support” country or organisation and that you do not appear on any list of banned or restricted parties.
“YONÂH” is the Application designer and developer based at 4 rue Dailly, 92210 Saint Cloud, France. Information on “wizzpic.com”.