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TERMS AND CONDITIONS OF USE OF WILOGO SERVICES

1. SUBJECT :

1. These Terms and Conditions of Services establish the conditions for the subscription and use of WILOGO Services (hereinafter « WILOGO Services ») offered by WICONCEPT (hereinafter « WICONCEPT »), located at 7 Quai de la rive 42400 SAINT-CHAMOND, SARL with capital of 7,660 Euros, registered in the Saint-Etienne corporate and trade register under number 494 537 699, on the Web site whose main address is www.wilogo.com (hereinafter « the Site »).

2. These Terms and Conditions of Services complete the Agency Contract concluded between the Graphic Designer and WICONCEPT, who act respectively as Principal and Agent.

Pursuant to the provisions of article 1.2 of the Agency Contract, these Terms and Conditions of Services, as well as the e-mails authorizing reproduction, representation and transfer of rights to the Designs on the WILOGO Service, form an inseparable contractual whole.

3. Natural persons and corporate bodies who subscribe to the WILOGO Services are designated as « Graphic Designers » under the present Conditions.

« Clients » are to be understood as the users of the WILOGO Services expressing a request for creation of a Design through the Site and through the system putting Graphic Designers in competition with one another.

The « Designs » mentioned in the present Conditions are to be understood exclusively as the advertising art designed and produced by the Graphic Designer as part of his participation in WILOGO Services.

4. For the Graphic Designer, registration with WILOGO Services and use of them involved concluding an Agency Contract with WICONCEPT and acceptance without reservation of the present Terms and Conditions of Services.

2. REGISTRATION WITH WILOGO SERVICES

1. Registration with and access to WILOGO Services are free of charge and reserved exclusively to corporate bodies and natural persons who are of full age and not under guardianship, who have filled out and submitted the registration form available on line on the Site, confirmed the present Terms and Conditions of Services and concluded an Agency Contract with WICONCEPT.

2. Upon registering, the Graphic Designer undertakes to provide correct and true information about his situation, and to check regularly the data concerning him, and if necessary to make the necessary modifications on line in his Member Space.

The Graphic Designer must give a valid e-mail address to which WICONCEPT will send its registration confirmation, including his personal ID information.

WICONCEPT draws the Graphic Designer's attention in particular to the latter's need to provide it with a valid, primary e-mail address.

Any communication made by WICONCEPT to this e-mail address is in fact considered to have been received and read by the Graphic Designer, who therefore undertakes to check regularly the messages he receives at this e-mail address and, if appropriate, to respond as quickly as possible.

3. Only one registration as Graphic Designer is allowed per natural person or per corporate body and per postal address.

WICONCEPT reserves the discretionary right to reject or to subsequently invalidate the registration of a Graphic Designer whose information proves to be incorrect.

4. In the case of a new registration, the submission click made at the end of the process for validating the registration form formalises submission of the request to register with WILOGO Services and is valid as irrevocable acceptance of the present Terms and Conditions.

Once WICONCEPT has notified the Graphic Designer of its acceptance of the request to register with WILOGO Services, this submission click constitutes final consent to contract with WICONCEPT for the offer of membership in WILOGO Services.

The submission click constitutes an electronic signature, which has the same value as a handwritten signature.

Transfer of the rights attached to a Design by the Graphic Designer as part of the final-selection and rights-assignment phase as described at article 3.5 of the present Conditions necessarily assumes, however, that the Agency Contract between the Graphic Designer and WICONCEPT has been concluded.

Effective transfer of the rights attached to a Design by the Graphic Designer to a Client is therefore subject to prior receipt by WICONCEPT of a copy of the Agency Contract signed by the Graphic Designer.

5. In the event that the Graphic Designer has already registered with WILOGO Services before 15 November 2007, the effective date of these Terms and Conditions, acceptance of these Conditions shall be formalised by the signing of the Agency Contract, with which they form an inseparable contractual whole, in accordance with article 1.2 of said Agency Contract.

6. Registration allows the Graphic Designer to choose a confidential ID which, together with the password he will receive by e-mail upon registering, allows him to access his private management interface with WILOGO Services (hereinafter his « Member Space »).

