Terms of use

These Terms of Use (« Terms« ) are an integral part of the policies of Pho3nix Stiftung, a foundation with its registered office c/o Iatesta AG, Via Somplaz 1, 7500 St. Moritz, Switzerland, registered in the Swiss commercial register of the canton of Grisons under number CHE-169.567. 607 (hereinafter referred to as « Pho3nix« , « we » or « us« ), which govern your access to and use of Pho3nix services, including but not limited to your use of the content published on the Pho3nix Kids website (hereinafter referred to as the « Portal« ) and the Pho3nix Kids mobile application available for download via the Google Play and App Store shops (hereinafter referred to as the « App« ) and the services offered on the Portal and the App (collectively, the « Services » and individually, the « Service« ).

Your use of the Services is also subject to our Privacy Policy published on the Portal (the « Policy« ). By using our Services, you (the « User » or « you« ) agree to use them in accordance with our Terms and Policy.

Please read our Terms and Policy in detail and feel free to contact us if you have any questions or need clarification. You can find our contact details in Section 10.4.

1.     Use of Pho3nix Services

1.1.  Your right to use Pho3nix

You may use our Services only if you are at least sixteen (16) years of age and are eligible to enter into a valid agreement with Pho3nix and to comply with these Terms and all applicable laws and regulations. This requirement does not apply if you are interested in using the Student Account Service that we have designed for younger Users, the terms of which are described in detail in Section 2. To use our Services, you must comply with the Terms and the Policy and our and our technology partners’ proprietary rights in the Application.

1.2.  Pho3nix content

Publications and other information available on our Portal and Application (« Content« ) are provided for informational purposes only. Unless otherwise indicated, Pho3nix retains all rights to the Content (images, text, videos, graphics, trademarks, etc.) found on the Website or in marketing communications. You may download and temporarily store Website Content for viewing purposes. You may print any Content for your personal use as long as no corrections are made and provided that all Content is displayed and you identify Pho3nix as the source. If you share copies with others, you must ensure that all recipients are made aware of our Terms and Policy. We want the Content to be accurate at the time it is published, but we accept no obligation to ensure and do not guarantee that it is complete, accurate, current or that the site or the Content will remain available.

1.3.  User Content

Pho3nix allows you to submit content, including personal information, photos, videos, links and other information in connection with your use of our Services. Any content or data you upload or otherwise make available in connection with our provision of the Services is referred to as your content (« User Content« ). You warrant and represent that your User Content is accurate and up-to-date information and that you do not upload or share any content from third parties unless expressly authorized by their creator, the copyright owner or the owner of such content. You retain all rights and are solely responsible for User Content you submit to Pho3nix and agree to ensure that it complies with these Terms, applicable laws and our Policy. You warrant that your User Content: (a) does not infringe the rights of third parties, in particular intellectual property rights in a broad sense (e.g. copyright or trademark rights) or personal rights, and (b) is not illegal and does not constitute an offence of pornography, depiction of violence, racism or defamation, or is not otherwise immoral, discriminatory or offensive to public morals.

1.4.  Ownership and Use of User Content by Pho3nix

By submitting User Content through the Service, you hereby grant us an unconditional, worldwide, transferable, sublicensable, royalty-free right and license to receive, store, use, reproduce, display, adapt, edit, publicly perform, modify and distribute User Content, and the right to create and authorize the creation of further Content based on and/or using User Content (the « Derivative Content« ).

The licence you grant us is not exclusive.

The license is granted solely for the purpose of operating, developing, and providing and using the Service. As part of the licence granted, we have the right to publish User Content and Derivative Content in advertising and promotional materials without compensation to you or any other person.

You may revoke your license by deleting User Content from the Service, and by terminating your account, except for a) User Content shared with other Users on the Service who have copied, re-shared or retained such User Content, b) User Content that we store for a reasonable period of time for backup, archival or auditing purposes.

You agree that User Content that you post or cause to be posted to the Service may be viewed by other Users and anyone else who uses the Service.

