Site Usage Agreement

Accor, represented by the brand IBIS, with a capital of € 689 753 382, registered with the Paris Trade and Companies Registry under number 602 036 444, whose office is located at 2 rue de la Mare Neuve – 91021 Evry Cedex, runs a service available at www.everyoneinpyjama.com whose purpose is to allow its users to participate in the "Everyone in Pyjama – Contest" organized by IBIS.

The hosting and broadcasting of the submitted Works are operated by Eyeka, a French limited company (“société anonyme”), with registered capital of € 237,025, registered with the Paris Trade and Companies Registry under number 488 120 916, whose registered office is located at 34 boulevard des Italiens, 75009 Paris France.

Prior to using the Service, the User must accept the Site Usage Agreement.

IBIS reserves the right to make minor amendments to the Site Usage Agreement from time to time. If possible, IBIS will notify Users of changes to the Site Usage Agreement by email or by making the announcement on the Website. For any changes resulting in a profound change of the Service, IBIS undertakes to submit the amended Site Usage Agreement to the Users for approval.

    Definitions

Within the scope of this Site Usage Agreement, including in the forewords, the following terms and expressions, shall have the meaning ascribed thereto herein below, whether they are used in the singular or plural and in the feminine or masculine form:

"Agreement" means the legal agreement between the User and IBIS that is the result of the Site Usage Agreement agreed by the User. The Agreement shall be effective as soon as the User agrees to the Site Usage Agreement;

"Audiovisual Work" means a work consisting of animated sequences of images, with or without sound;

"Call for submission" mean the competitions organized by IBIS on the Site with a view to select Works and appoint winners from among participating Users;

"Site Usage Agreement" means the terms and conditions of this agreement that set forth the use of the Website;

"Service" means the services provided by IBIS to the Users on the Website consisting of hosting and broadcasting Works and enabling participation in the Call for submission;

"User" means the individual that accesses the Website and creates a User account on the Website after agreeing to the Site Usage Agreement;

"Website" means the technical environment, comprised of hardware, software and databases, enabling the hosting and broadcasting of the Works on Internet networks;

"Works" means the Audiovisual Works uploaded on the Website under the conditions set forth in the Agreement. Only digital Works can be uploaded upon the Website.

  1. Scope of the Site Usage Agreement

The Site Usage Agreement governs the use of the Website as well as of the Service. Accordingly, the Site Usage Agreement sets forth the rights and obligations of the Users. The Site Usage Agreement is legally binding. Therefore, the User should read it carefully before ticking the designated acceptance box to show his agreement hereto. IBIS advises to retain a copy of the Site Usage Agreement.

The User agrees to abide by the Site Usage Agreement throughout the time he uses the Service.

  1. Description of the Service
    1. Posting Works

The Service allows Users to upload, host and broadcast Works on Internet networks.

Each User accesses the Service via his User account. Users are responsible for all activities conducted through their User account under the conditions specified in the Site Usage Agreement.

    1. Call for submission

The User may submit some of his Works to the Call for submission organized by IBIS on the Website. The purpose of the Call for submission is the making of Works that comply with IBIS's guidelines in order to be uploaded upon the Website and then be selected by IBIS.

IBIS's guidelines regarding submitted Works are available in the brief and in the rules of participation which should both be checked out by Users. Agreeing to the rules of participation is the condition for participating in the Call for submission.

The User is informed that the rules of participation contain provisions relating to the use of the submitted Works by IBIS which are described hereafter in Clause 8. Before submitted Works to the Call for submission, the User undertakes to carefully read the rules of participation and undertakes to abide by these rules during the whole duration of his participation.

    1. Global services

Users have access to global services including the possibility to leave comments and to rate the Works and the Users, to share Works with non-User viewers.

Users may broadcast Works on websites other than the Website using the Eyeka Player, via hypertext links generated using the blog function, hereinafter the “Blog This" Function.

  1. Registration and User account

The User may only use the Service once he has created a User account by agreeing to the Site Usage Agreement. When the User registers on the Website, he must choose a username and password in order to access his User account by which he can access all of the personal details as well as his Works.

The User will be responsible for all use of the Website made using his username. Accordingly, the User undertakes to keep his username and password confidential.

When registering on the Website, the User must provide clear and accurate personal details in order to be identified in the event of a dispute. Providing the first name and the surname is compulsory. Any information that turns out to be false or libelous is likely to bring about the closure of the User account.

Unless different provisions, the Service is available anywhere, as long as the minimum technical requirements are met, particularly in terms of access to the Internet, mobile phone network, compatibility of technical equipment used. Given the global nature of the Internet, the User agrees to abide by all the rules of public policy relating to the behaviour of Internet users and enforceable in the country from which he uses the Service.

