Terms and Conditions of Sale and Use

1. Scope of Application

1.1 These Terms and Conditions of Sale and Use apply as of right between Fizzer and any visitor or user of the service (hereinafter called a “User”) offered on the sites fizzer.com and fizzer.fr as well as on the Fizzer Application (hereinafter altogether called the “Site”).

The document is accessible and printable at any time through a direct link placed at the bottom of the site’s pages.

Fizzer offers its Users an On-line Service that allows editing, publishing, digital conservation and sending of customized postcards via the Site (hereinafter called the “Services”).

1.2 The sales can take place worldwide.

2. Operator of the Site and Services

The Site and Services are operated by the Fizzer Company, a simplified joint stock company, registered with the RCS LISIEUX under the number 802 897 801, whose registered Head Office is located at 15 rue Edouard Herriot, 14160 Dives-sur-Mer (hereinafter called “FIZZER”).

Fizzer can be contacted at the following address, including for any claims:

Postal Address: 15 rue Edouard Herriot – 14160 Dives-sur-Mer

E-mail: hello@fizzer.com

3. Access to the Site and Services

3.1 Legal Capacity

The Site and Services are available:

  • To any natural person with full legal capacity to commit to the present Terms and Conditions of Sale and Use. A natural person who does not have full legal capacity may only access the Site and Services with the consent of his/her legal representative.
  • To any legal person acting through a natural person who has the legal capacity to contract on behalf of and for the account of the legal person.

3.2 Site and Services Dedicated to Individuals

The Site and Services are only available to Individuals and are not intended for Professionals, understood as all natural or legal persons being employed other than occasionally.

4. Acceptance of the General Terms and Conditions of Sale and Use

Acceptance of these Terms and Conditions of Sale and Use is indicated by a Check Box on the Registration Form. This acceptance can only be complete. Any conditional subscription shall be considered null and void. The User who does not agree to be bound by these Terms and Conditions of Sale and Use must not access the Site or use the Services.

5. Site Registration

5.1 The use of the Services requires the User to register on the Site via his/her personal Facebook account or by completing the Form provided for this purpose. The User must provide all the information marked as mandatory. Incomplete registration will not be valid.

Registration automatically leads to the opening of an account in the name of the User (hereinafter called the “Account”) giving the User access to a personal area (hereinafter called the “Personal Space”) that allows him/her to manage his/her use of the Services in a form and according to the technical means that FIZZER deems most appropriate to render such Services.

The User guarantees that all information provided on the Registration Form is accurate, up-to-date, truthful, and is not misleading.

The User agrees to update the information in his/her Personal Space in the event that the information has changed, so that it always corresponds to the aforementioned criteria.

The User is aware of and agrees that the information entered for the purpose of creating or updating his/her Account acts as a Proof of Identity. The information entered by the User binds the User as soon as it is validated.

5.2 The User may access his/her Personal Space at any time after having logged in with his/her login details and password.

The User agrees to personally use the Services and not allow any Third Party to use the Services in his/her place or on his/her behalf, except if they bear full responsibility.

Likewise, the User is responsible for maintaining the confidentiality and security of his/her Username and Password, all access to the Site with the latter being deemed to be made by the User. The User must immediately contact FIZZER using the contact details mentioned in Article 2 of these Terms and Conditions of Sale and Use if the User notices that his/her Account has been used without his/her knowledge. The User acknowledges FIZZER’s right to take all appropriate measures in such a case.

6. Description of the Services and Products

6.1 The Services enable editing, publishing, digital conservation and sending of customized postcards by the User from the Site using Postal Services.

6.2 The front of the postcard consists of a photograph of a personal image of the User downloaded from his/her computer, smartphone or tablet. The back of the postcard consists of a message addressed to the recipient of the postcard, and for postcards sent by postal services, it includes the address of the recipient.

