General Terms and Conditions – Use of the Makidoo app

 

Dream and Achieve, a French société par actions simplifiée (simplified joint stock company) with €56,357 capital, entered in the Trade and Companies register of La Roche-sur-Yon under number 821 620 531, with head office at 123 boulevard Louis Blanc, 85000 La Roche-sur-Yon, France (hereinafter “Dream and Achieve”), provides users as stated hereunder a digital app available for downloading from digital app e-commerce websites (hereinafter “Stores”).

Makidoo is a SaaS service and a guided automatic video shooting and production mobile app. Makidoo is available for iOS, Android and PCs with web browser and is offered for downloading from Stores. Makidoo is also available from the website www.makidoo.io (hereinafter “Site”).

Makidoo includes both services and the app (hereinafter “Makidoo” or “App”).

Makidoo may be used (i) by a private or non-professional individual as defined under the introductory article of the French Consumer Code, (ii) by a professional natural or legal person in conjunction with their professional activities. Users hereinafter are referred to generally as “User” or “Users”.

Users, consumers and non-professionals have specific rights as detailed under the French Consumer Code.

Depending on their needs, Users may use either the scaled-down version available under Makidoo’s trial offer, or the Makidoo-developed version if used professionally or if they have paid an annual subscription.

The General Terms and Conditions (hereinafter “GT&C”) apply to all Users and were updated as of February 7, 2020.

The GT&C may be changed by Dream and Achieve at any time to include any statutory or case law amendment applying to e-commerce, any change to the general terms and conditions of any Store, and any technical or technological development improving the App.

 

Article 1 – Purpose

The GT&C are intended to establish terms and conditions under which Users may access and use the App and services. Users hereby authorize Makidoo to produce personalized videos created from the App and from the User platform.

Makidoo offers trial versions to non-professional Users free of charge.

Should non-professional or professional Users so wish, Makidoo offers an annual subscription, payment of which is due as of the date of the purchase order placed via App, Site or Dream and Achieve sales staff.

By way of exception to the aforegoing and on User’s express request, a subscription may be contracted for three (3) or six (6) months due as of the date of the purchase order placed via Dream and Achieve sales staff.

Subscription procedures are detailed hereunder.

Article 2 –User identification

2.1. User means a natural or legal person who has downloaded Makidoo from the Stores or Site and who has been identified when setting up an account.

Users declare they are adults and have legal capacity to use Makidoo’s features.

2.2. To open an account and access their private area (hereinafter “Private Area”), Users shall give their address, family name, first name, email address, language and, as applicable, name and identity details of their legal entity. Once identified, they can log in again using their email address and a password of their choice. The password is strictly personal and must be kept secret. Users expressly accept that entry of their email address followed by their password constitutes a valid means of identification. Pursuant to data privacy requirements, including French Data Protection Act requirements, Users hereby acknowledge that a password must have at least 8 characters comprising 3 out of the following 4 types: upper-case letters, lower-case letters, numbers and special characters.

 

2.3. By setting up an account via the Site or the App, Users take note of and accept Makidoo’s GT&C.

Article 3 – Terms of use

3.1. Once identified, Users pick a shooting topic or scenario from those suggested such as “Report” or “Clip Event”.

3.2. Users import/upload/input to Makidoo text, pictures, logos, brands, audio or videos they want to process / script in the format recommended by the App or the Site. They can also create videos, photos, audio and text directly via the App or use content from the picture or video bank provided by Dream and Achieve.

The Makidoo assistant suggests, scene by scene, shooting activity, shots and timing for the production depending on Users’ topic and profile.

3.3. Production is automatic and once complete, is saved automatically in the photo or video gallery of Users’ mobile device and in their Private Area, i.e. their own area in the App. They may also receive recommendations to back up their draft completed productions in a Cloud area. On no account shall Dream and Achieve be held liable for Cloud malfunctions. Users expressly acknowledge that should any Cloud malfunctions occur, the Cloud hosting provider shall be liable.

