1 PRIVACY & COOKIES POLICY
By agreeing to these Terms, you also agree to our Privacy and Cookies Policy which sets out what data we collect from you and when, and how this data is subsequently handled by us. The Privacy and Cookies Policy forms part of these Terms.
2 MyVias Wallpapers app AND WALLPAPERS AND VIRTUAL ITEMS
We offer our MyVias Wallpapers app to you as standalone applications (or ‘apps’) via mobile and on-line platforms that may include Apple Inc’s ‘App Store’, Google Use, the Amazon Store and the Microsoft Store (the “Platforms”).
3 YOUR ELIGIBILITY
To use our MyVias Wallpapers app and purchase Wallpapers and Virtual Items you promise to MyVias that:
a) you are legally entitled to own the device you are using to access the MyVias Wallpapers app, if you purchase Wallpapers and Virtual Items, you are legally entitled to make such purchases using the payment functionality the MyVias Wallpapers app provide;
b) the information you provide to us is true and accurate and you will update such information when necessary;
c) you have not previously been banned or blocked from using any of our MyVias Wallpapers app or any Platform (including Apple’s App Store);
d) if you are downloading or purchasing the app from Apple’s App Store you must have an Apple Account; and
i) you will not:
i. copy, licence, sell, trade, alter, create derivative works or otherwise deal with the MyVias Wallpapers app or any Wallpapers and Virtual Items;
ii. use the MyVias Wallpapers app or any Wallpapers and Virtual Items for any illegal activities;
iii. use any bot, robot, spider or other automatic crawling device (or any manual process) to monitor or copy any of our MyVias Wallpapers app and their content;
iv. use the MyVias Wallpapers app or any Wallpapers and Virtual Items to disseminate any information or materials that are obscene, violent, threatening, libellous, discriminatory or otherwise, in MyVias’s opinion, offensive;
v. use the MyVias Wallpapers app or any Wallpapers and Virtual Items to disseminate any information or materials that would infringe, or might infringe, any intellectual property rights, including those of MyVias.
4 ACCEPTANCE OF THESE TERMS
If you have an account on any Platform (including an Apple Account) and download or stream our MyVias Wallpapers app (as applicable) you are deemed to accept these Terms. You acknowledge that these Terms: (a) apply from the date on which you first download or stream any of our MyVias Wallpapers app: (b) apply to your use of our MyVias Wallpapers app and Wallpapers and Virtual Items: and (c) form a legally binding contract between you and MyVias.
5 RELATIONSHIP WITH APPLE
If you download or stream one of our MyVias Wallpapers app from the Apple Store, you acknowledge that your acceptance of these Terms forms a legally binding contract between you and MyVias; not with Apple. MyVias is solely responsible to you for each of its MyVias Wallpapers app and their content; not Apple. Apple’s terms and conditions apply to your use of the MyVias Wallpapers app and your purchase of Wallpapers and Virtual Items (the “Apple Terms”). If there is any conflict between these Terms and the Apple Terms, the Apple Terms shall prevail.
6 SPECIAL TERMS
Other terms and conditions also apply to your use of our MyVias Wallpapers app, depending on how you access them. For example, if you access our MyVias Wallpapers app through Facebook using its ‘Facebook Connect’ functionality, Facebook’s terms of service may apply and, as noted above, when you download or stream any of our MyVias Wallpapers app, KTUse’s Terms of Service and Privacy Policy apply. From time to time we, or one of our business partners or a third party, may operate a competition or promotion that is subject to additional further terms. The terms of other Platforms may also apply to you. Each of these are “Special Terms”. If there is any conflict between these Terms and the Special Terms, the Special Terms shall prevail.
7 GRANT OF A LICENCE
In consideration of your agreement to be bound by these Terms, we grant you a single non-exclusive, non-transferable, revocable licence permitting you to download and use our MyVias Wallpapers app for your personal, non-commercial, entertainment purposes on suitable products and devices. MyVias owns (or has a licence to use) all intellectual property in its MyVias Wallpapers app (including all copyright in the underlying software code and in the visual artwork and graphics and all trade mark rights in the MyVias Wallpapers app’ titles). By using our MyVias Wallpapers app under licence you acknowledge and agree that you do not acquire any intellectual property in our MyVias Wallpapers app.
