Platform terms of service

These Terms of Service prescribe the terms and conditions of use of the website available at the address https://shaun.video.

1. DEFINITIONS

Agreement – an agreement for the provision of Services concluded between the Service Provider and the Customer, the general provisions of which are prescribed by these Terms of Service

Character – an animated figure being a character from a film or animated series or a natural person whose image is used in the Film

Consumer – a natural person performing a legal transaction which is not directly related to the business or professional activity of such person, with an entrepreneur (i.e. the Service Provider)

Content – customised content, such as text material or pictures, which are elements of the Film, provided by the User

Customer – the User or entity represented by the User, concluding agreements with the Service Provider, for and on behalf of whom the Order is filed

Film – a video recording featuring the Character and complemented with the Content, produced and created by the User through the Platform, which is the object of the Order

Order – a declaration of User’s intent which directly results in the conclusion of a Film agreement and which states its relevant conditions, including particulars of the Film form, Recipient, Content and selected Character

Personal Data Protection and Privacy Policy – the document governing security of protecting and processing personal data of Users; the Privacy Policy supplements these Terms of Service and is available here www.shaun.video/privacy-policy/ in the tab “Personal Data Protection”

Platform – a website available at shaun.video

Processing Time – time in which the Order is executed, with the deliverable being the Film ready for sending

Recipient – a person to which the Film is directed

Service Provider – TiBi sp. z o.o. S.K.A. with its registered office in Warsaw (00-025) at ul. Krucza 50, entered in the register of entrepreneurs of the National Court Register (KRS) maintained by the District Court for the capital city of Warsaw in Warsaw, 12th Commercial Division of the National Court Register under number KRS: 0000720764, Tax Identification Number NIP: 7010805200, National Business Registry Number REGON: 369573017, share capital in the amount of: PLN 59,500.00, e-mail address of the Service Provider: kontakt@funwisher.com

Services – services provided by electronic means by the Service Provider on the basis of the Agreement which consist in provision of Platform functionalities, in particular functionalities enabling creation of the Film with the Content selected by the User and sharing such Film with the Recipient(s)

Terms of Service – these terms of service regulating the provision of Services through the Platform

User – a natural person with full or limited capacity to perform acts in law using the Platform upon the terms stated in the Terms of Service

2. PRELIMINARY PROVISIONS

2.1. These Terms of Service state the terms and conditions of use of the Platform, terms and conditions of provision of Services for the Users, as well as the rights and obligations of Users and the Service Provider, including the complaint procedure.

2.2. The Service Provider provides these Terms of Service to each User free of charge on the Platform prior to conclusion of the Agreement, as well as—upon his/her request—in a manner which enables obtaining, copying and recording the content of the Terms of Service by means of a teleinformatic system used by the User.

2.3. The User may only use the Platform having acquainted with the Terms of Service and accepting their provisions. If the User refuses to accept the Terms of Service, he/she may not use the Platform.

3. GENERAL TERMS OF USE OF THE SERVICES

3.1. As part of the Platform such Services are provided as: creating and sharing Films, storing Films, sending notifications related to Recipients, storing Content.

3.2. In order to enjoy all functionalities of the Platform, the User and Recipient must satisfy the following minimum technical requirements: (a) a device with the Internet access enabling correct display of the Platform interface, (b) an active e-mail account or phone number, (c) an installed Internet browser, updated to the latest version: Chrome, FireFox, Internet Explorer, Safari or Opera, (d) enabled cookie and JavaScript support.

3.3. It is not allowed to use the Platform in a manner contrary to the provisions of these Terms of Service, applicable legal provisions, good practices or rules of social co-existence. The User is not allowed to provide content of unlawful nature.

3.4. The Service Provider will not place on the Platform any offers filed in electronic form within the meaning of the provisions of the Civil Code. In particular, the provisions pertaining to filing an offer in electronic form are not applicable.

3.5. The Platform and its elements, including design and content, as well as the images of Characters are protected by copyright or other rights related to intellectual property. Such elements may not be reproduced, distributed or published, as a whole or in parts, by the User without consent of the Service Provider or Character, accordingly, as determined by Service functionalities. In particular, the User is not allowed under the Agreement to reproduce, publish, lend, dispose of or otherwise redistribute Platform elements, directly or indirectly, whether against charge or free of charge, otherwise than through the Service Provider.

3.6. The Service Provider has the right to modify elements and functionalities of the Platform or Services, whereby it guarantees that they will not entail deterioration of quality of the Services.

