General Terms of Use and Sale

Last revised on Aug. 21, 2018

Article 1 - Preamble

These General Terms of Use and Sale (GTUS, the “Agreement”) apply to the services offered on the website pickable.app (the “Site”) and in the Pickable mobile application, operated by TOP 2 AG (“us,” “we,” the “Company”, “Application”, “Pickable”).

The service is published by TOP 2 AG, Aktiengesellschaft (joint-stock company subject to the law of German-speaking countries) which is registered in the Trade Register of the Canton of Schwyz under the registration number CHE-199.083.691. The GTUS set out the rights and obligations of the parties in relation to the use of the mobile application. They form the basis of a contractual relationship between the member and TOP 2 AG.

These GTUS set out the main rules for the use of the mobile application. They are supplemented by additional policies, the Personal Data Policy, the Cookie Policy and the Frequently Asked Questions (FAQ) to give the member more precise guidance for the use of the mobile application. In the event of a conflict between the various policies which renders the rules incomprehensible, unintelligible and/or unpredictable, these GTUS shall take precedence over the Personal Data Policy, the Cookie Policy and the FAQ.

If any provision of these GTUS is declared void or unenforceable pursuant to a law, regulation or judicial decision issued by a court with jurisdiction, the other provisions shall continue to be valid and effective, except where these GTUS are distorted or where this causes a significant imbalance in the parties’ obligations.

Article 2 - Definitions

In the GTUS, the words or expressions below shall have the following meanings:

Account: the account is the Member’s personal space in the Application, which (s)he accesses by signing on and connecting to the Application. It enables the Member to access the Services.

Application: the Pickable application, which is available in the Apple App Store and the Google Play Store and on the Site.

Match: the situation where two Members have accepted a chat request from one another.

Pickable: TOP 2 AG, Aktiengesellschaft (joint-stock company subject to the law of German-speaking countries) with share capital in the amount of CHF 100,000, registered in the Trade Register of the Canton of Schwyz under the registration number CHE-199.083.691, the owner and sole operator of the Application, the Site and the “Pickable” brand.

GTUS: these General Terms of Use and Sale, the “Agreement”.

Chat request: the action represented by a heart which is used to express interest.

Member(s): a person (or group of persons) registered in the Application

Phone number: the Member’s mobile phone number of the device the Application will be installed on, accessed and used.

Services: all services, whether paid for or not, which are offered in the Pickable application.

Site: the website pickable.app.

Article 3 - Applicable Law and disputes

These Terms of Use shall be governed, construed and applied in accordance with Swiss law, subject to the protection that is given to Members by the mandatory provisions in local jurisdictions. In the event of a dispute over the meaning of any provision or term of the GTUS, the Member may contact Pickable by letter sent to TOP 2 AG, Schindellegistrasse 3, 8808 Pfäffikon, Schwyz, Switzerland or by sending an email directly to hello@pickable.app.

In the event of a dispute, the Member shall contact Pickable in the first instance in order to settle the conflict amicably. Disputes which are not settled amicably shall be referred to the Courts with jurisdiction in the Canton of Schwyz subject to the mandatory provisions of French law with regard to the jurisdiction of courts and the possibility of referral to a consumer mediator in accordance with Title I of Book VI of the Consumer Code.

Article 4 - Changes to the Services and Terms of Use

Pickable may amend the GTUS at any time. The Member will be informed of the nature of such amendments when they are placed online on the Site and in the Application. The new GTUS will be communicated through the Application and/or by sending an email to the address provided by the Member and will apply immediately;

The Member must read the GTUS carefully when they are updated and familiarize himself/herself fully with the resulting amendments. If (s)he does not agree to the amendments to the GTUS, the Member can terminate the Services and cancel his/her Account in accordance with article 11.

Article 5 - Terms of access and Registration for the Services

The Application can be downloaded free of charge in the Apple App Store for iPhones running versions of iOS specified on Pickable’s App Store page and in the Google Play Store for Android smartphones running versions of Android specified on Pickable’s Play Store page. Where the requirements for Member status are met, Pickable will assign an Account to the Member containing at least the following:

To sign up, any person who is interested in the Services must be at least 18 years old and have read and agreed to these GTUS, the Cookie Policy and the Personal Data Policy.

