TERMS OF SALE OF THE "CINEVR" APPLICATION
Last update: April 17, 2019
Cinemur, a société anonyme (corporation) with a share capital of EUR 356,660.81, registered at the Paris Trade and Companies Registry under number 538 844 275, whose head office is located at 18, rue du Temple – 75004 Paris (France), represented by its CEO (hereinafter, “Cinemur”), is the editor of the “CineVR” application (hereinafter, the “Application”). The Application was designed and developed and is operated by Cinemur.
ARTICLE 1 – PURPOSE OF THE TERMS OF SALE
These terms of sale (hereinafter, the “TOS”) represent a contractually binding document that, in addition to the TOU, governs the use of the Application and the purchases made by Users via the Application (hereinafter, “In-app Purchase”).
The TOS apply to all Users of the Application acting on their own behalf as consumers, and having the legal capacity to do so, whatever the platform used for downloads via the Application (currently: Steam, Oculus Mobile, Oculus Desktop, Viveport, Google Play Store, Apple App Store).
ARTICLE 2 – ACCEPTANCE OF THE TERMS OF PURCHASE
Any In-app Purchase of paid content via the Application implies that the User fully and unreservedly accepts these TOS. The TOS must therefore be validated at the time of each In-app Purchase via the Application. By ticking the box “I accept the TOS”, Users acknowledge that they understand and unreservedly agree to all the provisions of the TOS, by which they are thereafter fully bound.
The TOS cannot be cancelled or modified unless expressly agreed by Cinemur. If one or more clauses of the TOS are found to be null and void, for any reason whatsoever, such clause or clauses will be deemed as unwritten and the other clauses of the TOS will remain in full force and effect.
Cinemur may, at any time, unilaterally amend the TOS. Any new version of the TOS will become effective when the first In-app Purchase is made following the effective date of that version. The TOS remain applicable, in respect of a given In-app Purchase, until the relevant warranty period expires.
ARTICLE 3 – PAID CONTENT AVAILABLE
The main features and the price of the content purchasable on line via the Application can be viewed in the Application.
The Application offers Users both free and paid content. Users may therefore choose to purchase paid content via the Application, which currently includes the following: - audiovisual content (feature films, short films, trailers, documentaries, etc.), the availability of which can depend on the State in which a User resides, that can be viewed in streaming, temporary download, VOD or scheduled viewing mode (the “Video Content”);
- graphic elements (designs, avatars, etc.) to customize the Application, which are available wherever a User is located (the “Graphic Elements”).
The paid content is identified in the Application by a symbol that differentiates it from free content.
Paid Video Content can be available for a fixed or indefinite period. In general, it is available for rental for up to thirty (30) days after the In-app Purchase. However, the rental time decreases as from when the viewing begins. As regards the rental of paid Video Content, the rental time is limited to forty-eight (48) hours as from the download. We therefore draw the Users’ attention to the fact that the availability of the paid Video Content they purchase can be limited. CINEMUR DISCLAIMS ALL LIABILITY IN THE EVENT OF FAILURE TO VIEW A VIDEO CONTENT WITHIN THE REQUIRED TIME AND EXPIRY OF THE SAID VIDEO CONTENT.
The paid Video Content is only available in France (mainland, Corsica and Overseas Territories). Free Video Content is available anywhere in the world and without any expiration date.
Cinemur reserves the right to change the content available in the Application at its own discretion, without any right to remedy for Users.
ARTICLE 4 – TERMS OF PURCHASE
4.1 – Legal capacity: only adult Users and Users aged 13 and over with parental permission can purchase paid content via the Application. Cinemur reserves the right to cancel any In-app Purchase paid using a means of payment without the legitimate holder’s authorization.
4.2 – Personal account: to make an In-app Purchase in the Application, Users must have a valid Personal Account as well as a pseudonym, a valid e-mail address, a password and a registered device (to view the downloaded content).Users can only make an In-app Purchase when they are connected to their Personal Account. Any use of a third-party Personal Account to purchase paid content via the Application without the Personal Account holder’s consent is liable to prosecution. When a Personal Account is closed, the remaining units of e-money and purchased content, even if not viewed, are definitively lost, without any entitlement to compensation for the User.
ARTICLE 5 – PAYMENT OPTIONS
In-app Purchases can be paid in two (2) different ways, depending on the case: direct purchase or e-money units.
Certain content can only be purchased via direct purchase and/or e-money. Users must check which payment option is available for each content they wish to purchase via the Application.
