1. LEGAL INFORMATION
These Terms and Conditions (the “T&Cs”) are proposed by BROCELIAND (“Pearltrees”), a French Joint Stock Company with a share capital of 685 442,20 euros registered in Paris, France under no. 504 599 267 with a registered address at 129 Boulevard Saint-Germain, 75006 Paris, France.
Pearltrees can be contacted at the following e-mail address: firstname.lastname@example.org.
Pearltrees owns and publishes the http://www.pearltrees.com Platform (the “Platform”).
The Platform is hosted by NERIM SAS, domiciled at 102 avenue du Président Kennedy, 75016 Paris, France, which can be contacted on the following non-premium rate telephone number: +33 1.80.40.05.50.
The publishing manager (“directeur de publication”) of the Platform is Mr. Patrick Lamothe.
2. DEFINITIONS – INTERPRETATION
Throughout these T&Cs, the following terms, when depicted with a capital first letter, whether in the singular or in the plural form, shall have the meanings that are set out below:
Shall mean the collections of digital content created and published by the Users in the Account by aggregating various content (video, images, web pages or texts) available online from the Platform itself or from third party sites, or uploaded by the Users to their Account.
Shall mean the legal entity that has subscribed to the Service offered by Pearltrees and that provides access to the Platform to its Users.
Shall mean the part of the Platform that is accessible to the Users, managed by the Enterprise and hosted by Pearltrees.
“Intellectual Property Rights”:
Shall mean all proprietary rights and interests of any kind, whether owned or held under license, that exist on the date of these T&Cs or that arise from same, including over any original work, invention, improvement, production know-how, technology, production secret, trademark, patent.
Shall mean the personal identifier and the password linked to the User’s Account. The Identifiers may be chosen directly by the Users or may be provided to the Users by the Enterprise.
Shall mean Pearltrees, the Enterprise and the Users of the Service.
Shall mean any person, including a minor, who accesses and uses the Platform and/or the Account.
Shall mean the service provided by Pearltrees enabling the Enterprise to create a collaborative working space on the Platform.
The present T&C’s shall have for purpose the provision of contractual terms under which Pearltrees provides access to the Enterprise and the Users to the Service “Pearltrees Enteprise”.
4. APPLICABILITY OF THE T&Cs
In order to access the Platform and the Account, Users must be acquainted with, understand and accept these T&Cs.
The Enterprise represents and warrants that its Users shall comply with the provisions of these T&Cs.
Acceptances of these T&Cs by Users implies that they have the full legal capacity or that these T&Cs have been accepted on their behalf by a guardian or tutor if they do not have legal capacity or are minors. In this respect, the Enterprise hereby declares that it has all the requisite legal authorisations to enable Users who are minors to access the Account and use the Service.
Pearltrees shall be entitled to modify these T&Cs at any point in time, in order to adapt them to the changes in its Platform and/or its Service, but also in order to take into consideration any changes in the laws or regulations.
Should any of the Parties fail to avail themselves of a given provision of these T&Cs at any point in time, this shall not be interpreted as being tantamount to a waiver of their right to avail themselves subsequently of any provision of these T&Cs.
Should any provisions of the T&Cs turn out to be inapplicable for any reason whatsoever, such as due to an applicable statute or regulation, the Parties shall remain bound by the other provisions of the T&Cs and shall endeavour to remedy the inapplicable clauses in the spirit that prevailed upon formation of the contract between them.
5. CREATION OF AN ACCOUNT
Access to the Service is subject to the acquisition of a paid licence by the Enterprise allowing Users to create an Account on the Platform.
Upon submitting a request for the opening of an Account, Users must fill in a registration form and must choose a set of Identifiers. Users may also interface with an account already created with the Enterprise, in order to be able to connect to the Account on the Platform.
The Users specifically undertake not to create fake identities to deceive third parties and not to steal the identity of another person. The Users undertake to immediately update the data that they shall have disclosed initially, in case of a change in their circumstances.
It is the responsibility of the Users who are registered to keep their Identifiers confidential. Pearltrees hereby disclaims liability for any loss or damage arising from the demonstrated negligence of any Users in protecting their connection Identifiers and/or the personal data linked to their accounts.
The Users shall moreover be responsible for any use of their Identifiers, for instance if they pre-record their Identifiers on their computer, smartphone or any other type of terminal, to enable automatic connection to the Account.
Any access to the Platform and to the Account, any use of the Service or in general any data transmission performed using a User’s Identifiers, shall be deemed to have been performed by that User. The Users must ensure that they disconnect effectively from the Account at the end of each session, particularly when accessing the Service from a public computer.
6. THE USERS’ OBLIGATIONS
The Users undertake to comply with the terms of these T&Cs and to use the Service in accordance with their provisions.
The Enterprise represents and warrants that its Users shall comply with the provisions of these T&Cs when they use the Services.
6.1. General use of the Service
As part of their use of the Service, Users must not:
- Open more than one User account or open an account usurping the identity of a third party,
- Use the Service to disseminate inappropriate content (content that is illegal, defamatory, insulting, racist, pornographic or runs counter to human dignity, or any other content that may cause its Enterprise to incur civil or criminal liability),
- Use the Service for fraudulent or illegal purposes.
6.2. Rules applicable to the content aggregated within the Collections
Users may freely choose to aggregate any content into any Collection that is published in the Account.
Users must however check the content that they choose to make available and must not publish a Collection that aggregates content:
- That can be construed as an apology for crimes against humanity or war crimes;
- That violates the respect and dignity of human beings, the protection of children and teenagers, e.g. violent, pornographic or paedophile messages;
- That runs counter to the public interest or to public morals;
- That is threatening, insulting, constitutes harassment, is defamatory or harmful;
- That constitutes an infringement of intellectual property rights, an act of unfair competition or a parasitic trade practice;
- That causes or incites discrimination, hatred or violence on account of people’s origin, gender, state of health, political or union affiliation;
- That violates people’s privacy;
- That encourages people to commit crimes, misdemeanours or acts of terrorism;
- That violates the secrecy of private correspondence;
- That provides access to computer viruses or any other code or program designed to interrupt, destroy or limit the functionality of any software application, computer or telecommunication tool, this list not being exhaustive;
- That enables a third party to directly or indirectly procure pirated software, software applications used to commit acts of piracy and intrusions into computer and telecommunication systems, and in general any software or other tool that can be used to infringe the rights of others and the security of people and property.
The Users acknowledge and agree that they shall be fully and solely responsible for the content and the consequences of its aggregation and dissemination as part of their Collections. The Users hereby declare that they hold all the requisite elements (rights, licenses, consents and/or permits) to enable them to disclose their content. Conversely, the Users undertake not to publish any content comprising elements that they are not legally authorised to hold.
The Users may be held liable for any content that infringes the rights of other persons or the applicable laws, including the rules governing the rights over a person’s image and the intellectual property rights over any shared content.
7. RESCISSION AND SUPENSION
If, for any given reason, Pearltrees considers that a User is not complying with these T&Cs, including the obligations that are listed above, Pearltrees may at any point in time, and at its entire discretion, eliminate or suspend the User’s account and take all requisite legal measures against that User, bearing in mind that no decision shall be taken without first informing the Enterprise and the User, giving them a reasonable period of notice to remedy the violation, save in case of gross misconduct by the User.
Pearltrees shall be entitled to retain evidence of the violations that are witnessed by archiving them with a third party service provider for as long as is necessary to resolve the dispute.
Should Pearltrees be compelled to irrevocably terminate the provision of the Service, the Users shall be informed beforehand by any means within a reasonable timescale in order to enable them to organise the transmission and portability of their data and content towards another medium.
Users (except the students of the Enterprise) may close their accounts from their profile at any point in time. All the data linked to their accounts shall then be eliminated unless the User request the portability of its data.
Pearltrees shall be liable to the Enterprise and the Users for the proper performance of the obligations arising from these T&Cs.
Pearltrees shall not be liable for any failure to perform these T&Cs that may be blamed on the Enterprise, a User, a third party to this contract, or any event that is beyond its control and that cannot be reasonably foreseen.
In its capacity as a mere service provider, Pearltrees hereby disclaims liability for any information, messages and publications disclosed by the Users in the Account and for the Collections published by the Users, such as on account of the content aggregated within these Collections.
Pearltrees shall do everything in its power to guarantee uninterrupted access to the Platform and to the Account and continuous provision of the Service but may not under any circumstance bear liability if, due to any unavailability linked to maintenance operations or to a failure of the Internet network or any other reason beyond its control or force majeure, a User cannot temporarily access the Platform and/or the Account.
Similarly, although Pearltrees does everything possible to ensure the security of the information and data stored on its Platform, it cannot guarantee the lack of any risk of intrusions, data piracy or contamination by computer viruses pursuant to using the Platform. It is therefore up to the Users to take all the necessary precautions for ensuring the security of their data and the protection of their computer systems against contamination by viruses or other forms of attacks that may occur upon the use of the Platform.
9. REPORTING INAPPROPRIATE CONTENT
9.1. Clearly unlawful content
In its capacity as the host as per France’s law no. 2004-575 of 21 June 2004 for promoting trust in the digital economy (“LCEN”), Pearltrees must withdraw any content that is clearly unlawful and that is notified to it in keeping with the formalities laid down by article 6-1-5 LCEN.
Should Users detect any clearly unlawful content while browsing the Account, they should contact the Enterprise first of all, but may also report the content to Pearltrees by sending a notification to email@example.com
Pearltrees undertakes to promptly de-reference the content that is reported, if it is clearly illicit and the alert notification comprises the following elements:
- The date of the notification;
- If the notifying party is a natural person: their first names, family name, profession, domicile, nationality, date and place of birth; if the notifying party is a legal person: its form of incorporation, company name, registered headquarters and the body that represents it legally;
- The names and domicile of the recipient, or in the case of a legal person, its name and registered address;
- A description of the contentious facts and their precise location;
- The reasons for which the content must be withdrawn, comprising a statement of the relevant legal provisions and evidence of the facts;
- A copy of the letter or message sent to the author or the Enterprise of the contentious information or activities, requesting them to cease and desist, withdraw them or modify them, or evidence of the fact that the author or the Enterprise could not be contacted.
