1. DEFINITIONS
In the present general terms and conditions, the following terms with a capital letter in the first letter have, unless otherwise specified, the meaning given to them in the present article, whether in the singular or plural.| “Bernie”: | refers to BERNIE SAS, a simplified joint stock company with a share capital of 100,000 euros, registered with the Paris Trade and Companies Register under number 882 410 111, whose registered office is located at 59, rue des petits champs 75001 Paris, represented by Mr. Benoît Mazzetti, Chairman. |
| The “GTCU”: | refers to the present general terms and conditions of sale and use. |
| The “Access Codes”: | has the meaning given to it in Article 3.2. |
| The “Consumer”: | refers to the consumer within the meaning of the introductory Article of the Consumer Code, i.e. a natural person who acts for purposes that do not fall within the scope of his commercial, industrial, craft, liberal or agricultural activity. |
| The “Contract(s)”: | means the contract(s) signed by the Parties, namely in particular (i) the property management mandate signed between Bernie and the Owner, (ii) the rental agreement signed between the Owner and the Tenant(s), (iii) the rental agreement signed between the Owner and Bernie, and/or (iv) the sub-rental agreement signed between Bernie and the Tenant(s). All Agreements shall be concluded in the form of an electronic writing within the meaning of Article 1366 of the Civil Code and signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link of each signature in accordance with the provisions of Article 1367 of the Civil Code. |
| The “Lessee(s)”: | means the natural or legal person wishing to lease the Property. The Lessee may be a Consumer, a Non-Professional or a Professional. |
| The “Dwelling”: | refers to the property, whether bare or furnished, belonging to the Owner who wishes to rent it. |
| The “Non-Professional”: | means the non-professional within the meaning of the introductory Article of the Consumer Code, i.e. any legal entity that does not act for professional purposes. |
| The “Party”: | refers individually to Bernie or the Owner or the Tenant; Bernie, the Owner and the Tenant being together referred to as the "Parties". |
| The “Professional”: | means the professional within the meaning of the introductory Article of the Consumer Code, i.e. any natural or legal person, public or private, who acts for purposes falling within the scope of his commercial, industrial, craft, liberal or agricultural activity, including when he acts in the name of or on behalf of another professional. |
| The “Owner(s)”: | means the natural or legal person who is the owner of the Object. The Owner may be a Consumer, a Non-Professional or a Professional. |
| The “Services”: | refers to the service of providing an online platform accessible via the Site and allowing (i) the Owner to rent its Accommodation to the Tenants via the Site and (ii) the Tenant to rent the Accommodation via the Site; which may lead to the conclusion of one or more Contract(s). |
| The “Site”: | refers to the Bernie website accessible from the following link: https://www.bernie.re. |
| The “User”: | has the meaning given to it in Article 5 below. |
2. SCOPE OF APPLICATION
The GTCU apply without restriction or reservation (i) to all Services rendered by Bernie to the Owner and the Renter, regardless of the clauses that may appear on any documents of the Owner and the Renter, in particular their respective general terms and conditions of purchase, (ii) and to any use of the Site.The Owner and the Tenant must read these GTCU before using the Site. The GTCU are accessible by hypertext link on each of the pages of the Site. The Owner and the Tenant are invited to download the GTCU and/or to print them and keep a copy. The Owner and the Tenant are informed that these GTCU may be modified at any time and without notice; the latest version in force being the one accessible on the Site.Any use of the Site by the Owner and the Tenant implies the acceptance without restriction or reserve of these GTCU, which are deemed to be fully aware of them. The GTCU will prevail, where applicable, over any other version or any other contradictory document, with the exception of the Contracts. These GTCU apply to the exclusion of all other conditions which will be unenforceable against Bernie, even if he has been made aware of them.Bernie reserves the right to cancel or limit the performance of the Services in the event of a breach of these GTCU, or if there is any previous or ongoing dispute with the Owner and/or the Renter.BY EXPRESS AGREEMENT BETWEEN THE PARTIES, IT IS AGREED THAT THE PROVISIONS OF THE CONTRACTS SHALL PREVAIL IN ANY EVENT OVER THOSE OF THESE GTCU.3. OPERATION OF THE SITE
3.1. Accessibility
The Site is accessible by any person and allows, in particular, to exchange with Bernie, to share and consult the offers of renting Accommodation, to make virtual visits of the Accommodation, to share and consult the files of the candidate Tenants, and to subscribe to the various Contracts.The consultation of the offers of rental of Accommodation is free and any User can search for an Accommodation via the Site according to the criteria entered in the search bar provided for this purpose. The main characteristics of the rental offers of Accommodation are detailed on the Site, in particular the description of the Accommodation and the financial conditions relating to the rental of the Accommodation. It is expressly agreed between the Parties that, with the exception of the virtual visit enabling the Accommodation to be viewed in 3D, any photographs, illustrations and videos of the Accommodation published on the Site have no contractual value.The sharing of an offer to rent a Dwelling, the reservation of a Dwelling, the sharing and consultation of Tenant candidate files and the subscription to the Contracts are subject to registration on the Site and the creation of a personal account (the "Personal Account").3.2. Personal account
