1. Applicability and Definitions
1.1 These Terms are applicable to any use of the Platform by an End User who wishes to activate an Account for the use of the Platform, uploading Videos and possible purchase of the Products. If End User is using the Platform on behalf of an organization then End User agrees to these Terms for that organization and hereby confirms that End User has the authority to bind that organization to these Terms.
1.2 Capitalized terms or expressions shall be defined as follows:
- “Account”: A collection of data that allows End User to gain access to the Platform.
- “Channel”: Personal Channel or a channel produced by Timiti in which Videos are shared with End Users.
- “Channel Fee”: Fee to be paid by a Subscriber to subscribe to a Channel. The amount of the fee is decided freely by Content Creator.
- “Content Creator”: The natural person or legal entity who creates a Personal Channel operated on the Platform.
- “Controller”: A party when submitting, disclosing or making otherwise available (directly or through an intermediary) Personal Data to another party and determining the purposes and means of the processing of such Personal Data.
- “Data Protection Laws” means (a) the GDPR, together with any national implementing laws in any member state of the European Union, and (b) the Swiss Federal Act on Data Protection (SR 235.1), together with any other Swiss laws related to data protection, each as applicable to a Party and each as amended or replaced from time to time.
- “End User”: The natural person or legal entity that has an Account on the Platform and has the opportunity to purchase Product via the Platform.
- “Follower”: End User following a free of charge Channel.
- “Messages”: The messages for information sale and/or advertising purposes on the Videos that can be publicly and freely viewed.
- “Party” or “Parties”: Timiti and/or End User and/or Content Creator and/or their respective successors or permitted assigns wherever appropriate.
- “Personal Channel”: The personal channel created by a Content Creator in which his/her/its personal produced Videos can be uploaded and shared with End Users.
- “Personal Data”: Any information related to an identified or identifiable natural person (data subject).
- “Platform”: The web platform held by Timiti which enables End Users to view videos in which Messages are inserted, accessible via www.timiti.com
- “Processor”: A party when processing, on behalf of Controller, Personal Data submitted, disclosed or otherwise made available (directly or through an intermediary) by Controller.
- “Products”: The products and the services mentioned in the Messages viewed by End Users.
- “Subscriber”: End User subscribing to Personal Channel and agreeing to pay a Channel Fee.
- “Tap and Click Mechanism”: Mechanism put in place by and decided by Timiti that enable End Users to view Videos and tap and click on Products that are tagged on the Videos. By this mechanism, the Products are activated, and End Users can purchase them through e-commerce.
- “Terms”: The present Terms and Conditions.
- “Timiti”: The legal entity operating the Platform, called Timiti SA, registered in Geneva, Switzerland, with the Register of Commerce number CHE-399.597.525.
- “Videos”: The videos broadcast on the Platform.
2. Ownership of the Platform
2.1 Neither the Platform nor any related software are being sold. All ownership, intellectual property, and other rights and interests in the Platform and any related software that are made available to End User under these Terms remain solely with Timiti or its affiliated companies or licensors, if any, as the case may be. End User obtains only a right of use, which is non-exclusive and non-transferable. End User shall not be entitled to reproduce the Platform and/or any related software or materials or to make the Platform or any related software or materials openly available or available to any third party.
2.2 The source code of the Platform and of any related software is proprietary to Timiti and is a trade secret of Timiti, and is its confidential information.
2.3 Timiti is allowed to take any technical measures it deems necessary at its sole discretion to protect the Platform and any related software.
3.1 Timiti grants End User with a limited, non-exclusive, revocable, non-transferable, non-assignable, non-sub licensable license, limited to the sole use of and access to the Platform with the Account.
3.2 The use of the Platform is granted free of charge for End User.
4. Access to the Platform by End User
4.1 End User gets access to the Platform with the login credentials it choses during the Account registration. When registering End User shall indicate, amongst others and upon request, its name, postal address, email address and telephone number (collectively “Account Information”). End User acknowledges and agrees that Timiti is entitled to share the Account Information with selected third parties, including its sub-contractors who may perform some of Timiti’s obligations under the Terms on its behalf. End User further acknowledges and agrees that for this purpose the Account Information and other Personal Data may be transferred into third countries in accordance with the provisions of Clause 13.5 below.
