General terms and conditions of use of the Application

ARTICLE 1. PARTIES

The terms and conditions listed below are applicable between ONE MORE THING STUDIO, SAS, capital stock: 6000 euros, Paris company register: 789 731 353, head office : 31, rue du Clos, 75020, Paris, France - email : jerome@omts.fr, European Union VAT reference: FR 14 789731353, ("OMTS"), and ANY PERSON or COMPANY who downloaded the Application, ("the User").

ARTICLE 2. DEFINITIONS

ARTICLE 3. SCOPE OF APPLICATION

OMTS allows the User to download its Application from the Store.
Downloading and using the Application is free.
When accessing the Application, the User is presumed to agree to the present general terms and conditions. Before the download, this agreement is confirmed by checking the box corresponding to the following sentence: “I acknowledge that I have read the general terms and conditions of use”. The User acknowledges he has fully read and accepted them, without any restriction.

ARTICLE 4. SERVICES

4.1 Download and Installation of the Application

The User can obtain the Application from the Store. The User has to choose it on the Store and click on the corresponding button. The download process on the Store depends on the general terms and conditions of the editor of the Store.

4.2 Connecting to the Application

4.2.1 Connecting through a personal account

4.2.1.1 Creation of the personal account

The creation of a personal account is required to connect to the Application. The User will be asked for some personal information. Some information is required to create the personal account. If a User is unwilling to provide the information, he will be unable to create a personal account and to connect to the Application.
During the creation of his personal account, the User will create a password. This password will guarantee the confidentiality of information recorded in the personal account. The User will refrain from communicating it or relaying it to a third party. If not, OMTS will not be responsible for any unauthorized access to the personal account of a User.
The User undertakes to check the validity of his personal data regularly and to update or edit it when necessary.

4.2.1.2 Suspending a personal account

OMTS reserves the right to suspend the account of any User who infringes the present general terms and conditions, notably when the User provides inaccurate, incomplete, false or fraudulent information, but also when the personal account of a User stays inactive for at least a year. The suspension of the account will not constitute a fault by OMTS or a prejudice for the excluded User, who will not be able to claim any damages. This exclusion will not prevent OMTS from initiating judicial proceedings against the User, when appropriate.

4.2.2 Connecting using social networks

The Application is also available for Users through their accounts from various social networks such as Facebook, Twitter, Pinterest, Tumblr or Google+.
In this case, OMTS does not check the login data linked to the User accounts. However, a check can be initiated with the companies managing these accounts.
Supposing that the User is connecting to the Application using an external account, the data required by OMTS is used directly in the Application, but not collected (except anonymous login), from the social network account of which the User is a member, with his authorization. Thus, the User guarantees to be the owner of the supplied account; OMTS is not responsible for any fraudulent use of an external account with its Application.

4.3 Publishing Photographs

4.3.1 Publishing Photographs using the Application

Users can publish Photographs using the Application using the tools provided. OMTS can remove without warning Photographs published by the Users and reserves the right to delete them if they are found to violate the present general terms and conditions.

4.3.2 Intellectual Property of Photographs

The User transfers all exploitation rights on Photographs to OMTS for a free and non-exclusive use.

4.3.2.1 Duration of the transfer of ownership

Ownership is transferred to OMTS upon submitting the Photograph to the Application.
The transfer is permitted by the User, for OMTS, for the duration of copyright laws. By duration of copyright laws, it is the duration indicated by the French Intellectual Property Code and foreign laws, but also any extension of this duration by an international convention, an European directive, a French or foreign law.

4.3.2.2 Geographical area of the transfer of ownership

The present transfer is permitted in the whole world and for all languages, for all uses planned in the present general terms and conditions.

4.3.2.3 Transferred rights
4.3.2.4 Moral right

When using the Photograph, OMTS can choose any term for naming the Photograph.

4.3.2.5 Guarantees

The User guarantees to OMTS that he is the sole author of the Photograph and the only intellectual property right owner related to the Photograph and that no third party can pretend to be the author or co-author of these Photographs. The User undertakes to respect the image reproduction right of people present on the Photographs, but also intellectual property rights of third parties, notably copyrights, industrial design rights, and trademarks and patents rights.
The User guarantees to OMTS the use of transferred rights in virtue of present general terms and conditions. The User guarantees OMTS against any action, reclamation, claim, complaint or opposition by any person claiming an intellectual property right or an unfair competition act, resulting of the Photograph.