  1. Procedures for submitting Works

The User submits his Works to the Website by uploading them to Eyeka’s servers using the Website.

The User warrants that the files and data he uploads shall not under any circumstances be originals, but a copy of the originals which shall be retained by the User. The User acknowledges and agrees that IBIS shall not incur any liability for the loss of the files or data submitted to it by the User.

  1. Restrictions on use
    1. Rules of good behavior

a)

When Works are broadcasted via the "Blog This" Function, the User undertakes to avoid publications, websites or any broadcasting spaces whose content thereof or whose editorial guidelines may undermine the honor or reputation of IBIS, its activities or its representatives or if they may constitute illicit content.

The "Blog This" Function may only be used for non-commercial purposes. Accordingly, the User undertakes not to use the "Blog This" Function to link up to commercial websites, including but not limited to professional sales or online service websites, or the websites of a commercial brand or company.

The User undertakes not to use the "Blog This" Function in order to promote a product, service, brand or activity of a commercial nature.

By way of illustration, Users may blog to personal blogs, websites of associations, not-for-profit organizations, etc.

b)

For all uses of the global services, the User undertakes to act with courtesy towards other Users and other Users' Works. Thus, the User abstains from denigration and from publishing messages or comments that constitute pornographic, racist, pedophile content or content that is likely to violate a minor's right; abusive, defamatory, libelous, violating the rules of courtesy; and more generally content breaking the law.

Furthermore, the User undertakes not to upload unauthorized promotional messages; to formulate sexual proposals to an underage; to harass other Users; to give information linking towards other sites (either by hyperlinks or by the provision of information) whose contents would be likely to contravene any law and regulation in force; to upload messages which are likely to attack IBIS's reputation; to propagate rumors; to use the Service for promotional purposes and generally to offer products and services against remuneration in a direct or indirect way, except specific and distinct contract with IBIS; to collect and store personal data related to the Users.

c)

Usernames must abide by these rules of good behavior. Erotic, pornographic, racist, violent usernames are prohibited as well as usernames which copy a commercial brand, a famous brand.

    1. Breaching

Should a User breach these provisions, IBIS would be entitled to, depending on the matter, suspend the User account, close the User account or terminate this Agreement in accordance with the provisions of the Site Usage Agreement on the suspension and closure of User accounts.

  1. Liability and warranty of the User

The User, as editor of the content broadcasted via his User account, is responsible for his Works posted on the Website.

The User undertakes not to violate anyone's rights.

Accordingly, the User undertakes not to upload on the Website illicit content, of any kind or any nature:

  • which constitutes justification of crimes against humanity or war crimes, Nazism, crimes or offences, a denial of the existence of crimes against humanity or known acts of genocide; a violation of human dignity;
  • which is violent or pornographic, pedophile or likely to violate a minor's right;
  • which is a violation of public order or decency;
  • which is defamatory, libelous, is an insult, against anyone, individual or legal entity;
  • which is an infringement of an intellectual property right, an unfair competition ;
  • which is racist, xenophobic, a denial or likely to violate anyone's reputation, which is a provocation of discrimination, hatred or violence vis-à-vis an individual or group of individuals on account of their origin, sex, family situation, physical appearance, family name, health, disability, genetic characteristics, morals, actual or assumed sexual tendencies, age, political opinions, union activities, actual or assumed adherence to an ethnic group, nation, race or religion;
  • which is an invasion of privacy, of private letters, emails, by reason of the unauthorized capture, recording or transmission of words spoken on a private or confidential basis, which violates privacy and right of publicity;
  • which contains any virus, worm, Trojan horse or any computer file or program that is liable to interrupt, destroy or restrict the functions of any computer or IT network that has any (distant or close) relation with IBIS’s activities ;
  • which threatens a person or people ;
  • which encourages to break the law ;
  • which allows a third party to acquire, directly or indirectly, of pirated software, software that allows acts of piracy and intrusion into computer systems and telecommunications, viruses and other logic bombs and generally any software or otherwise attempt to infringe the rights of others and to the safety of persons and property ;
  • which breaks the law.

When uploading his Work and as long as he uses the Website, the User warrants that the Works are not illicit content. Thus, the User undertakes to renew this warrant at each upload by ticking the "I warrant" box (IBIS may change the name of the album without changing its main characteristics).

  1. Reporting a Work as illicit

Anyone who is ascertain that Works that are being broadcasted on the Website are illicit content must notify Eyeka by clicking on the designated icon “Flag this media as illicit” and then by sending a letter registered with acknowledgment of receipt, to the following address :

Eyeka, 34 boulevard des Italiens, 75009 Paris, France.