We reserve the right to remove or modify User Content or change the way it is used within the Service for any reason. This includes, but is not limited to, User Content that we believe violates these Terms.

Nothing in these Terms limits any other rights Pho3nix may have with respect to User Content.

Pho3nix may process your Personal Data and User Content and contact you about our Services. However, submitting User Content and submitting a request for our Service does not impose any obligation on Pho3nix to provide any service, including but not limited to providing feedback, financial or non-financial support or any other compensation. You agree that Pho3nix is free to accept or reject your submission and User Content without restriction, acknowledgement or compensation to you. Please note that your use of User Content is also subject to our Policy.

2.     Student Account service 

2.1.  Creating a Student Account

Through the Portal and the Application you may access the Student Account Service (hereinafter « Student Account Service« ). In order to gain access to the Student Account Service it is necessary to create a student account (hereinafter « Student Account« ). A Student Account may be created only by persons who are under 16 (sixteen) years of age. In order to create an Account, you must complete the registration form provided on the Portal or Application. As you are not entitled to enter into a valid agreement with Pho3nix, the consent of your parent with full parental responsibility or your legal guardian with authority over your personal and financial interests (hereinafter « Guardian« ) is required each time to create a Student Account via the Portal or the Application and to integrate the Student Account with the Apple Health or Google Fit application. The Guardian gives the aforementioned consent by clicking on the activation link that will be sent to his/her e-mail address provided in the registration form, which will take place at the moment of the User’s request to set up a Student Account, and in the case of a User who has set up a Student Account via the Portal and begins to use the Student Account via the Application – at the moment of the integration of the Application with the Apple Health or Google Fit application. The creation of a Student Account and the conclusion of the agreement on the Student Account Service shall occur at the moment of the Guardian’s consent to the creation of the Student Account. Integration of the Student Account with the Apple Health or Google Fit application via the Application occurs at the moment of the Guardian’s consent to the integration.

2.2.  Deleting a Student Account by the Guardian

The Guardian may delete the Student Account to which his/her e-mail address has been ascribed at any time without giving reasons. In order to delete the Student Account the Guardian should send an e-mail request to helpdesk address from the Guardian’s address provided during the registration of the Student Account. We make every effort to process requests to delete a Student Account as quickly as possible. The deletion of a Student Account is equivalent to the termination of the agreement for the Student Account Service.

2.3.  Blocking and Deleting a Student Account by Pho3nix

We reserve the right to block your Student Account if: (i) a reasonable suspicion of access to the Student Account Service as a result of a breach of IT security, (ii) your use of the Student Account contrary to the Terms or the Policy, (iii) a breach of the Terms or the Policy by you or your Guardian, or (iv) in the event of a reasonable suspicion of an unauthorized attempt to access the data contained therein, including the acquisition of the Student Account by a third party. The Student Account is blocked for the time necessary for us to clarify the matter. In such a case, we will contact the User or Guardian for additional clarification. In the case of confirmation of improper use of the Student Account Service, Pho3nix shall inform the User and the Guardian and order them to refrain from such actions.

In the event of a recurrence of events entitling Pho3nix to block the Student Account, Pho3nix will delete the Student Account. The Account will also be deleted immediately without the investigation referred to in the previous paragraph if the User’s infringement compromises the functioning of the Portal or the Application, or is the result of the use of software or other tools that affect the number of steps or other data presented in the Application that affects, or may affect, the User’s position in the Rankings or the User’s performance in Challenges or Contests. Please note that if you delete your Student Account, you will lose the ability to apply for any benefits available through Challenges and Contests.

Pho3nix may also delete a Student Account on its own initiative if we cease to provide the Student Account Service. If the deletion of the Student Account is due to our cessation of the Student Account Service – the deletion of the Student Account will not take place until the end of ongoing Challenges and Contests.

Deletion of a Student Account is equivalent to the termination of the agreement for the Student Account Service.