Bernie provides the Owner and the Tenant with a space reserved for them respectively on their Personal Account, which is accessible via the Site. The Owner and the Tenant individually acknowledge that they may only hold one Personal Account allowing them to access their personal space. The access codes to this personal space are created by the Owner and the Tenant when they first connect to the Site and include the identifier and password ("Access Codes") which are strictly personal and confidential. The storage and use of these Access Codes are the sole and exclusive responsibility of the Owner and the Tenant respectively. The Owner and the Tenant agree not to disclose them to anyone in any form whatsoever. The Access Codes may be changed at any time by the Owner and the Tenant, or at Bernie's initiative. Any actions carried out on the personal space with the Access Codes shall be deemed to have been carried out by the Owner or the Tenant who has received the Access Codes. It is the responsibility of the Owner and the Tenant to manage the security of their personal space, and to respect the conditions of use. The Landlord and the Tenant undertake to inform Bernie immediately in the event of loss, theft, misappropriation or any unauthorised use of their respective Access Codes, as soon as they become aware of them and request Bernie to block them. Upon receipt, Bernie will block all access to the personal space via the Access Codes of the Owner and the Tenant concerned. A written confirmation of the blocking of the Access Codes will be sent by e-mail to the Landlord and the Tenant. In the event of loss, theft or fraudulent use of one of these Access Codes, the Owner and the Tenant concerned will be solely responsible for any harmful consequences, to the exclusion of any liability on the part of Bernie. Bernie reserves the right to suspend, restrict access or block the Access Codes of the Owner and the Tenant if Bernie is informed of any abnormal use or if Bernie has legitimate reasons to believe that the Access Codes have been hacked or that the use of the personal space is fraudulent, or more generally that the use of these Access Codes or the personal space is contrary to the provisions of these GTCU.4. FINANCIAL CONDITIONS
The Services are provided at Bernie's rates in force on the day the Contract is concluded and as set out in the Contract. Only the prices appearing in the Contract have contractual value, to the exclusion of any prices or tariffs appearing on the Site. All prices are stipulated in Euros. Unless otherwise stipulated, prices are indicated exclusive of tax. The terms of payment and any modification of the rates or prices are specified in the Contract, which the Parties acknowledge and accept.5. USE OF THE SITE
Any user of the Site, whether Owner, Tenant or third party ("User"), undertakes to use the Site in accordance with the present terms, in good faith and in accordance with the legislation in force. The User warrants that he or she is of legal age and able to understand these GTCU. Any fraudulent, abusive, illicit or contrary to the good faith of the Site on the part of the User is strictly forbidden. In particular, the User is prohibited from (i) reproducing, disseminating, publicly communicating, transforming or modifying the Site or its contents without the prior written authorisation of Bernie, (ii) engaging in any illegal, fraudulent activity that is contrary to this GTCU, to the regulations in force or to good faith, or that is likely to prevent or hinder the correct use of the Site, (iii) inserting in web pages, platforms, forums, chats, blogs or any third party social networks, any link allowing to link or reproduce the Site or its content, unless the link refers exclusively and directly to the main page of the Site, without reproducing it in any way whatsoever, (iv) to link or reproduce the Site or its content from websites, platforms, forums, chats, blogs or any social networks, which would be contrary to the law, offensive or would infringe upon human dignity, fundamental rights, Bernie and in particular his image or reputation, or likely to be considered as constituting an offence. Third party websites, platforms, forums, chats, blogs or social networks that contain links to the Site must make it clear that they do not have Bernie's permission and are not under Bernie's supervision and that the link in question does not contain, imply or involve any association whatsoever between Bernie and the third party websites, platforms, forums, chats, blogs or social networks that contain such links to the Site. In any event, any link to the Site must lead directly to the home page or start page of the Site, by clicking on the URL address of the Site and cover the entire screen of the home page or start page of the Site.6. OWNERSHIP OF THE OWNER'S CONTENTS
As part of the performance of this Agreement and the Contracts, the Owner will provide Bernie with certain materials (including photographs and videos) necessary to promote the Dwellings (the "Content(s)").Whether or not the Content is protected by intellectual property rights, the Owner grants Bernie the following rights to the Content:- the right to reproduce, adapt, represent and translate all or part of the Content on any medium, current or future, in any format and by any process known or unknown at this time, and by any type of communication medium, in particular the internet, intranet, or the written press, with a view to any storage, transmission or downloading operation necessary for the operation of the Site and the Services, and with a view to any commercial, promotional or advertising operation necessary for the rental of the Accommodation;
- the right to grant, for a consideration or free of charge, sub-licences of the rights granted under the above-mentioned licence to any third party of its choice, in particular in the context of commercial, promotional or advertising operations.
