General terms and conditions of service and use of the platform
THE HOPE GALLERY
THG is a simplified joint stock company, with a share capital of €15,000, whose registered office is located at 26, rue Burdeau – 69 001 LYON, and registered in the Trade and Companies Register under number 852 231 752 RCS LYON (hereinafter “THG”), benefiting from the status of intermediary in participative financing (IFP), registered as such in the ORIAS register under number 19006325.
THG is a company involved in the organization of public or private operations of collective digital revelations of works of art, for the purpose of participating in the financing of solidarity actions.
Within the framework of its activities, THG has designed and developed a SaaS solution accessible at the address https://www.thehopegallery.com/fr and/or any suffixes and/or access fields that would refer to this address, as well as via any application on mobile telephony, tablet or computer, allowing in particular the digitization of the collection of donations and assistance with financing (the Platform).
**The Platform consists of a service for putting people in touch with each other in order to make donations. The Platform does not constitute an intermediation service for users in terms of taxation, nor does it replace the need to finance any action.
**It is reminded that any payment of donations must be made exclusively with a liberal intention.
**THG is an organization that collects donations on behalf of the beneficiary identified for each campaign in the sense of tax regulations.
Payments made to the collecting organization open, subject to their eligibility, the right to the tax benefits provided for in Article 200 of the CGI, Article 238 bis of the CGI and Article 885-0 v bis a of the CGI, when the final beneficiary of the donations is itself eligible for the sponsorship regime and on condition that the donation remains individualized in a special account within the accounts of the collecting organization until it is actually handed over to the final beneficiary. **If the payments are eligible according to the texts in force, the tax receipt is issued by the final beneficiary of the donations and not by THG.
Insofar as the campaign provides for such a gamble, unless the pixelated work is revealed following the achievement of the objective set before the donation campaign by the beneficiary of the said donations, in application of the provisions of article 6.1 hereafter, neither the beneficiary of the donations, nor the artist, nor THG shall be obliged to gamble the work donated by the artist under the campaign in the context of a draw. No claim, indemnification, compensation or obligation in kind shall consequently be validly received in this regard.
**Please read the TOS very carefully before attempting to access the platform.
**The acceptance of the TOS by the users, which must be done before any use of the platform, is legally binding on the users.
**If you do not agree with all or part of the TOS, it is your responsibility not to use or to cease all use of the platform.
These General Terms of Service and Use constitute, together with the presentation of the service offered by THG, consultable on the website accessible at the addresshttps://www.thehopegallery.com/frand/or any suffixes and/or access fields that would refer to it, binding contractual provisions and define the terms and conditions of use of the Platform (the “GTUA”).
The rights to the Platform are reserved. No provision of the GCSU shall imply any transfer of property rights on all or part of the elements of the Platform.
**Any User is deemed to have read the GTUs carefully before accepting and using the Platform, and to have retained a copy.
1. INTRODUCTORY PROVISIONS – DEFINITIONS
**1.1. **The TOS represents the contract between THG and the User. They are applicable to all uses of the Platform. **The User acknowledges that he/she has had sufficient time to consider the terms of these GTUs before committing him/herself.
The GCSU contain the information and data referred to in the provisions of the Consumer Code, including in particular
The identity of THG, its postal and electronic address, its activities;
The legal guarantees;
The conditions for terminating an account on the Platform.
Means the user, who has used or is using the Platform and/or any other persons visiting the Platform.
User means both donors and recipients of donations, for the sole purpose of receiving donations from donors.
Any use of all or part of the elements of the Platform is conditional upon the acceptance of the TOS, which constitutes a firm commitment to THG.
Refers to each donation campaign organized by THG, on behalf of one or several beneficiaries of donations, with a view to participating in the financing of an associated solidarity action, carried out by means of the Platform.
Refers to a fragment of the Work revealed by the User.
Refers to the artist’s work donated in the context of a Donation Campaign, in original or reprographic form, as specified by THG for each Donation Campaign. No User, whether a donor or a beneficiary, can claim any right to an original Work, since the Work donated by the artist is a reprographic copy, or even to any literary and artistic property right concerning the donated Work.
Refers to Stripe, 3180 18th Street - CA 94110 San Francisco, United States, as THG’s payment intermediary, which THG uses for the purposes of paying the donations.
Refers to all raw data such as, but not limited to, any information, geographical positions, results, studies, protocols, profile sheets, images, videographs, files, reports, graphic charts, diagrams, drawings, models, etc., that THG may use, within the framework of the use of all or part of the Platform, by the User, as well as any information put online, directly or indirectly.
Refers to the services inherent to the Platform and, in particular, the services of organization, connection and follow-up of the operations.
The Services offered by THG are listed and developed on the website accessible at the address https://www.thehopegallery.com/fr and/or any suffixes and/or access fields that refer to it.