2.4.  Use of a Student Account

The provision of the Student Account Service begins when you log in to your Student Account via the Portal or the Application. The Student Account provides access to the following functionality: (a) access to sports and health content published by Pho3nix; (b) viewing of sports and health related videos; (c) receiving notifications of ongoing and future Challenges; (d) access to your statistics (number of points); (e) access to Rankings. Through the App you can also access the functionality of activity tracking to download physical activity data. The use of a Student Account is subject to your compliance with the technical requirements set out in Section 4.1. A Student Account holder may not create more than one such account. You also may not share your Student Account with other Users or third parties or use the Student Accounts of other Users.

2.5.  Points

Points are used for ranking and statistical purposes. You can earn points through the following activities: (a) watching videos; (b) performing physical activity – walking at a rate of 1 point per 1000 steps. Points for watching videos are only awarded during Contests that involve playing videos for Contestants. Points for performing physical activity are awarded both during Challenges for Challenge participants and also off Challenges. The points collected will be saved on the Portal in the User’s account and in the Application in the « wallet » section.

2.6.  Activity categories

Activity categories are granted on the basis of the average number of points scored by Users in a given period of time. Granting or updating a category takes place every day at 00:01 a.m. Granting a category takes place by calculating the average number of points gained by the User in the last 7 days. The User may advance only by one category at a time. There are 4 (four) activity categories having the following point framework assigned to the average daily number of points generated by physical movement over a given period: (a) Walker from 0 to 3.99 points per day; (b) Jogger from 4 to 6.99 points per day; (c) Runner from 7 to 9.99 points per day; and (d) Marathoner 10 or more points per day (maximum 15 points per day).

2.7.  Badges

Through the App, we award Users with virtual badges/orders that reflect their progress on the App (« Badges« ). Badges are awarded as Users complete certain activities on the App (e.g., achieving a certain place in a Challenge or Ranking or completing a certain number of steps). Depending on the type of badge, the award of a badge may or may not be accompanied by the award of additional points. Badges cannot be exchanged by users for Points or awards. A list of badges that you may have earned or may want to earn is under the « achievements » tab. The list of possible badges is updated periodically.

2.8.  Rankings

Through the Application, we allow Users to track their progress in the form of classifications/rankings created taking into account the number of steps they have completed using the Application (« Rankings« ). Users may check their current position in the competition by choosing a Ranking based on territorial (school / national / global) or time criteria (daily / weekly / monthly / all-time).  Rankings can be found in the tab called « rankings ».

2.9.  Challenges

Pho3nix organises challenges via the Application, which consist of a physical activity – walking at set intervals, whereby Student Account holders who are users of the Application are given the opportunity to earn prizes or points (hereinafter « Challenges« ). Challenges may be permanent, one-off or cyclical. Challenges are organised according to the rules set out in the announcements published in the Application separately for each Challenge, which specify inter alia the duration, types of activities, types of prizes or the number of points available, as well as the rules for determining the winners (hereinafter the « Announcements« ). Participation in the Challenge takes place by clicking the « take part » button on the Application screen. Participation in a Challenge that involves physical activity – walking – may only take place through the Application. Announcements are made available for viewing and downloading on the Application each time before the start of the Challenge to which they relate, for a period not shorter than the duration of the Challenge. The prizes will be sent by courier or post to the Challenge winner’s address, which the Challenge winner is required to email us upon receiving notification of victory. Indication of the shipping address for the prize is a condition of awarding and receiving the prize to the winner. Winners of the Challenges who are awarded prizes shall not be entitled to exchange these prizes for prizes of any other kind, nor shall they be entitled to claim any monetary equivalent of the prizes awarded. The decisions regarding the winners of the Challenges are final and binding on the Users participating in the Challenges.