7. INTELLECTUAL PROPERTY
Bernie remains the sole and exclusive owner of all intellectual property rights relating in particular to the Site, including all industrial property rights (trademark, patent, designs and models, etc.), copyright, domain name, software rights, database producer rights, invention, idea, improvement, manufacturing know-how, technology, manufacturing secret and all other intellectual property rights ("Intellectual Property Right(s)").In this respect, the Owner and the Tenant do not benefit from and cannot claim any prerogative in terms of intellectual property under the terms hereof. No property right of any kind whatsoever, in particular with regard to the Site and the Personal Account, is transferred to the Owner and/or the Tenant hereunder. Without prejudice to the provisions of this Article, Bernie grants the Owner and the Tenant the right to access and use the Site and the Personal Account. Bernie also retains ownership of all developments relating to the Site and may freely reuse ideas, concepts, methods, know-how, or techniques relating to programming or data processing that is or will be discovered or developed in the course of performing any service hereunder.Bernie reserves all of its rights to take action against the Owner, the Tenant or any third party in the event of infringement of the Intellectual Property Rights of which it is the owner.8. PERSONAL DATA
Each Party undertakes to comply with the applicable regulations on the protection of personal data, and in particular the provisions of Law No. 78-17 of 6 January 1978 on Data Processing, Data Files and Individual Liberties, as amended by Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ("RGPD"). In their relations, each Party shall be solely liable for the damage caused by any failure to comply with its obligations under the regulations on the protection of personal data.The other elements relating to the processing of personal data and cookies hereunder are described and governed by the provisions of the Privacy Policy which the Owner and the Tenant are invited to consult by clicking on the following link: https://www.bernie.re/en/privacy-policy/.9. DISCLAIMER OF WARRANTY - LIMITATION OF LIABILITY
Subject to the provisions of this Article and the applicable mandatory legal provisions, Bernie expressly disclaims all express, implied or statutory warranties relating to any aspect of the Site, including, but not limited to, any warranty of merchantability or fitness for a particular purpose. The Owner and the Renter acknowledge that the performance of the Services by Bernie and in particular the access and use of the Site and their Personal Account depend in particular on the Internet network, the malfunctioning of which may lead to discontinuity in the performance of the Services, independently of Bernie's will. Bernie excludes all liability in the event of such discontinuities in the provision of the Services and access to the Site. Bernie also excludes all liability (i) in the event of a breakdown or malfunction of the Site and/or the Personal Account caused by incorrect handling or use by the Owner and/or the Renter, (ii) in the event of a breakdown caused by the intervention of the Owner, the Renter or a third party in their Personal Account or the Site, (iii) in the event of a malfunction of the telephone network, (iv) in the event of incorrect backup of the data of the Owner and/or the Renter, (v) in the event of failure to comply with the obligations of the Owner and/or the Renter. Bernie does not guarantee that the Site and the Personal Account will operate uninterrupted, secure, accurate, timely, virus-free or error-free.In any event, the Landlord and the Renter acknowledge and accept that Bernie is under an obligation of means and undertakes to make its best efforts to comply with the commitments made hereunder and in particular to ensure the performance and continuity of the Services, as well as the accessibility and operation of the Site and the Personal Account.The Owner and the Renter acknowledge and accept that Bernie may restrict, limit or suspend the Services as a result of a decision by an administrative, arbitral or judicial authority, or as a result of changes in the regulations applicable to Bernie's activity. Bernie cannot be held liable under these conditions. The Landlord and the Renter acknowledge and agree that (i) viruses, worms, Trojan horses or other unwanted data or software, or (ii) unauthorised users (e.g. hackers) may attempt to access and damage the data, computers or networks of the Landlord and the Renter. Bernie shall not be held liable