3.7. Detailed rules regarding operation of the Platform and particular Services are available on dedicated subpages.

4. USERS

4.1. Subject to the clauses below, natural persons who have attained the age of 18 and enjoy full capacity to perform acts in law may be Users.

4.2. If the User is between the age of 13 and 18, he/she may use the Services in a scope in which he/she may assume rights and incur obligations in accordance with the legal provisions applicable to the Customer. If the legal provisions applicable to the User require that he/she may use the Services only upon his/her legal custodian’s consent, upon conclusion of the Agreement, at the latest, such legal custodian must give his/her consent to such conclusion and use of the Services.

4.3. The legal custodian of the User between the age of 13 and 18 is obliged, upon each request of the Service Provider, to present the consents to conclude the Agreement and use the Services.

5. ORDER

5.1. The purpose of the Order is to conclude a Film agreement, i.e. an agreement for provision of a Service which consists in creation and delivery of the Film to a specific Recipient or Recipients and keeping such Film available for 30 (thirty) days, unless the Order prescribes otherwise.

5.2. The User prepares the Order by individually selecting elements of the Service, in particular by providing Content and selecting a Character. Upon confirming his/her choice, the User confirms Customer’s personal data in the Order form, as well as payment mode. Having completed the Order, the User confirms it and sends it to the Service Provider by activating the “Kupuję i płacę” (Buy and Pay) button.

5.3. In the course of placing the Order, until activating the “Kupuję i płacę” button, it is possible for the User to identify and correct errors in the Order and to modify it through the Platform’s sale system. After that, the User may not change any particulars of the Order.

5.4. By placing the Order, the User makes an offer to conclude the Film agreement with the Service Provider on the terms as stated by him/her in the Order. The User may also file such offer for and on behalf of the Customer. The Film agreement is concluded upon Service Provider’s acceptance of such offer, upon User’s receipt of the confirmation of the Order conditions sent by the Service Provider in an e-mail to the address stated by the User in the Order.

5.5. The content of the concluded Film agreement is fixed, secured and disclosed to the User by means of it being sent it to User’s e-mail address indicated by him/her while placing the Order. The User who placed the Order and received the declaration on Service Provider’s acceptance of the offer will subsequently receive a digital document confirming conclusion of the Film agreement along with its content in the manner described in the preceding sentence.

5.6. The Order Processing Time is maximum 1 (one) day. The Processing Time commences upon crediting the payment on Service Provider’s bank account.

6. FILM

6.1. Upon execution of the Order, the User receives to his/her e-mail address or via text message a link to the relevant subpage of the Platform where the Film is available for downloading or sharing.

6.2. The Recipient may play or download the Film within 30 days from the lapse of the Order Processing Time, unless another period was stated in the Order. Upon the lapse of that period, the Film which has not been downloaded is deleted along with the Content.

6.3. The User may not use Films otherwise than for the purpose of sharing them with Recipients. The Film is shared with the Recipient in the manner prescribed by the Service Provider. Each attempt to change the manner in which the Film or Character’s image is shared is deemed violation of the Terms of Service.

6.4. Updated information related to occurrence of particular threats connected with the use of Services, functionalities of digital content and protection means is available on the Platform.

6.5. A Film which has not been downloaded may be displayed only with access to the Internet. Fees for the Service do not include costs of data in the Internet connected with the use of the Service which are borne by the User/Recipient in accordance with the tariff of the used operator.

6.6. A downloaded Film may be displayed only by means of an operational device meeting the requirement of interoperability between digital content and computer equipment. The requirements referred to in the preceding sentence are available here www.shaun.video/faq-2/

7. PRICES AND PAYMENT

7.1. The use of the Services provided by the Service Provider within the frames of the Platform is subject to charge on the terms and in the amounts prescribed in the pricelist. Prices are expressed as gross amounts and include VAT at a rate prescribed by the applicable provisions.

7.2. The total price of the Order is calculated according to the choices made by the User in the Order form, in compliance with the rates indicated there. The final binding price is indicated to the User in the Order summary upon its being sent to the Service Provider.

7.3. The User is obliged to make the payment for the Order at the latest upon conclusion of the Film agreement. The User makes payments through an external payment system PayU operated by PayU S.A. with its registered office in Poznań.

7.4. Upon Consumer’s request a sales document in the form of an invoice is issued for the sold Service.

7.5. The prices and costs presented on the Platform may be changed (e.g. as part of a special offer). The terms and conditions pertaining to the Order may not be changed with regard to the User who placed an offer in the manner prescribed in the preceding clauses of the Terms of Service prior to a change of prices.