These personal identification elements (ID + password) can be changed on line by the Graphic Designer in his Member Space and are personal, confidential and non-transferable.

Under these conditions, the Graphic Designer undertakes not to communicate them to third parties and if appropriate will take care to make his staff aware of the need to be especially vigilant of the confidentiality of this personal identifying information.

WICONCEPT cannot be held liable for any direct or indirect damages suffered by the Graphic Designer or by third parties resulting from fraudulent access to the Graphic Designer's Member Space after the Graphic Designer's personal identification information has been revealed.

WICONCEPT cannot be held liable for any direct or indirect damages suffered because of access by unauthorised third parties to the Graphic Designer's Member Space, if this fraudulent access was made based on the entering of the Graphic Designer's personal identifying information.

3. DESCRIPTION AND FUNCTIONING OF THE SERVICES :

WICONCEPT offers to the Graphic Designer the WILOGO Services, consisting of the supply of an Internet platform (the Site) allowing Graphic Designers registered with the Services to compete for the requests for Designs from Clients through the Site, and of management of the transfer of the proprietary rights attached to these Designs when they are finally selected by the Clients, in accordance with the provisions of the Agency Contract.

The Graphic Designer is invited to go to the Site to learn about the practical details of putting Designs on the Site and of interacting with the Clients and other graphic designers registered with WILOGO Services, as well as about technical constraints regarding the format and weight of the Designs.

WICONCEPT draws the Graphic Designer's attention to the fact that the Site is not a space for saving his Designs and that they may be deleted when his registration with WILOGO Services expires.

WILOGO Services function in several distinct phases.

3.1 Initial phase of Design creation

1. The Graphic Designer desiring to respond to a request made on the Site by a Client designs and creates a number of Designs and variants corresponding to the « Services Pack » selected by the Client, by the assigned deadline and according to the criteria indicated by the Client in its request.

2. During this phase, the Graphic Designer can view the Designs created by the other Graphic Designers.

3. The Graphic Designer may address any questions he has to the Client exclusively through the discussion forum dedicated to the Client's request; the Client is unable to communicate directly with the Graphic Designer.

4. During this phase, the Designs may not be submitted for consultation and appraisal by third parties, in particular by other graphic designers and the Client.

3.2 Community phase

1. When the Graphic Designer submits his Designs, they will automatically be put on line on the Site; this operation is necessarily preceded by the Graphic Designer's sending an e-mail authorising reproduction, representation and transfer of rights to the Designs as part of WILOGO Services, in accordance with article 5.2 of the Agency Contract.

2. The Designs are then freely accessible by other graphic designers registered with WILOGO Services, whether or not they responded to the design request in question. During this phase, graphic designers may leave comments regarding the Graphic Designer's Designs and vote for them, or not.

3. During this phase, the Graphic Designer may create and put on line on the Site variants and adaptations of the Designs, to the exclusion of any new creation that would be distinct from the Designs initially put on line.

4. The Graphic Designer also has free access during this phase to the designs of the other graphic designers who responded to the Client's request and may leave a comment about them and vote on them, or not.

5. The Graphic Designer may address any questions he has to the Client exclusively through the discussion forum dedicated to the Client's request; the Client is unable to communicate directly with the Graphic Designer.

6. The Graphic Designer's Designs, as well as those of the other designers who responded to the Client's request, cannot be consulted by the Client during this phase.

3.3 Intermediate pre-selection phase

At the conclusion of the Community Phase, which is limited in time depending on the terms of the Services Pack selected by the Client, the latter selects from among the designs submitted to it by the graphic designers who responded to its request a number of designs that varies according to the Pack selected, so as to put them in competition in the so-called « Shortlist Phase. »

3.4 Shortlist phase

1. The Graphic Designer, whether or not he was selected for the Shortlist Phase, has free access during this phase to the designs of the other graphic designers selected and may leave a comment about them and vote on them, or not.

2. A Graphic Designer chosen by the Client for the Shortlist Phase may:

- address any questions he has to the Client exclusively through the discussion forum dedicated to the Client's request, and through responses to any comments the Client may have made regarding his Designs;

- create and put on line on the Site variants and adaptations of the Designs, especially in response to the comments and suggestions of the Client and the other designers, to the exclusion of any new creation that would be distinct from the Designs initially put on line.