8 USER CONTENT
MyVias uses its reasonable endeavours to clear all photo, or other content included in its MyVias Wallpapers app. However, if you feel that, in your position as a rightsholder, we haven’t done so, please contact us at [email protected] If appropriate, we will be happy to credit you accordingly. Should you upload, transmit, create or generate any data or other content in any App (including text, videos, art ,or other content which you have created) (“User Content”) such User Content will be non-proprietary and non-confidential. If you wish to keep such User Content confidential do NOT upload or transmit it. You grant MyVias a non-exclusive, perpetual, irrevocable (save to the extent as provided in our Privacy and Cookies Policy), worldwide, royalty-free licence to use such User Content, including to reproduce, distribute, modify, edit, create derivative works of and otherwise exploit such User Content for its own business purposes, including in marketing and promotion. To the extent permitted by applicable law, you waive any moral rights that you may have in any User Content (such as the right to be identified as the author of such User Content or the right to object to particular uses of such User Content). Any User Content that you upload or transmit to MyVias must: (a) be accurate; (b) not be confidential; (c) be in compliance with applicable law; (d) be free from viruses, adware, malicious code or other spyware; and (e) not infringe any third party intellectual property rights and, where any personal data is included, you must have obtained the consent of the individual whose personal data is being so uploaded or transmitted to do so.
9 PURCHASING OR EARNING ‘VIRTUAL CURRENCY’ AND VIRTUAL ITEMS
a) ‘virtual currency’ being in-APP currency (whether in the form of virtual tokens, coins, cash, points, bonuses or otherwise) that can be earnt or purchased to purchase ‘virtual goods’;
a) purchase for ‘real’ money a licence to use Wallpapers and Virtual Items within the MyVias Wallpapers app;
b) earn a licence to use Wallpapers and Virtual Items as part of a MyVias or third party promotional offer, competition or action (although such offers may be subject to Special Terms); or
c) earn a licence to use ‘VIRTUAL CURRENCY’ or Virtual Items within MyVias Wallpapers app by completing defined in-APP actions.
10 LICENCE FOR WALLPAPERS AND VIRTUAL ITEMS
If you purchase or earn ‘VIRTUAL CURRENCY’ or Virtual Items your use of them is subject to the following licence together with any Platform specific terms:
a) ‘VIRTUAL CURRENCY’ and Virtual Items are not redeemable or refundable. Once you have purchased or earned ‘VIRTUAL CURRENCY’ , Wallpapers or Virtual Items you will not get the ‘real’ money you paid back as ‘VIRTUAL CURRENCY’ or Virtual Items have no monetary value. Any virtual currency balance shown in any App account or wallet does not constitute a real-world balance or reflect any stored value, but measures the extent of your limited license to use Wallpapers and Virtual Items within the MyVias Wallpapers app;
b) ‘VIRTUAL CURRENCY’ , Wallpapers or Virtual Items are personal to you and non-transferable i.e. only you can use ‘VIRTUAL CURRENCY’ ,Wallpapers and Virtual Items and you cannot permit anyone else to use them whether via your Apple Account or otherwise. You cannot trade them in any way whether by selling them for real money to other users, exchanging them for other items or dealing or disposing of them in any other way (with the exception of any in-APP Virtual Item auction function that MyVias may elect to offer);
c) your right to use ‘VIRTUAL CURRENCY’ ,Wallpapers and Virtual Items ends as a result of any Platform provider (including Apple) or any online wallet provider having to suspend or close your account with them pursuant to these Terms or pursuant to any relevant terms of such Platforms or wallets;
d) from time to time MyVias may offer you ‘VIRTUAL CURRENCY’,Wallpapers and Virtual Items which are subject to specific terms. For example: (i) MyVias may put in place offers to purchase ‘VIRTUAL CURRENCY’ , Wallpapers and Virtual Items at a discount; (ii) put in place a limited time period in which any ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items may be purchased or earnt, or (iii) put in place specific specified or unspecified conditions relating to when such ‘VIRTUAL CURRENCY’ , Wallpapers or Virtual Items may be purchased or earnt.
e) you are responsible for your use of ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items within the MyVias Wallpapers app and we have no responsibility or liability to you regarding how you use such ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items.
g) MyVias may, from time to time, decide or be required to stop providing a app and/or any part of it (including ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items).