Registrations will be primarily performed through sending a text messages to the Member’s phone number, confirming that he/she has access to the device with the number and the installed Application.

Non-Browsing members will also be asked to upload a picture to complete their registration.

Browsing Members may elect to not upload a profile picture, or indeed create a full profile, until they don’t start to communicate with other Members.

When registering, the Member agrees to these GTUS and the Personal Data Policy and undertakes to fulfil his/her obligations as stated in article 7 of these GTUS.

Article 8 - Services and functions

The Application gives Pickable Members a personal and private environment which enables them to make contact with other Members in order to arrange dates. Each Member is free to talk to and form relationships with other Members in accordance with these GTUS.

There are two states a Member may broadly perform activities:

Whether a user becomes a Browsing or a Non-Browsing Member may depend upon several criteria, among others the data provided during the sign-up process, the Member’s choice, or other factors determined from time to time by Pickable in the interest of providing the best user experience.

Browsing and Non-Browsing Members may have access to different Services as determined from time to time by Pickable.

8.1 Free services

The following Pickable Services are available from the Application free of charge (excluding connection costs and telecommunications charges) for the Non-Browsing Member, who undertakes to comply with these GTUS:

The following Pickable Services are available from the Application free of charge (excluding connection costs and telecommunications charges) for the Browsing Member, who undertakes to comply with these GTUS:

Article 8 - Pickable Personal Data Policy

When registering on the Site or in the Application, users must provide details which relate to them in accordance with article 4.

This information undergoes automated processing by Pickable.

When confirming his/her registration in the Application and/or on the Site, the user must read the Pickable Personal Data Policy. The personal data processing that is performed by Pickable is necessary to perform this Agreement to which the Member is a party.

Pickable uses cookies to operate and improve the Site and also improve the Services that are offered. By continuing to browse the Site, the Member consents to the use of cookies in accordance with the Pickable Cookie Policy.

In accordance with articles 38 et seq. of Law no. 78-17 of 6 January 1978 as amended by Law no. 2004-801 of 6 August 2004 on data processing, files and freedoms, anyone can access and, if necessary, correct or erase personal data which relates to them by contacting Pickable, whose contact details are given in article 12 of these GTUS. Anyone can also, for legitimate reasons, object to the processing of personal data which relates to him/her.

Article 10 - Obligations and responsibilities of Members

Violation of the following obligations and responsibilities may result in the cancellation of a user’s Membership.

10.1 Obligations

Members undertake to do the following when using the Services specified in article 5:

10.2 Responsibilities

10.2.1 Responsibility for the performance of obligations and moderation by Pickable of content published by a Member

Responsibility:

The Member has sole responsibility for his/her actions and data which (s)he publishes via the Application and, in particular, photos published by the Member and the description that is added to his/her profile. Photos published by the Member cannot be illustrations or feature nudity or pornographic content. If Pickable is held liable for the Member’s non-performance of his/her obligations, the Member shall hold Pickable harmless from any convictions pronounced against it which arise out of the Member’s violation of the law or these GTUS.

All pornographic or exhibitionist photos which are indecent and generally contrary to moral standards are formally prohibited.

Moderation:

Checks carried out by Pickable:

When a Member registers, Pickable moderates the content published by Members (photos published and descriptions added to profiles). Pickable also checks that each photo published by a Member is in accordance with these GTUS (in particular section 7.1 above) and enables the Member to be identified. Pickable reserves the right to remove all content (messages, photos or other) which does not meet the aforementioned requirements.

As such, a photo published by a Member can be rejected by Pickable in the following situations:

In this event, the photo will be deleted from Pickable’s servers and the Member will be invited to submit a new photo.

In addition, publishing pornographic or exhibitionist photos which are indecent, incite violence or racial hatred and are generally contrary to moral standards constitutes serious misconduct which may result in suspension and/or cancellation of the Member’s Account, without prejudice to other penalties which may be imposed by the courts.