5.1 – Direct purchase: this payment option enables Users to purchase e-money units (“popcorn”) that they can then use for each type of content for which this payment option is available, in accordance with paragraph 5.2. The In-app Purchase is then paid via the payment interface of the platform used. The currency is the User’s local currency. The prices indicated include sales tax.
5.2 – E-money: Users can purchase content using e-money. Content that is purchasable with e-money is paid with a specific number of units. If a User’s e-money wallet does not contain enough units, the User will be requested to credit the wallet in accordance with Article 6 – “In-app Purchases”. The e-money units are valid for six (6) months as from their purchase. Beyond this date, they will be obsolete and can no longer be used.
ARTICLE 6 –IN-APP PURCHASES
In-app Purchases, as their name indicates, can only be made in the Application and this excludes payments on Cinemur’s website or any other means of payment external or unrelated to the Application (i.e. in cash or by check). Cinemur disclaims all liability for any loss of payment by a User due to failure to pay an In-app Purchase in accordance with the TOS.
In-app Purchases (whether for a direct purchase or to credit a User’s e-money account) can be paid according to the payment options available on the platform concerned.
The commitment to pay is made by way of a payment card and is irrevocable. In providing their bank card information, Users authorize Cinemur to debit via their bank card the amount corresponding to the price including sales tax.
As from when they click on the “confirm” button, Users are irrevocably bound, subject to the provisions of the TOS regarding the withdrawal right or refunds (Article 7 – “Withdrawal right – Refunds”).
Cinemur and/or the editor of the platform concerned will issue an invoice when an In-app Purchase is made. This invoice will be sent via email to the address indicated in the User’s Personal Account.
ARTICLE 7 – WITHDRAWAL RIGHT – REFUNDS
7.1 – Waiver of withdrawal right. Users fully waive their right of withdrawal in respect of digital content not provided on a physical medium, the delivery of which begins as from when the order is confirmed.
Apple App Store: https://www.apple.com/legal/internet-services/itunes/us/terms.html Google Play Store: https://support.google.com/googleplay/answer/2479637?p=play_refund&hl=fr Oculus Store: https://www.oculus.com/legal/rift-content-refund-policy/ Steam: https://store.steampowered.com/steam_refunds/ Viveport: https://www.vive.com/us/support/viveport/category_howto/refund-from-viveport.html
ARTICLE 8 – INTELLECTUAL PROPERTY
8.1 – Each In-app Purchase solely grants the User a license to use the content concerned. Users therefore solely hold a right to use the content purchased via the Application on a personal, private and non-exclusive basis. Such right only includes the right to view or use the said content in the scope of the Application using a compatible viewing device. Some content can be viewed by a single person or simultaneously by several people (nine at the most) in a group. In any case, the viewing of paid Video Content is only authorized outside the family circle, i.e. not in public, for relatives or very close friends who have close family or personal ties. The content cannot be viewed for commercial or promotional purposes.
8.2 – Pursuant to the foregoing, and depending on the case, Users may either view the Video content in streaming mode or view it after downloading it, such download only being temporary. The Video Content thus purchased can only be viewed on one (1) device at a time, and no more than five (5) different devices can be associated with a User Account. The temporarily downloaded content cannot be transferred to another device.
8.3 – As indicated in Article 2 – "Paid content available" hereinabove, the paid Video Content can only be used for a period of forty-eight (48) hours as from when viewing begins or thirty (30) days after it is downloaded. Users are requested to pay attention to the availability limits of the paid Video Content they rent via the Application.
8.4 – Some Video Content is only available during scheduled viewing sessions on a specific date and at a specific time, based on a potentially limited number of viewers. When the maximum number of viewers is reached, it is no longer possible to attend the session.
8.5 – In any case, Users shall refrain from any attempt, including reverse engineering, to bypass the protection systems of the content integrated into the Application. Any violation of the copyrights pertaining to the content constitutes an infringement and is punishable by the law (in France, it is punished by three years’ imprisonment and a fine of 300,000 Euros).
ARTICLE 9 – LIABILITY DISCLAIMER
9.1 – Cinemur is the editor of the Application but does not in any way edit or control the Video Content available via the Application and proposed by third-party providers. Cinemur therefore disclaims all liability for such Video Content. Users are responsible for checking any potential viewing restrictions based on the viewer’s age. Users take the decision to view a Video Content at their own risk.
9.2 – Cinemur is the editor of the Graphic Elements for customizing the Application and, as such, is liable for these.