2. EXCLUSIVE PURPOSE OF THE PLATFORM – STATUS
**2.1 Users acknowledge and expressly accept that the Platform is only intended to enable Users to get in touch with each other, for the purpose of participating in the financing of the actions of the beneficiaries of the donations. The details of the Platform’s functionalities are listed in Appendix 1 hereto.
**In this context, THG is and can only be held to an obligation of means in this context, related to the accessibility and operation of the Platform.
**No other guarantee is given by THG through the access and/or operation of the Platform.
The lotteries, games and contests that may be organized by THG, in the context of a Donation Campaign, by which the User whose Pixel has been drawn wins the Work donated by the artist, are, in accordance with the regulations in force, authorized by the town hall of the place where THG’s head office is located, on October 11, 2019 (CERFA 11823*03), in the light of the solidarity, humanitarian, social and/or general interest purposes of the action defined by the beneficiary, whose Donation Campaign is organized by THG.
2.2. No provision of these GTUs, nor any other agreement, shall be deemed to place THG and the User, regardless of its status, in the framework of an association, company, EIG, enterprise or any de jure or de facto grouping or agency or commercial representation relationship, employee relationship or the like. Neither THG nor the User shall have the right or authority to undertake anything that may create any obligation on the part of either of them.
**2.3 THG shall not be liable for any transaction carried out between Users and/or between Users and/or the Payment Intermediary, via the Platform or any other means outside the Platform.
It is the responsibility of each User to engage the personal liability of the User(s) and/or Payment Intermediary involved, in case of infringement of the rules of law as well as of the contract concluded between them, whatever the basis (civil, criminal, etc.) or the date.
2.4. In the same sense, the Platform contains elements and contents that are third parties to THG. THG assumes no responsibility for these elements and contents. The presence of these elements and contents does not mean that THG approves, in any way, all or part of them. Nor is THG responsible for any modification or update of these elements or contents, nor for the transmission of information from them, nor for their malfunction or execution.
**2.5 Users acknowledge and expressly accept that notices may be posted on the Platform regarding a given transaction, THG and/or the Services offered by the latter.
**2.6. No exploitation of the Platform is allowed outside the terms of the GTUA.
3. TAXATION OF DONATIONS **3.1.
**3.1 Donors, taxpayers domiciled in France who make payments, donations and contributions, or who expressly give up income or products to organizations defined in Article 200 of the General Tax Code (CGI), can benefit from the tax reduction provided by the texts in force, as long as the organization receiving the donations meets the legal criteria.
**In the event of eligibility for the tax reduction provided for by the texts, the limitations and ceiling provided for will apply without reservation, so that the donors will not be able to derogate from them under any circumstances, nor claim any right, indemnity or compensation in the event of non-compliance.
As of the date hereof, the rate of the income tax reduction is equal to 66% of the amount of the sums taken within the limit of a global ceiling of 20% of the taxable income which correspond to donations and payments, including the express abandonment of income or products, made by taxpayers domiciled in France within the meaning of Article 4 B of the CGI for the benefit of the works or organizations mentioned in Article 200 of the CGI. This rate is raised to 75% for payments, up to a ceiling that is revalued each year, made to non-profit organizations that provide free meals to people in difficulty, that help to promote their housing or that provide, primarily, the free care mentioned in 1° of 4 of Article 261 of the CGI to people in difficulty.
**In any case, the benefit of the income tax reduction is granted only on the condition that the payment, whatever its form, is made with a liberal intention, i.e. without any direct or indirect counterpart for the benefit of the person who makes it, as this notion is specified by the administration.
The existence of such a consideration is assessed according to the nature of the advantages possibly granted to the donor.
Insofar as such a draw is organized, and unless the donor expressly waives his or her right to win the donated Work, the winner of the draw who, according to the interpretation of the texts in force, no longer has a liberal intention, because of the consideration of the Work received, will not be entitled to any tax reduction and consequently, to any tax receipt, regardless of the amount and the number of donations made for a given Campaign.
**3.4. **In accordance with the provisions of Article 200, paragraph 5 of the French General Tax Code, taxpayers who wish to benefit from the tax reduction for donations they make, subject to their eligibility which must be assessed in relation to each donation campaign in question, must attach to their tax return supporting documents (receipts) in accordance with a model set by the Order of June 26, 2008 (J.O. of June 28, 2008) mentioning the amount and date of the payments as well as the identity of the recipients.
**Failing this, the tax reduction will be refused without prior proposal for rectification.
**3.5. **Organizations whose activity consists in collecting funds for a third party are not eligible for the sponsorship regime and cannot issue tax receipts. However, payments made to the collecting organization are eligible for the tax benefits provided for in articles 200, 238 bis and 885-0 V bis A of the French General Tax Code when the final beneficiary of the donations is itself eligible for the sponsorship scheme and provided that the donation remains individualized in a special account within the accounts of the collecting organization until it is actually handed over to the final beneficiary. In this case, the tax receipt must be issued by the final beneficiary of the donation (RM Muriel Marland-Militello, published in the JO on 23/11/2010 page 12711).
