TERMS OF USE AND SALES OF THE BAYDAY SERVICE (USERS / READERS)

2020, 13th of February version

Hello and welcome to the Terms of Use and Sales Terms of BayDay!

1. GENERALITIES

1.1 The present Sales Terms and Terms of Use and Sales (hereafter ToU/ToS), here objects, are concluded between:

- The company BAYDAY COMMUNITY, SAS with a Capital of 124 564 euros, registered to the Créteil Commerce Register under the number 835 330 952, domiciliated at 34 rue Marcel Bonnet, 94230 Cachan (hereafter BayDay) and,

- Any person (hereafter « User » or « You ») having the full judicial capacity to contract to sign-up and buy using a valid personal credit card or any other payment means accepted on the platform, and also any person, aged of at the lowest 16 years and justifying a parental authorization allowing access to the BayDay platforme, hereafter the “Service”.

1.2 BayDay reserves the right to modify at any time these ToU/ToS according to the Service’s evolution and/or products available on the Service. The User will be invited to validate any new version.

1.3 The usage of the Service and any purchase on the Service imply the full acceptance by the user of the ToU/ToS active at the time of the purchase. No renouncement to these ToU/ToS can be opposed to BayDay.

1.4 This document is a translation of the French ToU/ToS. It has been created, from our best effort, to help comprehension in English. But the original, French version is the only legal binding contract, and the applicable law is recognized as being French law. This translation cannot be used in court.

2. WHAT IS BAYDAY, BY THE WAY?

2.1 BayDay is an Internet Service that allows You to access digital comics (hereafter « DC »), free of charge or by purchase of a right of access. BayDay is available through an Internet website or a dedicated App freely downloadable.

2.2 To access the Service and all of its functionalities, You must beforehand create and account that is personal to You. You will be then able to access the Service through a browser or a dedicated App.

2.3 The purchase of an access right supposes prior acquisition by the User of the virtual currency used by the Service, named Pearls, and thus the provisioning of his account. All Pearls acquisitions can be converted back into their initial currency on request.

3. SIGNING UP TO THE SERVICE

3.1 To be able to access the Service, You must beforehand create a user account (hereafter the “User Account”), accepting without reserve these ToU/ToS. Creating a User Account is free!

3.2 Creating an User Account implies You choose an identifier in the form of a working email address and a confidential password, or connecting using a third-party service and its associated account (Facebook, Google…). At User Account creation, You have to supply the asked information on the online form provided, information that has to be true and accurate. It is not possible for You to stay anonymous and, in the case where your information is erroneous or incomplete, BayDay reserves the right to suspend your access to the Service or terminate your registration. BayDay also reserves the right to change your displayed name if the latter is either offensive or the name of an author.

3.3 The identification elements provided at sign-up are personal and confidential. You are solely accountable of the confidentiality of the identifier and password necessary to connect to your User Account. BayDay shall not be, in any case, be held responsible of a fraudulent or abnormal usage of your identifiers.

4. PEARLS ACQUISITION

4.1 To be able to purchase an access and reading right to a DC, You have to beforehand credit your User Account. To that end, You realize the acquisition of Pearls, the virtual currency used by the Service and whose fixed and intangible countervalue is of one (1) euro cent for one (1) Pearl. The acquisition of Pearls is simple, as You only have to identify yourself and follow the acquisition procedure as explained on the Service.

4.2 The acquisition of Pearls and/or DC implies acceptance without reserves of these ToU/ToS, and the acknowledgement of having complete understanding of them. The entirety of provided data and confirmation recorded by the User will have value of proof of transaction. The confirmation or every transaction effected has value of signature and acceptance of the realized buying transactions.

4.3 You may know realize the acquisition of Pearls if you do not have a valid User Account.

4.4 Pearls that you make the acquisition of are immediately credited to your User Account. Pearls can be converted back into their initial currency on request. All bank and management fees caused by this request will be deduced from the amount converted back.

4.5 Pearls acquisition is done using credit cards with secure payment, PayPal or other means accepted on the platform. At reception of payment from the User’s bank or authority in charge of payment, BayDay communicates to You the confirmation of order, amount of transaction and order number.

4.6 This confirmation and the associated receipt are notified to You on the corresponding part of your User Account, and by email if you have provided this information.

4.7 If your order is for Pearls acquisition, those are credited immediately to your User Account after the acquisition has been validated and accepted.

4.8 If your order is for buying right of access to a DC, it becomes immediately accessible after validation and acceptation of your order.

4.9 Any acquisition operation necessitates the usage of a broadband internet connection. The communication fee linked to Service usage are at the sole expense of the User.

4.10 BayDay reserves the right to verify the personal data provided by the User and engage all necessary measures to verify that the person whose credit card or payment mean used is the person that realized the order. The absence of answer to a supporting document demand in a delay of two (2) days after a demand from BayDay will see the cancellation of the aforementioned order, this without any ulterior dispute being receivable from the User.

