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KoffeePhoto - Terms of use

Use of the KoffeePhoto Service requires prior acceptance of this License and Special Terms of Service. The License Holder hereby certifies that he/she has the legal capacity to make a binding agreement.

OPERATING LICENSE

1. Definitions

KoffeePhoto or KoffeePhoto Software or KoffeePhoto Service: designates the programme enabling a User to manage,store and share his/her digital photographs on Terminal Equipment and through a remote storage network. KoffeePhoto also provides access to online services for printing photographs.

KoffeeWare: designates the company behind the development of KoffeePhoto

User or License Holder: a person using KoffeePhoto Software for any purpose.

Terminal Equipment: any hardware destined to be either directly or indirectly connected to an end point of a network with a view to transmitting, processing or receiving Data. This term notably includes all computing and telephone hardware, mobile terminals (mobile phones, personal digital assistants etc.) used by the License Holder on the day of installation and during the use of KoffeePhoto Software.

Documentation: information relating to the directions for installing and using KoffeePhoto Software. It can be freely consulted by the License Holder on KoffeePhoto's website (www.koffeephoto.com).

Error: malfunction in the execution of a computer programme resulting either from programming or an interaction with other computing programmes.

Update: modification of the software by KoffeeWare, automatically downloaded or not, so as to correct any Errors or modify certain aspects or features of KoffeePhoto Software.

Setup Parameters: adjustment required to install and use KoffeePhoto Software.

Data: data covers the photographs and associated comments and any type of multimedia content (sound, text, video etc.) transmitted in the framework of using the Software.

Server: computing device that stores and distributes data.

Service Provider: person performing technical operations, whether professionally or not, linked with the Internet (e.g. access providers) or Computing (e.g. companies providing services and computer engineering).

Access Account: space reserved for the User, allowing him/her to access the functions and services proposed by KoffeePhoto Software.

2. Software Features

The features of KoffeePhoto allow digital photos and any associated data (text, music, videos etc.) to be managed, stored and shared on a computer and using web pages. All this content is replicated for the purpose of storing, saving and sharing it on the KoffeePhoto storage network.

KoffeePhoto is available for free. Additional features, marketed as KoffeePhoto Premium, require the payment of an annual subscription fee.

The latest updated software featureset description can be found on the KoffeePhoto Product Website (www.koffeephoto.com).

3. Installation and Use of KoffeePhoto Software

The License Holder undertakes to install and use KoffeePhoto Software in compliance with this License and its Documentation.

Installing and using KoffeePhoto Software requires prerequisites (minimum configuration and compatibility) and Setup Parameters so as to ensure compatibility with the Terminal Equipment, and in particular with existing security systems. The License Holder shall check that the minimum configurations and Setup Parameters are respected.

4. Data backup

Before each use of KoffeePhoto Software (especially when transmitting data) and for the entire period of this License, the License Holder must take all necessary precautions to save the data contained in his/her Terminal Equipment.

5. User Conduct

KoffeePhoto is committed to ensuring that the Service remains a safe place to share photographs. To that end, the Service allows Users to be creative with their "Content". Users of the Service may not use the Service to store, share and/or print Prohibited Content. Generally, Prohibited Content includes Content or other material that KoffeePhoto believes:

  1. Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;
  2. Comprises copyrighted material used without the express permission of the owner;
  3. Violates or otherwise encroaches on the rights of others;
  4. Contains viruses, worms, corrupt files, Trojan horses or other forms of corruptive code, or any other content which may compromise the Service (collectively “Corruptive Code”);
  5. Advocates illegal activity;
  6. Harms anyone, including minors; or,
  7. Provides a link to any of the above;

KoffeeWare has no obligation to conduct a systematic and overall inspection of the data stored, transferred and shared by means of KoffeePhoto Software.

However, so as to ensure firstly, the technical security of the License Holder and all the users of KoffeePhoto (in particular against computer viruses) and secondly, to comply with the legal provisions in force (in particular regarding paedophilia and counterfaiting protected works), KoffeeWare reserves the right to carry out inspections of the data stored and transmitted using KoffeePhoto Software on its own initiative , within the limits of the law concerning privacy.

KoffeePhoto has the sole discretion to determine whether Content is Prohibited Content, and any Content submitted to the Service may be subject to examination from time to time. Although KoffeePhoto does not and will not examine or otherwise review all Content submitted or transmitted to the Service, KoffeePhoto may delete, move, and edit Content for any reason, at any time, without notice.