11 PRICE
The price payable by you for ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items (the “Price”) is indicated within the applicable APP at the time you make your purchase. If you are resident in the European Union, the Price includes any applicable value added or similar sales tax. MyVias reserves the right to change the Price and specifications for any ‘VIRTUAL CURRENCY’, Wallpapers and Virtual Items at any time for any reason.
12 ERRORS
MyVias uses its reasonable endeavors to ensure that errors and mistakes do not occur in the MyVias Wallpapers app in relation to pricing and your purchase and use of the MyVias Wallpapers app or Wallpapers and Virtual Items. However:
a) MyVias reserves the right to void any such obvious error or mistake however it arises or results including, for example, errors or mistakes due to human error or technical fault resulting in, for example, the cost of a virtual good or virtual currency being mispriced giving you an opportunity to profiteer from such mispricing. You hereby forfeit any ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items you obtain as a result of such an error or mistake; and
b) if the price or specification for any Virtual Item published within a APP is materially incorrect when you place an order for that Virtual Item and you contact MyVias to inform it of this incorrect information, we will: (i) provide you with the correct Price or specification; and (ii) ask you to confirm whether you would like to purchase the applicable Virtual Item at the correct Price or specification. If applicable, MyVias will also state the period for which the offer or Price remains valid. If you choose not to complete your purchase at the corrected Price or product specification, MyVias will provide you with a full refund for any amounts already paid by you; and MyVias reserves the right to edit Wallpapers and Virtual Items at any time for any reason, including, for example, to correct inaccuracies or to update or modify the features, characteristics, colors or other aspects of such Wallpapers and Virtual Items.
13 AVAILABILITY
MyVias reserves the right to limit the amount of ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items you can purchase in a given period. ‘VIRTUAL CURRENCY’, Wallpapers and Virtual Items may only be purchased and used by users in jurisdictions where such activities are permitted under applicable law. ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items may only be purchased from MyVias through the MyVias Wallpapers app or as otherwise expressly authorized. MyVias reserves the right to refuse any request to purchase ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items for any reason.
14 CHARGEBACKS
MyVias may cancel a payment and make a chargeback to you, including any transaction fees incurred with payment providers, if it has reason to believe:
(a) any purchase is incomplete; or
(b) any purchase is made, or MyVias suspects it is made, fraudulently or in an otherwise non-bona fide manner.
15 COOLING-OFF PERIOD
If you purchase ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items, then you have the right to withdraw from your purchase within 14 days, commencing on the day after the date of your purchase (a “Cooling-Off Period”). However, please note that if you purchase ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items from MyVias and choose to download the Wallpapers or Virtual Items immediately, the Cooling-Off Period ends once the download of any Wallpapers and Virtual Items is complete, due to the nature of these goods.
This means that if you download the Wallpapers or Virtual Items straightaway you acknowledge that you will therefore no longer have the right to cancel them.
If you would like to exercise your rights under the cooling off period, please send an email to [email protected] and the ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Item will be removed from your account and any monies paid shall be refunded.
16 PAYMENT METHODS
Payment methods accepted by MyVias are as per those payment methods provided by the Platforms within the MyVias Wallpapers app at the point of sale.
EXCLUSIONS AND LIMITATIONS OF LIABILITY 17 WHAT IS NOT EXCLUDED OR LIMITED
Nothing in these Terms shall exclude or restrict MyVias’s liability for death or personal injury caused by our negligence or for any fraudulent misrepresentation or for any other liability that MyVias cannot exclude or limit under applicable law.
18 IMPLIED TERMS
The express terms of these Terms are in place of all warranties, representations, conditions, terms, undertakings, and obligations which but for these Terms would be implied or incorporated by any collateral agreement, statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.
