Terms and Conditions for the Use of this Motion Works App
1. General Information
1.1. Welcome to Motion Works
This app (“App”) is being provided to you (“User“ or “You“) by Production Service, SASU with a capital of 100 €, 42 rue de Maubeuge, 75009 PARIS, France (hereinafter referred to as “Production Service”, “Motion Works” or “We”) or – in case the imprint indicates another legal entity – that legal entity shall be the provider and Your contractual partner for the use of the App (such entity be hereinafter also referred to as “Production Service”, “Motion Works” or “We”).
The following Terms and Conditions (hereinafter “T&C”) set out the rules which apply to You as a user of the App.
1.2. Changes to T&Cs, Latest Version
Motion Works reserves the right to review and revise the T&C from time to time, in particular to satisfy the requirements of providers of platforms for the distribution of applications. We will inform You about any such change and will provide You with a then current version of the T&C (“New T&C”). You may object to the New T&C within a period of 14 days. If You do object You can no longer make use of the App and We ask You to delete it from all Your devices. Otherwise the New T&C will become effective after expiration of the 14 days period. Production Service undertakes to inform You about the implications of Your behaviour at the beginning of said period.
1.3. Language
The original version of the T&C is in English language. Any translated version is for Your convenience and information only. In case of disputes the English text shall prevail.
1.4. Contact
Please contact Us under user@motion.works. should You have any questions, complaints or comments on the App, the services or content or if You are aware that these T&Cs are being breached by another user or third party.
2. Intellectual Property Rights
2.1. The App contains digital content and services of Motion Works (“Content” and “Services”).
2.2. Content
Content includes all information, material and media, in particular text, data, artwork, graphics, photos, print, footage, software, sounds, music, recordings, videos and other moving and non-moving images and material created or contributed by Us and whether provided in stream, progressive download, electronic data or any other form on or via the App.
2.3. Services
Services include the access to the App, software, tools and content made available to You via the App.
2.4. Ownership
You acknowledge and agree that the App (including Content and Services) and all copyrights, patents and patent applications (if applicable), trademarks, trade names, copyrightable materials, graphics, text, designs (including the “look and feel” of the App), specifications, methods, procedures, algorithms, directories, queries, data, technical data, interactive features, source and object code, files, interface, Graphical User Interface (GUI) and trade secrets, and other intellectual property rights associated therewith (whether or not registered) including Content and Services are owned by Production Service and are subject to copyright and other applicable intellectual property rights and shall remain, the sole and exclusive property of Production Service, its licensors and suppliers (as applicable).
Except as expressly stated under Section 4, You are not granted any intellectual property (including usage) rights in or to the App by implication, estoppels or other legal theory, and all rights in and to the App not expressly granted under Section 4 are hereby reserved and retained by Production Service.
3. Third Party Software, Content and Services
3.1. Third Party Software
The App may utilize or include third party software that is subject to free and open source and/or third party license terms (“Third Party Software”).
You acknowledge and agree that Your right to use such Third Party Software as part of the App is subject to and governed by the terms and conditions of a free and open source software (“FOSS”) initiative or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein.
3.2. Other Third Party Content, Services
The App may utilize or include digital content or services of third party providers (“Third Party Content” or “Third Party Services”)
You acknowledge and agree that Your right to use such Third Party Content or Third Party Service via the App or as part of the App may be subject and governed by additional terms and conditions of the third party providing those services. If You do not agree with such additional terms and conditions You may not use the respective Third Party Content or Third Party Service.
4. Usage Rights
4.1. License Grant
We grant You the non-exclusive, revocable and non-transferable right to install, access and use the App including any Content or Service provided therein (also including Third Party Content and Third Party Services) as may be available from time to time under the resolutive conditions that You comply with the user obligations described under Sec. 5.
This license grant shall apply accordingly to any updates and/or upgrades of the App, the Content and Services provided by Motion Works from time to time. Motion Works does however not undertake any obligation to provide for such updates and/or upgrades in any matter.
4.2. Granted Purpose of Use
You may use the App and the Content and Services for strictly private purposes only.
4.3. Expiration of License
The license is granted under the resolutive condition that the User obeys the T&C. In case of a breach of the User against the T&C, the license grant regarding the App and its Content automatically expires.
5. User Content, Obligations and Use Restrictions
5.1. User Content
In case the App provides for functionalities that enable the User to upload and/or post, transmit or otherwise make available any content (“User Generated Content” also “UGC”) the User agrees that such UGC is made available to others via or in connection with the App or Services.
5.2. Obligations
5.2.1 Caution
You must be aware that any action, activity and/or information displayed or provided on or via the App is conducted by trained and experienced professionals and it is Your responsibility to take precautions and use common sense when using the App including any Content or Service provided therein.
5.2.2 Registration
In case a registration of a User account is required in order to use or install the App on a device, the User must enter correct and complete data and keep such information current at all times.