4.11 Pearls acquisition on the Service is reserved for You alone. Reselling, donation and redistribution of Pearls to third parties are formally forbidden.

5. DC PURCHASE

5.1 DC prices on the Service are expressed in Pearls, the virtual currency used by the Service and whose fixed and intangible countervalue is of one (1) euro cent for one (1) Pearl, and the amount is specified for each DC. It is expressed all tax included.

5.2 The User is clearly informed that BayDay exercises no control on prices of DC which are commercialized on the Service, those prices being freely set by their Authors or rightsholders in the respect of applicable French laws and rules. The setup of DC price is done in strict respect of law number 2011-590 of May 26th, 2011, relative to digital book prices.

5.3 DC offers are valid as long as they are visible on the Service, and in the conditions of availability given at the moment of your order. In that sense, You are clearly informed that an Author or rightsholder can at any time decide to remove from the Service a DC it proposes. He can also at any time decide to propose it again to the public.

5.4 DC that You purchased are available on Your account in the BayDay Service, that you can access from your computer, tablet or smartphone. They are accessible at any time and directly under reserve of You having a broadband connection to the Internet.

5.5 DC purchased through the Service cannot be downloaded to read outside of the dedicated App developed and published by BayDay and this in the aim to protect Authors’ and rightsholders rights against any piracy attempts that could be perpetrated by malicious users.

5.6 You possess a continuity right to the access of DC that You purchased. In the case where a DC is removed from the BayDay offering, it will still be available to access and isn’t made inaccessible by its removal from sales through the Service. However, if you decide to remove it from your User Account, you will not be able to access it nor download it through the dedicated App anymore.

6. RIGHT OF CANCELLATION

You are informed that, in the sense that purchases that You make through the Service are made immediately available after payment, and in accordance to article L221-28 1° and 12 of French consumers code, You will not benefit from any right of cancellation. Any sale is final when your order is validated.

7. SERVICE AVAILABILITY

7.1 BayDay commits to its best effort that its Service should be accessible by the User 24 hours round, 7 days a week, except in case of force majeure or operations of maintenance.

7.2 BayDay although reserves the right, in case of imperious necessity, and this without notice nor compensation, to close temporarily access to the Service without being held liable to any damage that could rise from this operation.

7.3 Temporary Service interruptions will be, as far as possible, notified to the User 24 (twenty four) hours before their happening, except in cases of emergencies. BayDay will proceed to its best effort to restore access to its Service as quickly as possible.

8. INTELLECTUAL PROPERTY

8.1 The Service’s content, DC and all elements distributed through the Service, bet hey software, visual or sound, are intellectual works and are protected by the legal provisions of the French Code of Intellectual Property and the Bern Convention for protection of literary and artistic works of 1886 and also by foreign legislations governing copyright and related rights, trademarks, design law and patent law.

8.2 They can only be used in a personal and private context, with no resale possible.

8.3 None of the elements, data, information and content of the Service can be reproduced, modified, transmitted, broadcasted, translated, sold, exploited commercially or reused in any way without explicit and written prior consent of BayDay.

8.4 You are reminded that any copyright violation constitutes a counterfeiting offense liable in France by article L.335-2 of the French Intellectual Property Code for a sentence of two years of imprisonment and a 150 000 euros fine.

8.5 Furthermore, legal names, brands, domain names and logos contained and/or depicted on the Service are BayDay and its partners’ property. They are protected by Intellectual Property and cannot thus be used without their explicit and written prior consent.

9. DC PROTECTION

9.1 DC can be protected in their usage by DRM (Digital Rights Management) systems. DRM aim to offer the User the best flexibility in DC usage while also protecting their Authors’ intellectual property rights.

9.2 The User commits to not circumvent nor jeopardize any control method that is in place for DC perusing and usage of which he has access to, and if need be any measure to the same goal.

9.3 These protection measures are governed by French law number 2006-961 of the 1st of august, 2006, pertaining to copyright and related rights in information society. Any circumventing attempt of those measure is punishable of penalties intended by this same law.

9.4 In a broader sense, any usage outside of the framework defined in these ToU/ToS would be akin to a counterfeiting action, which would expose the User to legal, civil or penal proceedings following applicable and current laws and rules.

10. PERSONAL DATA

10.1 In accordance to GDPR article 13, You are informed that BayDay will handle personal data processing on the bases of the personal data You provide us.

10.2 BayDay assumes responsibility for this processing and takes the necessary measures to ensure protection and confidentiality for the personal data it handles or processes, following GDPR’s dispositions.

10.3 All Your data are collected from You directly and with your consent. BayDay allows You to oppose the usage of personal data for certain purposes. The collection of your personal data is necessary particularly to allow you to realize online acquisition or purchase and getting access to the DC you bought access to. Your personal data will not be transmitted to commercial or advertising third parties.