4.3.2.6 Reproduction and protection of the Photograph

The User is informed of the ability for OMTS to use digital rights management (DRM) techniques to protect material supports and electronic files containing the Photographs in order to prevent or limit unauthorized uses. For the duration of its use of the Photographs, OMTS use electronic information in order to identify Photographs and inform third parties about authorized conditions and modes in preparation for their use. The User can, by written request, obtain from OMTS information pertaining to the essential characteristics of the DRM and information used by OMTS to exploit the Photographs.

4.4 Creation of a “Photo Match”

Once the User publishes the Photograph as stated in article 4.3, OMTS will associate it with another Photograph in order to create a Photo Match.
This Photo Match will then be published on the Website and can be shared by Users on the social networks of which they are members.

ARTICLE 5. USER OBLIGATIONS

5.1 Charter of good conduct

The User undertakes to use the Application with due diligence and to use information concerning the Application for his own needs and for the sole purposes specified in the present general terms and conditions.
Notably, the User commits not to publish Photographs that could:

Any illegal or unauthorized use of the Application will lead to immediate termination of the User’s account, notwithstanding the possibility for OMTS to conduct any judicial proceedings, notably for damages.

5.2 User’s Declarations

The User undertakes to have read and understood the technical characteristics of the Application prior to the validation of the present general terms and conditions.

Consequently, the User accepts that his needs are compatible with services offered by OMTS, that the User knows the content and the execution conditions of services and knowingly subscribed to services provided by OMTS, and that all necessary information allowing him to have a free consent was provided.

5.3 Application Use

Any use, transmission, publication, diffusion or representation of the Application by the User is made under his own responsibility. The User commits to only process, broadcast, download or transfer through the Application, data whose exploitation violates neither any intellectual property right nor any other private rights, or does not constitute a criminal infringement.
The User also commits not to hinder or disturb the Application and servers of OMTS, and to comply with requisitions, procedures, general rules communicated by OMTS, for the good use of the Application.
Consequently, the User guarantees OMTS against any prejudice done because of his use of the Application, including the procedure and attorney fees, and also commits to intervene to court proceedings against OMTS because of his Application use.

ARTICLE 6. INTERNAL MESSAGING SERVICE

OMTS offers its Users an internal messaging service. This system is reserved for the Users and the confidentiality of the correspondence from OMTS is guaranteed.
The inbox and sent mail contents are not subjected of preservation by OMTS and the Users have to save them. The loss of contents, for any reason, will not constitute a prejudice for the User who will not be able to claim damages.
Any User who is a victim of misuse (spams, unwilling advertisements or other) will be able to inform OMTS which will take useful measures.

ARTICLE 7. CUSTOMER SERVICE

The Application customer service is available from monday to friday, from 8am to 9pm by email at: support@cheers-app.com or by postal mail at the address indicated at article 1 of the general terms and conditions. In these two cases, OMTS commits to reply within 15 days.

ARTICLE 8. INFORMATION TECHNOLOGIES AND LIBERTIES

8.1 CNIL Declaration – Data processing responsibility

The files of OMTS containing personal data of the Users are declared to the Commission national de l’informatique et des libertés (CNIL), registered under the n°1727603.

8.2 Optional data supplies

The Users can willingly provide personal data about themselves.

8.3 Mandatory data to register an account

However, the use of the Application requires the gathering of a certain amount of Users’ personal data by OMTS. The Users unwilling to provide the necessary information will not be able to use the Application.

8.4 Respect of the aim of personal data gathering

Gathered personal data is processed electronically for exclusive use by OMTS. The gathered data is required by OMTS to manage of the Application and to fulfill its contractual obligations. This data is kept by OMTS for this purpose. OMTS undertakes neither to use the data in any other context, nor to transmit it to a third party, except with the Users’ agreement or in any other case intended by law. Personal data will not be transferred abroad.

8.5 Access, modification and opposition rights

Contact details from all User downloading the Application are saved for a six-month period, required for the good management of the Application and for normal use of data. This data is kept safe using state of the art technology, in compliance with the French Information Technology and Liberties Law from January 6th, 1978.
In compliance with this law, Users have an opposition, interrogation, and access and data modification right. In order to exercise these rights, the User may contact OMTS, by email at the following address: jerome@omts.fr or by postal mail at the address mentioned at article 1 of the general conditions.