4.2 In the event of abuse of, or unauthorized access to, the login credentials or a suspicion thereof, End User shall report such incidence to Timiti as soon as possible. In response to this report, Timiti can then take any measures it deems necessary at its sole discretion, such as blocking the existing login credentials and registering new login credentials.
4.3 End User shall ensure that all data associated with its Account is always correct and up to date, especially its name, postal address, email address, telephone number and, if applicable, bank or account number.
5. Personal Channel - Subscription - Contribution
5.1 Content Creator can decide to create for free his/her/its Personal Chanel and chose the following options:
- 5.1.a make his/her/its Personal Channel (1) free of charge for Followers or (2) subject to a Channel Fee payable by Subscribers;
- 5.1.b give End Users the opportunity to interact through the Tap and Click Mechanism.
5.2 When uploading a Video, Content Creator represents and warrants that he/she/it has the right to upload and share it. In particular, Content Creator represents and warrants that he/she/it has the right to submit the content to Timiti and to grant the licenses herein. Content Creator shall obtain any and all third party releases, consents, clearances, licences, permissions and/or registrations, which may be required in connection with the use and the exploitation of the Videos on the Platform. Accordingly, Content Creator represents and warrants that the Videos provided to Timiti will not infringe the copyright, privacy rights or other rights of any third party.
5.3 When uploading a Video or creating a Personal Channel, Content Creator agrees and confirms not to upload Videos or any materials (such as text, pictures or links) with content or referring to content that:
- 5.3.a infringes any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.);
- 5.3.b is infringing any applicable laws;
- 5.3.c is sexually explicit;
- 5.3.d is hateful, defamatory or discriminatory against any person (individual or companies);
- 5.3.e promotes or supports terror;
- 5.3.f exploits minors;
- 5.3.g is extremely violent or cruel notably towards animals.
If these requirements are not met, Timiti reserves the right to immediately remove the non-compliant Video(s) or other content on the Personal Channel without the prior consent of the Content Creator. In the event of serious violations or repeated violations of this provision 5.3, Timiti further reserves the right to temporarily block or completely remove (take down) the Personal Channel and all Videos of the Content Creator.
5.4 By uploading a Video, Content Creator grants Timiti permission to stream the Video to End Users. Content Creator may – or permits Timiti to – insert one or more tags and include in the Messages references and links to any objects, images, services, ideas, etc. that appear in the Videos.
5.5 Copyright owners or owners of other intellectual property rights may send Timiti a takedown notice stating in particular (i) name, address, email of the right owners, (ii) description of the material that is claimed to be infringed and (iii) a description of where on the Platform the material that is claimed to constitute an infringement may be found to enable Timiti to locate it. Timiti will, in appropriate circumstances, terminate the accounts of persons who infringe copyrights or other intellectual property rights.
5.6 A Subscriber will subscribe to a Channel for subscription period of thirty (30) days. To the extent permitted by applicable law, subscriptions automatically renew at the end of each subscription period unless cancelled beforehand. Subscribers must pay the monthly Channel Fee when each renewal period starts. Subscribers can terminate the subscription at any time effective at the end of the subscription period by opting out of automatic renewal by changing Account settings.
5.7 Any Channel Fee or revenues generated through Tap and Click Mechanism or otherwise through the Personal Channel will be shared as follows:
- Ninety percent (90%) of Net Profits, if any, generated by the sales of Product(s) following Tap and Click Mechanism to Content Creator. Accordingly, Timiti shall retain ten percent (10%) of Net Profits.
- Eighty percent (80%) of Net Profits, if any, generated by the Channel Fee paid by Subscriber to access non-free Personal Channel to Content Creator. Accordingly, Timiti shall retain twenty percent (20%) of Net Profits.