The data inspected may be blocked and communicated to judicial authorities to stop any violation of the legal provisions in force.

Generally speaking, having first notified the person concerned, KoffeeWare reserves the right to suppress any data that, in its opinion alone, could be judged illicit, illegal, detrimental to the rights of third parties or not in compliance with this License.

All Content (whether private or public) that is posted on the Service is the sole responsibility of the person who submitted it. Thus, you are responsible for your Content.

By viewing the Site, you may be exposed to Content that you consider to be offensive. You take sole responsibility for such exposure.

KoffeeWare in no way guarantees the accuracy, quality or appropriateness of Content available through the Service.

6. No Resale of Service

Your use of the Service shall be for personal purposes only. You will not (i) reproduce, duplicate, copy, sell, resell or exploit any part of the Service, or (ii) use or access the Service for any commercial purpose.

7. Amendment

This License may be amended by Koffeeware at any time. Any amendment shall be submitted for acceptance. The License Holder may refuse this amendment. In this case, he/she shall cease all future use of KoffeePhoto Software. If the License Holder should continue to use KoffeePhoto Software, such use shall entail the assumption that the terms of the new License have been accepted.

8. Liability

KOFFEEWARE SHALL NOT BE LIABLE FOR ANY IMPROPER PERFORMANCE OR TOTAL OR PARTIAL NON-PERFORMANCE OF THIS LICENSE DUE TO:

KOFFEEWARE CANNOT BE HELD LIABLE FOR ANY INDIRECT LOSSES SUCH AS LOSS OF PROFIT MARGIN, COMMERCIAL OR FINANCIAL DAMAGE, OR PREJUDICE TO IMAGE. SHOULD THE LICENSE HOLDER BE HELD CIVILLY LIABLE BY A THIRD PARTY, THIS CONSTITUTES INDIRECT PREJUDICE.

GENERALLY SPEAKING, KOFFEEWARE CANNOT BE HELD LIABLE FOR ANY DAMAGE RESULTING FROM ANY USE OF KOFFEEPHOTO SOFTWARE IN BREACH OF ANY OF THE PROVISIONS IN THIS LICENSE OR ANY LEGAL PROVISIONS.

SHOULD THE LIABILITY OF KOFFEEWARE BE UPHELD, WITH REFERENCE TO THE INSTALLATION OR USE OF KOFFEEPHOTO SOFTWARE, COMPENSATION FOR THE PREJUDICE SHALL BE LIMITED TO THE REPLACEMENT OF ANY FAULTY KOFFEEPHOTO SOFTWARE.

THE LICENSE HOLDER HEREBY DECLARES HE/SHE UNDERSTANDS THAT THESE PROVISIONS HAVE A PARTICULAR WEIGHT IN VIEW OF THE FACT THAT KOFFEEPHOTO SERVICE IS MADE AVAILABLE FREE OF CHARGE AND THAT THE LIABILITY OF KOFFEEWARE SHALL ALWAYS BE ANALYSED IN THE PERSPECTIVE OF THIS RELATIONSHIP.

9. Security and Content of the Data Transmitted

KoffeePhoto Software does not provide the security guarantees required either for the main use or accessory use (parallel use with other software), for the exchange of sensitive data, and in particular medical data, data classified as "defence secrets", high security (nuclear power stations etc.) or any other data of a confidential nature.

Generally speaking, the License Holder must take all necessary precautions to save his/her data on a regular and permanent basis for the duration of this License. He/she shall personally assume full responsibility for the loss or deterioration of his/her data and any resulting damage.

Furthermore, the License Holder undertakes to comply with the legislation in force or that shall come into force, in particular with reference to the protection of privacy, human dignity and the fight against child pornography. He/she also undertakes not to infringe on intellectual property rights, nor disturb the public order (e.g. by diffusing or making available data that is libellous or racist in nature, or that may incite violence or discrimination, or any other reprehensible act).

To ensure the effectiveness of this clause, the License Holder is morally bound as to the content of the data transmitted or received. This moral obligation is supplemented by the obligation to alert KoffeeWare should the License Holder become aware of any data prohibited by this License and, generally speaking, by the Law. This alert shall made by any fast and efficient means (in particular by email to the following address: abuse@koffeephoto.com).

10. Guarantees and Updates

THE SOFTWARE IS PROVIDED IN ITS CURRENT STATE, WITHOUT ANY GUARANTEE AS TO THE ABSENCE OF ANY ERRORS OR PERMANENT OPERATION WHATEVER THE TYPE OF TERMINAL EQUIPMENT USED BY THE LICENSE HOLDER. THE LICENSE HOLDER USES THE SOFTWARE AT HIS/HER OWN RISK.