The consequences of the moderation performed by Pickable are set out in article 11 of the GTUS (“Cancellation of the Account by Pickable in the event of breaches of the GTUS”).

Pickable may use external service providers to help filter photos which are not in accordance with these GTUS.

No decisions are taken solely on the basis of automated processing of personal data.

Reporting by Members:

While using the Application and/or the Site, any Member can report illegal content which contravenes applicable law or these GTUS using the moderation tools provided by the Application / the Site in the menu that appears on each chat screen with the word “Report”.

10.2.2 Responsibility in relation to real dates

Pickable gives the following warning to Members who wish to go on “real” dates. Members are solely responsible for checking the identity of persons with whom they arrange these dates. These “real” dates are arranged independently of Pickable, at the sole responsibility of Members. Pickable cannot be held liable for acts and problems of any kind which are committed or caused by Members and/or former Members during events which take place as a result of the use of the Application / the Site. In this respect, Pickable messaging deliberately offers the advantage, once again to protect the peace of mind and safety of its Browsing Members, by enabling them to choose which persons will be allowed to see their profiles and talk to them, and for all Members in general in that identities can be verified before meeting in person and safe locations for the meeting can be chosen (as opposed to meeting strangers in person by way of chance in other “real world” settings). With regard to persons with whom the Member has agreed to exchange messages, it is strongly recommended that (s)he does not disclose information which does not appear on the Pickable profile such as his/her telephone number, address or surname. As a safety measure, Pickable very strongly recommends that real dates should only be arranged in very busy public places or that the Member should tell a person close to him/her about them, and that contact details should only be disclosed after a reasonable period of time.

10.2.3 Responsibility in relation to the Member’s equipment

The cost of equipment (hardware or software) which is necessary to access the Services and all other associated costs, including telecommunications charges, are solely payable by the Member. The Member has sole responsibility for the equipment that is used for the purposes of the Service.

Article 11 - Combating fraud

To maintain Members’ trust in each other and increase the safety of its Members, Pickable implements a system to combat fraudulent profiles of users who perpetrate abuse, scams or illegal activities of any kind through their Account.

On the basis of objective and cumulative criteria (complaints from Members, use of VPN, use of photos of third parties including celebrities, location very far from the one stated in the profile, requests for money or transfers of money made through the Application’s chat service), Pickable will examine the profile of the Member concerned.

If it is ascertained by Pickable that the Member is perpetrating abuse, scams or any other illegal activity, Pickable will close his/her account.

Pickable uses an external service provider to help it detect fraudulent behaviours.

No decisions are taken solely on the basis of automated processing of personal data.

Article 12 - Obligations and responsibilities of Pickable

12.1 Obligations

Pickable undertakes to provide the infrastructure and technical resources that are required to provide a high-quality Service to Members who have an iPhone terminal which runs a compatible IOS version as determined on Pickable’s App Store page or an Android Smartphone which runs an Android version as determined on Pickable’s Android download page. Pickable cannot be held responsible for any malfunctions of the Member’s terminal or problems in terms of compatibility between the Application and the terminal.

Every effort is made to minimize the risk of fraudulent access to Pickable’s system. To this end, Pickable uses a firewall (equipment located between the Internet and the private network of a company to increase the security of the latter by filtering traffic from or to the Internet). However, it is impossible to guarantee that a network is entirely secure. Pickable is not responsible for breakdowns, interruptions or improper operation of the services of the Member’s Internet access provider, and any cause external to Pickable which may interrupt or impair access to Pickable Services. The Member must ensure that (s)he has a secure email address. Despite these precautions or due to failure to take them, the Member’s Account may be subject to fraud. Pickable also wishes to warn the Member of any exceptional risk of receiving unwanted Messages or Messages purporting to come from Pickable. The Member must be careful and vigilant so that, if these situations arise, (s)he can warn Pickable by sending a letter or email to the address given in article 12 of these GTUS.