- Ninety-five percent (95%) of Net Profits, if any, generated by the tips given by Followers (and/or Subscribers), at their discretion, when using free Personal Channel (“Tips”), to Content Creator. Accordingly, Timiti shall retain five percent (5%) of Net Profits.
- Ninety-five Percent (95%) of Net Profits, if any, generated by the sales of tickets for concert or other events made through the Videos, to Content Creator. Accordingly, Timiti shall retain five percent (5%) of Net Profits.
“Net Profit(s)” means the profit after deduction of the operating expenses and all other charges including taxes directly related to the Personal Channel and the Videos provided by Content Creator.
5.8 For information and transparency purposes, Timiti will create a personal account for Content Creator including all information related to his/her/its Videos (number of views, profits generated, if any, operating expenses, number of Subscribers, number of Followers, Tips, etc.).
5.9 Timiti decides unilaterally how to structure and organize itself as well as the process to optimize the revenues generated by the broadcast and exploitation of the Videos.
End User shall be solely responsible for any transaction with third parties concerning the Product purchased through the Platform and Tap and Click Mechanism. To the exception of the direct sales performed by Timiti, Timiti is not responsible for the sales made by or availability of any external sites or resources referred to in the Messages, and does not endorse any advertising, products or services on or available from such web sites or resources.
7.1 End User and Content Creator may not use the Platform for any other purpose not expressly permitted under these Terms.
7.2 End User and Content Creator may not use the Platform in such a way that violates any laws or regulations or infringes the rights of third parties or in a way that causes discomfort, damage or places the functioning of the Platform and any related software and/or networks and/or systems of third parties into jeopardy.
7.3 End User and Content Creator shall not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt, decompile or create derivative work from the Platform and/or any related software or otherwise reduce or attempt to discover any source code or underlying structures, ideas or algorithms of the Platform and/or any related software or any confidential information or trade secret.
7.4 Timiti has protected the software of the Platform against infringement by third parties. End User and Content Creator may not remove or circumvent this protection.
7.5 End User and Content Creator are not allowed to remove or change any designations regarding copyrights, trademarks, trade names or other intellectual property rights from the Platform or any related software or material.
8. Availability and Maintenance
8.1 Timiti reserves the right to check the availability of the Platform and possibly halt the broadcast of Videos temporarily for maintenance, adjustment and/or improvement of the Platform. Timiti can carry out maintenance, adjustment and/or improvement at its sole discretion at a time decided by Timiti. Timiti seeks to minimize the impact to End User. Timiti shall not be liable for any harm or costs caused to End Users or Content Creators resulting from such temporary maintenance, adjustment and/or improvement of the Platform or the Products.
9. Updates and Upgrades
9.1 Timiti may from time to time update the Platform and the related software in order to preserve and/or enhance compatibility of the Platform and the related software and/or resolve minor bugs, security issues or other minor issues.
9.2 Timiti may from time to time upgrade the Platform to improve existing functionalities and to add new functionalities.
9.3 While performing updates and upgrades, Timiti will seek to minimize interruptions in the availability of the Platform.
9.4 Any intellectual property licensed or otherwise made available by Timiti to End User and/or Content Creator under the present Terms or created in relation with any amendment, update, enhancement or modification of the Platform and the related software are owned by Timiti respectively its affiliated companies, if any.
10. Warranty Disclaimer
The Platform is licensed “as is” and “as available” and Timiti disclaims any and all other warranties, whether express, implied, or statutory including, without limitation, any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, timeliness, title, or non-infringement by law. Without limiting the generality of the foregoing, Timiti expressly disclaims all warranties of any kind for third party software, and does not warrant that the Platform and any related software will meet the End User’s / Content Creator’s expectations or requirements or that the operation of the Platform and/or any related software will be uninterrupted, timely, secure, or error free, that defects or errors in the Platform or any related software will be corrected or that the Platform will be compatible with future products of Timiti, or that any information or data stored or transmitted through the Platform or any related software will not be lost, corrupted or destroyed. End User assumes responsibility for selecting the Platform and purchase the Products, and for the use of the Platform and any related software. End User shall bear the entire risk as to the quality and the performance of the Platform, the Products and any related software.