GENERALLY SPEAKING, THE GUARANTEES GRANTED BY KOFFEEWARE TO THE LICENSE HOLDER ARE LIMITED TO THOSE THAT CANNOT CUSTOMARILY BE EXCLUDED BY VIRTUE OF LAW.

IN PARTICULAR, KOFFEEWARE DOES NOT GUARANTEE AGAINST THE DISTURBANCE OF THE RIGHTS OF THIRD PARTIES NOR HIDDEN FLAWS IN THE SOFTWARE.

KOFFEEWARE DOES NOT GUARANTEE THE QUALITY OF THE DATA TRANSMITTED, NOR DATA-BACKUP DURING THE TRANSFER AND STORAGE OF THE DATA ON ITS OWN SERVER OR ON THE LICENSE HOLDER'S TERMINAL EQUIPMENT OR THE TERMINAL EQUIPMENT OF A THIRD PARTY USER.

KoffeeWare reserves the right to modify, replace, add or suppress any aspect or feature of KoffeePhoto Software at any moment, including the access conditions, any restrictions and the equipment required for use thereof. These modifications shall occur in the form of automatic Updates of KoffeePhoto Software.

Updates may not be refused by the License Holder. They are downloaded and installed automatically. The terms herein are applicable to these Updates.

11. Scope of the License

KoffeeWare conserves all the intellectual property rights concerning KoffeePhoto Software and the Documentation, excepting those expressly granted herein. The same is true for the visible interfaces when using KoffeePhoto Software.

This License is granted for strictly personal use. It is non-exclusive and non-transferable.

KoffeeWare reserves the right to correct any Errors during the period of this License at any time.

Neither the License Holder nor any Service Provider may perform maintenance operations on KoffeePhoto Software unless prior written authorisation to do so is granted by KoffeeWare.

Generally speaking, the License Holder may only use KoffeePhoto Software for a usage in conformity with its purpose without breaching the normal operation of the Software and without causing any unjustified prejudice to the legitimate interests of KoffeeWare.

The License Holder may not decompile, translate, adapt, arrange, or reproduce KoffeePhoto Software, whether this be permanently or temporarily, in part or in its entirety, by any means whatsoever and whatever the form of the modification, unless express authorisation to do so is granted by KoffeeWare.

Any act which is not expressly authorised hereby constitutes an act of forgery and is punishable under criminal and civil law.

12. Third Party Software

As a convenience to Members, KoffeePhoto may make third-party software available through the Service, including by downloading. To use such software, you will agree to the terms and conditions imposed by the third party provider. The agreement to use such software will be solely between you and the third party provider.

KoffeePhoto makes no representations or warranties concerning, and is not liable or responsible in any manner for, any performance, effectiveness or other aspect of such software.

13. Interruption of Access

KoffeeWare may temporarily or permanently interrupt the entire Service accessible through KoffeePhoto Software (Access Account, Data etc.) at any moment and without any prior warning for technical reasons or should the terms herein not be complied with. The License Holder hereby declares that he/she has understood this provision which holds particular weight in view of the fact that KoffeePhoto Software is made available free of charge.

KoffeeWare may block access to the Account of the License Holder or transmit information exchanged and personal data to the competent authorities in the following cases:

14. Deactivation of the Access Account

The Access Account may be deactivated by KoffeeWare failing use by the License Holder for a period of ninety (90) days in a row. The deactivation entails the suspension of the obligations of either Party until the Account is reactivated. Reactivation shall occur when KoffeePhoto Software is used again by the License Holder.

In case of a "KoffeePhoto Premium" account subscription, the account will remain active as long as being renewed and the bills are properly paid. In case of non payment, the "KoffeePhoto Premium" Access Account may be deactivated by KoffeeWare after a period of thirty (30) days and will result in a removal of all files stored on the KoffeePhoto servers. The account will return into a standard mode and standard deactivation rules will apply.

Failing usage within sixty (60) days of deactivation, this License shall be cancelled automatically and without compensation.

15. Industrial and intellectual property, Image rights

The brand names "KoffeeWare" and "KoffeePhoto" are trademarks registered by the Company KoffeeWare.

All items, in particular texts and images, which are visible or can be consulted during the installation and use of KoffeePhoto Software, are subject to intellectual property rights that are owned by KoffeeWare.