**3.6. In its capacity as a collecting organization, THG cannot issue tax receipts to donors in its name.
**Only the beneficiaries of donations, whose actions are the subject of the Giving Campaign, may validly issue and deliver tax receipts corresponding to the donors’ donations, subject to their eligibility.
**3.7. **For the purposes of issuing tax receipts by donation recipients, Users expressly grant THG the mandate to collect and transmit to said donation recipients their personal data required for this purpose.
To this end, the User hereby grants THG the power to collect, in its name and on its behalf, all necessary data for the purpose of establishing the data and to transmit these data to the beneficiaries of donations, for the establishment of eligible tax receipts.
**The mandate given by the User to THG is valid for the donation in question only, within the framework of an obligation of means and without any other purpose or guarantee than the transmission to the beneficiaries of the donations.
**The User undertakes to ensure that the personal data and information concerning him/her are complete, accurate and authentic, in accordance with the conditions of article 4.3 below.
**4. CONDITIONS OF REGISTRATION AND ACCESS TO THE PLATFORM – USER ACCOUNTS
**4.1. **All Users acknowledge that they have the skills and equipment (computer, software, means of telecommunication) necessary to operate the Platform. In any case, Users must personally assume all costs related to this equipment (telecommunication costs, etc.).
**4.2. **Users, upon acceptance, who wish to access and use the Platform must first:
(i) complete all mandatory fields concerning their personal information (at least name and email),** ** (ii) expressly accept the terms and conditions of the Agreement
(ii) expressly accept these GTUs.
**4.3. **Every User, upon acceptance, declares and guarantees that all information provided in the context of the registration, creation and management procedures of the User account is complete, accurate and authentic. The information provided by them is binding.
**The User will not be entitled to any rights in the event of an error, in particular if any of his/her information is inaccurate, incomplete and/or false, which compromises the notification of the prize resulting from the draw organized by THG at the end of the Donation Campaign, and thus the prize itself. The User acknowledges and accepts that he/she may consequently lose the benefit of the prize obtained if any of his/her information is inaccurate, incomplete and/or false. **
Users agree to update their personal information in the event of any modification or change affecting their personal situation and/or the elements declared above.
THG will be entitled to suspend, block, deactivate and/or delete any access to the Platform for which, after THG has requested explanations from the User concerned, the information provided is not complete, accurate or precise. Furthermore, THG reserves the right to ask any User at any time, in accordance with the legal provisions in force, to respond and/or produce any evidence to demonstrate the sincerity of the information listed above. Each User agrees to provide, at THG’s first request, the elements requested by the latter.
**THG reserves the right to ask any User at any time during a period of ten (10) years from the termination of the GTUs, whatever the cause or date, to answer and/or produce any evidence to demonstrate the sincerity of the information listed above and/or his prior acceptance of the GTUs.
THG will never be held responsible in case of failure of any User in this respect, both in form (failure to produce the requested elements, incompleteness of the elements provided or insufficiency of all or part of these elements in relation to THG’s requests) and in substance (failure to verify the sincerity of the information in question and/or prior acceptance of the GTUA).
4.4. THE FINALIZATION OF EACH REGISTRATION IS CONDITIONED BY THE EXPRESS ACCEPTANCE OF THE GSU BY THE USER, FOLLOWING ACCEPTANCE. 4.5.
**4.5. For any question related to his registration on the Platform, the User is invited to contact THG at the email address [email protected] or by phone (toll free) at +33 (0)7 60 22 44 79 (article L. 121-18 of the French Consumer Code).**5.
5. TERMS OF PAYMENT OF DONATIONS **5.1.
**5.1 Any User who wishes to use the Platform and make a donation for a collective digital revelation of a work of art, for the purpose of financing one or more actions, must pay the corresponding amount of his or her donation via the Payment Intermediary.
5.2. **Any donation is made on a firm and definitive basis. No restitution will be possible other than in accordance with the law.
**5.3 The payment of donations is made via the Payment Intermediary, The User is expressly informed and accepts that the terms and conditions attached thereto are managed by the said Payment Intermediary, via dematerialized means of money.
The user therefore contracts directly with the payment intermediary for the payment of donations, accepting its general conditions, accessible at the following address:https://stripe.com/fr/ssa** through a box to be checked during registration and before any access to the platform.**
For any question about the payment of their donation(s), the User is invited to contact the Payment Intermediary, the company Stripe, in accordance with the contact details indicated in its general conditions or via its contact section:https://support.stripe.com/contact/login
5.4. For any question related to the donation as such, the User is invited to contact THG at the email address [email protected] or by phone (toll free) at +33 (0)7 60 22 44 79 (article L. 121-18 of the French Consumer Code).