3. The Client cannot communicate with the Graphic Designer except through the discussion forum and the comments on the Designs.

3.5 Final-selection and rights-assignment phase

1. At the conclusion of the Shortlist Phase, which is limited in time depending on the terms of the Services Pack selected by the Client, the latter selects from among the designs chosen in the Shortlist Phase the Design or Designs to which he would like to acquire the proprietary rights.

2. In the event that the Client chooses one or more of the Graphic Designer's Designs, WICONCEPT, as Agent of the Graphic Designer(s), and in accordance with the provisions of articles 5.3 and 5.4 of the Agency Contract(s), and of the e-mail authorising reproduction, representation and transfer of rights to the Design(s) sent to WILOGO at the conclusion of the initial Design creation phase (cf. art. 3.1), consequently transfers to the Client, who becomes a Third-Party Transferee under the Agency Contract, the proprietary rights attached to the Design(s) in question.

4. ACCESS AND AVAILABILITY

WICONCEPT is subject to a general obligation of diligence towards the Graphic Designer in providing the WILOGO Services. It therefore undertakes to apply all means necessary to ensure the functioning of the Services under the best possible conditions of turnover time, output and consistency.

However, given the very nature of the Internet and of the computer and network infrastructure necessary to operate the Services, WICONCEPT cannot guarantee that the Services will operate twenty-four hours a day and seven days a week.

To ensure quality service, WICONCEPT reserves the right to have periods of maintenance, re-updating or technical work likely to involve a cut-off of access to the Services. However, WICONCEPT undertakes to limit the number and duration of these interruptions in the Services.

In all cases described in the present article, the resulting malfunctions or unavailability of the Services may not be considered periods during which WICONCEPT is not fulfilling its obligations, and no indemnity shall be paid to the Client, regardless of the prejudice that may be suffered by same or by third parties because of these malfunctions or unavailability.

5. FINANCIAL CONDITIONS

1. Registration with WILOGO Services and their use are free of charge.

2. However, WICONCEPT will take a commission on the sums paid by Clients for the creation of the Designs (cf. art.5.3) and for transfer of the rights attached to the Graphic Designer's Designs, in accordance with article 6 of the Agency Contract.

3. If the Graphic Designer is selected by the Client to participate in the Shortlist Phase as described at article 3.4, but none of his Designs is chosen by the Client for the final-selection and rights-assignment phase described at article 3.5, he will receive a flat-rate sum as compensation for his design work, the amount of which will be communicated to him when he offers to participate on the request page.

4. The Graphic Designer may not claim any compensation for his participation in WILOGO Services, his creation of Designs and the transfer of any proprietary rights attached thereto, other than for those described in the present article.

5. Orders can benefit from the "100% money back" guarantee. The conditions of validity of this warranty are permanently accessible on the website at the following address: /faq/index/100-money-back-guarantee.html. The refund request must reach the company WICONCEPT within a maximum period of 60 calendar days from the date of order.

6. GRAPHIC DESIGNER'S SPECIAL OBLIGATIONS

1. The Graphic Designer will take care to follow the indications and technical instructions provided him by WICONCEPT and is prohibited from attempting by any means to misappropriate WILOGO Services for a fraudulent purpose.

Under these conditions, the Graphic Designer undertakes to utilise WILOGO Services in a fair and honest manner as they were intended, for his own needs, and is prohibited from selling them to others.

2. Depending on the choices made by Clients, the Graphic Designer may be asked, for an unlimited period of time, to maintain strict confidentiality regarding the information contained in the specifications formalising the request for creation of a graphic design by the Client, and concerning the Client's identity, including its corporate name, its business names and distinguishing signs, and/or the names of the products and services that may be covered by the requested graphic design, whether or not they are protected by trademark.

However, the Graphic Designer retains the right to publish in his commercial and communications media, exclusively for purposes of artistic reference, the Designs it creates in response to requests from the clients concerned, whether or not these Designs are ultimately chosen by the Client, without however reproducing any mention whatsoever of the Client and of its products and services, as described above.