11. Limitation of Liability
In no event shall Timiti be liable to End User, Content Creator or any party related to End User, Content Creator respectively, for any direct and indirect, incidental, consequential, special, exemplary, or punitive damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, loss of data or other such pecuniary loss) (“Damages”) resulting (i) from a malfunction of the Platform, the Products or any related software, or (ii) from the Platform, the Products or any related software not being available or not being fully available, whether under a theory of contract, warranty, tort (including negligence), product liability, or otherwise, even if Timiti has been advised of the possibility of such damages. Timiti shall in no event be responsible for the content and use of the Products nor for the use - or absence of use - of any additional services by End User. Further, Timiti shall not be liable for any Damages whatsoever in case of any breach or gross negligence of End User and/or Content Creator of their respective obligations under the Terms.
12.1 End User shall indemnify and hold harmless Timiti against any claims by third parties for any damages or losses of any kind suffered by Timiti as a result of a breach by End User of his/her/its obligations under these Terms or any related contract.
12.2 Content Creator shall indemnify and hold harmless Timiti against any claims by third parties for any damages or losses of any kind suffered by Timiti as a result of a breach by Content Creator of his/her/its obligations under these Terms or any related contract.
13. Data Protection, Data Retention Period
13.1 End User and Content Creator acknowledges and agrees that when creating Account for accessing the Platform or by creating a Personal Channel, Personal Data will be stored on the Platform, but in no event beyond the duration of the Terms. Timiti shall process any such Personal Data only for purposes of stated in these Terms. Timiti does not sell Personal Data or make it available to third parties with the exception of subcontractors that Timiti may use for data processing. In collecting some of Personal Data, the purpose is an operational purpose to respond to requests and a marketing purpose to send offers.
13.2 To the extent that Timiti acts as Processor of Personal Data Timiti represents and warrants to comply at all times with any and all requirements of any applicable Data Protection Laws. In this respect, Timiti shall, upon request, make available to End User and Content Creator all information necessary to demonstrate compliance with its contractual and legal obligations in relation to Personal Data and allow for and contribute to audits, including inspections, conducted by Timiti or another auditor mandated by Timiti.
13.3 Timiti may collect, process and share the following types of Personal Data within the scope of the Terms: Personal Data including name, surname, title, position, company name, address (incl. city, country, zip code), phone number, email address, signature, digital signature and user account of End Users as necessary for the purpose of the administration and operation of the Platform and additional services to End Users and to operate with Content Creator. Timiti is entitled to process the Personal Data as long as they are necessary for Timiti to fulfil the purposes of its contractual obligations. When the Personal Data are no longer necessary for Timiti to fulfil the purposes of its contractual obligations the provisions of Clause 13.9 below shall apply mutatis mutandis.
13.4 To the extent any applicable Data Protection Laws require the End User’s consent to process the Personal Data of End User by Timiti, End User hereby consents to such processing of Personal Data for the operation of the Platform by Timiti. The Personal Data will be processed for the duration of the relationship with the End User, it being noted that Personal Data may then be stored for ten (10) years after expiry or termination of the contractual relationship for the establishment, exercise or defense of legal claims, and/or as required or permitted by applicable law. The same applies for Content Creator's Personal Data.
13.5 Timiti shall not transfer Personal Data received from End User and Content Creator outside the European Economic Area (“EEA”) to countries not covered by an adequacy decision of the European Commission or its equivalent in non-EU member states without ensuring that such transfer is permitted in accordance with applicable Data Protection Laws, such as by EU Standard Contractual Clauses or other appropriate safeguards in accordance with Articles 46 to 49 of the GDPR.
13.6 Timiti will implement and maintain appropriate technical and organisational security measures in particular to protect the Personal Data against unauthorised or unlawful processing, accidental loss and destruction or damage. Timiti will further ensure the ongoing confidentiality, integrity and availability of the Personal Data and resilience of the systems and services used for the processing of the Personal Data and the ability to restore the availability and access to the Personal Data in a timely manner in the event of a physical or technical incident.