3.     Contests

Pho3nix enables its partners to organise contests through the Portal, where participants can compete for prizes (hereinafter « Contests« ). The Contest may be addressed in particular to schools or other public institutions which participate in actions organized through the Portal, in particular the Pho3nix Active School action. Contests may be permanent, one-off or cyclical at Pho3nix’s discretion. The Contests are organized according to the rules established separately for each Contest, which define, among others, duration, conditions of participation, types of prizes and rules of selecting the winners (hereinafter referred to as « Rules« ). The Rules are available to view and download on the Portal each time before the start of the Contest which it concerns for a period not shorter than the duration of the Contest. Winners of the Contest who are awarded prizes shall not have the right to exchange these prizes for prizes of a different kind, nor shall they have the right to demand payment of the monetary equivalent of the prizes awarded. The decisions regarding the selection of the winners of the Contest to whom the prizes will be awarded are final and binding on the persons participating in the Contest.

4.     Terms of use of the Services

4.1.  Equipment requirements

Please note that use of our Services through the Portal requires you to have: (a) a computer or other media device equipped with one of the following operating systems: Microsoft Windows XP, 7, 8, 10, Vista, Linux, IOS, Android; (b) an active connection to the Internet; (c) an active email account; (d) a web browser version no older than: Chrome 62, Firefox 58, Safari 11, Edge 16; (d) JavaScript enabled; (e) Cookies enabled; (f) screen resolution set to 1024×768 pixels or higher. We are not responsible for technical problems or limitations caused by your computer equipment which make it impossible to use the Portal and the Services we offer.

Please note that in order to use our Services via the Application, you must have a mobile device with Internet access and an Android or iOS operating system. The Application can only be used online. Please note that we do not guarantee that the Application will function correctly without internet access. The minimum requirements to install and run the Application in terms of operating system are: Android 7.1 Nougat (API 25) up to the current version and later and iOS 10 and 11, iPhone 6 – X. It is possible that the Application will operate on mobile devices equipped with older versions of the Android and iOS operating systems than those indicated above, but we cannot guarantee the correctness and security of the Application on such systems.

4.2.  Update of Services

We reserve the right to provide updates (including automatic updates) to all or some of the Services when we think it is appropriate to do so. These may include improvements, modifications, bug fixes, patches and any other improvements or the introduction of new features (the « Updates« ). Some parts of the Services available through the App may not work properly if you do not install all Updates. The Application may also not function properly if you do not allow Updates.

4.3.  Login, password

Access to a Student Account is protected by a login and password. You set up the login and password yourself when you first start your Student Account using the Portal or the Application. You should keep the password you have created secret. In the event of a suspected unauthorised use of your Student Account by a third party or the loss of a device used by you to use your Student Account, you shall notify us immediately in order to block access to your Student Account on the lost device.

4.4.  Maintenance breaks

We reserve the right to make interruptions in access to the Services, including the provision and synchronization of data available in the Student Account, for the time necessary for the proper performance of administrative activities related to the need for changes and maintenance, proper security, archiving and protection of data or related to the update of software or infrastructure used to provide the Services. We make every effort to keep interruptions to the Services as short as possible. Where possible, we will provide advance notice of planned maintenance breaks.

5.     Links, websites and third party services

Our Services may contain links to third party websites, advertisers, services, special offers or other events or activities that are not owned, sponsored, controlled or in any way affiliated with Pho3nix. We do not endorse, recommend or accept any responsibility for any third party websites, information, materials, products or services, and recommend that you review their terms of service before accessing or using them. You access third-party websites, services or content at your own risk and agree that Pho3nix will have no liability arising from your use of or access to them.

6.     Security

Your security is of the utmost importance to us. While we strive to protect the security of your User Content, Pho3nix cannot guarantee that unauthorized third parties will not be able to breach our security measures. Please notify us immediately if you become aware of any breach or any threat or unauthorized use of your User Content.

In the event of a security breach that may affect you in any way, Pho3nix will notify you with details. You will then be asked to follow our instructions immediately.

7.     Complaints

You may submit complaints regarding the Services to Pho3nix’s email address. The complaint should include contact details, a description and reason for the complaint and the claim of the person submitting the complaint.

The User submitting the complaint will be notified of the manner in which his/her complaint has been handled via email sent to the email address of the User submitting the complaint provided in the complaint within 30 days from the date of receipt of the complaint by Pho3nix. Failure to reply within 30 days is equivalent to acknowledgement of the complaint.