10. INTELLECTUAL PROPERTY
10.1. Intellectual property rights over the Platform and the Account
Pearltrees shall retain exclusive ownership of all the elements comprising the Platform that are protected by Intellectual Property Rights (including all computer code, design elements, functionalities, photographs, logos and any content that is made available to the Users directly by Pearltrees).
Any extraction, reproduction, showing, adaptation, modification, translation, transformation, broadcasting, integration into other elements, de-compilation, commercial use of all or part of the elements of the Platform and/or of the Account, as well as of the data and databases that may be gathered and processed by the Platform and/or the Account, shall be strictly prohibited.
Subject to compliance with these T&Cs, Pearltrees also grants the Users a right to access and to use the Platform and the Account and the elements reproduced for their personal, non-commercial use and for purposes in keeping with the normal purpose of the Service, for duration of its subscription to the Service.
The “Pearltrees” name and trademark, the logos, the drawings and models, stylised letters, figurative trademarks, and all the signs shown on the Platform are and shall remain the exclusive property of Pearltrees. The Users may not use the company names, trademarks and distinctive signs belonging to Pearltrees save with its prior, express consent.
10.2. Intellectual property rights over the content of the Collections
Given that Pearltrees does not check the content that is aggregated and shared in the Collections, the Users shall be fully responsible for the Collections that are published in the Account.
The Users hereby undertake to ensure that any third party content that is aggregated in the Collections that they publish in the Account shall not infringe the rights of any third parties, such as their intellectual property rights, and that they shall be entitled to reproduce them and/or to disseminate them to members of the public over the Internet, unless this content is royalty-free.
The Users therefore guarantee Pearltrees against any challenges, claims of ownership and legal or extrajudicial actions concerning the abovementioned content and undertake to compensate Pearltrees in full for any costs and losses that it may incur as a result.
When they publish a Collection in the Account, the Users grant Pearltrees a non-exclusive right to use this Collection free of charge, enabling Pearltrees to use, to communicate to members of the public, to reproduce, to adapt, to modify, to transmit and to disseminate this Collection on any medium, worldwide, for the legal duration of the protection of the intellectual property rights.
11. DATA PROTECTION
The Users are hereby informed that Pearltrees process their personal data on behalf of the Enterprise.
In its capacity as data controller, as per the meaning of this term in the applicable data protection rules and regulations, the Enterprise shall also be liable for the processing of the Users’ personal data. Pearltrees acts as the data processor of the Enterprise within the meaning of data protection laws.
In accordance with France’s data protection law of 6 January 1978, as subsequently modified, Users have a right to object to, to access, rectify, port and request the erasure of their personal data, as well as a right to oppose its processing on legitimate grounds, by contacting the Enterprise of the Account or Pearltrees:
- by sending a letter by post to Pearltrees, 129 boulevard Saint-Germain, 75006 Paris, France,
- or by sending an e-mail to firstname.lastname@example.org.
12. THIRD PARTY SITES
The Platform and the Account may comprise hypertext links pointing to third party sites. The links pointing to these third party sites do not imply any approval of these third party sites by Pearltrees. Pearltrees has no control over the information, products and/or services proposed by third parties on the abovementioned sites, and hereby disclaims any liability in this respect.
Pearltrees moreover hereby disclaims liability for any hypertext links that the Users may choose to aggregate into the Collections that they publish in the Account, whether these links are simple or embedded links. In this respect, Users must perform the requisite checks in order to ensure that their hypertext links do not point to Platforms or content that are illegal or that violate the rights of third parties.
Pearltrees finally disclaims liability for any gathering and transmission of personal data, insertions of cookies or any other process intended for the same purposes, by these third party sites.
13. applicable law and settlement of disputes
These T&Cs are governed by French law.
The rules of conflict of laws shall not apply and French law alone shall apply to the relationship between the Parties, without any reservations, unless the applicable public interest provisions of the country of residence of a User require the application of other rules, and these provisions cannot be set aside by contract.
In the event of a dispute, the Users may resort to contractual mediation or any other alternative mode of settlement of disputes. The User can seize the consumer ombudsman designated by Pearltrees by accessing the following address: www.medicys.com. The European Commission publishes an online settlement of disputes platform to which the Users may refer, that is accessible here: http://ec.europa.eu/consumers/odr/.
Should the Parties fail to reach an amicable settlement or a settlement through mediation, their dispute shall be brought before the courts of Paris, France, which shall have non-exclusive jurisdiction. This clause may not however prevent the Users, acting in their capacity as consumers, from vindicating their rights before any court that has territorial jurisdiction under the civil procedure rules that are applicable or before the courts of the place where they resided at the time of the signature of this contract.