The User undertakes to provide all necessary information such as:

    • "Everyone in pyjama" Service,
    • date of notification,
    • name, first name, address, nationality, place and date of birth (if it's an individual) or name, legal entity, address of the main office and representative (if it's a legal entity),
    • the Username of the User having uploaded the disputed Work,
    • the recipient's details including company name and place of business,
    • description of disputed facts as well as their location on the Website (including the URL of the page of the Work,
    • the reasons why the Work should be withdrawn, including the reference of legal stipulations and factual justifications,
    • the copy of the message sent to the User having uploaded the disputed Work asking him to suspend, withdraw or modify such content, or the justification that the latter could not be reached.

The “Flag this media as illicit” function is available to Users as well as all visitors of the Website who have not created a User account.

If the notification turns out to be relevant, the Work is withdrawn from the Website as soon as possible after Eyeka receives the alert notification.

Article 6, I, 4° of law 2004-575 of June 21, 2004 states that reporting content or activities as being illicit in order to get this content withdrawn or to suspend the broadcasting of this content, whereas the person knows that this information is not accurate, is likely to bring about a sentence to a one year imprisonment and to a 15 000 EUR penalty fine.

In case Eyeka receives a notification related to justification of crimes against humanity, racial hatred, and pedophile pornography, Eyeka is entitled to disclose it to a judicial authority.

  1. Intellectual property

When participating in the Call for submission, participants grant a non-exclusive licence to IBIS upon the Works submitted to the Call for submission.

This licence is granted for a ten (10) year period from the end of the Call for submission and is granted on a worldwide basis, unless stipulated otherwise in the rules of participation of the Call for submission. They hereby authorize IBIS to broadcast these Works on the Internet networks and to use for internal use for communication purposes, for promotional purposes (promotion of the Call for submission, promotion of the Partner's activities). Users expressly agree to grant this licence on a free basis.

Users undertake to carefully read the rules of participation of the Call for submission before submitting their Works.

  1. Warranties

The User warrants that he has all required authorizations to upload his Works on the Website and that they do not infringe or violate anyone's rights.

The User warrants that IBIS shall peacefully enjoy and exercise the rights attaching to the Works.

Accordingly, the User shall hold IBIS harmless against any disturbance, legal action, complaint, opposition, claim and eviction instigated by a third party claiming that one of the Works breaches his rights, as well as against any loss or liability incurred in connection with the exercise of the rights attaching to the Works.

In this respect, the User warrants that he has obtained written permissions of all the people represented on the Works, or of their contractual or legal representatives, in order to use their image, allowing the User to make commitments under this Agreement. The User irrevocably undertakes to provide at any time any written proof or a copy of all written documents confirming such authorizations.

The User warrants that he is the sole proprietor of the granted intellectual property rights. In the event the User is not the sole proprietor of the aforementioned rights, it irrevocably warrants that, before making the Works available, he has obtained all of the authorizations and rights required from all proprietors of intellectual property rights to the Works or from the copyright collecting societies representing such proprietors allowing the User to make commitments under this Agreement, in its own name and, where applicable, in the name and on behalf of the aforementioned individuals. In this respect, the User irrevocably undertakes to provide any written proof or a copy of all written documents confirming such authorizations.

As a result, the User shall pay all amounts owing to the said proprietors of intellectual property rights and said copyright collecting agencies in respect of the reproduction, representation and exploitation, free of charge or for valuable consideration, of the Works. The User warrants that he has not assigned, licensed or transferred to a third party, by any means, some or all of the rights to the Works, including any right of first refusal, preferential right or option under conditions that would prevent it from entering into this Agreement, and undertakes to refrain from doing so for as long as the User makes its Works available on the Website.

The User is hereby informed that it may incur liability should any of its representations be inaccurate.

If the User is unable to execute these obligations as set out hereinabove, IBIS may suspend or terminate the Agreement.

  1. End of the Agreement
    1. IBIS’s right to terminate the Agreement

IBIS may terminate the Agreement, in whole or in part, as from the effective date hereof, without prejudice to any damages that may be owed to it by the User if the User breaches any of its obligations set out in the Agreement if a formal notice to remedy such breach sent to the User by e-mail remains without effect for eight (8) calendar days.

    1. Users’ option to terminate the Agreement

The User may terminate the Site Usage Agreement at any time after it has come into effect by giving notice of termination to IBIS in accordance with the online termination procedure.

    1. Consequences of the end of the Agreement

The User acknowledges that the termination of this Agreement shall not call into question the contracts and licence agreements concluded by the User when participating in the Call for submission.