5.2.3 Motion Works Reputation
The User must not cast a negative light on Motion Works, Motion Works‘ affiliates, and/or on Motion Works’ or their activities, business or brands. You shall in particular refrain from using and/or posting, uploading, transmitting through, or otherwise making available through the App and Services, any content in connection with: (a) illegal products, content, services or materials; (b) any products, content, services or materials concerning or relating to obscenity, pornography or similarly adult-themed material; (c) coverage of accidents, assaults, catastrophes or riots; and/or (d) competing products.
5.3. Use Restrictions
You may not use the App (including its Content and Services) for the purposes described in Sections 5.3.1 to 5.3.5 below.
5.3.1 Exploitation
You may not reproduce, copy, post, republish, broadcast, publicly display, record, offer, transmit, distribute or edit the App, Services or Content in its entirety or any portion thereof. The same shall apply to ideas and concepts of the App, any Content or Services are based on, even if not protected by Intellectual Property Rights (IPR) law.
5.3.2 Content Protection
You must not and must not attempt to breach, surpass or circumvent any applied content protection, digital right management or any other software protecting or assisting the App, the Content or the Services.
5.3.3 Harmful Impact
You must not and must not attempt to hamper, disable, interfere or attempt to interfere with the App, its scripts or any part of it (including its security-related features or any transaction as may be concluded on this App), either via any virus, trojan horses, or other harmful code or script or any other action or tool, which may cause damage to the App, Service, Content or any technical installation.
5.3.4 User for Commercial Purposes
You must not use the App, Content or Services for commercial purposes, including without limitation the sale of access to the App, Services or Content.
5.3.5 Unlawful Activities
You must not use the App, Content or Services for any unlawful purpose or for the publication of, linking to, issue or display of any unlawful material (such terms to include, but not be limited to, any pirated software or any material which is obscene, threatening, malicious, deceptive, harmful, abusive, defamatory, intimidating, discriminatory on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability) or which breaches the rights (including, but not limited to IPR) of Us and/or any third party or which encourages or procures any criminal activity or contains any virus, trojan horses, or other harmful code or script.
6. Breaches, Termination
Motion Works may, in its sole discretion, without prior notice, block, suspend or terminate Your access to this App including the content or Services contained therein in its entirety or in part, if Motion Works determines or has reasonable grounds to suspect that the User has breached these T&Cs or where the User’s use of the App including the Content and Services may be causing damage.
In addition, a breach of the T&Cs may constitute a fraudulent offence and result in legal claims and damages as well as criminal prosecution.
7. Warranty for Defects, Liability
7.1. Disclaimer, Warranty for Defects for Free Apps
7.1.1 Quality
Motion Works makes no express or implied representations or warranties of any kind (and all representations and warranties are expressly disclaimed to the fullest extent permitted under applicable law) with respect to the accuracy, quality, workmanship, timeliness (including in respect of delivery), operability, merchantability, availability, or completeness of the App, services or content provided therein or towards the non-infringement of industrial or intellectual property or any other rights of third parties or the fitness of the content for a particular purpose. Any decisions or action taken by You on the basis or in relation to the information, Content or Services provided on or via the App are at Your sole discretion and risk.
7.1.2 Availability
You acknowledge and agree that You access and use the App, Content and Services at Your own risk on an “as is” and “as available” basis and that We are not liable for any errors or omissions, interruptions or defects in the App, any Content, Services, any availability or delivery (including without limitation whether caused by interruption, deletion, delay in operation, transmission, communication line, errors, omissions or computer virus, trojan horses, or other harmful code or script). We do not warrant that the App, the Content or the Services will be corrected. We reserve the right at any time and without notice to remove the App, Content or Services (or part thereof) for whatever reason or to interrupt the operation of the App, Content or Services (or part thereof) as may be necessary to perform routine or non-routine maintenance, error correction or other changes.
7.2. Liability
You agree that We, Our and Our affiliates’ employees, directors, distributors, licensors and agents shall not be liable, whether in contract, tort (including without limitation negligence) or otherwise and whether such liability is direct, indirect, consequential or special, for any: (i) loss of business, opportunity, use, profit, anticipated profit, contracts, revenue, goodwill or anticipated savings; (ii) loss of data or use of data; (iii) failure to provide the Content or Services due to server failure or any event of force majeure including, without limitation, acts of God, war or terrorism, breaches of security or unauthorised use of personal data arising from hacking and/or failure or lack of reception of networks and in each case whether arising in connection with the use of or attempt to use the App, the Content or the Services, the inability to use these items, delays, unavailability, interruption or termination of Our provision of the App, Content or Services. The exclusions set out in this section shall apply even in the event that the loss or damage suffered by You was or should have been foreseen by Us and/or You told Us of the risk of You suffering the loss or damage in question.