6. REVELATION OF THE WORK – CONDITIONS OF THE DRAW **6.1.
**6.1. **The Donation Campaign closes when the Pixelized Work, donated by the artist as part of the Donation Campaign, is revealed to the donors, following the achievement of the donation objective set before the Campaign by the beneficiary of the donations, and materializing by the revelation of one Pixel per donation received.
**6.2. **Otherwise, the Donation Campaign ends on the last day of the period of the upstream campaign set by the beneficiary of the donations and appearing on the online information attached to each given campaign. The Work will then be disclosed to the donors at the end of the Campaign.
6.3. ** Provided that the Campaign expressly provides for it, at the end of the Campaign a draw among the donation Pixels may be organized by THG, according to the rules set forth in Appendix 2, with the Work itself as the prize, subject to the disclosure of the Pixelized Work, following the achievement of the donation objective set beforehand by the Beneficiary, by application of the provisions of Article 6.1 above.
**6.4. **The winner of the draw will thus receive the Work of the artist donated to support the action of the beneficiary of the donations.
The winner cannot benefit from the tax reduction attached to his or her donation, given the consideration received, corresponding to the winning of the work.
**6.5. **The winner of the draw must have provided accurate, complete and authentic information. Failure to do so will result in the winner losing the benefit of the prize and will not be entitled to claim it.
**6.6. In the event that the Donation Campaign has ended without reaching the objective of donations set by the beneficiary at the end of the period determined in the same way, by application of the provisions of article 6.2 above, it will be up to the beneficiary of the donations and the artist in question to determine whether they wish to put the Work into play within the framework of a dedicated draw.
**The recipient of the donations and/or the artist remain free to determine whether or not to enter the Work in such a draw.
No compensation or indemnification will be given to any of the donors in the event that the beneficiary of the donations and/or the artist decides not to put the Work into play and, by the same token, that the said beneficiary keeps the Work. The donation made by the donors being, in accordance with the regulations in force, proceeding from an exclusively liberal intention.
Depending on the amount reached by the Donation Campaign, in the light of the objective set upstream by the beneficiary of the donations, the latter may, if necessary, alternatively decide, without being obliged to do so, and in any case subject to the agreement of the artist, to organize a draw involving not the original medium of the Work donated in the context of the Campaign in question, but reproductions of the said work.
Services are understood to be those provided by THG to Users via the Platform.
The deadlines are indicative and are not binding on THG.
THG is bound by an obligation of means with respect to the performance of any Service.
**8. USERS’ COMMITMENTS - PROHIBITED USES
Users acknowledge that the rights to the Platform are reserved.
Each User is solely responsible for his or her use of the Platform.
**The Platform must be used by any User for the sole purpose and scope described in the preamble and in Article 2 above, to the exclusion of any other purpose than those expressly provided for in the GTUA.
All Users shall refrain, in the context of accessing and/or using all or part of the Platform, from engaging in acts of any nature whatsoever that would be contrary to French legislative and regulatory provisions and/or would infringe public order or the rights of a third party.
In addition, without this list being exhaustive, all Users are forbidden to:
use all or part of the Platform in an illegal or fraudulent manner, or for illegal or fraudulent purposes or effects
to use all or part of the Platform other than in the context of normal use, it being specified that any use and activity deemed disproportionate or unfounded will be considered as not falling within normal use,
publish, transmit, broadcast, publish or make accessible on or through all or part of the Platform, any content that may constitute, without this list being exhaustive, a violation of public order and/or morality, defamation, insults, denigration, threats, blackmail, harassment, incitement to violence, racial hatred and, more generally, to the commission of crimes and offenses; propagation of false news or financial information covered by secrecy, as well as any content intended to represent or offer for sale objects and/or works, software, content prohibited by law or infringing the rights of third parties; infringement of the authority of justice; infringement of privacy, protection of personal data or secrecy of correspondence; apology for crimes against humanity or denial of genocide; disclosure of information covered by secrecy or by the right to privacy; or act endangering minors, the manufacture, transmission, dissemination or accessibility of messages of a violent, pedophilic or pornographic nature, or of a nature to undermine human dignity or to allow the manufacture of explosives,
to attempt to mislead other Users, in particular by usurping the identity or by damaging the image or reputation of others
falsify Data, messages or documents, message headers or identification or connection data or otherwise manipulate an identifier or information in such a way as to conceal the origin of the transmission of content via all or part of the Platform
infringe any intellectual property rights (including but not limited to software, databases, images and text) or any other proprietary rights of others
knowingly upload, post, broadcast, transmit or otherwise make available any content that contains or consists of computer viruses or any other computer code or programs designed to interrupt, destroy, hijack or limit the functionality or performance of any computer software, computer, service or electronic communications tool, without this list being exhaustive
use all or any part of the Platform to deliberately transmit material that contains viruses, Trojan horses, spyware, adware or any other harmful programs or similar computer code designed to interfere with the proper working of all or any part of the Platform
download any Data placed online or made accessible by THG, directly or indirectly, on all or part of the Platform, with the exception of those expressly indicated as downloadable by THG
disrupt, slow down, block or alter the normal flow of Data, modify or alter or commit any other action having an equivalent disruptive effect on the functionality of all or part of the Platform
to post, indicate or disseminate, in any form whatsoever, information or content that has the effect of diminishing, disorganizing or preventing the normal use of all or part of the Platform, or interrupting and/or slowing down the normal flow of information,
to post, indicate, or disseminate in any form whatsoever information or content including links to third-party sites that are illegal and/or contrary to good morals,
to use all or part of the Platform to transmit or facilitate the sending of unsolicited or unauthorized advertising or promotional materials,
to act unfairly towards THG and consequently to disrespect and damage in any way whatsoever the image and reputation of THG and all or part of the Platform.