19 REPRESENTATIONS AND WARRANTIES IN RELATION TO THE GAME
MyVias provides the MyVias Wallpapers app to you on an ‘as is’ basis. MyVias does not represent or warrant that access to the MyVias Wallpapers app will be uninterrupted, reliable or fault free. MyVias does not represent or warrant to you that the MyVias Wallpapers app will be accurate, complete or reliable. While MyVias shall endeavor to ensure the MyVias Wallpapers app are available to you 24 hours a day, MyVias will not be liable to you if for any reason any app is unavailable at any time or for any period.
Access to the MyVias Wallpapers app may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond MyVias’s control. MyVias may also need to modify or maintain the MyVias Wallpapers app, or any part of them (including Wallpapers and Virtual Items), at any time. If this need arises, MyVias may suspend access to the MyVias Wallpapers app or any part of them or stop providing a APP, or any part of a APP, indefinitely. For example, MyVias may occasionally be required to make edits to Wallpapers and Virtual Items or in-APP components in order to correct inaccuracies within a. Such edits may result in removal of particular Wallpapers or Virtual Items or in-APP components.
We both acknowledge that Platform providers have no obligation whatsoever to provide you with any support or maintenance services in relation to the MyVias Wallpapers app.
20 EXCLUSIONS OF LIABILITY
MyVias will not be liable to you (whether in contract, tort or otherwise and whether or not due to its negligence) for:
a) any losses arising out of or in connection with, whether direct, indirect or consequential, the MyVias Wallpapers app or arising out of or in connection with the use of the MyVias Wallpapers app;
b) any technical, factual, textual or typographical inaccuracies, errors or omissions (human or computer-generated) on or relating to the MyVias Wallpapers app or any information provided in relation to the MyVias Wallpapers app.
c) the unavailability of any Wallpapers or Virtual Item (or any part of them);
d) any misrepresentation on or relating to the MyVias Wallpapers app.
e) any loss of content or data.
f) loss or damage caused by viruses, bugs or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the MyVias Wallpapers app or the downloading or uploading of any content via the MyVias Wallpapers app.
g) loss of goodwill, business opportunities, loss of profits or contracts, loss of anticipated savings, wasted management time or office time.
h) any loss incurred as a result of any legal claim or regulatory action arising from the activities of any user using the MyVias Wallpapers app infringing third party intellectual property or breaching applicable law.
i) any statements or conduct by any other user of the MyVias Wallpapers app.
j) any loss that you may incur as a result of someone else using your identity, log-in details, password, or account, with or without your knowledge, including if a device used to activate your account is stolen.
k) any other indirect or consequential loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
21 LOSSES OF DATA
In the event of any loss or damage to content or your equipment (including data), your sole remedy shall be for MyVias to use its reasonable endeavors to restore the lost or damaged data or content from the latest back-up maintained by MyVias. MyVias may not, however, be able to restore lost or damaged content if an update has been made to a APP where such content is no longer able to be made available (for example due to the previous content being inaccurate).
22 LIMITATION OF LIABILITY
MyVias maximum aggregate liability to you in respect of your use of the MyVias Wallpapers app shall be the amount of any fees paid by you to MyVias during the 3-month period preceding the date on which the act or omission causing the liability arose in respect of MyVias Wallpapers app.
23 REASONABLENESS OF EXCLUSIONS AND LIMITATIONS
You agree that each of these exclusions and limitations is reasonable having regard to the nature of the MyVias Wallpapers app. Each of the above exclusions or limitations shall be construed as a separate, and severable, provision of our contract with you.
THIRD PARTIES AND ADVERTISING 23 THIRD PARTY ADVERTISING
MyVias may generate revenue from your using of the MyVias Wallpapers app by advertising goods and/or services of third parties including:
(a) by serving ads that you might see and respond to when using the MyVias Wallpapers app.
(b) by allowing Wallpapers and Virtual Items to be endorsed by third parties; and
(c) by offering you the chance to ‘earn’ Wallpapers and Virtual Items for use within the MyVias Wallpapers app if you respond to third party advertising in a pre-defined manner.