3.4. Users can share the completed production by email or via social media such as Twitter, Facebook, Pinterest, Flickr, Instagram etc and from their own smartphone’s apps.

3.5. Should Users not have paid for a subscription, the “” logo shall appear on their completed video and uploaded by the App without Users being able to remove it, which Users hereby expressly approve.

Article 4 – Subscription

A subscription contract shall be valid if Users:

4. Place a subscription contract order online via the double click procedure outlined under 4.1. below, or
5. Sign a subscription contract with Dream and Achieve and pay the first invoice as outlined under 4.2. below

 

4.1. Order placement – double click

Pursuant to Articles 1125 to 1127-3 of the French Civil Code, a subscription contract is valid once Users have been identified and have placed an order (first click), have read and accepted the GT&C, have checked their order, corrected any errors therein and then confirmed by a second click.

The double-click procedure establishes consent by Users and entails payment of the amounts due for Dream and Achieve to execute the order.

Pursuant to Article L221-14 of the French Consumer Code, any order confirmed by a second click entails a duty to pay.

An email with the GT&C shall be sent to Users’ email address as written record of the established contract. Such confirmation email shall include the order number and will allow Users to retrieve all details required under the general disclosure obligations of Articles L221-5 and L221-11 and following of the French Consumer Code.

 

So it is strongly recommended that Users should keep such confirmation email.

 

4.2. Subscription contract signature and payment of first invoice

A subscription contract is also valid subject to (i) User signing the subscription contract and (ii) the first invoice being paid to Dream and Achieve.

 

Article 5 – Dream and Achieve’s duties

5.1. Users expressly acknowledge that Dream and Achieve’s duties under the GT&C are each akin to a duty of care. Dream and Achieve shall take all reasonable steps as habitually carried out in the industry to protect against hacking and other malicious acts.

 

5.2. Dream and Achieve’s liability may only be incurred by demonstrating a fault attributable to Dream and Achieve.

 

5.3. Specifically, Dream and Achieve may not be held liable for any damage caused to Users’ computer equipment following downloading or use of Makidoo.

 

Article 6 – User liability and warranty

 

6.1. Users shall be responsible for their use of Makidoo. As such, they undertake to use it pursuant to current laws and they specifically undertake to refrain from:

– Using content that could be deemed infringement of intellectual property rights on Makidoo;

– Passing on content that runs contrary to public order and ethics;

– Infringing on personal image rights.

 

Users warrant that they are duly entitled to use the content, pictures, videos, texts or photos that they import or download to the App and services.

 

6.2. Users acknowledge that they are solely responsible for the use they make or which could be made by a third party other than Dream and Achieve of the completed production.

 

6.3. Users hereby hold Dream and Achieve free of any claim or action brought by a third party against Dream and Achieve under the GT&C, including any claim for infringement of intellectual property rights or for Users’ misuse of Makidoo. Said guarantee shall cover all legal defense fees of Dream and Achieve.

 

6.4. Users authorize Dream and Achieve to use their pictures, videos or audio for marketing purposes, in any medium, and within three years from expiry of the GT&C free of charge.

 

6.5. Dream and Achieve shall allow Users to control third party access to their content by selecting their own set-up. Users acknowledge that they are solely responsible for such selection.

Article 7 – Financial terms

7.1. Consumers and non-professional Users only

Downloading Makidoo and setting up accounts are free for consumers and non-professional Users. Such Users shall be entitled to a free trial as described on the Site and App. Dream and Achieve offers Users seeking the full range of options under an annual subscription at prices and terms as specified on the Site and the App. Users may also contact Dream and Achieve sales staff.

7.2. Professional Users only

Downloading Makidoo and setting up professional accounts are not free of charge and prices are specified on the App or from Dream and Achieve sales staff.

Professional Users using Makidoo must pay an annual subscription fee based on terms and conditions specified on the App, Site or from Dream and Achieve sales staff.