ARTICLE 9. LIABILITY

9.1 Obligations of OMTS

OMTS commits to bring due diligence and care in providing quality services, complying with specifications of general terms and conditions. OMTS only has an obligation of means regarding its services.
Regardless of article 4.3.2, the User is sole responsible for publishing his Photographs using the Application. OMTS does not have any preemptive screening power that would allow it to check the content of Photographs. Thus, OMTS is a web provider of Photographs in accordance to article 6 of French Loi pour la confiance en l’économie numérique (LCEN).

9.2 Force majeure – fault of the User

OMTS will not be responsible in case of force majeure or a fault of the User, as defined in following articles:

9.2.1 Force majeure

As defined by the present general terms and conditions, will be considered as a case of force majeure opposable to the User any impediment, limitation or disturbance of the service due to fire, epidemic, explosion, earthquake, bandwidth fluctuation, any failure from the Internet service provider, any failure from transferring networks, any collapse from installations, illicit or fraudulent use of passwords, codes or references provided to the User, hacking, any security flaw from the host of the Application or the developers, flooding, power failure, war, embargo, law, judicial order, request or any demand by any government, requisition, strike, boycott or any circumstances reasonably beyond OMTS’ control. In such circumstances, OMTS will be exempted from fulfilling its obligations to the extent of this impediment, limitation or disturbance.

9.2.2 Fault of the User

As defined by the present general terms and conditions, will be considered as a User’s fault opposable to him any misuse of the Application, fault, negligence, omission or default by the User or his employees, lack of respect of the guidelines provided by OMTS and providing incorrect information. Will also be considered as a User’s fault the application of any technical process, such as scripts or automatic requests that would violate the present general terms and conditions.

9.3 Damages dependent on OMTS

In absence of opposing legal or regulatory measures, the liability of OMTS is limited to direct, personal and certain prejudice suffered by the User and tied with the failure concerned. OMTS will not be responsible for indirect damage such as data loss, commercial prejudice, purchase loss, corporate image infringement, commercial troubles and profit loss. Likewise and within the same limits, the amount of damages paid by OMTS will not, in any case, exceed 15 euros.

9.4 The Game

You've lost the Game

ARTICLE 10. INTELLECTUAL PROPERTY

10.1 Ownership of the Application’s content

The content (texts, pictures…), layout and software used for the Application working are protected by copyright and database right. Any full or partial representation or reproduction without the consent of OMTS, or its right-owners, is a violation of Books I and III of French Intellectual Property Code and may lead to legal proceedings. The same applies to translation, adaptation or transformation, arrangement or reproduction by any method or process.

10.2 License

OMTS offers to the User to download the Application from the Store. The download is free. OMTS grants the User a final user license on the Application for a non-exclusive use. The License is granted worldwide and for all languages. The License is only granted to reproduce, execute and use the Application, except in the following cases:

The usage rights for the Application are personal and nontransferable. The rights granted to the User are only for a unique user, to fulfill his own needs, excluding any providing for a third party, even for a branch or other affiliate companies. The User will not be able to partially or totally transfer rights and obligations resulting from the present contract, even in the case of material existence of rights, objects of the present license.

ARTICLE 11. GENERAL MEASURES

11.1 Law applicable

The present general terms and conditions are governed by French Law.

11.2 Modification of general terms and conditions

The present general terms and conditions can be modified anytime by OMTS. The general terms and conditions applicable to the User are the ones from the date of the Application download, any new download leading to acceptation of new general terms and conditions.

11.3 Out-of-court settlement

Except public order measures and before any legal proceedings, all litigations during the execution of general terms and conditions will have to be submitted to OMTS in preparation for out-of-court settlement.

11.4 Entirety

The invalidity of one of clauses from the present contract will not lead to invalidity of other clauses or the contract itself, which keep their effects. In this case, parties will have, if possible, to replace the cancelled clause by a valid one complying with the general terms and conditions.

11.5 Non-renunciation

The lack of exercise of rights from OMTS, acknowledged by the general terms and conditions, will not be interpreted as a renunciation of its rights.