6.3 The recipient of the postcard may be domiciled in any country in the world.

6.4 FIZZER prints and delivers the cards to Postal Services within 24 hours, excluding weekends and public holidays.

6.5 Postcards are of a rectangular format of 10 cm by 15 cm.

6.6 An Internet Access is mandatory to use the Services. The User must have all necessary equipment, including a computer, tablet or smartphone, or any other connection tools, to ensure a connection to the Internet and to downloadable data, files and digital photographs.

6.7 All inactive Account for a period of five (5) years after its last use will be deactivated, causing the removal of all available Credits, of which use is described in the Section entitled “Credits.”

6.8 FIZZER reserves the right to offer any other Services it deems useful, in any form and according to the functionalities and technical means that FIZZER deems most appropriate to render the Services hereby mentioned.

7. Orders

7.1 The User places an order for any Services through the Internet, by logging into his/her Account (hereinafter called the “Order”). Once on his/her Account, the User selects the desired products and proceeds to the payment using a Credit Card via the system offered on the Site.

7.2 FIZZER cannot be held responsible for any failure occurring during the Order procedures.

7.3 Any order received by FIZZER is deemed firm and final. It acts as an electronic acknowledgement of receipt (by e-mail). Failing receipt of the electronic acknowledgement of receipt, the User must contact FIZZER at the contact details mentioned in Article 2.

7.4 The User may cancel an order by contacting FIZZER at the address indicated in Article 2, as long as the postcard has not been created.

The User may change the mailing address of a postcard within one (1) hour after placing the Order.

7.5 Any Orders expressly require the unconditional acceptance of the Terms and Conditions of Sale and Use which prevail over all other Conditions.

7.6 The Validation Date of the Order corresponds to the date of the payment made on-line by credit card.

8. Price - Payment

8.1 The prices of Services sold are those appearing on the Site on the day of the Order.

8.2 FIZZER reserves the right to change its prices at any time, but accepts to apply the rates in force as indicated to the User at the time the Order was placed. The prices of the services are expressed in Euro all taxes included, excluding the cost of delivery.

8.3 Payments are made through Credit Cards. Payments are made via the STRIPE secure system which uses SSL (Secure Socket Layer), ensuring that all data transmitted is encrypted by a software and no third party can read it in transit on the Internet network. In no cases does FIZZER have access to these personal details.

8.4 The Order is validated and processed by FIZZER upon confirmation of the payment. FIZZER reserves the right to suspend or cancel the execution of any Order, regardless of its nature and level of performance, in the event of non-payment or partial payment of any amount due by the User, in the event of a payment incident, or in case of fraud or attempted fraud relating to the use of the Site, including on the occasion of previous Orders.

8.5 If the User’s Account shows any Credits for several postcards (hereinafter called “Credits”), his/her Orders are debited from his/her Credits.

8.6 Postcards sold to the unit are not refundable.

8.7 The price remains the same for a shipment from France or from abroad, and to France or to foreign countries.

9. Credits

9.1 The User has the possibility to subscribe to Credits which are valid for several postcards, therefore having access to preferential rates for sending postcards, compared to the rate applied to send individual postcards.

9.2 The Credits rates are scaled according to the quantity of postcards purchased.

9.3 The value of the Credits depends on the type of postcard sent:

  • Sending a standard postcard to a recipient = one Credit;
  • Sending a special postcard to a recipient = several Credit;

9.4 When the same postcard is sent to multiple recipients, Credits corresponding to the number of cards sent to recipients are deducted.

The User can use his/her Credits on the condition that the User connects at least once every twelve (12) months to his/her Account.

9.5 If the User has not connected for twelve months and that Credits are still available on his/her Account, FIZZER will contact the User one (1) month before the expiry of the Credits to inform him/her of the need to connect to his/her Account and/or to use his/her Credits. After twelve (12) months without a connection to his/her Account, the User’s Credits will be removed.

9.6 Credits are linked to an Account and cannot be transferred to another Account.

9.7 However, it is possible for a User to offer Credits through the means of a Gift Card via his/her Account.

The Gift Cards are sent directly after payment. On every Gift Card there is a code to insert into the Application or provide on the Site to redeem the Credits.

Each code is unique and can only be used once by the recipient.

