TERMS AND CONDITIONS

1.         PREAMBLE

IN-FUSIO, a French limited company ("société anonyme"), with a share capital of 2,908,857.20 €, whose registered office is situated at Millenium, 12 Quai de Queyries, 33072 Bordeaux cedex, Tel. : 05.57.77.38.00, designed, developed and currently is providing an innovative and original Service that allows mobile phone users to download and update Games.

The use of the Service presupposes that these general terms and conditions (hereinafter the "General Terms and Conditions") have been reviewed and accepted by the user (hereinafter the "User").

Consequently, as the downloadable Game Service is accessed from a mobile phone, the User acknowledges that he is fully aware that his consent to these General Terms and Conditions does not require his hand-written signature on this document.

The User has the right to save or print these General Terms and Conditions from the IN-FUSIO Website, and shall be solely responsible therefore.

The User is responsible for reviewing these General Terms and Conditions prior to using the Service.

The User acknowledges that he possesses the full legal capacity to agree to be bound by these General Terms and Conditions.

After having received any necessary information regarding the Service from IN-FUSIO, the User would like to use the Service as provided for below.

 

2.         WARNINGS

The User acknowledges that he is familiar with the features, access protocols and technical requirements for using the Service, as described on the IN-FUSIO Website and as available from the customer Service department of his Mobile Telephone operator.

The User acknowledges that he has received from IN-FUSIO all information and warnings applicable to the Service to allow him to understand the technical and legal consequences of using such a Service.

In light of the foregoing, the User acknowledges that:

  • he would like to use the Service provided by IN-FUSIO;
  • he has obtained or agrees to obtain the necessary terminal equipment; and
  • he possesses the skills necessary to manage the technical aspects of using the Service.

 

3.         DEFINITIONS

In these general terms and conditions, each of the expressions set forth below shall have the meaning given to the said term immediately thereafter:

 

"Authentication":

the function that allows secure Identification of parties exchanging digitized data;

 

"Confidentiality":

the function that prevents data from being understood by unauthorized third parties during transmission;

 

"Downloaded Application":

a software platform developed by IN-FUSIO to browse (and update) a Game catalogue, to download Games and to play Games on the User' 's Mobile Telephone ;

 

"Downloading":

the procedure used by the Downloaded  Application to transfer the Game selected by the User. Downloads are made from the IN-FUSIO Server Centre to the User's Mobile Telephone at the User's request. The User is assisted by the Downloaded  Application in Downloading Games (no access numbers are required), but the User's consent is required prior to initiating any type of communication (SMS or Downloading from the Mobile Telephone);

 

"Electronic Signature":

all information related to a message that is developed based on its contents and the identity of the generating or receiving party so that it may not be repudiated;

 

"Game":

a playful manner of occupying the User's fingers and eyes on the keyboard and screen, respectively, of his Mobile Telephone for fun.

 

"Identification":

the procedure by which a person or company provides its identity to another person or enterprise with which the first person or company wishes to communicate;

 

"Information":

the information and news prepared by content providers, including the Games, that are located  on the Server Centre with the purpose of being distributed by IN-FUSIO via the Service;

 

"Internet":

all of the world-wide IT and telecommunications networks that provide User access to content through servers;

 

"Mobile Telephone":

the specified mobile telephone listed on the Website which allows the Downloading of the Games;

 

"Reliability":

the probability that a piece of equipment will operate without defect under specific conditions and for a specified period of time;

 

"Server Centre":

all of IN-FUSIO's hardware and software that is connected to telecommunications networks and the Internet;

 

"Service":

all of the services provided to the User by IN-FUSIO pursuant to these General Terms and Conditions, the features of which are provided on IN-FUSIO's Website.

 

"Text Message":

a short message sent or received on a Mobile Telephone using the GSM-standard SMS (Short Message Service) protocol;

 

"User":

a natural person or legal entity that uses the downloadable Game Service.

 

"User's Mobile Telephone Service Provider":

the mobile radiotelephony service provider that operates a GSM or similar network with which the User has signed a telephone service agreement in accordance with the tariffs, terms and conditions set forth in the provider's general terms and conditions of service;

 

"Website":

the Internet-based interactive electronic service operated by IN-FUSIO at "www.in-fusio.com/games" or at any other address indicated by IN-FUSIO.