3. The Graphic Designer is solely responsible for the Designs he distributes through WILOGO Services.

In any case WICONCEPT is relieved of all responsibility for the Designs and therefore may not be held liable for any prejudice that may result from them, and from the use that may be made of them by third parties.

4. Any remarks made by the Graphic Designer in the Site's discussion forums, or in the comments concerning his own Designs or those of other designers registered with WILOGO Services, are an expression of the Graphic Designer's own thought.

The Site's interactive spaces are for free exchange and open to all graphic designers and Clients registered with WILOGO Services, but they are moderated after the fact.

WICONCEPT in fact reserves the discretionary right to edit or withdraw at any time irrelevant, unlawful messages likely to undermine public order or good morals, messages involving claims or advertising such as used in business solicitation, and any other message that does not relate to the editorial concept of WICONCEPT.

5. The Graphic Designer undertakes to guarantee, indemnify and relieve WICONCEPT of all direct and indirect costs and damages, and of all convictions it may suffer because of a suit brought against it by third parties resulting from the Designs and use by the Graphic Designer of WILOGO Services, and in particular the Site's interactive spaces, and from failure to respect the confidentiality to which he may be bound in accordance with the provisions of article 6/3 of the present Conditions.

7. TERM AND TERMINATION

1. The Graphic Designer's registration with WILOGO Services is concluded for a fixed term of one (1) year from the Graphic Designer's on-line submission of the registration form, in accordance with the provisions of article 2.4 herein, or from the signing of the Agency Contract in those cases described at article 2.5.

Registration may be renewed for successive additional periods of one (1) year, unless one of the Parties expresses opposition to same by sending a registered letter with acknowledgement of receipt to the other party one (1) month before expiration of the registration.

2. In the event one of the Parties breaches the obligations of the present contract and fails to remedy same within twenty (20) business days from receipt of the registered letter with acknowledgement of receipt notifying it of the breach in question, the other party may terminate the present contract by right, without prejudice to any damages and interest it may claim hereunder.

3. Expiration for any reason of the Agency Contract concluded between the Parties shall carry with it the automatic termination of the present Terms and Conditions of Services, without the Graphic Designer being able to object or claim any indemnification.

WICONCEPT retains the right to temporarily or permanently suspend provision of any or all of the WILOGO Services:

 

- for those cases described at article 10 FORCE MAJEURE of the present Contract;
- at its discretion, without the Graphic Designer being able to object or claim any damages or interest.

 

The present Conditions will then be automatically terminated.

8. INTELLECTUAL PROPERTY RIGHTS

All data of any kind, and especially texts, graphics, logos, icons, images, advertising art created by the graphic designers of the WILOGO community, audio or video clips, trademarks, software appearing on the Site are necessarily protected by copyright, trademark law, and all other intellectual property rights, and belong to WICONCEPT or to third parties having authorised WICONCEPT to use them.

WICONCEPT grants to the Graphic Designer a right to private, non-collective and non-exclusive use of said content.

Under these conditions, the Graphic Designer undertakes not to reproduce, modify, alter or redistribute without the prior and express authorisation of WICONCEPT any or all of the content described in the present article.

9. INFORMATION TECHNOLOGY AND FREEDOMS

1. In accordance with the provisions of Law 78-17 of 6 January 1978 relating to information technology, files and freedoms, and with the decision of the CNIL (National Commission on Information Technology and Freedom) of 10 July 2006 to eliminate the Internet site declaration obligation in favour of the procedure for declaration of processing associated with said site, the clients/prospects file of WICONCEPT has been filed with the CNIL by WICONCEPT.

2. Therefore, according to the Law of 6 January 1978, graphic designers who have provided personal information through the Site are entitled to access the data concerning them, and the right to have that information changed, corrected or eliminated.

To exercise this right, they need simply access their Member Space on the Site, or send a letter or e-mail to the coordinates appearing at article 11.1 of the present Conditions.

3. The personal data relating to graphic designers collected through forms and any future information are intended solely for the exclusive use of WICONCEPT as part of the services it offers to graphic designers and are never communicated or transferred to third parties other than any technical-services providers who may be responsible for managing WILOGO Services, who are required to respect the confidentiality of the information and not to use same except for the specific operation they must perform.