10. Referrals

10.1 It is possible for a User to refer a future User, via his/her Account, to help the new User discover the available Services.

10.2 Every User detains a unique referral code on his/her Account.

When giving his/her referral code to a person he/she wishes to refer, the Referee and the Referrer will each receive two (2) Credits on their Account when the Referee, or New User, makes his/her first payment. The Referee enters the code in the “Promotional Code” field of the section “Buy Credits” by making sure he/she clicks on the “Submit” button for the code to be taken into account.

10.3 FIZZER reserves the right to offer any other Referral Programmes it deems useful, in any form and according to the functionalities and technical means that FIZZER deems most appropriate.

11. Shipping

11.1 The paid Services are delivered to the recipient’s address specified in the Order, by the Postal Services in France and abroad.

11.2 The postcard delivery time can vary from 2 to 21 business days after the validation of the Order. This delivery period mentioned is an average delivery time which depends on the destination.

Exceeding this delivery time cannot give rise to any cancellation of the Order, any reduction in the price paid by the User, and no payment of damages or penalties of delay.

11.3 FIZZER reserves the right to refuse to make a delivery or to honour an Order coming from a User who has not completely or partly paid a previous Order, or with whom a payment dispute is under litigation.

12. Printing and Technical Limits

The printing of a map is done with digital presses. Our prints may be completed together with other print runs (i.e. grouped with other customers’ projects) or created individually. The User accepts without reservation the technical constraints associated with this type of printing:

  • Binding tolerances of approximately +/- 2 mm per side,

  • Printing tolerances of approximately +/- 2 mm per side,

  • Slight variations in colours,

  • In case of reprinting, even from identical files, the colour rendering can never be 100% identical.

FIZZER’s liability may not be incurred on any printing, colorimetry, font defects as well as on trap technique, monospaced font (fixed-pitch) and image conversion defects, on the assumption that these defects are present on the files provided by the User.

13. Right of Withdrawal

If the User is a natural person using the Services outside a professional context and for his/her private use, he/she is informed that he/she has a right of withdrawal within 14 (fourteen) days of his/her registration on the Site. Before the end of that period, the User can exercise his/her right by addressing the Withdrawal Form found in the Appendix of the General Terms and Conditions of Sale and Use or make any other statement, unambiguous, expressing his/her willingness to retract, to FIZZER at the contact details mentioned in Article 2.

The User, however, expressly agrees and understands that if he/she sends postcards as provided in Articles 6 and 7 before the end of the above-mentioned period, FIZZER will then fully perform the Services required before the end the withdrawal period. Accordingly, the User expressly waives, in this case, his/her right of withdrawal, which may not be exercised, in accordance with Article L.121-28 of the French Consumer Code.

14. User Obligations

Without prejudice to the other obligations provided herein, the User agrees to comply with the following obligations.

14.1 The User agrees, in his/her use of the Services, to respect the laws and regulations in force and not to infringe the rights of third parties or public order.

The User is also solely responsible for the proper completion of all administrative, fiscal and/or social formalities and any payments of contributions, and taxes of any kind that he/she may have related to his/her use of the Services. FIZZER’s responsibility will in no case be incurred in this respect.

14.2 The User expressly undertakes to provide FIZZER with sincere and true information about himself/herself. This information, transmitted as part of the Orders, is indeed necessary for processing, sending and tracking all Orders. FIZZER is allowed to record and use, by computer processing means, the information provided by the User. FIZZER will then be able to send any User who provided his/her contact information and having consented to do so, postal mail or e-mails.

14.3 The User acknowledges, after visiting the Site and having learnt the characteristics and constraints, in particular those that are technical, of all the Services. The User is solely responsible for his/her use of the Services.

14.4 The User agrees to make his/her use of the Services strictly personal. Consequently, the User is prohibited to assign, grant or transfer all or any of his/her rights or obligations hereunder to any third party in any way whatsoever.

14.5 The User agrees to provide FIZZER with all information necessary for the proper performance of the Services. More generally, the User agrees to actively cooperate with FIZZER for the proper execution hereof.

