LiveWriters is the creator, designer, and operator of an innovative and original “video posting” Service, accessible at the address www.LiveWriters.com, which makes it possible, in particular, for Internet users to share Videos. LiveWriters undertakes to broadcast the Videos of its Users through its website www.LiveWriters.com or other partner websites, subject to the application of the principles of a posteriori moderation defined in these General Terms and Conditions. In accordance with Internet practices and usages, the User accepts that LiveWriters retains the option to include or link any advertising that it wishes within the Web pages where the Videos are broadcast, without the Videos being integrated to any advertising whatsoever. The Internet users declare that they have been informed of the lack of reliability of the Internet network, especially with regard to relative security in data transmission, non-guaranteed continuity of access to the Service, and non-guaranteed performance in terms of data transmission speed and volume. LiveWriters warns Users about the obligation to respect the rights of third parties, and especially trademark rights, copyrights and the right to personal privacy, as well as the body of applicable legal and regulatory provisions concerning the Internet. After familiarizing him- or herself with the information needed to use the website and the Service, the User wishes to make use of the Service in accordance with the following conditions.
Each of the expressions mentioned below shall have, in these General Terms and Conditions, the meaning given to it, including:
- “Content”: All the elements (images, sound, text, graphics, etc) forming all or part of the Videos or the comments.
- “Form”: Subscription form, which the User must fill out in order to be able to make use of the LiveWriters Service after he or she has familiarized him- or herself with, and accepted, these General Terms and Conditions of Use. The Form is available on the website www.LiveWriters.com.
- “Hosting”: Content computerized processing and storage services performed by LiveWriters and allowing Contents to be made accessible to any Internet user or User directly or indirectly linked to the server.
- “Internet”: All the globally interconnected computer and telecommunication networks making it possible for Internet users to access contents via servers.
- “Service”: All the functions and tools letting each User put Videos on-line, share them and reference them, and also makes comments about them.
- “Tags”: key words selected by the User to reference his or her Videos him- or herself.
- “User”: a physical person who has signed up to the LiveWriters Service by filling out the on-line Form and accepting these General Terms and Conditions.
- “Video”: Recordings and/or montages of animated images with sound produced and digitalized by the User.
The purpose of these General Terms and Conditions is to define the conditions under which the User may make use of the Service and use the LiveWriters website. All subscriptions to the Service, done via the Form, as well as use of the Service, are subject to these General Terms and Conditions. The User acknowledges that he or she has familiarized him- or herself with these General Terms and Conditions of Use and declares that he or she accepts them without reservation.
4 EFFECTIVE DATE AND LENGTH OF TIME
These General Terms and Conditions enter into force as of the date when the User has validated the correctly filled-out Form, and does not require these General Terms and Conditions of Use to be signed. These General Terms and Conditions are in force for an unlimited period and may be terminated by LiveWriters at any time.
5 FREE SERVICE
The LiveWriters Service, which can be accessed and is made available through the website www.LiveWriters.com, is free. Notwithstanding, all the costs of Internet access and communications needed to access and make use of the Service remain the User’s responsibility, as well all the expenses involved in producing the Videos.