13.7 As set forth under applicable Data Protection Laws, data subjects may have the right to request accessto their Personal Data a party holds about them, to request the rectification or erasure of any inaccurate Personal Data, to object under certain circumstances to the processing of their Personal Data, to request the restriction of processing as well as to exercise the right to data portability by writing to the data controllers. Data subjects are also entitled to lodge a complaint with the competent supervisory authority.
13.9 Upon expiration or termination of the contractual relationship, Timiti shall, at the choice of End User or Content Creator, either (i) delete or (ii) return all Personal Data and delete any existing copy, unless retention of a copy of the Personal Data is required by any applicable law, in which case Timiti will inform End User accordingly.
13.10 If and to the extent any Data Protection Laws other than the GDPR are applicable, the terms “Controller”, “data subject”, “Personal Data” and “Processor” as defined and/or used herein shall be interpreted and applied in accordance with such Data Protection Laws.
14. Term and Termination
14.1 The license to use the Platform and any related software and materials is subject to End User’s prior acceptance of these Terms and to Timiti’s confirmation of acceptance of End User. By registering as an End User using the electronic registration form on the Platform, End User states to Timiti that it wants access to the Platform and confirms its acceptance of these Terms. Timiti’s acceptance of End User will be provided by sending an email with a confirmation link to the email address that End User entered in the registration form. By clicking on the confirmation link, the license hereunder is granted and the access to the Platform comes into effect. The same applies for Content Creator.
14.2 The Terms are valid until further notice. Notice shall be given in writing.
14.3 The Terms and any related contract can be terminated by Timiti with immediate effect in case of breach of these Terms by End User or Content Creator, without prejudice to the possibility for Timiti to temporarily suspend the access to the Platform.
14.4 Timiti is further entitled to terminate the Terms and any related contract at any time if End User or Content Creator is in default in respect of an obligation.
14.5 Termination of the license granted hereunder shall automatically imply the permanent blocked access to the Platform
14.6 No indemnity, claim or compensation shall be due to End User or Content Creator by reason solely of termination.
14.7 All provisions of these Terms which by their nature should apply beyond termination will remain in force after any termination or expiration of these Terms.
15. Amendment of Terms
15.1 Timiti reserves the right to change or supplement these Terms from time to time.
15.2 Subject to the remainder of this Clause 15, these amendments shall be notified to the registered End Users and Content Creators and published on the Website and take effect immediately upon the earlier of the notification to End User or Content Creator or the publication on the Website.
15.3 Timiti will notify any envisaged amendment to these Terms upon thirty (30) days prior notice, by email or message sent via the Platform. End User and Content Creator may refuse the amended Terms during such notice period, in which case (i) it shall notify Timiti of such refusal in writing and (ii) the license granted hereunder and any related contracts shall expire on the last day of the notice period.
16. Final Provisions
16.1 If any provision in the Terms is found to be void, this does not affect the validity of the entire Terms.
16.2 No departure from the provisions of these Terms shall obligate any Party to permit any subsequent departure and no waiver of any of the provisions of these Terms shall be deemed to be a waiver thereafter of any such provision or of any succeeding breach of any such provision.
16.3 End User and Content Creator shall affirm that he/she is either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, End User and Content Creator shall affirm that he/she is over the age of 13, as the Platform is not intended for children under 13. If he/she is under 13 years of age, then the Platform shall not be used.
16.4 End User and Content Creator acknowledge and agree that Timiti may at all times appoint third parties to carry out its obligations under any contract.
16.5 These Terms and the relationship between End User and Timiti, respectively between Content Creator and Timiti, shall be governed by the laws of Switzerland, excluding its conflicts of law provisions. The courts of Geneva shall have exclusive jurisdiction with respect to all litigation related to these Terms and the relationship between End User and Timiti, respectively between Content Creator and Timiti, and no other courts will have jurisdiction in any such matter.