12.2 Liability

Pickable and its partners cannot be held liable for actions committed by its Members which are illegal or punishable by criminal penalties, including but not limited to:

12.2.1 Illegal behaviours

Pickable is not responsible for cases of fraud, scams, deception, identity theft, prostitution, infringement of intellectual property of third parties and other criminal offences committed by Members through the Site and the Application and the Services that are made available to them.

12.2.2 Contentious content

Pickable is not responsible for contentious content disseminated by Members and reserves the right to save any contentious content, including in order to pass it on to the competent authorities.

12.2.3 Real dates

Pickable is not responsible for real dates arranged by Members. Members who wish to arrange such meetings are reminded that they do so at their own liability as stated in article 7.2.2 of these GTUS, as Pickable cannot guarantee the truthfulness of information communicated by Members.

Article 13 - Intellectual property

13.1 Trademark

The trademark “Pickable” is solely owned by Pickable. Pickable owns all rights associated with it. The trademark has been registered at the Institut National de Propriété Industrielle and at the United States Patent and Trademark Office (USPTO). Any reproduction and/or use and/or partial or full application and/or alteration and/or removal of the trademark and the associated rights, such as but not limited to the slogan and logo proposed by the Application, by any means, in any form, on any medium and through any media, is strictly prohibited without express prior written permission from Pickable and shall be liable to prosecution. The Member must not use meta-tags or any other “hidden” text containing the name or trademark “Pickable” without the explicit written consent of Pickable. The trademark is protected by articles L713-2 et seq. of the Intellectual Property Code and by international intellectual property law.

13.2 Copyright

Pickable owns all intellectual property rights associated with the Application and the Site.

As part of and solely for the purposes of normal use of the Site or the Application, Pickable grants the Member a right to use works which appear in the Application and on the Site, such as but not limited to texts, paginations, presentations, layouts, photographs, images, drawings, graphics, buttons, videos, sounds and data (“Works”).

The licence to use the Works which is granted by Pickable to the Member is non-exclusive and non-transferable and is reserved for private, personal and non-commercial use, worldwide, as part of and during the period of registration for the Services. It is forbidden to sell, rent out, lend, distribute or sub-license all or part of a Work or transfer any right to all or part of this Work. It is forbidden to copy, modify or otherwise alter a Work, in whole or in part, create works derived from a Work or incorporate all or part of a Work into other works of any kind.

Works are protected under L122-4 et seq. and L335-3 et seq. of the Intellectual Property Code and by international intellectual property law.

13.3 Software

The following terms apply to all software (source codes, updates and development, preparatory design material and associated documentation) of Pickable which is used in connection with the Services (Software). All Software is the property of Pickable, which owns all intellectual property rights and associated rights of use. The Software is protected by article L122-6 of the Intellectual Property Code and by international intellectual property law. As part of and solely for the purposes of normal use of the Site or the Application, Pickable grants the Member a provisional right to reproduce the Software. This right to reproduce includes the right to load, display and run the Software. Rights which are not explicitly granted to the Member are retained by Pickable. The right of use which is granted by Pickable to the Member is non-exclusive and non-transferable and is reserved for private and personal use, worldwide, as part of and during the period of registration for the Services. It is forbidden to sell, rent out, lend, distribute or sub-license all or part of a Software program or transfer any right to all or part of this Software. It is forbidden to incorporate all or part of a Software program into other programs, compile all or part of a Software program with another program, transfer all or part of a Software program in order to use it with another service or copy, modify or otherwise alter all or part of a Software program, create works derived from the Software program or reverse engineer or decompile a Software program in whole or in part, except insofar as the law allows. To keep Software up to date, Pickable may offer automatic or manual updates at any time and without prior notice.

13.4 Use of the database

The database associated with the Application and the Site is the sole property of Pickable, which owns all associated intellectual property rights.

It is forbidden to extract, by way of a permanent or temporary transfer, all or a qualitatively or quantitatively substantial part of the contents of the Application or the Site onto another medium, by any means and in any form whatsoever.

It is also forbidden to reuse, by making them available to the public, all or a qualitatively or quantitatively substantial part of the contents of the Application or the Site, regardless of their form.