7.3. Prices on the App, Site and subscription contract are stated in euros (€) excluding VAT. VAT will be applied at the current French statutory rate. If French VAT rates change, prices will be immediately updated with no prior warning.

While Dream and Achieve reserves the right to change prices at any time, any price changes shall not apply to outstanding subscription contracts.

In the event of late payment, pursuant to Article L 441-6 of the French Commercial Code, a late payment charge based on three times the applicable statutory interest rate together with a flat €40 debt collection fee per unpaid invoice, shall fall due.

7.4. Payment shall always be made via App when confirming the order.

Users warrant to Dream and Achieve that they are duly entitled to use the payment method stated on the order confirmation. Dream and Achieve reserves the right to suspend any order if any payment is refused by an officially authorized institution or if a User does not pay.

Should a subscription contract be signed with Dream and Achieve sales staff, the subscription fee shall be paid by wire transfer.

Should a User expressly request Dream and Achieve to pay an annual subscription by monthly installments, payment may be made by bank direct debit.

Should monthly installments be paid by bank direct debit, Users undertake to:

• Pay the first installment by wire transfer payable to Dream and Achieve;
• Accurately fill in, date and sign the bank direct debit authorization form;
• Provide a bank checking account IBAN less than six months old;
• Should the bank account holder not be the subscription holder, a copy of a valid identity document or proof of company registration less than three months old of the bank account holder.

Should Users change their bank account or anything else that affects the bank direct debit, Users undertake to notify Dream and Achieve thereof by the 20^th day of the month to take effect the next month. Users must then fill in and send a new bank direct debit authorization form and IBAN to Dream and Achieve.

Should installments not be paid, including if direct debits are rejected, Users undertake to settle the entire outstanding subscription fee in respect of the current year by wire transfer payable to Dream and Achieve within five (5) business days from the direct debit rejection date.

7.5. Dream and Achieve may set up an order checking process to prevent unauthorized third party use of bank accounts or identity theft. Users may be asked to email gestion@dreamandachieve.io a copy of both sides of an ID document and / or a copy of the credit card used for payment (double-sided copy, taking care to show only the 4 first and last 2 digits of the number on the front and to mask the cryptogram and full number of the card that may appear on the back) and proof of address. Orders will not be validated until submitted documents have been received and checked. Users may not hold Dream and Achieve liable in the event of identity theft unless it is shown that the address supplied is completely and obviously false.

Article 8- Right of withdrawal

Given that Users’ creation of videos with Makidoo via the App is deemed a supply of goods made or clearly personalized to consumers’ specifications, Users may not claim a right of withdrawal under Article L. 221-28, 3° of the French Consumer Code.

Article 9 – Intellectual property

9.1. Dream and Achieve is the exclusive owner of mobile app Makidoo, related services and on-demand scenario templates, which are protected by copyright (Article L111.1 and following of the French Intellectual Property Code).

9.2. Dream and Achieve grants Users a license for personal, non-exclusive and non-transferable use of Makidoo under conditions defined in these GT&C.

The license is granted for a period specified in Article 10 hereunder to Users.

However, it is formally forbidden for Users to:

– Carry out any form of reproduction or representation of Makidoo;

– Alter or obscure in any way the trademarks, logo or statements of copyright displayed on Makidoo and on final productions without express approval from Dream and Achieve;

– Change or seek to circumvent any Makidoo legal protections.

Users are not authorized to grant third parties sub-licenses to use Makidoo unless they have signed a contract with Dream and Achieve that expressly authorizes such sub-licenses.

Article 10 – Duration

In the event of a free trial offer, the GT&C shall apply throughout the trial offer period.

In the event of paid subscription, the GT&C shall apply throughout the subscription period including if subsequently tacitly renewed.

A subscription contract may be tacitly renewed unless Users terminate it at least one month before expiry of the relevant period.

Pursuant to Article L215-1 of the French Consumer Code, Dream and Achieve shall inform Users by email, between 3 months and 1 month prior to expiry of the first period, of the option to terminate the contract.