If THG believes that any information violates or may violate any of the provisions of the TOS, THG reserves the right, after providing the User with an opportunity to comment, at any time and without limitation to any other action at law or in equity, to: (i) refuse to allow the User concerned to access such information, (ii) permanently remove such information, (iii) remove or suspend the access of the defaulting User to all or part of the Platform, and/or (iv) use any technological, legal, operational or other means at its disposal, with a view to obtaining the compulsory execution of the provisions of the GTUA.
**9. NOMINATIVE INFORMATION – PERSONAL DATA
THG collects and processes Users’ personal data for the following main purposes:
1/ for the purposes of issuing eligible tax receipts, in accordance with the provisions of Article 3.7 below
2/ for the purpose of collecting their donation, and
3/ in the context of sponsored “free” donations (personal data transmitted by a User for the purposes of revealing a Pixel with a donation from a third party (company, relative, etc.), personal data transmitted by a User for the purposes of a free prize draw).
The personal data protection charter established by THG (the “Charter”) indicates to Users the rules for the collection and exhaustive processing of their personal information, in the context of accessing and using the Platform.
All Users must accept this Charter, at the time of their registration, before any first use of the Platform. Following acceptance, the rights and obligations of the Users defined in the Charter apply to all processing of their personal data, for the purposes mentioned therein.
**10. INTELLECTUAL AND INDUSTRIAL PROPERTY – COPYRIGHT
10.1. ** The name “THG”, “THE HOPE GALLERY”, the logos, taken collectively as well as individually, the domain names and all other trademarks and/or trade names are trademarks, trade names or service marks of THG; the elements of the Platform and all other intellectual and industrial property elements related thereto (collectively the “Intellectual Property Rights“) are reserved to THG, alone or in association, until the last right attached thereto regularly falls in the public domain.
**10.2 No provision of the GCSU, nor the access and/or use of all or part of the elements of the Platform implies the transfer of property rights to a User.
All Users are prohibited from infringing on any of the above, in whole or in part, directly or indirectly.
The works reproduced in the media part of the Platform are reproduced under the exception provided for in Article L. 122-5 9° of the Intellectual Property Code. All corresponding intellectual property rights are exclusively reserved by their respective owners.
THG will make its best efforts to mention the identity of the said third party right holders and undertakes to correct as soon as possible any errors/omissions of which it would be informed in this respect.
10.3. Any User expressly agrees, directly or indirectly, until the last right attached thereto regularly falls into the public domain, not to put online, download, integrate, publish, register, send, transmit or make available, in any way whatsoever, any Data.
More generally, all Users are prohibited from :
disassociating or attempting to disassociate any or all of the components of the Platform, including but not limited to using it other than for its intended purpose, obtaining or using earlier or later versions of such components at different times or transferring them separately,
reconstructing the logic of, decompiling or disassembling any or all of the components of the Platform.
11. WARRANTIES - LIABILITY
**THG is not bound by any obligation of result.
The platform is provided as is, within the limits of technical possibilities. Consequently, all users acknowledge that THG:
Cannot guarantee and does not promise any other purpose for the use of the platform than the one provided for in the GTUA, nor can it guarantee the users against the risks inherent to the use of the platform outside the GTUA.
Does not exercise any control or supervision over the content resulting from the use of the Platform and cannot be held responsible for it,
Does not exercise any control over the use of the platform; as a result, THG cannot be held responsible for the deletion of data or any other result obtained or not obtained through the use of the platform. In particular, THG shall in no way be held responsible for the result or purpose of any operation for the purpose of participating in the financing of the beneficiaries of donations, nor even for the use, by these same beneficiaries, of the donations collected by the platform,
Cannot be held responsible for any loss of data as well as for any irregular or unauthorized use of the contents stored and disclosed through the Platform,
THG does not guarantee that the Platform will function without interruption or operating error, as THG is bound by an obligation of means in this regard. In order to provide a pleasant use of the Platform, THG may need to correct any bugs, install updates or perform any diagnostics or maintenance, which may make all or part of the Platform less accessible or unavailable to users for a specific period of time. THG must be able to intervene in an emergency or suspend access to the Platform, should it deem it necessary. THG will make its best efforts to make the Platform available again as soon as possible, being bound only by an obligation of means.