 

"Interaction":

any type of communication form between the Mobile Telephone and the Service Centre that is necessary to properly use the Service. This could be SMS or CSD connections.

 

 

4.         CONTRACTUAL DOCUMENTS

This agreement consists of the following contractual documents, in decreasing order of priority:

  • the IN-FUSIO notice preloaded on the Mobile Telephone (if any);
  • these General Terms and Conditions; and
  • the contractual information made available to the User on IN-FUSIO's Website (www.infusio.com) and WAP site (wap.in-fusio.com).

In the event of a contradiction between the provisions of differently ranked documents, the provisions of the higher ranked document shall prevail.

 

5.         OBJECT

The object of these General  Terms and Conditions is to set forth the conditions under which the User may use and access the Service.

Any use of the Service shall be subject to compliance with these General  Terms and Conditions.

The User acknowledges that he has reviewed these General  Terms and Conditions of subscription and that he accepts them without reservation.

 

6.         FINANCIAL TERMS AND CONDITIONS

When using the Service, the User will be billed directly by his Mobile Telephone Service Provider for any type of Interaction made between his Mobile Telephone and the Server Centre.

When the User registers to IN-FUSIO's Service, a SMS will be sent by his Mobile Telephone, for which the User will be charged at the standard SMS tariff applied by his Mobile Telephone  Service  Provider, which the User declares to be fully aware of.

Download of Games are charged at standard DATA air-time costs as applied by the User’s Mobile Telephone Service Provider, which the User declares to be fully aware of, plus a fixed “content” charge that may vary upon the country and upon the User’ s Mobile Telephone Service Provider.

Under normal conditions, it takes approximately between three and four minutes to download a Game. The exact duration depends on the size of the Downloaded  Application and the network transmission quality of the User' 's Mobile Telephone Service Provider at that time and in the place where the User is located, as well as on the network quality of the fixed operator of the country in question. IN-FUSIO shall not be liable for Downloading times greater or less than the estimate given above.

The User is responsible for selecting his Mobile Telephone Service Provider and for communication costs based on the tariffs, terms and conditions of his provider.

All prices are presented to the User on his Mobile Telephone before any Interaction is made by the Mobile Telephone, and the User’s acceptance of that price before the Interaction starts is requested. By accepting the price of an Interaction, the User agrees to be charged directly on his Mobile Telephone Service Provider’s bill for the same price. The means of billing could vary based on the type of Interaction. For example, the “content fee” billed for a game download may be billed by the means of several premium SMS sent at the end of the download.

 

7.         THE SERVICE

The Service allows a User to play Games on his Mobile Telephone that can be downloaded and updated.

The Information distributed through this Service is generated by IN-FUSIO.

The Service may be modified: new Games may be made available to the User. Moreover, IN-FUSIO may withdraw current Games from the Service.

IN-FUSIO reserves the right to change the Service in order to improve it as it deems necessary or appropriate for Service operation and/or to provide the Service to the User.

IN-FUSIO may temporarily or definitively suspend whole or any part of the Services for operational reasons at any time but will endeavor to give the User as much notice as is reasonably practical before doing so.

 

8.         USER ASSISTANCE

IN-FUSIO offers User assistance to the User that consists of making an e-mail address available on its Website.

The User may send a message to this User assistance Service, in particular in the following cases:

  • difficulties during Service registration; or
  • difficulties in Downloading;

 

IN-FUSIO shall make every effort to reply to the User as soon as possible.

User assistance will be available during IN-FUSIO's normal working hours.

 

9.         SUBSCRIPTION

9.1       Access to the subscription service

The Game Downloading  Service is accessible 24 hours a day, 7 days a week, except in the event of force majeure or events beyond IN-FUSIO's control, and subject to maintenance necessary for Service provision and any breakdowns.

The communications protocols used are those used on the Internet on the date on which these general terms and conditions are accepted by the User and thereafter, in particular: all or part of ftp, e-mail, pop/smtp, sms, wap and web html.

9.2       Procedure for accessing the downloadable game service

This Service allows Games to be downloaded and updated on the Mobile Telephone. A new Game will be made available for download from time to time (usually once per month), safe if otherwise specified by IN-FUSIO.