16. Copyright

When you use the Service, you become a participant in an online community of people who enjoy photography. In order for KoffeePhoto to make your photos available to you and your invitees, as well as to use images to offer you a special variety of online services, KoffeePhoto needs the rights to make use of all Content on the Service, in accordance with and subject to these Terms. Accordingly, as a condition to your Membership, you hereby grant KoffeePhoto a perpetual, universal, non-exclusive, royalty-free right to copy, display, modify, transmit, make derivative works of, and distribute your Content, solely for the purpose of providing the Service. As a condition to Membership, you represent and warrant to KoffeePhoto that you either own your Content or have written permission from the copyright owner to make such Content available to the Service.

The Service is protected by international copyright laws and by other applicable laws. You may not Process any Content owned by someone else without the written consent of the owner of such Content. You are solely responsible for any copyright violations that you may incur as a result of your activities on the Service.

If you believe that your work or the work of another has been copied in a way that constitutes copyright infringement, you should contact us at abuse@koffeephoto.com to report any infringement.

17. Termination of the License

The duration of this License is unlimited on the condition that KoffeePhoto Software is continually used by the License Holder.

To terminate this License automatically, KoffeePhoto Software must not be used for a period of one hundred and fifty (150) days in a row. In case of a KoffeePhoto Premium subscription, KoffeePhoto Software will be considered as not used if neither used for the last one hundred and fifty (150) days of the KoffeePhoto Premium subscription period nor renewed before the end of the KoffeePhoto Premium subscription period.

It may also be terminated should either Party not abide by any of the obligations provided for herein. The other Party shall then state the termination of the License without prior notice.

Termination may lead to the suppression of the License Holder's Access Account. The data stored on the KoffeeWare Server or in the Terminal Equipment of Third Party Users may remain available for a certain period of time.

As soon as the termination takes effect, the License Holder must uninstall KoffeePhoto Software and not keep a copy thereof. Should the License Holder continue to use the Software, he/she is guilty of the offence of counterfeiting and is therefore liable under civil and criminal law.

18. Information

The License Holder is hereby informed of any inherent or unforeseeable risks linked with the installation and use of KoffeePhoto Software in his/her Terminal Equipment. The License Holder acknowledges that he/she is fully liable for the content of the Data sent or received. He/she is aware of the risks implied in downloading files coming from other Users of KoffeePhoto Software, such as possible damage to his/her Terminal Equipment and the data it contains.

The License Holder acknowledges that he/she has read and understood the terms herein and fully accepts them without exception. He/she also acknowledges that this License replaces and cancels any offer or previous written or oral agreement between KoffeeWare and the License Holder concerning the use of KoffeePhoto.

19. Limited Warranty

(A) No Liability for Content IN NO EVENT WILL KOFFEEWARE BE LIABLE FOR ANY CLAIM OF ANY NATURE, WHETHER DIRECT OR INDIRECT, ARISING FROM OR RELATED TO (I) CONTENT MADE AVAILABLE ON OR THROUGH THE SERVICE, INCLUDING ERRORS OR OMISSIONS IN SUCH CONTENT, OR (II) LOSS OR DAMAGE INCURRED AS A RESULT OF CONTENT.

(B) Disclaimer EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, KOFFEEWARE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. KOFFEEWARE MAKES NO WARRANTY THAT (i) THE SERVICE WILL BE PROVIDED IN A MANNER THAT IS UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (ii) THE SERVICE IS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (iii) THE SERVICE WILL MEET YOUR REQUIREMENTS. KOFFEEWARE MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO SOFTWARE, GOODS, OR SERVICES THAT ARE PURCHASED, ACCESSED, OR OBTAINED THROUGH THE SERVICE OR THAT ARE ADVERTISED ON THE SITE, INCLUDING THAT SOFTWARE WILL BE FREE OF CORRUPTIVE CODE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

(C) Remedies. TO THE FULLEST EXTENT PERMITTED UNDER LAW, THE REMEDIES SET FORTH IN THESE TERMS ARE YOUR SOLE AND EXCLUSIVE REMEDIES.

20. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED UNDER LAW, KOFFEEWARE WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING ANY LOSS OF DATA, REVENUE OR PROFIT) ARISING WITH RESPECT TO YOUR USE OF THE SERVICE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO DAMAGES ARISING FROM (i) USE OR INABILITY TO USE THE SERVICE, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES, (iv) THIRD PARTY CONTENT MADE AVAILABLE TO YOU THROUGH THE SERVICE, OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

21. Settlement of disputes

The validity, interpretation and performance of this License are subject to French law. Any dispute, whatever the nature thereof or the amount involved, shall first be subject to an attempt to reach an out-of-court settlement between the Parties. Failing this, the dispute shall be taken before the Commercial Chamber of the District Court of Strasbourg (Chambre commerciale du Tribunal de Grande Instance de Strasbourg), France, by either Party.

The License Holder undertakes to guarantee KoffeeWare against any legal action taken out against it which results from the use of KoffeePhoto Software.

Furthermore, the costs of out-of-court and court settlements and the expenses of lawyers and technical expert assessments of both Parties shall be borne exclusively by License Holder. This provision applies insofar as it is authorised by the law applicable to the procedure.

22. Miscellaneous provisions

For all communication relating to the License, the Parties elect domicile at their respective head office and place of residence.

Titles: In the case of any difficulty in interpretation between any of the clauses herein and its title, the titles shall be declared non-existent.

Partial Non-Validity: If any of the provisions herein should prove to be null and void in view of the rules of law in force or any legal decision that becomes final, it shall be deemed unwritten. However, the other provisions shall maintain their scope and effect.

SPECIAL TERMS OF SERVICE

23. The Services

The Services available through KoffeePhoto Software are as follows:

24. Account login information

To use the Services, the User needs a User Identity Code. KoffeePhoto requires this User Identity Code to be the user's e-mail adress. He/she can create the Identity Code when installing KoffeePhoto Software, or use his/her existing Identity Code if he/she already has one.

He/she may not:

  1. Select or use the e-mail adress of another person with the aim of pretending to be that person;
  2. Use the e-mail adress of another person without their authorisation;
  3. Use an e-mail adress in breach of a third party's intellectual property rights;
  4. Use an e-mail adress that KoffeeWare could deem to be inappropriate, shocking or abusive.

25. Restrictions to the use of the Identity Code and the password

The User is liable for all activities conducted by him/herself or any other person he/she has authorised to use his/her Identity Code, including friends and family. He/she agrees to keep the password corresponding to his/her Identity Code confidential. He/she undertakes not to access the Services when driving a vehicle, operating potentially dangerous equipment, and not to carry out other dangerous activities. KoffeeWare cannot be held liable for any prejudice caused by the fraudulent use of the User Identity Code and password by a third party resulting from negligence or imprudence in terms of keeping the password confidential, or negligence or imprudence in terms of using the Services.

26. Equipment and Communication Costs

The cost of obtaining the equipment and the means of telecommunication required to access the Software and the Services shall be borne exclusively by the User.

27. Restriction of Access to the Services

The User must access the Services solely through KoffeePhoto Software distributed and authorised by KoffeeWare. The User undertakes not to access the Services by any other means or software that are not expressly authorised by KoffeeWare.

28. Guarantees

The User acknowledges that access and use of the Services are at his/her own risk and that KoffeeWare does not provide any further assistance than that given on the Website (www.koffeephoto.com).

THE PROVISIONS OF THE OPERATING LICENSE FOR KOFFEEPHOTO SOFTWARE PROVIDED FOR IN THE FOLLOWING ARTICLES APPLY TO THESE SPECIAL TERMS APPLICABLE TO THE SERVICES AVAILABLE:

ARTICLE 1: DEFINITIONS
ARTICLE 4: DATA BACKUP
ARTICLE 7: AMENDMENT
ARTICLE 8: LIABILITY
ARTICLE 9: SECURITY AND CONTENT OF THE DATA TRANSMITTED
ARTICLE 10: GUARANTEES AND UPDATES
ARTICLE 13: INTERRUPTION OF ACCESS
ARTICLE 14: DEACTIVATION OF THE ACCESS ACCOUNT
ARTICLE 21: SETTLEMENT OF DISPUTES
ARTICLE 22: MISCELLANEOUS PROVISIONS

THE USER HEREBY UNDERTAKES TO READ THE PROVISIONS OF THESE ARTICLES AND TO ABIDE BY THEM DURING ACCESS TO AND USE OF THE SERVICES.

29. Entirety of the Contract

The Operating License and Special Terms applicable to the Services available constitute the entirety of the Contract between KoffeeWare and the User-License Holder.

The License Holder hereby undertakes without any reservations, to abide by all the provisions in the User's License and in the Special Terms applicable to the Services Available.

Latest update: 19 march 2008