In no event shall THG, its officers, partners, directors or employees, be liable to or be held responsible by the user or any other person for any damages, including, without limitation, direct or indirect, special, punitive or consequential damages arising out of access to and/or use of all or any part of the Platform or any other damages beyond THG’s reasonable control, including, but not limited to, damages resulting from (i) the violation of the TOS; and/or (ii) the failure to make an effective payment of donations or to subsequently contest donations; and/or (iii) any technical difficulties or hazards affecting any of the elements of the platform; and/or (iv) the use of the platform in relation to the needs and expectations of the users. In the event that certain jurisdictions do not recognize the exclusions or limitations of liability for consequential damages resulting from the use of the platform, the aforementioned exclusions shall not apply in such jurisdictions.
12. MODIFICATIONS TO THE GSU / PLATFORM – TERMINATION
The GCSU may be modified by THG, in accordance with applicable regulations (Article L. 121-84 of the Consumer Code). THG may, under the same conditions, waive, modify or delete all or part of the Platform’s functionalities, and in particular subject to informing the User beforehand, in accordance with applicable regulations (Article L. 121-84 of the Consumer Code).
Any party to the GCSU is entitled to terminate it, without prejudice to any action for damages, in the event of failure by the other party to fulfil any of its obligations and/or behaviour contrary to the proper performance of the said GCSU, or to public order or morality, if it is not remedied within thirty (30) days following the sending of a notification setting out the breach(s) in question. The termination will then take effect at the end of the said thirty (30) day period, without further formality.
Either party to the GTSU may also terminate the GTSU for a legitimate reason, in particular in the event of a substantial modification of the GTSU and/or the Platform or any other event having the characteristics of force majeure, as this notion is usually understood by the French courts and jurisprudence.
Early termination of the GTSU shall result in the loss of the benefit of access and/or use of the Platform, as of the effective date of termination. Therefore, in the event of termination of the GTSU, for whatever reason, the User concerned undertakes to permanently cease all use of the Platform.
**13. INDEMNIFICATION – IRREMEDIABLE HARM
All Users agree to defend, indemnify and hold harmless THG and any person acting on its behalf, including, but not limited to, its partners, officers, directors, employees and associates, from and against any and all losses, expenses, costs, damages, claims and liabilities (including, but not limited to, direct or indirect damages, attorneys’ fees, etc.) arising out of or in connection with the use of any or all elements of the Platform in violation of the TOS.
THG may therefore pursue any remedy available to it at law and in equity, including any request for injunctive relief, to enforce any provision of the TOS.
In the event of a use of the Platform that is contrary to the provisions of the GTUA, illegal or unauthorized, regardless of the element concerned, THG reserves the right, after having solicited, by all written means, the observations of the User in question, to take any appropriate action, and in particular to report the infraction to the judicial and/or police authorities.
14. NOTIFICATIONS – WAIVER
Notifications to Users are regularly made directly on the Platform. THG may also proceed with all notifications by email and SMS, to the coordinates indicated at the time of registration on the Platform and/or following any update
The fact that THG has not required the application of any clause of the GTU, whether permanently or temporarily, shall in no way be considered as a waiver of THG’s rights arising from said clause.
**15. COMMERCIAL OFFERS - THIRD PARTY SITES AND ELEMENTS
**15.1 In accordance with the purposes set forth in the Charter, Users will receive THG’s commercial offers, communication plans and news. Any User will be entitled to request, at any time, that THG remove his address from its contact list, by email to the following address: [email protected]
**15.2. **The Platform contains elements and/or hyperlinks to websites and/or mobile applications, managed by persons other than THG, including the Beneficiaries of Donations, and over which THG has no control.
**THG assumes no responsibility for these elements, sites, applications or contents to which these elements and/or hyperlinks may refer. The presence of these elements and hyperlinks does not imply that THG approves, in any way whatsoever, the content in question.
**THG does not mediate or interfere in any way and therefore cannot be held responsible, on any basis and at any time, for any interaction or transaction between or by users. In addition, THG shall not be liable for any transaction by users with the payment intermediary, especially, but not limited to, the payment of donations.
16. ENTIRETY – INVALIDITY
The TOS constitutes the entire agreement between the parties with respect to this Agreement. If one or more provisions of the GTU are held invalid or declared as such in application of a law, a regulation - and in particular the law of the European Union - or following a final decision of a competent jurisdiction, the other provisions will keep all their force and their scope and the parties will proceed to the necessary modifications by respecting, as much as possible, the spirit of the GTU.