The following procedure must be followed to download a Game:

  • -directly access the Game menu by pressing 9 (press and hold briefly)
  • -select the Game/downloadable Game menu
  • -select Catalogue in the Game menu
  • -select the Game you would like to play
  • -select Download and confirm to receive the Game
  • -Once the download has been completed (approx. three minutes) you can start playing off-line.

 

Important:

Depending on the memory capabilities of your Mobile Telephone,  one to several  embedded Games (permanently installed on your telephone) are available. Your Mobile Telephone can also include preloaded games (games pre-installed on your telephone, but that can be erased by new downloaded games). One Game may be downloaded at a time, and will either replace a preloaded game or the game previously downloaded. Once a Game has been downloaded, it is stored in your telephone and you can play it off-line for as long as you wish. Please recall that each Game Download is subject to the financial terms and conditions set forth in Article 6.

 

9.3       Data protection

The User is hereby informed that certain personal information, e.g., his Mobile Telephone number, Mobile Telephone model, etc., must be provided in order use the Service. This Information, sent to IN-FUSIO and to the User's Mobile Telephone Service Provider, will not be provided to any third parties without the approval of the User. By registering to the Service, the User agrees to receive promotional messages from IN-FUSIO by SMS. If the User no longer wishes to receive such messages, he can ask to be erased from the IN-FUSIO Games Service by sending a text SMS with the keyword “EXEN STOP” to a number depending of his country (see table below), subject to be changed at any time by IN-FUSIO.

 

Country

Local number

Austria

900201000

Belgium

3420

Denmark

1279

Finland

16326

France

31000

Germany

20100

Holland

2010

Italy

4310022

Norway

19119

Portugal

3350

Spain

20100

Sweden

71123

United Kingdom

80100

The User has the right to access  and to correct his personal data by sending an e-mail message to IN-FUSIO's User assistance Service indicating his Mobile  Telephone number, Mobile  Telephone model and the name of the last Game he downloaded in order to ensure Identification.

 

10.       PROOF

The User acknowledges that the use of personal data such as the Mobile Telephone number provided when registering for IN-FUSIO's Service as set forth herein constitutes an Electronic Signature, with all the de facto and de jure consequences thereof.

This information includes information that must be provided by the User to exercise the rights listed in the article entitled "Data Protection" of these General Terms and Conditions. As a result, disclosure of the said information to a third party is inconsistent with Services specifications and the User shall do so at his own liability and risk.

IN-FUSIO may use, notably for the purposes of proving any instrument, act or omission, programs, data, files, records, operations and other items in a computer or electronic format or medium, which have been prepared, received or kept directly or indirectly by IN-FUSIO, for example in any database.

The User agrees not to contest the admissibility, validity, enforceability or the probative value of the elements in computer or electronic format or medium cited hereinabove, on the basis of any legal provision which specifies that certain documents must be written or signed by the parties to constitute proof. Thus, the elements cited shall constitute proof and if they are produced as elements of proof by IN-FUSIO in any legal or other proceeding, shall be admissible, valid and enforceable between the parties in the same manner, under the same conditions, and with the same probative value as any document that is prepared, received or kept in writing.

 

11.       RIGHT TO USE THE INFORMATION AND THE SERVICE

The Information is protected by copyright and any other intellectual property right.

Nothing in these General Terms and Conditions shall be construed as constituting a transfer of any intellectual property right to the User.

The User is only granted a limited access and use right on a non-exclusive, personal and non-transferable basis.

The User shall only have a private, individual, and non-commercial right to use the Information he receives on the Mobile Telephone.

Any reproduction or representation, other than private use, beyond that provided for in the French Intellectual Property Code, in particular, making any program available on a network or any redistribution of a program, in any form whatsoever, including partially, is strictly prohibited and constitutes infringement.

The User shall be expressly prohibited from allowing third parties to use the Service by any means whatsoever, for any consideration or otherwise.