Finally, repeatedly and systematically extracting or reusing qualitatively or quantitatively insubstantial parts of the Application or the Site is forbidden where such operations manifestly go beyond the normal terms of use of the Application or the Site.

13.5 Unfair competition

Designing a product which is similar to the Application or the Site or creating a product derived from them, and more generally engaging in parasitic use, acts of imitation, smearing or any other act which constitutes unfair competition, is formally prohibited. Where appropriate, Pickable reserves the right to sue the Member in order to obtain full compensation for the loss caused to it by the Member.

The Member shall be liable to penalties if (s)he grants or attempts to grant licences or sub-licences, sell, resell, transfer, assign or distribute the Services, Application or Site in any way, or otherwise commercially exploit them or make them available to third parties.

13.6 Content disseminated by the Member

The Member grants Pickable a licence to use the intellectual property rights attached to the content provided by the Member during his/her use of the Services. This licence shall be used by Pickable in a manner which respects his/her right to his/her own image and protects the Member’s personal data, without affecting the genuineness of the Member’s profile and in a manner which is consistent with his/her profile. In particular, this licence includes the right for Pickable to reproduce, represent and alter the aforementioned content in order to comply with the style guide for the Services and make them compatible with its technical performance levels or the formats of the media concerned. These rights are granted on a worldwide basis and for as long as the GTUS applies between the Member and Pickable.

The Member shall retain ownership of the content and personal data that (s)he provides. The Member shall hold Pickable harmless from any legal action, appeals or convictions pronounced against it which arise out of the Member’s infringement of intellectual property belonging to a third party. The Member shall hold Pickable harmless from any claims or damages that may result from them.

Article 14 - Cancellation

14.1 Cancellation by the Member

Deactivation and removal of the Account: At any time, the Member can deactivate his/her Account without notice via the Application if (s)he no longer wishes to be visible in it.

When the profile is deactivated:

Deletion of Account: The Member can decide to permanently delete his/her Account by sending an email or letter to Pickable, whose postal and email addresses appear in article 12 of these GTUS, at any time and without notice. The Member’s profile will consequently be permanently deleted. If the Member wishes to start using the Application again, (s)he will be obliged to register in the same way as for an initial registration.

When the Account is deleted:

14.2 Termination of the Account by Pickable if the GTUS are breached

If a Member breaches the GTUS, his/her Account can be suspended at any time as a precautionary measure and then terminated as of right by Pickable.

At any time, and in the event that these GTUS are not complied with by a Member, Pickable shall be free to suspend access to his/her Account which is accessible from the Site and the Application for a period of 1 (one) month. Pickable will inform the Member whose Account is suspended of this decision by sending a notice in the Application and/or by email. The Member will be invited to contact the customer service department of Pickable by email in order to provide explanations in answer to the criticisms made against him/her. If (s)he fails to respond and/or if his/her explanations do not justify the breach, Pickable may give the Member notice of the termination of his/her Account through the Application and/or by email and inform the Member of the period for which (s)he will be unable to re-register in the Application. If no period is specified, this period shall be 3 (three) years following notice of the termination of the Account.

When the Account is terminated:

Article 15 - Making Contact

15.1 With the Member

Sending mobile and email notifications: The Member may receive notifications through the Application and/or by email so that (s)he can be informed of various important events. These may include but are not necessarily limited to the following:

Notifications can be configured directly from the user’s smartphone and can be turned off at any time in his phone’s settings.

If an email has been provided by the Member, the email address to which notifications are sent shall be the one that was given by the Member when registering.

Newsletter: When registering in the Application, if an email has been provided by the Member the Member shall agree to receive a newsletter from Pickable. (S)he can unsubscribe at any time by exercising his/her right to object by clicking on the link to unsubscribe at the bottom of each email received from Pickable.

15.2 With Pickable

Members can contact Pickable directly by post at the address: TOP 2 AG, Schindellegistrasse 3, 8808 Pfäffikon, Schwyz, Switzerland or by email at hello@pickable.app