14.6 The User is solely responsible for all types of Contents (editorial, graphic, photographic or other, including the name and/or image eventually chosen by the User to identify him/her on the Site, as well as the photos and texts used for postcards) that he/she disseminates as part of the Services (hereinafter called the “Contents”).

The User agrees that FIZZER has all the rights and authorizations necessary for the diffusion of those Contents.

The User agrees to ensure that the Contents are lawful, that they do not infringe public order, good moral standards or third party rights, do not violate any legislative or regulatory provision and overall, are in no way likely to put the civil or criminal liability of FIZZER at stake.

The User is equally forbidden to disseminate, without this list being exhaustive, the following:

  • Pornographic, obscene, indecent, offensive, defamatory, abusive, violent, racist, xenophobic or revisionist Contents that are inappropriate for a family audience,
  • Counterfeit Contents,
  • Contents that infringe a third-party image,
  • Contents that are false, misleading or that proposes or promotes illegal, fraudulent or deceptive activities,
  • Contents that are harmful to third-party computer systems (such as viruses, worms, Trojan horses, etc.),
  • And more generally, Contents that may infringe the rights of third parties or Contents that are prejudicial to third parties, in any manner and in any form whatsoever.

14.8 The User agrees that every person depicted in those Contents has given their agreement for the use and dissemination of their image. Only unique reproduction serving the private use of the User is authorized. Any other reproduction, distribution, transmission or publication performed without the prior consent of the copyright holders is prohibited.

FIZZER reserves the right to terminate the access to all Services for a User transmitting litigious Contents without any prior procedure.

14.9 The User acknowledges that the Services offer him/her an additional solution, not an alternative to sending postcards and that this solution does not replace other means which the User may have to further achieve the same goal.

14.10 The User must take the necessary measures to safeguard by his/her own means, the information of his/her Personal Space that he/she deems necessary, of which no copy will be provided.

14.11 The User is aware and agrees that the implementation of the Services requires that he/she is connected to the Internet and that the quality of the Services depends directly on this connection, for which he/she is solely responsible.

15. Guarantee

The User safeguards FIZZER against any complaints, claims, actions and/or demands that FIZZER may suffer as a result of the breach by the User of any of his/her obligations or guarantees under these Terms and Conditions of Sale and Use.

The User agrees to indemnify FIZZER for any loss it may suffer and to pay it any costs, charges and/or convictions that it may have to bear as a result.

16. Prohibited Behaviour

16.1 It is strictly forbidden to use the Services for the following purposes:

  • For the practice of illegal or fraudulent activities, or for activities that affect the rights or safety of third parties,
  • For the violation of public order or breach of current laws and regulations,
  • For hacking into a third party computer system or any activity likely to harm, control, interfere or intercept all or part of a third party’s computer system, violating its integrity or safety,
  • For sending unsolicited and/or prospecting e-mails or for commercial solicitation,
  • For manipulations intended to improve the referencing of a third-party site,
  • For the assistance or incitement, in any form or by any means, to one or more of the acts and activities described above,
  • And more generally for any practice which diverts the Services for purposes other than those for which they were designed.

16.2 Users are strictly prohibited from copying and/or misappropriating the concept, technologies or any other element of the FIZZER Website for their own purposes or those of third parties.

16.3 The following is also strictly prohibited: (i) any behaviour likely to interrupt, suspend, slow down or prevent the continuity of the Services, (ii) any intrusion or attempted intrusion into the FIZZER systems, (iii) any misuse of the site’s system resources, (iv) any action likely to impose a disproportionate burden on the infrastructure of the site, (v) any breach of security and authentication measures, (vi) any act likely to breach the financial, commercial or moral rights and interests of FIZZER or the Users of its Site, and more generally (vii) any breach of these Terms and Conditions of Sale and Use.

16.4 It is strictly forbidden to monetize, sell or concede all or part of the access to the Services or the Site, as well as the information that is hosted and/or shared.