8.     Protection and processing of personal data

9.     Personal Data of Users and Guardians are processed according to the principles indicated in the Privacy Policy available at www.pho3nix-kids.com

10.  Termination of the Agreement

Pho3nix and the User have the right to terminate the agreement for the Student Account Service. The User’s termination of the agreement is effected by the Guardian’s deletion of the Student Account in accordance with clause 2.2. Pho3nix may terminate the agreement for the Account Service with one month’s notice for valid reasons, in particular by ceasing to provide the Services.   The termination of the agreement does not affect the User’s rights under the agreement, including the right to complete participation in the Contest or Challenge.

11.  Provisions applicable to the place of residence of the User

The provisions that apply to you if you reside in a country where the provision applies are presented below:

Country	Additional or modified provision
Poland	11.1.               Alternative dispute resolution methods We would like to inform you that you have the right to use out-of-court complaint and redress procedures. Detailed information on the available procedures is given below: the User may use out-of-court means to resolve consumer disputes in accordance with the European Commission’s Online Dispute Resolution procedure available at: https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.show&lng=PL.Detailed information about the possibility of using out-of-court complaint and redress procedures by the User, as well as the rules of access to these procedures are available at the offices and websites of district (city) consumer ombudsmen, social organisations whose statutory tasks include consumer protection, Voivodship Inspectorates of Trade Inspection and at the following website addresses of the Office for Competition and Consumer Protection: (a) http://www.uokik.gov.pl/spory_konsumenckie.php or (b)         http://polubowne.uokik.gov.pl/rejestr,5,pl.html Information on how to access the above mentioned dispute resolution procedures can be found at the following address: https://www.uokik.gov.pl/pozasadowe_rozwiazywanie_sporow_konsumenckich.php There is a Contact Point at the Office for Competition and Consumer Protection which provides information on out-of-court settlements. Contact Point for ADR/ODR (information on ADR entities, assistance in filling in applications), Pl. Powstańców Warszawy 1, 00-950 Warszawa, Tel. 22 55 60 332, 22 55 60 333, E-mail: kontakt.adr@uokik.gov.pl.
Australia	If you think we have breached the Privacy Act 1988 (Cth) or other applicable privacy laws, you can contact us (see Section 12.2)to make a complaint. When you contact us, please include your name and contact details (including your email address, address, and telephone number) and clearly describe your complaint. We will need to share your information with others who can assist in responding to your complaint. We will contact you within 7 days to let you know the next steps in resolving your complaint and to obtain any further information we need to consider your complaint. As soon as reasonably practicable and in any event within 30 days, we will let you know our decision. If you are not satisfied with our response, you may refer your complaint to the Office of the Australian Information Commissioner (www.oaic.gov.au).

12.  Final provisions

12.1.               Amendment of Terms

Without prejudice to your rights, Pho3nix reserves the right to amend these Terms and the Policy at any time, in particular in the event of (a) a change in the law; (b) rulings, decisions, guidelines or recommendations of authorities; (c) a change in the scope of the Services we offer; (d) to change the functionality of the Services we offer; (e) to remove ambiguities in interpretation; (f) to prevent infringement or abuse; (g) to change contact details or URLs; (h) to pursue best practice in protecting your rights or personal data.

Proposed changes to the Terms will be made available on the Portal at least 5 days in advance. Pho3nix will inform the Guardians by email about the planned changes. A Guardian who does not accept the change of Terms may terminate the agreement in the manner specified in section 2.2 above.

 

12.2.               Contact

If you have any questions or concerns about these Terms, please contact us by email at the address dedicated to your country of residence:

– Switzerland: contact_ch@pho3nix-kids.com;

– Poland: pomoc@pho3nix-kids.com;

– United Kingdom: contact_uk@pho3nix-kids.com;

– Australia: contact_au@pho3nix-kids.com

– Spain: contact_es@pho3nix-kids.com

You can also write to us at our Pho3nix Foundation postal address at c/o Iatesta AG, Via Somplaz 1, CH-7500 St. Moritz, Switzerland.