9.3 – Cinemur is only liable for direct damage to property due to negligence on its behalf or on the behalf of its employees. Cinemur cannot therefore be held liable for any temporary interruption of the viewing (or use) of content (Video Content and/or Graphic Element) due to maintenance or a power outage or an interruption of internet access, or due to any failure or unfitness of the User’s hardware. Cinemur cannot therefore be held liable if any content whatsoever cannot be read due to a problem affecting the said hardware.
9.4 – In any case, Cinemur’s liability is limited to the price paid by the User for the In-app Purchase concerned, regardless of the legal basis of the claim.
ARTICLE 10 – FORCE MAJEURE
Cinemur’s performance of its contractual obligations will be suspended in the occurrence of a force majeure event, as defined under Article 1218 of the French Civil Code (Code civil), including general or partial strikes, floods, fire, attacks, violent demonstrations, riots, etc., whether such event impacts Cinemur or one of its subcontractors. In such case, the viewing or, more generally, the use of content purchased via the Application could potentially be disrupted. If, after a period of thirty (30) days, the force majeure event is not resolved, Users will be entitled to claim for a refund.
ARTICLE 11 – WARRANTY – FOR FRENCH CONSUMERS
Article L.217-4 of the French Consumer Code (Code de la consommation):
"The seller is required to deliver a product which conforms to the contract and is held liable for any lack of conformity which exists upon delivery. The seller is also held liable for any lack of conformity caused by the packaging, the assembly instructions or the installation if the seller was in charge of it or had it carried out under its responsibility.”
Article L.217-5 of the French Consumer Code:
"To conform to the contract, the product must:
1. Be suitable for the purpose usually associated with such a product and, if applicable:
correspond to the description given by the seller and have the features that the seller presented to the buyer in the form of a sample or model;
have the features that a buyer might reasonably expect it to have considering the public statements made by the seller, the producer or its representative, including advertising and labelling;
2. Or have the features defined by mutual agreement between the parties or be suitable for any special requirement of the buyer, which was made known to the seller and which the latter agreed to.”
Article L.217-12 of the French Consumer Code:
"Action resulting from lack of conformity lapses two years after delivery of the product.”
Article 1641 of the French Civil Code (Code civil):
"The seller is bound to a warranty against hidden defects in the thing sold that render it unfit for its intended use, or that so impair its use that the buyer would not have bought it, or would only have paid a lesser price if it had known of the defects.”
Article 1648, first paragraph of the French Civil Code:
"An action resulting from redhibitory defects must be brought by the buyer within two years from the discovery of the defect.”
As a reminder, with respect to the compliance warranty required by law, consumers: * Have a period of two (2) years as from delivery of the product to bring action against the seller; * Can choose between the repair or replacement of the product, subject to provisions of Article 217-9 of the French Consumer Code concerning the cost thereof; * Is not required to bring proof of the existence of a lack of compliance of the product during the six (6) months following the delivery of the product. As from March 18, 2016, this period is increased to twenty-four (24) months, except for second-hand goods. The compliance warranty required by law is applicable regardless of the sales warranty potentially covering your product. Consumers can decide to enforce the warranty against hidden defects in the thing sold, as defined in Article 1641 of the French Civil Code, and may choose, in such case, between the cancellation of the sale or a reduction of the purchase price, pursuant to Article 1644 of the French Civil Code.
ARTICLE 12 – PERSONAL DATA PROTECTION
ARTICLE 13 – APPLICABLE LAW – ARBITRATION – JURISDICTION
13.1 – The TOS are governed by French law. They are drawn up in French. In the case they are translated into any other language, the French version will prevail in the event of a dispute.
13.2 – French consumers: pursuant to Article L. 211-3 of the French Consumer Code (Code de la consommation), consumers are entitled to apply to a consumer arbitration panel free of charge with a view to the amicable settlement of a dispute with a contractor.
Cinemur warrants to the Users that they can effectively apply to a consumer arbitration panel, in accordance with the provisions of Article L. 611-1 et seq. of the French Consumer Code.
Users may appoint any arbitration panel of their choice listed on the European Commission’s website at the following address: https://webgate.ec.europa.eu/odr/main/?event=main.home.show.
Failing an amicable settlement, any dispute concerning the TOS will be submitted to the exclusive jurisdiction of the relevant court in Paris, except for disputes concerning non-trading persons for which the rules of jurisdiction provided for by law apply.
In any event, this clause applies without prejudice to the User's rights under national law.
ARTICLE 14 – COMPLAINTS
To make a complaint, Users can send an e-mail to the following address: email@example.com