Article 11 – Protection of Users’ personal data

11.1. In order to use Makidoo, Users are required to provide personal details including family name, first name, email address and language when completing forms supplied to set up an account.

Dream and Achieve needs such data both to process Users’ requests and to offer scenarios best suited to a User’s profile and needs. Dream and Achieve is responsible for processing such personal data. Legal grounds for doing so is based on consent of Users if they complete and submit a form to set up an account on the App, Site or directly with Dream and Achieve. Such data shall only be processed or used for established, explicit and legitimate purposes. Access of private data is strictly limited to Dream and Achieve directors and employees, who are permitted to do so on account of their duties. All recipients of such data are located in the European Union. No private data shall be disclosed to third party firms without User express prior approval.

11.2. Pursuant to the French Data Protection Act and the EU General Data Protection Regulation (GDPR) effective from May 25, 2018, all Users completing the contact form on the App or Site are entitled to view, rectify, oppose, delete, restrict or prevent transfer of their private data by sending an email to dpo@makidoo.io.

Users are also entitled to instruct Dream and Achieve what to do with their private data after their death. Such instructions must be emailed to dpo@makidoo.io.

Article 12 – Data hosting and security

 

12.1. As host, Dream and Achieve exercises no control over the content of personal data or unreviewed data that Users place on the App (hereinafter “Data”). However, if so advised, Dream and Achieve shall delete or prevent access to any content resulting from illicit use of the App.

 

12.2. Dream and Achieve undertakes to comply with rules issued by the CNIL as regards Data storage location. The principal redundant servers are located in France or another EU country.

 

12.3. Dream and Achieve provides Data hosting for Users in Private Areas on servers in a secure center. Dream and Achieve shall be free of all liability on account of type or content of Customer Data or information and usage thereof. Similarly, Dream and Achieve shall be free of all liability on account of quality of Data and electronic transmission via telecommunication networks and generally on account of quality and reliability of telecom links between customer work stations and points of access to Private Areas.

 

12.4. Data integrity

Dream and Achieve undertakes to safeguard the integrity of User Data in respect of both hosting and backup operations. The integrity of all Data means retrieving an intact copy thereof such that it shall have undergone neither alteration nor change and shall be capable of being identically restored in a comprehensible format based on market standards.

 

12.5. Data Security

Dream and Achieve undertakes to take all known steps to prevent unauthorized third parties from physically accessing the server and undertakes to employ state-of-the-art technology to prevent hacking of the server. The Customer is aware that contingencies inherent in IT operations prevent Dream and Achieve from committing to said objectives under a duty to achieve a fixed outcome.

 

Article 13 – Data Storage – Back-up

 

13.1. Dream and Achieve backs Data up. This means Data is safeguarded so that an identical copy thereof can be retrieved. Backups are carried out once a day. Data is backed up to two identical copies stored in two different locations. Should there be an accident to hosting facilities and hardware, Dream and Achieve shall retrieve Data as soon as possible from the most suitable backup copy.

 

13.2. Dream and Achieve keeps a trace of connections with Identifiers.

 

Article 14 – Miscellaneous

14.1. Should any clause in these GT&C turn out to be void, such clause shall be deemed not to have been written and shall not result in making all other clauses herein void.

14.2. Any tolerance or waiver by one party hereto in respect of all or part of duties stated under these GT&C, regardless of frequency or duration, shall not result in a change to said GT&C, nor create any new entitlements.

14.3. Should the GT&C be translated into a foreign language, only the French version shall prevail.

Article 15 – Settlement of litigation

These GT&C are subject to French law.

In any litigation, Users may opt for agreed mediation or any other means of settling disputes including the Consumer Ombudsman (Chapter 1 of the French Consumer Code Book IV) available from www.economie.gouv.fr/mediation-conso/saisir-mediateur.

All litigation shall be heard by the competent court for the defending party’s residence or, if the defending party so chooses, the competent court where the service was performed. Nevertheless, for professional Users, only the Nantes Commercial Court shall have jurisdiction.