10.4 BayDay retains your data only for the duration necessary to the needed purposes, in accordance to the legal directive.

10.5 According to the current European law, You have the following rights:
- right of access (GDPR article 15) and rectification (GDPR article 16), of update, of wholeness of data
– right of locking or deletion of personal data (GDPR article 17), when they are inaccurate, incomplete, ambiguous, outdated, or for which the collection, the usage, the communication or storage is forbidden
– right to withdraw at any time a consent (GDPR article 13-2c)
– right to the limit of data processing (GDPR article 18)
– right to oppose data processing (GDPR article 21)
– right to portability of provided data, when those data have been subject to automated processing based on consent or contract (GDPR article 20)
– right to define the fate of users’ personal data after their death and choose to whom BayDay will transfer (or not) their data to a person that they will have designated ahead of time.

10.6 If You wish to know how BayDay uses your personal data, wish to modify or want to oppose their processing, You can contact BayDay at this address: gdpr@bayday.com. In that case, You have to state which personal data You wish BayDay to correct, update or delete, providing precise identification with ID (ID card or passport). Demands of deletion of personal data will be subject to the legal obligations BayDay has to follow, in particular for safekeeping and archive of documents. Lastly, You may file a complaint to the relevant authorities and in particular CNIL (https://www.cnil.fr/fr/plaintes).

10.7 BayDay implements all technical and organizational measures to ensure security of personal data processing and confidentiality. For this purpose, BayDay takes every suitable precautions with regard to the data’s nature and risks of processing to provide security and in particular, prevent corruption, damage or disallow access to unauthorized third-parties (physical protection of the offices, secure authentication procedures with confidential credentials, connection logging, encryption of some of the data…).

11. RESPONSIBILITY

11.1 BayDay is bound only by a best-effort obligations in the context of its services offering on the Service.

11.2 BayDay can not be held responsible of damages resulting of the usage of the Internet, such as, without this list being restrictive: data loss, viruses, intrusion, service breakdown, access speed, fraudulent use by third parties of any information provided by the User to the Service, or any other involuntary problem.

11.3 The User takes not that, when he provides to the Service information considered confidential, this communication happens at his own peril. Furthermore, it is the responsibility of the User to take any measure necessary to protect his data and software against computer virus infection, and BayDay shall in no event be held liable for any potential resulting damage, such as data loss or hardware breakdown.

11.4 In some countries, current laws forbid or restrict free access to certain works. The User commits to verify that for his orders, there are no such prohibition or restriction for access to those DC.

11.5 BayDay’s responsibility shall not be engaged for an unlawful order and usage by a User for DC.

11.6 In the case where BayDay’s responsibility is sought after by a third party for a non-compliant usage of the Service, its DC and services by a User, BayDay reserves the right to take action and pursue remedies against that User.

11.7 In the case where BayDay’s responsibility is engaged due to failure to comply to an obligation under these ToU/ToS, compensation would only apply to the sole direct damages, personal and proven, to the explicit exclusion of compensation for all indirect and immaterial damages.

11.8 The extent of BayDay’s responsibility will also be limited to DC’s purchase value, to which the User could not have had access after having sought BayDay’s help.

11.9 BayDay reserves alone the right to bring to its services all modifications and evolutions deemed necessary. Furthermore, BayDay reserves the right without notice period nor compensation to completely terminate a service or all of its services, and shall not be held responsible of damages of any nature that might arise due to this fact.

12. APPLICABLE LAW

12.1 These ToU/ToS are subject to French law to the exclusion of all others.

12.2 In case of invalidity of any of the terms of these ToU/ToS, this term will be deemed unwritten and this invalidity will not be detrimental to the validity to other of the applicable terms.

12.3 FOR ANY COMPLAINT THAT MAY ARISE ABOUT THE DEVELOPMENT, THE UNDERSTANDING OR THE EXECUTION OF THE PRESENT TERMS OF USAGE / TERMS OF SERVICE, AND WITHOUT HAVING REACHED AN AMICABLE SETTLEMENT TO THEIR DISPUTE, THE PARTIES ATTRIBUTE COMPETENCE TO THE PARIS FIRST INSTANCE COURT WHICH WILL BE THE ONLY ONE COMPETENT NOTWITHSTANDING PLURALITY OF DEFENDERS OR GUARANTEE CALLS, AND THIS EVEN IN CASE OF INTERLOCUTORY PROCEEDINGS.

13. LEGAL NOTICES

The Service is edited by BayDay Community, Société par Actions Simplifiée with a social capital of 124 564 euros, registered to the Créteil Commerce Register, domiciliated at 34 rue Marcel Bonnet 94230 Cachan (France).

SIREN: 835 330 952

Intercommunity VAT: FR02835330952

The Publication Director is Mr. Thomas Astruc, President of BayDay Community.

The BayDay Service hosts personal data of European residents in a cloud service physically located in Europe.