6 CONDITIONS OF SUBSCRIPTION
Registration to the Service is possible 24 hours a day, 7 days a week, apart from situations of force majeure or events outside LiveWriters’ control and excepting possible breakdowns and maintenance actions necessary for the smooth running of the Service. The communication protocols used are those in use on the Internet at the time these General Terms and Conditions were accepted by the User and subsequent ones. A microcomputer with an Internet connection is required to sign up to and use the Service, as well as software and plug-ins available via the Internet, especially from their publishers’ websites. After the Form has been validated the User will receive an e-mail confirming his or her subscription to the Service, in which he or she is informed that he or she may access the website www.LiveWriters.com and/or download these General Terms and Conditions at any time. The User is asked to check his or her ID details are correct. He or she may then, if so wished, change the password and data of a personal nature that he or she entered on the Form when signing up. The User is solely responsible for keeping his or her password confidential. He or she undertakes to take all effective measures to make sure that it remains completely confidential, in particular to ensure that no third party may usurp the User’s identity in order to broadcast Videos liable to infringe the rights of third parties, the right to privacy, or the body of applicable legal and regulatory provisions concerning the Internet. Given the nature of the service and the inherent risks concerning video contents, and thus of the need to be able to identify their authors, LiveWriters informs the User that it shall keep information relating to User while his or her videos are put on-line or exploited by LiveWriters. The User is informed that personal data concerning him or her is required in order to make use of the Service. LiveWriters or its business partners may use this information for business prospecting purposes, with the User’s agreement expressed by ticking the boxes provided for this. The User may access personal information relating to him or her, and have it corrected or deleted, if necessary, and object to it being communicated to third parties by contacting the webmaster at the following address: webmaster@LiveWriters.com.
7 CONDITIONS FOR ACCESS TO THE SERVICE
Once the Form has been validated, the User is allocated an account summarizing the User’s preferences, Videos and comments, as well as a storage area enabling his or her Videos to be hosted on LiveWriters’ servers. LiveWriters reserves the right, for maintenance purposes, to temporarily and without warning suspend access to the Service or to some of the Service’s functions, without any compensation being due as a result of the Service not being available. The User is informed that, unless this is changed at a later date, the storage area allocated for Hosting his or her Videos is unlimited. Unless this is changed at a future date, the maximum size of an uploaded Video is 150 MB. However, it is specified that LiveWriters reserves the right, for technical reasons, to change the storage area allocated to the User, provided that it sends him or her an e-mail informing of this. It is expressly agreed between the parties that LiveWriters does not under any circumstances provide back-up services for Users’ Videos hosted on its servers and may in no way be held liable for the loss of these Videos. Videos shall be organized and accessible on the website by key word, group and User, with LiveWriters implementing a search system via which Videos shall be accessible.
8 OBLIGATIONS OF THE USER
The User shall provide a valid e-mail address so as to be able to make use of the Service. The User, within the framework of using the Service, whether concerning the Content of Videos or of comments, also undertakes:
- not to defame, abuse, harass or menace any person whatsoever, nor infringe another person’s rights,
- not to defend crimes against humanity, nor incite racial hatred or pedophilia,
- not to create a false identity or usurp another person’s identity,
- not to transmit viruses, Trojan Horses, logic bombs or any other harmful or destructive program,
- not to disrupt the LiveWriters Service,
- not to upload Content other than Video files,
- not to cover all or part of the content of existing works without permission from the holders of the rights to these works,
- not to infringe the rights of third parties to broadcast or re-transmit public events, in particular sporting events,
- not to reproduce and/or use the trademark, company name, logo or any distinctive sign of a third party,
- not to infringe the right to privacy and the right of publicity of persons likely to be identified within the Videos or the comments,
- generally, not to transmit elements infringing intellectual property rights or third party rights and in particular trademark rights, individual rights or copyrights.
9 PRINCIPLES OF MODERATION WITHIN THE FRAMEWORK OF USE OF THE SERVICE
The Service of videos upload is accessible only to Users who have been identified by means of the Form. Once they have been signed up, each User may look at and upload Videos, and also make comments about Videos available on the website. LiveWriters has decided on a policy of a posteriori moderation of Videos and comments so that there can be freedom of expression on its website, and at the same time to suitable available methods concerning the Internet so that the laws in force are respected. The choice of a posteriori moderation was also because of the practical impossibility, due to the instantaneity and large size of the Videos and comments put on-line by the Users, of exercising a general a priori control over all the contributions. For this reason, a posteriori moderation can only cover a portion of all the Videos and comments put on-line on the LiveWriters website. The Videos and comments supplied by each User are therefore immediately visible on-line, with a slight gap for uploaded Video files in order to convert them to the broadcast format used by LiveWriters. Contents will not be modified or arbitrarily selected by LiveWriters in a manner not based solely on respect for the law. The a posteriori moderation of the Videos is based on good sense and respect for the law. Since the principle of a posteriori moderation favors Users’ freedom of expression, the User shall take personal responsibility and ensure that the basic legal and regulatory provisions, especially those defined in the article “Obligations of the User”, are respected. The User is informed that each contribution, whether by Video or comment, may be deleted if it does not respect the legal and regulatory provisions defined in particular in the article “Obligations of the User”. LiveWriters shall not carry out any modification, either minimal or substantial, to Users’ Videos or comments. Users who are surprised or shocked by a comment or a Video may contact the moderator directly via the link “I think this video or comment may be offensive” displayed alongside each video.
10 HINTS FOR USING THE SERVICE
The LiveWriters Service is a place of creating, exchanging and sharing. Users should remain polite and respect other people’s speech. Each User’s contributions, whether in the form of Videos or comments, should be made without bias or insults, and using acceptable language. LiveWriters recommends Users to remain careful if they decide to show their e-mail address, so as to avoid being “spammed”, especially by cybermerchants or badly behaved Internet users.
11 OBLIGATIONS OF LIVEWRITERS
The User is reminded that, in its role hosting contents LiveWriters has the obligation to:
- retain and preserve data making it possible to identify any person having contributed to creating a content broadcast via its website; the legal authorities may require the aforementioned information,
- remove data stored or preserved, or make it inaccessible, as soon as LiveWriters has knowledge of its illegal nature.
The User is also informed that LiveWriters is however neither subject to a general obligation to monitor the data it stores, nor to a general obligation to search for acts or situations revealing illegal activities; its intervention is limited to an a posteriori moderation of a portion of the Videos and comments.
12 PROOF, PRESERVATION AND ARCHIVING
The computerized records kept in LiveWriters computer systems under reasonable conditions of security shall be deemed proof of communications and the sending of Forms, Videos and comments, as well as of various transmissions of data between the User and LiveWriters, enabling the latter to carry out the processing the User wants. Forms are archived on a reliable and long-lasting medium in such a way as to provide a true and long-lasting copy, in accordance with article 1348 of the Civil Code. In the event of a conflict between LiveWriters’ computerized records and any of the User’s documents, either a written document or in an electronic file, it is expressly agreed between the parties that LiveWriters’ computerized records shall take precedence over the User’s documents and shall be the only ones admitted as proof.
13 CHANGES TO THE SERVICE AND THE APPLICABLE GENERAL TERMS AND CONDITIONS
LiveWriters reserves the right to change these General Terms and Conditions of Use or the regulations concerning use of the Service at any time. Each new version of these General Terms and Conditions shall be put on-line on the LiveWriters website. The User is expected to consult these General Terms and Conditions of Use regularly. Continuing to use the Service after any change to the General Terms and Conditions of Use shall be taken as acceptance by the User of the changes to the General Terms and Conditions. In addition, LiveWriters reserves the right to upgrade its Service. Technical changes may occur without warning on LiveWriters' part. In addition, LiveWriters reserves the right to permanently discontinue the Service proposed to Users, immediately and with no compensation of any type whatsoever.
14 SUSPENSION OF THE SERVICE
In the event of the User not respecting the obligations defined in these General Terms and Conditions, LiveWriters reserves the right, in accordance with the law and without warning, to suspend access to the Service or to some of the Service’s functions, and in particular to disconnect from the Internet network the User’s dedicated area containing, in particular, his or her Videos and comments. Also, when notified by Internet users that the User is using the Service in a manner prejudicial to third parties or that would be contrary to public decency, public order or the legal and regulatory provisions defined within these General Terms and Conditions, LiveWriters reserves the right to suspend, at any time, access to the Service or to the illegal content concerned. This suspension shall not give rise to any right to compensation.
15 GUARANTEES FOR CONTENTS
The User is solely responsible for the Content of his or her contributions; LiveWriters does not assume any responsibility, especially editorial. Consequently, the User shall safeguard LiveWriters against any lawsuit that may be taken out against it, in particular for the Content and the presentation of contributions of the User. The User undertakes to be personally responsible for all complaints and/or processes taken out against LiveWriters, of whatever form or nature, which are directly or indirectly connected to hosted Content. To this end, the User undertakes in particular to pay directly to the author of the complaint all sums that the latter may demand from LiveWriters, and where necessary to voluntarily intervene in all lawsuits taken out against LiveWriters, as well as to safeguard it against all awards made against it in this situation.
16 TITLE TO THE CONTRIBUTIONS
The User remains the sole owner of the Videos, data, information and files transmitted to LiveWriters for the requirements of accessing and using the Service. He or she acknowledges that he or she has all the rights pertaining in particular to the scenarios, musical compositions, scripts and the production of the Videos, as well as all the rights required to assign the rights set out hereinafter.
17 ASSIGNMENT OF RIGHTS OVER THE VIDEOS
The User, as author of the Videos put on-line within the framework of the Service, authorizes LiveWriters to:
- non-exclusively commercially exploit the User’s Videos, for the entire duration of copyrights, as provided for in current or future law, over the whole world,
- carry out the technical changes necessary to exercise the rights in other technical processes and formats, in particular for the purposes of digital conversion, prior to putting the Videos and files uploaded by the User on-line.
The rights assigned include:
- for the right of reproduction: the right to reproduce, without limitation of number, all or part of the Videos, on any medium, known or unknown, current or future, especially optical, digital, paper, disc, network, diskette, electronic, DVD, CD, CDI, CD-ROM, Internet, Extranet, I-mode, WAP media, etc, without this list being exhaustive; LiveWriters reserves the option to reproduce all or part of the Videos in order to make them available for other audiovisual or electronic communications Services.
- for the right to adapt: the right to adapt all or part of the Videos, on any medium referred to in this article and in any format of computer file known or unknown at the present time; the right to combine them, to integrate all or part of them to or in pre-existing or future works and on any medium mentioned in this article. The right to adapt also covers the right to translate or to change all or part of the Videos, for any language, and the right to reproduce the resulting translations on any medium defined in this article.
- for the performance right: the right to broadcast all or part of the Videos, on any medium and by any process or method of communication of any type whatsoever, known or unknown at the present time, and especially by any telecommunications, Internet, Intranet, Extranet, WAP network, etc… without this list being exhaustive, by any broadcasting method, including by Hertzian waves, cable or satellite, in any format, directly or via a third party.
- for the distribution right: marketing against a payment or for free, including the rental and the price of the Videos and of their adapting by any process and on any medium, known or unknown at the present time, and, whatsoever the destination, for any public, without limitation; also the right to retrocede to third parties, wholly or in part, under any form whatsoever, and in particular by assignment, license or any type of contract, in any form, all or part of the rights assigned temporarily or permanently,
- the right to retrocede to third parties, wholly or in part, under any form whatsoever, and in particular by assignment, license or any type of contract, in any form, all or part of the rights assigned temporarily or permanently.
Where the commercial exploitation of the User’s Videos generates revenue, the revenue shall be shared between the User and LiveWriters as financial compensation for this assignment of intellectual property rights. LiveWriters undertakes to mention the identity of the User, the author of the Video, and also the title of the Video, in so far as technical conditions make this possible.
18 LIVEWRITERS’ TITLE
LiveWriters retains title to:
- the Service,
- the data-base and in particular to its structure, designed and administered by it in order to operate the Service,
- any information, items of know-how, specification documents and, more generally, all the design elements of the Service and its components,
- the intellectual and industrial property rights over all the design elements of the Service, whether graphic or technical,
- the trademarks, patents, names, symbols, logos, colors, graphics or other signs that may be used, designed or put in place by LiveWriters within the framework of the Service.