 

12.       THE OBLIGATIONS OF THE USER

In consideration of the User's use of the Service, the User agrees to : (a) provide true, accurate, current and complete information about him where required by IN-FUSIO, including without limitation, his Mobile Telephone Number and (b) maintain and promptly update such information to keep it true, accurate, current and complete. If the User provides any information that is untrue, inaccurate, not current or incomplete, or IN-FUSIO has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, IN-FUSIO has the right to suspend or to terminate the Service and refuse any and all current or future use of IN-FUSIO services (or portion thereof).

 

13.       LIMITATION OF WARRANTY AND LIABILITY

It is hereby expressly agreed that IN-FUSIO shall exercise the reasonable care and skill of a competent service provider.

The Service is provided on an "as-is" basis and without warranty of any kind. IN-FUSIO does not warrant that the Information and the Service shall be free from error, nor does it warrant that it is complete, current, or exhaustive, in general or with respect to the games and the catalogues located on the Server.

As a result, the User, who so acknowledges, shall use the Information  and the Service at his own risk and shall be solely responsible for any verification and solely liable in relation thereof.

IN-FUSIO shall not be held liable for the contents of the Information distributed to the User through the Service, except if the Information is created by IN-FUSIO, in which case its liability shall be limited to the price paid to In-FUSIO for such Information.

IN-FUSIO shall not be held liable for decisions of any type that may or may not be taken based on the Information provided.

Further, IN-FUSIO shall not be held liable for any communication, including transmission difficulties and, in general, any network problems.

The User acknowledges that IN-FUSIO has met all of its obligations to provide advice and Information regarding the key features of the Service and the minimum necessary IT and telecommunications hardware and software necessary to access and use the Service.

Unless the parties otherwise agree, IN-FUSIO shall not provide any hardware and shall not be liable for technical problems involving equipment, networks or telephone or IT communications.

IN-FUSIO shall in no event be held liable for indirect damage For the purpose of these General Terms and Conditions, indirect damage shall include, financial or commercial damage, loss of clientele or market share, any commercial difficulty whatsoever, increases in costs or overheads, loss of income, loss of brand reputation, damage to the Mobile Telephone, or loss of data, files or programs whatsoever that may result from difficulties in the Service provision or pursuant to these General Terms and Conditions of subscription.

In case the User is a consumer, the above limitations and exclusions of warranty and liability may not apply to him. The statutory rights of the User as a consumer are not affected hereunder as for example the statutory warranty against "latent defects" provided for in the French Civil Code (if applicable).

 

14.       TERMINATION OF THE SERVICE

These General Terms and Conditions are effective until terminated. The rights of the User under these General Terms and Conditions will terminate automatically without notice from IN-FUSIO if the User fails to comply with any term(s) of these General Terms and Conditions. Each party may terminate those General Terms and Conditions at any time and with immediate effect, upon notice to the other party. IN-FUSIO reserves the right to stop providing the Service to the User immediately, at any time in case IN-FUSIO’s accesses for downloads & SMS are no longer available from IN-FUSIO’s access providers or the Service is not financially profitable for IN-FUSIO. This Service stop can happen globally or on a country per country basis.

 

15.       MODIFICATION OF THE GENERAL TERMS AND CONDITIONS

The User shall be informed through the catalogue, on the WAP site and on the Website, or otherwise, of any modifications to the General  Terms and Conditions for using the Service no later than eight days prior to their entry into effect. In particular, IN-FUSIO may change the financial conditions of the General Terms & Conditions in case of modification of the SMS tariffs applied by the User’ s Mobile Telephone Service Provider.

Any use of the Service after entry into effect of such modification shall constitute acceptance by the User of the new General Terms and Conditions for using the Service.

The General Terms and Conditions shown on-line on IN-FUSIO's Website shall prevail over any prior printed version.

 

16.       RULES FOR USING THE INTERNET AND THE MOBILE

The User confirms that he knows, understands and accepts the features and limits of networks, the Internet and the Mobile Internet and, in particular, acknowledges that:

IN-FUSIO shall assume no liability for network-accessible Services and exercises no control in any manner whatsoever over the type or features of the Information that may transit its Server Centre and be distributed to Users;

  • he is aware of the nature of networks, in particular their technical and response-time features for reviewing, querying and transferring information;
  • the data circulating on networks are not protected, in particular against theft or damage to integrity;
  • he transmits his Identification information and, in general, any information deemed by him to be confidential, at his own risk;
  • he must take appropriate steps to protect his own data and/or programs from contamination by network viruses; and
  • use of data may be regulated or protected by an intellectual property right or any other rights.