17. Penalties for Breaches

If the event of a breach of essential duty on the part of the User under these Terms and Conditions of Sale and Use, FIZZER reserves the right to suspend or terminate the User access to all or part of the Services, with immediate effect, by letter, fax or e-mail. Pursuant to this clause, the cancellation takes effect automatically on the date FIZZER sends the notification in writing to the User. This automatically and without prior notice deletes the User’s Account, without prejudice to the other consequences possibly resulting in the application of the General Terms and Conditions of Sale and Use.

18. FIZZER’s Liability and Warranty

18.1 FIZZER agrees to provide the Services diligently and according to the best practices, given that an obligation of means weighs on itself, excluding any performance obligation, which the Users recognize and expressly accept.

18.2 FIZZER does not warrant to Users (i) that the Services, subject to constant research to improve performance and progress, will be free from errors, defects or faults, (ii) that the Services, being standard and not proposed for the sole purpose of a given User according to his/her own personal constraints, will specifically meet his/her needs and expectations.

18.3 In any event, the liability that may be incurred by FIZZER under this agreement is expressly limited to proven direct damages suffered by the User.

18.4 FIZZER cannot be held responsible for delays, disruptions or strikes of postal services, means of transport and/or communication or in case of force majeure that would prevent or delay the delivery of postcards.

FIZZER cannot be held liable for late delivery or loss of a postcard that is not directly attributable to FIZZER. The delivery times mentioned on the Site are for information purposes only and are subject to change.

No degradation linked to the transport of the postcards will jeopardize the contractual liability of FIZZER.

18.5 The postcards sent as part of the Service remain within the framework of private correspondence; therefore FIZZER performs no real control on messages, photographs and other Contents sent.

Consequently, FIZZER cannot be held responsible for the Contents, whose authors are third parties, any possible claim shall be directed first to the author of the Contents in question.

The Contents which are harmful to a third party may be notified to FIZZER in accordance with the Terms and Conditions of Sale and Use set out in Article 615 of Law No. 2004-575 of 21 June 2004 to support confidence in the digital economy, FIZZER reserves the right to take the steps described in Article “Penalties for Breaches” and transmit the Contents involved to the authorities.

The files stored, used and transmitted as part of the Service are the sole responsibility of the User. Therefore, only the User of the Service shall assume civil and criminal liability for Contents transmitted via the Service. The User agrees not to store, download or upload any data that is prohibited, illicit, illegal, contrary to morality, decency, or public order and damaging or is likely to infringe the rights of others.

18.6 FIZZER cannot be held liable by a third party in case of misuse of the Service, especially if the User sends a very large quantity of postcards.

FIZZER cannot be held liable for indirect potential prejudice that the User may encounter from receiving or using the Service. The Parties recognize that are especially regarded as consequential damages, any moral, business and financial prejudices, as well as any action taken against the User by a third party; this list not being considered as exhaustive.

18.7 The postcards can be sent to unintended recipients if the address specified at the time of the Order is incorrect. In this case, FIZZER cannot be held responsible.

18.8 The User agrees to reimburse FIZZER for any request, complaint or condemnation it would be subject to following the non-compliance with the Terms and Conditions of Sale and Use and/or following messages transmitted through the Service.

18.9 FIZZER reserves the right, at any time, to modify, temporarily or permanently interrupt all or part of the Service and that without having to inform the Users in advance. FIZZER cannot be held responsible to the User or any third party for any modification, suspension or discontinuance of the Service.

Moreover, FIZZER agrees to conduct regular checks to verify the functioning and accessibility of the Site. As such, FIZZER reserves the right to temporarily interrupt access to the Site for maintenance reasons. Similarly, FIZZER cannot be held responsible for temporary difficulties or the inability to access the Site due to external circumstances, force majeure, or even due to disruption of telecommunication networks.

18.10 FIZZER shall not be held liable for any inconvenience or damage arising from the use of the Internet and which is totally outside the diligence and precautions taken by FIZZER. In particular, any disruption in the provision of the Service, or any external intrusion or presence of computer viruses, shall be considered the responsibility of FIZZER.