  1. Suspension

IBIS reserves the right to suspend access to a User account without compensation, at any time and eventually without prior notice, temporarily or permanently:

    • if the User obviously breaches any clause of the Site Usage Agreement,
    • if the personal information used to create a User account turns out to be false,
    • If IBIS is likely to be liable and if IBIS's reputation is likely to be jeopardized because of the User's use of the Service.

In case a User account is suspended, IBIS sends an email to the User whose User account is suspended in order to let him know that the User account is suspended and the reasons of suspension.

  1. Liability

IBIS shall be liable solely for any direct damages caused on account of a fault committed within the scope of the Agreement. IBIS shall not be liable for indirect damages such as revenue loss, date loss, customer loss, financial or commercial damages, commercial troubles, loss of earnings, or immaterial damage of any kind even in the event IBIS was aware of the fact that such indirect damage could be caused.

It is pointed out the characteristics and the limits of Internet networks regarding the technical safety of exchanges. IBIS shall not be held responsible for the damages related to the risks inherent in any connection and any transmission on Internet. In no event shall IBIS, its officers, directors, employees or agents, be liable for any loss of data (Works, personal details) which is uploaded onto IBIS's hosting service. The User is responsible for saving a backup copy of all files and data he wishes to retain.

IBIS shall not be liable for any illicit uses of the Works by the Users, or any third party. IBIS shall not be liable for the contents available on other internet sources or accessible by the inserted hypertext links on the Website (including comments left by Users, Works, details written by Users on their User account).

IBIS makes no warranty and shall not be held liable for any problems that arise in connection with the broadcasting of the Works or the comments or, more generally, for any problem on the Internet which affects the use of the Service, in particular, the broadcasting and uploading of the Works. IBIS makes no warranty regarding the supply of an uninterrupted service and cannot guarantee that the Users will have access to all of the services offered at any place inasmuch as the minimum technical requirements enabling access to IBIS's applications are not its responsibility.

  1. Personal details

In accordance with French Data Protection Act no. 78-17 of 6 January 1978 (loi relative à l’informatique, aux fichiers et aux libertés), the User has a right to access, amend, rectify and delete his personal details via his User account or by writing to : Accor — Direction des Ventes Internet — Immeuble Odyssey — 110 av de France — 75210 Paris Cedex 13, France.

  1. General clauses
    1. Sub-contracting

The User expressly authorizes IBIS to sub-contract some or all of its commitments arising hereunder.

    1. Evidentiary value

The parties agree that they may exchange the information they require to perform the Agreement by e-mail. Any e-mails exchanged between the parties shall be deemed to have the same evidentiary value as a written hard copy document.

    1. Independent contractors

The provisions of the Site Usage Agreement by no means constitute a partnership agreement, agency agreement, relationship of subordination or joint venture between the Parties.

    1. Assignment of the Agreement

IBIS may assign its rights and obligations arising hereunder, in whole or in part, to any legal entity of its choice without the prior consent of the User.

    1. Severability

If any substantive provision of the Site Usage Agreement shall be held to be invalid or non-existent, in whole or in part, by virtue of a statutory or regulatory provision or final court order, the other provisions hereof shall remain in force and shall remain fully binding on the parties.

    1. Tolerance

In the event either party fails to rely on a breach by the other party of any of its obligations hereunder, it shall not be deemed to have waived the obligation at issue.

    1. Intellectual property owned by IBIS

The use of the Service shall not be construed as an authorization for the User to use or to be granted a right upon IBIS's intellectual property assets such as works, inventions, compilations, slogans, logos, software, drawings and designs, trade marks, domain names.

IBIS shall retain all of its rights upon its intellectual property.

  1. Governing law

The Agreement shall be governed by French law.

  1. Voluntary settlement of disputes

In the event a problem arises in connection with the performance of the Agreement, before the Agreement is terminated, cancelled and/or the subject of legal proceedings, the parties agree to attempt to settle the matter out of court.

In this respect, the party that wishes to implement the voluntary conciliation procedure shall notify the other party of its intention to do so and specify the problems that have arisen.

Throughout the duration of the problem, the parties agree that the continued provision of the services provided for herein shall be the most important consideration.

If the parties fail to reach an agreement within fifteen (15) days, the parties shall recover all of their rights.

  1. Jurisdiction

IN THE EVENT THE PARTIES FAIL TO AMICABLY SETTLE ANY DISPUTE WHICH ARISES IN CONNECTION WITH THE PREPARATION, INTERPRETATION OR PERFORMANCE OF THE AGREEMENT, THE PARTIES AGREE THAT THE COURTS OF PARIS SHALL HAVE EXCLUSIVE JURISDICTION, NOTWITHSTANDING MULTIPLE DEFENDANTS OR THIRD PARTY PROCEEDINGS, INCLUDING FOR URGENT PROCEEDINGS.

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