The User is consequently forbidden to reproduce in any form whatsoever, directly or indirectly, the elements set out in the preceding paragraph, as well as to alter the trademarks, patents, names, symbols, logos, colors, graphics or other signs appearing on the elements made available by LiveWriters, and more generally to use or exploit these elements other than as part of the execution of this document. The User is forbidden to file any patent on his or her behalf, or on behalf of a third party, created or realized within the framework of these conditions, and incorporating in particular one or more elements of the LiveWriters Service.
It is expressly agreed that LiveWriters is only subject to an obligation of means for the execution of these General Terms and Conditions of Use. It is up to the User, who acknowledges this, to use the Service at his or her own risk and to carry out any check, especially prior to putting his or her contributions (Videos, Tags or comments) on line, under his or her sole responsibility. LiveWriters may not be held liable for the Content of the Videos and comments put on-line by the Users, nor for the Tags that the latter select. LiveWriters may not be declared responsible for any difficulty whatsoever in broadcasting Videos or comments or, more generally, for any disruptions to the Internet network affecting use of the Service and in particular the viewing of the Videos. The User expressly acknowledges that LiveWriters, through the information brought to the user’s attention by means of these General Terms and Conditions and the website, has satisfied the whole of its obligations of advice and information concerning the nature of the Service and the functions made available. LiveWriters does not assume responsibility under any circumstances for indirect damages and may not be bound to remedy indirect damages, such as financial or commercial prejudice, loss of customers or market-share, commercial troubles of whatsoever type, cost increases and other general expenses, loss of income, loss of image, loss of Videos or data and especially any files whatsoever, which may result from difficulties related to the transmission, reception or broadcasting of Users’ Videos and comments. Included under indirect damage, and consequently not giving rise to a right to remedy, is any lawsuit taken out against the User by a third party. The User provides the personal details enabling access to and use of the Service under his or her sole responsibility.
These General Terms and Conditions may not be subject to a complete or partial assignment, against payment or for free, by the User. LiveWriters may assign all or part of the rights and obligations defined in these General Terms and Conditions to any legal person of its choice; it shall be responsible for notifying the User of this.
21 FORCE MAJEURE
Initially, cases of force majeure shall suspend the execution of the contract. If the case of force majeure continues for over three months, the contract shall be cancelled automatically unless the parties agree otherwise. Cases of force majeure or exceptional circumstances are expressly considered to be those normally accepted by case law by the French courts and tribunals.
22 TERMINATION OF RELATIONS
LiveWriters may at any moment withdraw the User’s access to the Service under the conditions set out in this document. The user may also withdraw from the Service and request the deletion of his or her personal area used to store his or her Videos, provided that he or she notifies LiveWriters of this by e-mail in advance.
23 CONSEQUENCES OF THE TERMINATION OF RELATIONS
In the event of contractual relations being terminated for any reason whatsoever, including the User canceling his or her subscription to the Service, the following provisions of these General Terms and Conditions continue to be applied and retain their full force:
- article “Assignment of Rights over the Videos”,
- article “LiveWriters' Title”,
- article “Guarantees for Contents”,
- article “Responsibility”,
- article “Proof, preservation and archiving”.
LiveWriters may continue to exploit the User’s Videos under the conditions set out in this document. Within the limits indicated above, these General Terms and Conditions apply for the duration of the protection of rights over the Videos according to the applicable right.
Each party undertakes not to divulge to third parties any information that may have been revealed to him or her by the other party, as well as any information that he or she becomes aware of through the execution of these General Terms and Conditions.
25 GENERAL PROVISIONS
Neither of the parties may make a commitment in the name of and/or on behalf of the other party. In addition, each of the parties remains solely responsible for their actions, allegations, commitments, services and staff. In the event of problems of interpretation between any one of the headings shown at the head of the clauses and any one of the clauses, the headings shall be declared non-existent. If one or more of the stipulations of this Contract are held to be invalid, or declared as such in application of a law or a regulation, or following a definitive ruling by a competent jurisdiction, the other stipulations shall retain all their force and their scope. This Contract is governed by French law.