18.11 The printing quality of the photographs on the front of the postcards depends on the material and cameras used. The User agrees that the quality of the photos on the paper card can be less vivid than on a screen. Therefore, FIZZER cannot be held responsible for the poor quality of a photo which would come from the User’s hardware. FIZZER cannot be held further responsible for the poor quality of the printing of the photo due to the poor quality or insufficient resolution of the photo downloaded as part of the Service.

19. Intellectual Property

The systems, software, structures, infrastructures, databases and content of any kind (texts, images, visuals, music, logos, brands, database, etc.) operated by FIZZER within the Site are protected by all intellectual property rights or the rights of database producers in force. All disassembly, decompilation, deciphering, extractions, reuse, copies and, more generally, all acts of reproduction, representation, distribution and use of any of these elements, in whole or in part, without the authorization of FIZZER, are strictly prohibited and may be subject to prosecution.

20. Personal Data

FIZZER practises a personal data protection policy, of which the characteristics are explained in the document entitled “Privacy Policy” which the User is expressly invited to read on the Site.

21. Duration of Services, Unsubscription

The subscription to the Services is for an indefinite period.

The User can unsubscribe from the Services at any time by sending a request by e-mail to that effect to FIZZER or a letter to the contact details mentioned in Article 2.

The unsubscription is effective within a maximum of 7 (seven) days of the request. It causes the automatic deletion of the User’s Account.

## 22. Modifications

FIZZER reserves the right to modify the General Terms and Conditions of Sale and Use at any time.

The User will be informed of these modifications by any useful means.

The User who does not accept the modified Terms and Conditions of Sale and Use must unsubscribe from the Services in accordance with the Terms and Conditions set out in Article “Duration of Services, Unsubscription”.

Any User using the Services after the entry into force of the amended Terms and Conditions of Sale and Use shall be deemed to have accepted these modifications which shall be fully applicable to him/her.

23. Language

If these Terms and Conditions of Sale and Use are translated into one or more languages, the language of interpretation shall be French, in the event of contradiction or dispute related to the meaning of a term or provision.

24. Mediation

The User is entitled the right of free recourse of a Consumer Ombudsman for the amicable resolution of any dispute relating to the execution of the present Terms and Conditions of Sale and Use that would oppose the User to FIZZER, in accordance with Articles L611-1 and following, and Articles R612-1 and following, of the French Consumer Code.

For this purpose, the User can contact the following Consumer Ombudsman:

Centre de médiation et de règlement amiable des huissiers de justice [Mediation and Conciliation Centre] (Medicys)

Postal Address: 73 Boulevard de Clichy, 75009 Paris

E-mail: contact@medicys.fr

Telephone: 00 33 (0)1 49 70 15 93

https://www.medicys-consommation.fr/

In case of eventual complaints being formulated by a European Consumer, and in default of an amicable arrangement with FIZZER Customer Service, the consumers concerned can use the European Online Dispute Resolution platform at the following address:

https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=FR

25. Applicable Law and Jurisdiction

These Terms and Conditions of Sale and Use are governed exclusively by French law.

In the event of any dispute related to the validity, interpretation and/or execution of these Terms and Conditions of Sale and Use, the parties agree that the courts of Paris shall have exclusive jurisdiction to prosecute them, except in the case of contrary mandatory rules of procedure.

26. Agreement of Proof

The User acknowledges and expressly agrees:

  • (i) that the data collected on the Site and on the computer systems of FIZZER represent the reality of the operations carried out as part of the present conditions;

  • (ii) that this data constitutes the only accepted mode of proof between the parties, in particular for the calculation of the sums due to FIZZER.

The User can access his/her data in his/her User Account.

Appendix - Withdrawal Form

(Please complete and return this form only if you wish to cancel the contract.)

To the attention of: FIZZER

15 rue Edouard Herriot – 14160 Dives-sur-Mer

hello@fizzer.com

I hereby notify you of my withdrawal from the contract for the Services mentioned below:

Registration on the Fizzer Website on:

Name of the User(s):

Address of the User(s):

Signature of the User(s):

(only if this Form is notified on paper)

Date: