Terms of Use of the Tools

Version from 14 March 2013

MyBestPro SAS is an electronic communications operator registered with the Electronic Communications Regulatory Authority and Posts (l'Autorité de Régulation des Communications Electroniques et des Postes – hereinafter “ARCEP”), pursuant to the provisions of Article L.33-1 of the Post and Electronic Communications Code (hereinafter “CPCE”).

As part of its business as operator and administrator of the platform, MyBestPro SAS offers Tools (“Tools”) to Members.

These Terms of Use of the Tools (hereinafter “Terms of Use”) constitutes an Ancillary Policy to WENGO’s Terms and Conditions.

Under the aforementioned Terms and Conditions, the Registration of the Member on the Platform implies acceptance of the Ancillary Policies.

In case of conflict between any provision of the Terms of Use and the Terms and Conditions, the terms herein shall prevail.

Article 1: Definitions

The words and expressions below, whether in singular or plural form, have, as part of the Terms of Use, the following meaning:

1. Material: Material that the Member has at his/her disposal, with minimum configurations, as described in Article 4 of this document.

2. Any software tool proposed to Members of the Platform by MyBestPro SAS:

• Free internet connection Tools (hereafter “Free Tools”) via web, e-mail and chat;
• Paid for internet connection Tools (hereinafter “Paid Tools”) via web, telephone and chat. The Phone2Phone is a Tool available to Users wishing to be contacted directly by a Provider on his/her analog touch telephone device. The rates for the use of Phone2Phone are available on the Site.

Article 2: Subscription – Duration

Registration as a Member on the Platform is mandatory prior to the first use of any Tool. For this, the Member must proceed to the creation of his Personal Account using the registration form available on the Site. Registration is subject to the conditions detailed in Article I.2 of the Terms and Conditions.

The Conditions remain in force between MyBestPro SAS and the Member for an indefinite period.

Article 3: Terms of Use of the Tools

3.1. Initial configuration

The Member must imperatively possess Material equipped with the following minimum configurations:

• A PC running Windows 2000/XP/Vista or GNU/Linux (2.6.x) or Mac (x86 or PPC) running Mac OS X 10.3.9 or higher,
• Broadband Internet Connection 128 kbps/128kbps (DSL or cable),
• Sound card, microphone and speakers or headset,
• Direct X 9 or higher for video calling in Windows,
• Adobe Flash Player version 9 or higher,
• Processor 500 MHz or 1000 MHz for video calling,
• 128 MB RAM, 30 MB free disk space on the hard drive.

The Member agrees to be solely responsible for the installation, operation and maintenance of his/her equipment. The equipment must be approved and must comply with the provisions of the CPCE and to the current regulations.

3.2. Conditions of Access to the Tools

The use of internet connection with an entry speed greater than 128 kbs and an exit speed of 128 kbs is highly recommended. MyBestPro SAS is not responsible for the quality of the telephone line of the Member which is provided by the telephone operator to which he/she is a subscriber according to the provisions of Article L.121-83 of the Consumer Code.

The aforementioned access conditions may change under the conditions described in Article 9 hereof.

3.3. Limiting Access to Tools

Irrespective of the Tool(s) used by the Member, the latter is expressly advised of the following limitations:

With the exception of the telephone, all access to online Tools will be discontinued in the event of interruption of the high-speed internet connection of one of the Members.

3.4. Tools available to Members

The Tools are provided over a public network (the internet) and according to the IP protocol.

MyBestPro SAS grants the Member the right to use the Tools made available on an individual, non-exclusive and non-transferable basis.

The right of use begins as soon as the Member has clicked on the Software user interface made available to him/her.

Phone2Phone is a Paid Tool for each Member whose rates are available on the Site.

Article 4: Technical assistance

In order to respond to any technical questions asked by Members and to help the latter in solving any problems related to the use of a Tool, MyBestPro SAS offers a helpdesk service to effectively solve the problems that the Members are likely to encounter. Thus, the Member may report a problem in accessing a Tool by contacting Customer Service.

In the case of unavailability, the recovery period for a Tool will vary depending on the problem encountered, but will not exceed a maximum period of forty-eight (48) hours.

Article 5: No warranty

MyBestPro SAS provides the Tools reserved for Members “as is” and no warranty or express condition is given.

The Member acknowledges that it is not possible to guarantee that the Tools reserved to Members will satisfy performance requirements or that they will function without discontinuity or bugs.

Article 6: Maintenance

MyBestPro SAS reserves the right to suspend access to a Tool for maintenance or upgrade reasons. MyBestPro SAS is committed to preventing, insofar as possible, the Member from experiencing any cuts, suspensions, or more generally, from any maintenance operation or update planned for a Tool.

Article 7: Modification – Evolution

MyBestPro SAS reserves the right to modify or upgrade the functionality of the Tools as well as access conditions, as defined in article 3 hereof.

MyBestPro SAS may be required to provide new Tools, taking into account technological developments or market expectations.

Article 8: Intellectual Property

MyBestPro SAS declares to be vested with the rights on Tools.

The use of a Tool implies compliance with intellectual property rules as set out in article I.6. of the Terms and Conditions.

Any infringement, or act likely to be qualified as such, which is the act of a third party and of which the Member has knowledge, should be reported to MyBestPro SAS who will prosecute the reported case.

Article 9: Responsibility

9.1. Responsibility of MyBestPro SAS

MyBestPro SAS will implement, to the best of its ability and subject to technical constraints, all the means at its disposal to provide the Member with reliable services free from defects. MyBestPro SAS is committed to do its utmost to make the Tools continuously available without interruption, within the limits of unforeseen technical problems or maintenance needed for their operation, in the case of force majeure or events beyond the control of MyBestPro SAS.

MyBestPro SAS will take all necessary steps to ensure the permanent and continuous operation of Tools.

MyBestPro SAS will take all necessary precautions in order to avoid an interruption to the access of Tools subject to the provisions in article 3 hereof.

In any event, MyBestPro SAS cannot incur liability, particularly in the following cases:

• MyBestPro SAS cannot guarantee that files available for downloading from the Site or through the Tools will be free from infections/virus, worms, Trojan horses or other code that manifest contaminating or destructive properties.
• It is the responsibility of the Member to implement procedures and checkpoints sufficient enough to satisfy their particular requirements for accuracy of data input and output and to use an external system to recover any last data;
• MyBestPro SAS cannot be held liable in the event of misuse of a Tool by the Member;
• MyBestPro SAS cannot be held liable for the inconsistency of a Tool with the equipment of the Member or any malfunctions and/or damages arising from an incompatibility;
• MyBestPro SAS is not responsible for the fraudulent use by third parties of the Personal Account of the Member and damages arising therefrom;
• MyBestPro SAS is not liable for any fraudulent use of the Site;
• MyBestPro SAS is not responsible and is under no circumstances liable for incidental or consequential damages including loss of revenue, business profits, programs, information and other adverse effects arising from the use of a Tool, except in the case of technical failures which may be due to MyBestPro SAS. The Member is solely responsible for any damage that can occur following the use of a Tool and it is his/her responsibility to carry out regular backups of any data and/or content that they want to keep on his/her own equipment.

In any event, in the hypothetical case where MyBestPro SAS would assume responsibility, in the context of providing a Tool, the amount due to the professional Member is capped at £200.

9.2. Responsibilities of the Member

9.2.1. Use of the Tools

The Member is solely responsible for any incidental or consequential damages, material or immaterial, caused by him in connection with the use of Tools including, in particular, damages resulting from:

• The use by a third party of his/her Confidential Codes and of the communication of any information that he made available, unless it can be clearly demonstrated that such use or disclosure resulted directly from a technical malfunction attributable exclusively to MyBestPro SAS;
• The use that he/she made of their high-speed internet connection;
• The operation and/or use of data and information that the Member communicated on the internet.

The Member is notified that the fact of using non-compliant materials, particularly “pirate maps” allowing access to Tools other than those provided by MyBestPro SAS, is likely to be considered a criminal offence.

9.2.2. Compliance with applicable laws and regulations

The Member agrees to comply with the laws and regulations so as not to undermine public order and good morals or the rights of others. Thus, the Member agrees, without limitation, that no data transmitted during the use of the Tools:

• Is of a pornographic or paedophile nature;
• Incites violence, crime, misdemeanor, suicide, terrorism, theft, acts of degradation or deterioration;
• Justifies war crimes, crimes against humanity and acts of terrorism;
• Incites discrimination, hate or violence against a person or group of people due to their origin or their membership to an ethnicity, nation, race or because of their religion or morals;
• Shall affect, in any manner whatsoever, the honour or reputation of a person;
• Is a breach of security, privacy or the image of a third party.

9.2.3. Software Infringement

The Member is prohibited from:

• Making changes to the Software, including to correct any errors in it;
• Duplicating, reproducing, copying, extracting (except for making a backup copy) or modifying the Software or to make a derivative work based on it;
• Disassembling, removing, damaging, modifying, performing reverse engineer, decompiling, or decrypting the Software, its documentation or its source code, creating improvements to the Software or to use any other method whose purpose is to access the source code or the protocols of the Software;
• Incorporating, integrating, reusing or including all or part of the Software with another Software, programme, product or service;
• Distributing, redistributing, assigning, leasing, loaning, transferring, providing as security or sublicensing the Software.

The Member cannot claim access to sources of the Software.

However, the Member is informed that he/she can, within a reasonable period of time, obtain from MyBestPro SAS the necessary information for the interoperability of the Software by sending a considered and detailed request pursuant to article L.122-6 of the Intellectual Property Code and in accordance with article I.6. of the Terms and Conditions.

Article 10: Complaints

In the case of complaints, regardless of the nature, the Member must address the request directly by post to the following address: “Customer Service, MyBestPro 75 rue d'Amsterdam 75008 Paris, France.”

In all correspondence, electronic or postal, addressed to MyBestPro SAS, the Member agrees to mention his/her full name, e-mail address and username in order to allow their identification and to treat their requests. Incomplete applications will not be processed by MyBestPro SAS.

The Member is already informed that any complaint resulting from improper use of a Tool will not be taken into account, the Member being solely responsible in this case, in accordance with the provisions contained in article 9.2 hereof.

Article 11: Archiving

Records and backups made on the Platform, such as login details to the Platform, may be requested by a judicial authority under legal obligations and are therefore retained by MyBestPro SAS.

Article 12: Applicable law – dispute resolution

THESE CONDITIONS ARE GOVERNED BY FRENCH LAW. ANY DISPUTE CONCERNING TRAINING, INTERPRETATION, EXECUTION OF THESE AND THE CONSEQUENCES OF THE TERMINATION OF THESE CONDITIONS WILL GIVE RISE TO LOOKING FOR A FRIENDLY SETTLEMENT BETWEEN THE PARTIES.

HOWEVER, IN THE CASE OF FAILED NEGOTIATIONS OR MEDIATION, THE DISPUTE SHALL BE BROUGHT BEFORE THE HIGH COURT OF PARIS, EXCEPT WHERE SUCH ALLOCATION OF CONVENTIONAL JURISDICTION IS NOT ENFORCEABLE TO THE MEMBER.

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