Nothing in these T&Cs shall limit or exclude Our liability for death or personal injury caused by Our negligence, for fraud or fraudulent misrepresentation or for any other type of liability which cannot be limited or excluded by applicable law, or affect any statutory rights which You may be entitled to as a consumer.
7.3. Warranty for and Liability regarding paid Apps or In-App Purchase Function
With regard to paid Apps or parts of an App (including content or services) that are subject to an in-app purchase, any limitation of warranty or liability shall only be applicable as far as mandatory applicable laws allow such.
8. Indemnity
You agree to fully indemnify and hold Us, Our affiliates, officers, directors, shareholders, employees and agents harmless in respect of any liability, damage, claim, action, expense, demand or cost (including any legal fees in relation to such claim or damage) incurred by Us arising from or in connection with Your use of the App, Content or Services provided that by the respective use the User breaches these T&C or violates any applicable law.
9. Final Provisions
9.1. Severance
Each provision of these T&Cs shall be constructed separately and independently. The effectiveness of these T&Cs shall not be impaired if any provision of these T&Cs should be completely or partially invalid or unenforceable. In this case, such provision shall be limited or eliminated to the minimum extent necessary and replaced by a valid provision that best embodies the intent of these T&Cs, so that these T&Cs remain in full force and effect.
9.2. Transfer and Assignments of Granted Rights
The User may not transfer or assign any rights and licenses granted under these T&Cs.
9.3. Governing Law and Jurisdiction
These T&Cs shall be governed by and construed in accordance with French law and all disputes arising out of or in connection with these T&Cs shall be subject to the jurisdiction and courts thereof as far as permitted under applicable data protection, consumer or other mandatory right or law. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 shall be excluded.
10. Additional Conditions of or Regarding Platform Provider
Depending on the platform of a respective service provider from which the App was downloaded, additional terms and conditions may apply for Your use of the App the Content and the Services. It is the User’s sole responsibility to determine these supplementary or (as the case may be) prevailing terms and conditions and the User undertakes to comply with them accordingly.
Irrespective thereof, depending on the platform You downloaded the App from, the following shall apply individually.
10.1. Apple
10.1.1 The T&C are a contract between You and Motion Works. Apple is not a contractual partner. Apple assumes no responsibility for the App, Content or Services.
10.1.2 Motion Works grants You the right to use this App on iOS-products that You own or are operated by You in each case in compliance with the terms of use of the app store.
10.1.3 Apple is in no respect obliged to provide any maintenance and/or support services with regards to the App.
10.1.4 Apple assumes no responsibility for the review, defense, settlement and fulfilment of claims resulting from an infringement of third party IP-rights.
10.1.5 Apple is not obliged to react to claims by You or a third party in connection with the App or its ownership and/or the use of the App. This applies, inter alia, for the following claims (a) product liability claims; (b) claims regarding any statement that the App infringes applicable statutory or regulatory requirements and (c) claims regarding consumer and similar laws.
10.1.6 In case the App and these T&C should not provide for applicable mandatory rights, You are entitled to inform Apple in order for Apple to reimburse the purchase price (if applicable). To the extent permitted by applicable law, Apple assumes no further warranty obligation with regard to the App.
10.1.7 Apple and its affiliated entities are beneficiary of the T&C and are therefore entitled to (and this right shall be deemed to have been accepted) assert them against You.
10.2. Windows
10.2.1 This is a contract between You and Motion Works. Microsoft is no contractual partner. Terms of use of Microsoft or (if applicable) a network operator that provides clearing and settlement services for the Windows Phone Marketplace, do not apply to the use of the App.
10.2.2 You may install and use a copy of the App on up to five (5) Windows enabled devices that are owned or operated by You and that are connected with Your Microsoft account. You may not install or use the App on devices neither owned nor operated by You.
10.2.3 Neither Microsoft, nor the manufacturer of Your device and/or (if applicable) Your mobile communication service carrier are obliged to provide any support services for the App.
10.2.4 Microsoft, Your mobile communication service carrier, over whose network the app is distributed and their respective affiliates, intermediaries, agents and supplier (together “Distributors Subject to Exclusion of Liability”) do not grant any explicit warranty, guarantee or condition regarding or in connection with the App. To the extent permitted by applicable law, the Distributors Subject to Exclusion of Liability exclude any implicit guarantee or condition, including any customary commercial quality, the fitness for a particular purpose and the non-infringement of property rights.
10.2.5 You by Yourself, and not the Distributors Subject to Exclusion of Liability bear the risk resulting from the use of the App (also and even if the Distributors Subject to Exclusion of Liability have been made aware of the possibility of damages potentially occurring to You). Also, applicable laws of Your jurisdiction might grant You additional consumer rights, which remain unaffected.
10.2.6 To the extent permitted under applicable laws You commit Yourself not to raise claims for damages against the Distributors Subject to Exclusion of Liability resulting from consequential damages, loss of profits, special or indirect damages or collateral damages.