8. CONTENT

8.1. The User may add own materials, such as picture, pictures or text, to the Film. Any materials provided to the Platform by the User are deemed the Content. When providing the Content, the User warrants and represents that: (a) he/she is the owner or legal holder of the Content at least to the extent required under his/her commitment to abide by the provisions of these Terms of Service, (b) the Content does not infringe third persons’ rights, (c) using and managing the Content within the frames of the Services does not infringe third persons’ rights, (d) he/she releases the Service Provider from the liability on account of possible claims of persons holding the rights to the Content, in particular copyrights, who may seek their rights in connection with the use of the Content on the Platform, and undertakes to satisfy them in full, and to bear all costs incurred on that account by the Service Provider.

8.2. In order to avoid any doubt, upon providing the Content on the Platform the User grants the Service Provider a global licence to such Content with duration limited to the term of the Film agreement with the right to grant sublicences for the purpose of providing the Service and in the fields of exploitation necessary for provision of the Service.

8.3. The User may not place in the Order any Content which: (a) infringes rights or personal interests of third parties, (b) contains threats, incite aggression or contain elements of unlawful violence, (c) constitutes materials which may be used for unlawful, misleading, malicious or discriminating purposes, (d) evidently contradicts the rules of social co-existence, common moral and social norms or rules of “netiquette”, (e) contains vulgarisms and phrases which may in any way violate someone’s dignity, (f) serves marketing or commercial purposes, (g) damage the good reputation or dignity of the Character being a natural person, (h) propagates hatred based on race, nationality, denomination or worldview-related reasons, (i) infringes someone’s privacy, (j) is of pornographic nature, or for other reasons is unsuitable for persons under the age of 18, (k) contains elements which propagate or are connected with weapons and firearms, alcoholic beverages, illegal drugs, pesticides, poisons and drugs, military organisations and political parties, sects and similar religious cults, pornography, prostitution and other products/services of such type.

8.4. The Service Provider applies technical means preventing provision of Content violating the Terms of Service, nevertheless the Service Provider does not monitor or supervise the Content or Films, therefore the Service Provider is not liable for data and materials provided on the Platform and disseminated by the Users.

8.5. If the Service Provider receives an official notice or a reliable advise on an unlawful character of the Content stored on the Platform or User’s activity connected with it, then the Service Provider may prevent access to such Content, upon prior notification to the User via e-mail on the intent to prevent access to the Content and the reason for such action.

9. WITHDRAWAL

9.1. A Consumer may withdraw from an agreement without providing the reason by filing a declaration of withdrawal from the agreement with the Service Provider by filing a relevant declaration of will with the Service Provider (via e-mail) to the e-mail address: kontakt@funwisher.com. The term for withdrawing from an agreement is 14 days from its conclusion. In order to comply with the term referred to in the preceding sentence, it is sufficient to send the Service Provider, prior to its lapse, the declaration of withdrawal in the form referred to in the first sentence of this clause.

9.2. The withdrawal right does not apply in the case prescribed in Article 38.13 of the Act on consumer’s rights of 30 May 2014, i.e. in the case of an agreement for providing digital content which is not recorded on a physical data carrier if the provision of the performance has commenced upon express consent of the consumer prior to the lapse of the term prescribed for withdrawing from the agreement and upon the Service Provider’s notifying him/her on the loss of the right to withdraw from the agreement.

10. LIABILITY

10.1. The Service Provider provides teleinformatic infrastructure and ensures its smooth technical operation, what constitutes the scope of its liability for the Platform and the Services.

10.2. The Service Provider is not liable for any damage resulting from:

10.2.1. User’s culpable violation of the provisions of these Terms of Service, in particular filing the Order without due authorisation;

10.2.2. User’s failure to meet the requirements of Service provision;

10.2.3. activity of malware illegally provided on the Platform by the User or third persons;

10.2.4. termination of the Agreement or the Film agreement by the Service Provider resulting from a culpable act or negligence of the User;

10.2.5. a short-term lack of access or disrupted access to the Platform resulting from the necessity to perform reparatory, maintenance or improvement works on the Platform or in its elements;

10.2.6. defects, in particular legal defects, of the Content;

10.2.7. User’s publishing data of unlawful nature, infringing third persons’ rights;

—unless such damage results from action of the Service Provider.

11. TECHNICAL FUNCTIONALITY LEVEL OF THE WEBSITE

11.1. The Service Provider makes every effort to ensure correct operation of the Platform.

11.2. The Service Provider undertakes to provide for continuous operation of the Services for 99.5% of time within a calendar year, which nevertheless does not involve events of Force Majeure or operation of the server operator and their effects.