17. APPLICABLE LAW – LITIGATION
The present general conditions are established in French. They are governed by French law.
Any User may at any time refer to the Consumer Mediator for the amicable resolution of any dispute with THG (article L. 612-1 of the Consumer Code). The name and contact details of the consumer mediator(s) are available at https://www.mediateurfevad.fr/
Any dispute between THG and a user, relating to the validity, interpretation and/or execution of the TOS, not brought before the consumer mediator, nor amicably resolved at the end of a period of sixty (60) days from the first notification of the dispute, will be brought before the materially and territorially competent courts.
**APPENDIX 1 – DETAILS OF THE PLATFORM’S FUNCTIONALITIES
The Platform offers Users three distinct services:
1 – Solution for collecting donations through the participative revelation of works of art** 2 – Solution for collecting donations through the participative revelation of works of art **3 – Solution for collecting donations through the participative revelation of works of art
Prior to any Campaign, one or more artists mobilize by donating one of their works for the benefit of a beneficiary carrying out a solidarity, humanitarian or social action, and more generally of general interest.
This work is mobilized within the framework of a Donation Campaign organized by THG, by which the beneficiary makes the work available within the framework of the donors’ donation campaign.
Materially, the work of art donated by the artist is presented blurred, so that the donors are not aware of the work, nor of its nature.
A communication is organized by THG and/or the beneficiary with a promotion of the Campaign and its objective.
Through the Platform, donors make donations to the beneficiary of the said Campaign, each donation revealing a pixel of the artist’s work.
Once their donation is made, Users have the possibility to share their experience on social networks, to access the store as mentioned below, or to make a new donation.
The objective of the Campaign is to reach or exceed the defined donation amount in order for the work to be released or for the Campaign end date to be reached.
In the event that the Campaign’s goal is reached, the Campaign may provide for the organization of a draw among the donors; the person whose pixel(s) is/are drawn wins the prize(s) defined by the Campaign.
2 – Online Shop
THG offers Users an online store where they can purchase reproductions – limited edition or not – of the works that were the subject of a Campaign.
THG offers Users access to an information blog containing a selection of articles dealing with artistic charity operations conducted by third-party artists and associations or foundations.
Except when the article expressly states so, THG is in no way involved in the realization of the said operations, whose only ambition is to be an echo to its Users.
Appendix 2 – Rules and regulations for draws, games and contests organized by THG.
Article 1. Organizing company **Article 1.
THG, a simplified joint stock company with a share capital of €15,000, whose registered office is located at 26, rue Burdeau – 69 001 LYON, and registered with the Trade and Companies Registry under number 852 231 752 RCS LYON (hereinafter “THG”), organizes charitable lotteries within the framework of donation campaigns, the terms and conditions of which are described in the present rules. The organization of these lotteries is carried out by THG on behalf of and for the exclusive benefit of the beneficiaries of the Donation Campaigns, in accordance with the regulations in force, authorized by the city hall of the location of THG’s headquarters on October 11, 2019 (CERFA 11823*03), in light of the solidarity, humanitarian, social, and/or general interest purposes of the action defined by the beneficiary.
The present regulations define the legal rules applicable to these lotteries.
Article 2. Conditions of participation
Each lottery is open to any person of legal age residing in metropolitan France who has made a donation within the framework of the corresponding Donation Campaign, with the exception of THG staff members and the staff of the beneficiary of said Campaign. In the event of a dispute, proof of identity may be requested. Participation in the game implies full acceptance of the Rules. Any fraud, or attempted fraud, manifested by a beginning of execution and committed with a view to improperly collecting a prize, failure to comply with the Rules, or any malicious intent to disrupt the progress of the Game, may result in the eviction of its author, with THG reserving the right to initiate legal proceedings against it. Likewise, if it is proven that the game is disrupted by third parties, but that a participant is an accomplice to these actions, his or her participation will also be considered null and void and THG may take legal action against the participant.
Article 3. Terms and conditions of the game and duration.
To participate, candidates must fill out the form provided for this purpose by entering their contact information (name and e-mail address) and comply with the lottery rules. It is hereby reminded that any donation must be made exclusively with a liberal intention, and that said donations may in no case be made conditional by the donor on his/her participation in the lottery, which THG may unilaterally decide to cancel in the event that the objective of the Donation Campaign is not achieved. **No request for a refund of the donation will be accepted.
In addition, it is reminded that the winner of the draw, unless he/she expressly renounces to win the given Work, being no longer, according to the interpretation of the texts in force, in a liberal intention, because of the consideration of the received Work, **will not be able to claim, if necessary, any tax reduction and consequently, to any delivery of tax receipt, whatever the amount and the number of donations made for a given Campaign.
Each euro donated corresponds to one chance to win, so that the number of chances to win for each participant corresponds to the amount of his donation in relation to the total amount of the Campaign’s objective.
Participants can make their donations in as many times as they wish as long as they do so before the end of the Campaign.