The User shall be solely liable for the use of the data he reviews, queries or transfers over networks.

 

17.       TITLE

IN-FUSIO holds title to and/or is the distributor of the names, logos, trademarks or any other distinctive signs owned by it that are included on its software, databases and any other items in which IN-FUSIO may hold an intellectual property right.

The User hereby agrees to comply and ensure compliance with IN-FUSIO's intellectual property rights.

The User hereby agrees further to ensure that any references to title and copyright that are contained on the Information or any item provided to the User by IN-FUSIO are maintained thereon at all times.

The User must not and must not permit to any other person to translate, disassemble, reverse engineer, decompile or in any other way interfere with the software owned by IN-FUSIO or licensed to IN-FUSIO; or create any new software partly or wholly based on the software; or transfer, assign or sub-license his rights to use the software or attempt to do so, except in the limits as provided for in articles L. 122-6 and L. 122-6-1 of the French Intellectual Property Code.

 

18.       FORCE MAJEURE

Initially, force majeure shall suspend performance of this subscription agreement.

If the force majeure event continues for more than three months, this subscription agreement shall be automatically terminated, unless the parties agree otherwise.

By express agreement, the following shall be deemed to be events of force majeure or exceptional circumstances, in addition to those usually deemed to be such by French courts:

  • general or partial strikes, within or outside the company, lock-outs, bad weather, epidemics, transportation or supply blockages for any reason whatsoever, earthquakes, fires, storms, floods, water damage, governmental or legal restrictions, changes in the laws and regulations regarding types of sales, computer breakdowns, telecommunications (including network) blockages and any other events outside the express control of the parties that prevents the normal performance of this agreement.

 

19.       HEADINGS

In the event of an inconsistency between the heading of an article and the contents of any of the articles, the headings shall be deemed not to exist.

 

20.       COMPLETE AGREEMENT

 The contractual documents set forth in Article 4 set forth all of the rights and obligations of the parties.

 

21.       FORBEARANCE

The parties mutually agree that the fact that one of the parties tolerates a situation shall not constitute the granting of any rights to the other party.

Further, no such forbearance shall be interpreted as constituting a waiver of the rights in question.

 

22.       ACCURACY

The parties acknowledge that these General Terms and Conditions are accurate.

In this regard, the parties acknowledge that, to their knowledge, they possess no information that, if it had been disclosed to the other party, would have altered the consent of the said party.

 

23.       NOTICE

Notices given to IN-FUSIO under these General Terms and Conditions may be given by e-mail (in which case effective service of the notice shall only occur upon actual receipt by IN-FUSIO of the notice) or in writing to the following address :

IN-FUSIO

By Email:  info@in-fusio.com

By Mail:  In-Fusio “GGA team” 12, quai de Queyries 33072 Bordeaux Cedex France

 

24.       CHOICE OF LAW

The laws of France will govern, construe and enforce ell of the rights, duties, and obligations arising under, or relating in any manner to, the subject matter of these General Terms and Conditions, notwithstanding any conflicts of law.

 

 

25.       DISPUTE RESOLUTION PROCEDURE

 

In the event of difficulties in the performance of these General Terms and Conditions, the parties hereby elect to submit to a voluntary dispute resolution procedure.

In this regard, the party wishing to implement the said procedure must so notify the other party prior to lodging a claim before a court by recorded delivery with advice of delivery and give the other party fifteen days to respond.

If the dispute can be resolved, the parties hereby agree to sign a confidential settlement agreement.

 

26.       CHOICE OF FORUM

In the event of a dispute, if an amicable solution cannot be found, any proceedings regarding the rights, duties, and obligations arising under, or relating in any manner to, the subject matter of these General Terms and Conditions will be brought to the Commercial Court of Bordeaux which shall have exclusive jurisdiction to give legal consideration to any such dispute, notwithstanding the existence of several defendants or any third party claim.

The User shall be considered to have accepted the aforementioned terms and conditions of subscription by downloading any Game from the catalogue. Legal information as of April [_01_], 2004.

 

 

 
 
  Terms and Conditions
© In-Fusio 2004


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