24 THIRD PARTY LINKS
Certain links, including hypertext links, from the MyVias Wallpapers app and from any social networking platform you are using may take you outside the MyVias Wallpapers app and any social networking platform from which the MyVias Wallpapers app are accessed. This does not imply endorsement by MyVias of the linked site, its operator, or its content. You acknowledge that MyVias does not control the content on such websites and does not guarantee the accuracy, integrity, or quality of such content. Such sites may be governed by their own terms and privacy and cookies policies.
GENERAL 25 TERMINATION OR SUSPENSION OF YOUR ACCOUNT
MyVias may in its absolute discretion:
a) with immediate effect and for any reason, at any time, terminate or suspend your use of any of the MyVias Wallpapers app, including if your account is inactive.
b) verify your information by requesting certain documents and refuse your requests to use MyVias Wallpapers app if we believe there is reason to do so.
c) take any steps (for example, technical or legal steps) to terminate or suspend your use of any of the MyVias Wallpapers app if we believe you have failed to comply with any of the provisions of these Terms; and
d) if we decide to terminate, suspend, or refuse to accept your account, we may share or publish your name and email address and notify third parties (including Apple).
26 DEALINGS IN RIGHTS AND OBLIGATIONS
MyVias may assign its rights and/or transfer its obligations under this contract with you to any third party including the ability to sub-license and/or sub-contract its rights and obligations under this contract with you to any third party. You acknowledge and agree that if you purchase the MyVias Wallpapers app or Wallpapers and Virtual Items through an Apple Account that Apple and its subsidiaries are third party beneficiaries of this Agreement and may enforce its terms and conditions against you.
27 NOTICES
All notices which are required to be given under these Terms shall be in writing and shall be sent to the postal address or email address of the party as follows:
(a) to MyVias, as set out in paragraph 1 above, and
(b) to you, as provided in your account; or, with respect to either of us, such other address as the recipient may designate by notice given in writing. Any such notice may be delivered personally or by first class pre-paid letter (or by airmail if overseas) or by fax or email, and shall be deemed to have been served, if by hand, when delivered; if by first class post, 48 hours after posting; (if by air-mail, 5 days from the date of posting), if by email or fax, when successfully dispatched in full. 28 SEVERABILITY
If any provision in these Terms is, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid, or unenforceable under any enactment or rule of law then that provision or part thereof shall to that extent be deemed not to form part of these Terms and the enforceability and validity of the remainder of these Terms shall not be affected.
29 ENTIRE AGREEMENTS
These Terms shall apply between us in respect of the matters described herein to the exclusion of all other terms (including any terms and conditions that you purport to apply) other than Special Terms. You shall not be entitled to rely on any agreement, understanding or arrangement which is not expressly set forth in these Terms. 30 GOVERNING LAW AND JURISDICTION
These Terms shall be governed by and construed in accordance with Belgium law. If you are a consumer and reside outside the Belgium, you may be able to benefit from additional protections afforded to you by the mandatory provisions of the law of your country of domicile/residence. Any disputes arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the Belgium courts.
31 COMPLAINTS AND DISPUTES
Please contact us immediately using our contact details below if you:
a) have any questions, complaints, claims or concerns about content which appears in our MyVias Wallpapers app, in relation to our Wallpapers and Virtual Items or in relation to MyVias generally; or
b) believe that any act or omission by MyVias or one of our users is in breach of applicable law.
MyVias will then consider your concerns and decide whether to take action and whether or not any other user has in Ronnell’s opinion, breached any of these Terms. MyVias will endeavor to inform you of the outcome of any review within a reasonable time of receiving your complaint. Where you have purchased the ‘VIRTUAL CURRENCY’, Wallpapers or Virtual Items through an Apple Account, we both acknowledge that Apple has no obligation whatsoever to investigate, settle, defend, or discharge any disputes in relation to the intellectual property in the MyVias Wallpapers app.
32 OUR CONTACT DETAILS
Please contact us by email at studio@myvias.com or by post at Laaer-Berg-Straße 47B, 1100 Wien, Austria