11.3. In order to ensure higher quality of Services and satisfactory operation of the Platform, from time to time the Service Provider carries out Platform maintenance or modernisation works. Therefore, the Service Provider reserves the right to breaks in the provision of Services which are necessary to carry out technical works which are no longer than 12 hours at one time. The Service Provider will notify the Users on each such break at least 24 h before.

12. VIOLATION OF THE TERMS OF SERVICE

12.1. Any culpable violation of the provisions of the Terms of Service by the User, in particular by his/her acting to the detriment of the Service Provider, may have the following consequences, at the option of the Service Provider: (a) Service Provider’s warning addressed at the User, (b) removal of the Film from the Platform prior to the lapse of 30 days.

12.2. The Service Provider will notify the User on termination of the Agreement in an e-mail sent to his/her e-mail address indicated at the registration, providing the reason for such termination.

13. REPORTING INFRINGEMENTS AND COMPLAINTS

13.1. The User has the right to file a complaint concerning operation of the Platform and the Services provided through it. The complaint should include at least details enabling identification of the User and state reasonable reservations and comments concerning the Platform or Services. The complaint should be sent to the e-mail address kontakt@funwisher.com or to the address of the registered office of the Service Provider as stated at the beginning.

13.2. The Service Provider will take a stance towards the complaint within 3 (three) business days from receiving it, provided that it was filed correctly. The User will receive a response at the address from which the complaint was sent or at the address stated in the complaint form.

14. SPECIFIC PROVISIONS

14.1. If the User is not a Consumer, he/she is subject to the following provisions: (a) the Service Provider will only bear liability for damage caused to the User by wilful misconduct and it will not bear any liability for lost profits, and the Service Provider’s liability will in any event be limited to PLN 1,000; (b) if any provision of the Terms of Service conflicts with other or is inaccurate, the Service Provider is authorised to interpret the Terms of Service in a manner binding upon the User, and if any provision of these Terms of Service proves invalid, in part or entirely, then the other provisions will remain effective and the remaining portion of the Terms of Service will be interpreted in such a manner so as its legal effect and economic implications to the highest extent correspond to those of the invalid provisions as prescribed by the Service Provider; (c) the price for the Services is in each case non-returnable.

15. AMENDMENT TO THE TERMS OF SERVICE

15.1. The Service Provider may amend these Terms of Service due to material reasons, whether legal (change of generally applicable legal provisions related to the Service Provider’ activity or change of the Service Provider’s business form) or technical (modernisation of the Platform infrastructure). The reason for any amendment to the Terms of Service is each time provided in the manner described below.

15.2. The Users will be notified on any amendment to the Terms of Service by a message displayed on the Platform homepage 7 (seven) days before the new Terms of Service come into effect. In this time the User who is a Consumer must accept the Terms of Service again or refuse to accept them. If in turn the User who is not a Consumer fails to terminate the agreements by the said date and fails to use the Platform, he/she is deemed to have accepted the Terms of Service in their amended wording without reservations.

15.3. The Orders placed prior to the effective date of an amendment to the Terms of Service are processed in accordance with the content of the Terms of Service as applicable to that date. Amendments to the Terms of Service may not infringe the acquired rights of Users.

16. FINAL PROVISIONS

16.1. Any liability resulting from Agreements, Film agreements and the Terms of Service is governed by Polish law. Agreements are concluded in the Polish language.

16.2. Contact and mode of communication between the Service Provider and the User: (a) via e-mail: kontakt@funwisher.com; (b) via mail: ul. Krucza 50, Warszawa.

16.3. A Consumer may take advantage of dispute resolution methods which are alternative to court proceedings (ADR), in particular through mediation, conciliation or arbitration (arbitration court). The list of institutions to which the Consumer may refer for dispute settlement within the frames of ADR is available here: http://ec.europa.eu/consumers/solving_consumer_disputes/non-judicial_redress/national-out-of-court-bodies/index_en.htm

16.4. The Consumer may also take advantage of out-of-court means of considering complaints and seeking claims by means of submitting his/her complaint through the EU ODR online platform available at: http://ec.europa.eu/consumers/odr/

16.5. If the User resigns from taking advantage from ADR or ODR, any disputes arising out of the Terms of Service or sales agreements will be settled by a common court with the jurisdiction determined according to the rules as prescribed by a legal act applicable to the User being a Consumer. Any disputes arising between the Service Provider and the User not being a Consumer will be referred to the court with the local jurisdiction over the registered office of the Service Provider.

16.6. Protection of Personal Data which supplements the Terms of Service is available here www.shaun.video/privacy-policy/

These Terms of Service come into force on July 28th 2020

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