4. The data of graphic designers are also used to enhance and personalise communication with them.

5. WICONCEPT keeps the graphic designers' personal data on its own servers and undertakes to keep the personal data collected strictly confidential.

6. The Graphic Designer is informed that the functioning of WILOGO Services necessarily implies that WICONCEPT places a cookie on his computer when he navigates the Site; this is a file stored on his computer's hard disk that automatically identifies the Graphic Designer upon his subsequent connections to the Site and facilitates his navigation on the Site, and his use of WILOGO Services.

This cookie is stored on the Graphic Designer's computer for three (3) months; when it expires, if the Graphic Designer again connects to the Site, a new cookie will automatically be placed on the Graphic Designer's computer.

The Graphic Designer may reject the cookies or destroy them; this will make it impossible for him to use WILOGO Services.

10. FORCE MAJEURE

Neither Party may be held liable if execution of the present Contract is delayed or impeded by reason of a case of force majeure or an act of God, by the actions of the other Party or of a third party or by outside causes such as social conflicts, the intervention of the civil or military authorities, natural disasters, fires, water damage, poor functioning or interruption of the telecommunications network or the electrical grid.

Force majeure is understood as any event external to the affected Party, being at once unforeseeable, irresistible and insurmountable in nature, that prevents either Party from executing all or part of the obligations established by the present Contract against it.

In all cases, the impeded Party must do everything in its power to limit the duration and effects of the act of God or case of force majeure or outside causes.

If the event is prolonged beyond a period of three (3) months, the present Contract may be terminated by right.

11. MISCELLANEOUS

The present contract applies worldwide, and only its French version is authoritative for its interpretation.

1. For any information or questions, WICONCEPT invites the Graphic Designer to consult the FAQ on the Site, which covers the most frequently asked questions and how to resolve them.

If the Graphic Designer does not find the answer in the FAQ, he may contact WICONCEPT at the following coordinates:

Wiconcept
7 Quai de la rive
42400 - Saint-Chamond
FRANCE
tel / fax : +33(0)4.77.83.56.62

Email : Contact

1. Contract amendments

WICONCEPT reserves the right to unilaterally change the terms of these conditions, particularly in the event of technical, legal or jurisprudential developments, or when new services are offered.

The Graphic Designer will always be informed of the nature and scope of these changes, by e-mail sent to his e-mail address.

Unless the Graphic Designer objects within thirty (30) days following notification of these changes, the Graphic Designer will be considered to have accepted them.

In the event that the Graphic Designer does not accept the changes, WICONCEPT reserves the right to terminate these Conditions to the sole prejudice of the Graphic Designer.

2. Invalidity

Should one of the provisions of the present Conditions be considered invalid by virtue of a provision of law or regulation, present or future, or of a court judgment having the authority of a final judgment and issued by a competent jurisdiction or body, this provision of the contract shall be considered not to have been written, while all other provisions herein retain compulsory force between the Parties.

3. Non-waiver

The fact that one of the Parties does not avail itself at a given time of any of the provisions of the present Contract may never be construed as a waiver by it of the rights it holds hereunder.

12. APPLICABLE LAW – COMPETENT JURISDICTION

This contract is subject to French law.

Any dispute arising from the execution or interpretation of the present Contract obligates the Parties to come together and attempt to find an amicable solution to their dispute, first conventionally and then through mediation.

The Parties hereby designate as their mediation venue the Centre Interrégional de Médiation et d'Arbitrage– 19 Place Tolozan – 69001 LYON.

If mediation fails, the dispute shall be brought before the competent jurisdiction.

IN THE EVENT THAT THE GRAPHIC DESIGNER IS A CORPORATE BODY, THE DISPUTE SHALL BE BROUGHT BEFORE THE COURT OF COMPETENT JURISDICTION IN THE JURISDICTION OF THE LYONS COURT OF APPEAL, MULTIPLE DEFENDANTS OR THE INTRODUCTION OF THIRD PARTIES NOTWITHSTANDING.