A random draw will be conducted by THG staff on the day of the Campaign’s closing. However, the date of the drawing may be postponed if THG so desires, in particular in order to hold the drawing on the occasion of a specific event. In such a case, THG will inform the participants.
In addition, since the winner(s) have the option of forfeiting their prize, THG may decide to hold a second drawing in order to designate a new winner(s).
The prize(s) will be sent to the winner(s) after being contacted by THG. Any prize not claimed within two months after the date of the draw will be considered abandoned by the winner(s) and will remain the property of the beneficiary or of THG. Any participation made contrary to the provisions of these Rules will render the participation invalid. Any Participant suspected of fraud may be dismissed from the game by THG without having to justify it. Any identification or participation that is incomplete, erroneous or illegible, whether intentionally or not, or that is made in a form other than that provided for in these Rules will be considered invalid.
Article 4. The prizes.
The prizes for each lottery are defined in the communication materials of the corresponding Campaign. The prizes may include the original work of art offered by the artist for the benefit of the donation campaign in question or a reproduction of the same. The prizes offered may not give rise, on the part of the winners, to any dispute of any kind, nor to the return of their equivalent value in any form whatsoever, nor to their replacement or exchange for any reason whatsoever. In the event of force majeure, or if circumstances so require, THG reserves the right to replace the prizes won in whole or in part by prizes of equivalent value.
If necessary, it is specified that all intellectual property rights on the work that is the subject of the prize are expressly reserved by the artist and/or his assigns, only the material support reproducing the work being put into play. Any unauthorized reproduction or representation of the work by the winner or any other person in his or her family or friends circle may be prosecuted, and THG reserves the right in such a case to demand the return of the prize.
**Article 5. Designation and information of the Winners
The number of winners who will be awarded a prize by drawing lots is defined on the communication media of the corresponding Campaign. The identity of the winners (first name and initial of the last name) may be displayed on the Platform as well as on the communication media - in particular social networks - of THG and the beneficiary, and/or announced on the occasion of a specific event organized by THG and/or the beneficiary.
If applicable, the winners will be able to collect their prizes at the specific event organized by THG and/or the beneficiary. If the winner is not present, THG will contact him/her within an indicative period of three weeks to inform him/her of his/her win. THG will inform the participant of the terms and conditions of delivery of the prize during this contact. If the prize is sent by mail, an additional 3 weeks may be necessary. No change (of date, of prize…) for any reason whatsoever may be requested from THG. It is specified that THG will not provide any warranty services regarding the lot.
Under no circumstances will THG be held responsible for the delay in the availability of the prize(s) or in the event that the winner(s) cannot benefit from the prize(s) due to circumstances beyond THG’s control. In particular, THG cannot be held responsible in the event of loss and/or deterioration of the prize(s) by the Post Office or any similar third party service provider, and more generally if the winners do not receive their prize. In the event that the prize(s) cannot be sent by post, the terms of collection will be specified to the winner(s) in the e-mail or post confirming the prize or by any other means at THG’s convenience. Any prize not delivered and returned to THG in the event of an incomplete or inaccurate address as provided by a Winner will be lost for the Winner and will remain the property of THG or the beneficiary of the Campaign, without THG’s liability being incurred as a result. Likewise, any prize not claimed from the Post Office will be lost for the Winner concerned and will remain the property of THG. In general, THG cannot be held responsible for any damage, theft or loss that may occur during the shipping and delivery of a prize. Furthermore, THG declines all responsibility in case of incident or accident that could occur during the use or enjoyment of a prize.
Article 6. Consultation and acceptance of the rules.
The simple fact of participating implies full and unreserved acceptance of these rules. They can be consulted online and printed at any time at the following address: https://www.thehopegallery.com/fr/legals or sent free of charge to any person who requests them in a sufficiently stamped envelope (include contact information) by writing within a period not exceeding fifteen calendar days from the end of the operation (postmarked) to the THG address indicated at the top of these rules. THG reserves the right, at any time and without prior notice or obligation to justify its decision, to shorten, extend, postpone or cancel the lottery as well as to modify all or part of the conditions of access and/or the terms and conditions of implementation of the lottery, without being held liable or being entitled to claim any compensation as a result.
Article 7. Personal data.
Participants in the lottery must provide certain personal information about themselves (name, telephone number, etc.). This information, saved in a computer file, is intended for THG and will only be transmitted to those responsible for the organization of the lottery, and in particular for the delivery of the prizes, who will only use it for this purpose. This information is necessary to determine the winner(s) and to award and send the prizes.
The Personal Data Protection Charter established by THG is applicable to the lotteries covered by this agreement. The Charter in force is accessible on the Platform at https://www.thehopegallery.com/fr/rgpd.
Each Participant in the lottery acknowledges having read all the provisions of the Rules and Regulations and consequently having accepted them with full knowledge of the facts.