for such activities under any circumstances.Without prejudice to any mandatory provisions of the Consumer Code that may be applicable and in particular when the Owner and/or the Tenant are Professionals, it is accepted that Bernie cannot be held liable for any special, indirect or consequential damages including without limitation loss of opportunity to enter into any contract or activity, loss of profit or clientele, loss of data, loss of brand image incurred by the Owner and the Tenant hereunder. Except in the case of personal injury, wilful misconduct or gross negligence, the total compensation due by Bernie to the Owner and the Renter for all damages suffered in the performance of the Services shall not exceed the total amount paid by the Owner or the Renter respectively hereunder.10. DURATION
These GTCU take effect from their express or tacit acceptance, until the latest of the following dates (i) the end of the Contract, (ii) the cessation of use of the Site and Services by any User.11. DUTY OF LOYALTY
The Parties undertake to always behave towards each other as loyal partners in good faith and, in particular, to immediately bring to the attention of the other Party any dispute or difficulty that it may encounter in the performance of this Contract.12. TERMINATION
12.1 GTCU
In the event of a breach by either Party of any of its obligations under these GTCU, these may be terminated twenty (20) calendar days after formal notice sent by registered letter with acknowledgement of receipt by the Party concerned, mentioning the latter's declaration of its intention to avail itself of the benefit of this clause.In accordance with Articles 1224 and 1225 of the Civil Code, the following failures must in particular be considered as failures likely to result in the termination of the Contract: failure to respect the use of the Personal Account, failure to comply with the conditions of use of the Site by the Owner and/or the Tenant, violation of Bernie's Intellectual Property Rights, assignment of the Contract to a third party by the Client in violation of the provisions of Article 15 and more generally, a failure in the loyal execution of the Contract.12.2 Contracts
The terms and conditions for the termination of the Contracts are specified in the Contracts, which the Parties acknowledge and accept.13. FORCE MAJEURE
For the purposes of this Article, "Force Majeure Event" has the meaning given to it in Article 1218 of the Civil Code. In addition, the following shall be considered as an Event of Force Majeure: natural disasters, wars, explosions, fires, floods, storms, earthquakes, insurrections, terrorist acts, riots, civil unrest, rebellions, strikes, lockouts or labor disputes other than strikes, and lockouts or labor disputes involving the Party requesting the benefit of this Article. If a Force Majeure Event rendering it impossible for a Party (the "Affected Party") to perform its obligations to the other Party (the "Other Party") occurs, the Affected Party shall not be liable to the Other Party and shall be relieved of its obligations to the extent that its ability to perform its obligations has been affected by a Force Majeure Event. If the consequences of the Force Majeure Event on the Affected Party make it impossible for that Party to perform a substantial part of its obligations under the Contract for a period of at least sixty (60) consecutive days, the Other Party may, by written notice, terminate this Contract governed by the GTCU either in whole or in part (in respect of all or part of the Services that have been affected by the Force Majeure Event), with immediate effect and without liability to the Affected Party.14. WITHDRAWAL
The Contracts are concluded by the Parties at a distance. In accordance with the provisions of Articles L. 221-18 et seq. of the Consumer Code, the Owner and the Tenant having the status of Consumer have fourteen (14) days from the conclusion of the Contract with Bernie to exercise their right of withdrawal from Bernie and terminate the Contract concluded with it, without having to justify their reasons or pay any penalty.The Contracts are concluded by the Parties at a distance. In accordance with the provisions of Articles L. 221-18 et seq. of the Consumer Code, the Owner and the Tenant having the status of Consumer have fourteen (14) days from the conclusion of the Contract with Bernie to exercise their right of withdrawal from Bernie and terminate the Contract concluded with it, without having to justify their reasons or pay any penalty.15. ASSIGNMENT - TRANSMISSION
The Owner and the Renter shall not assign in any way whatsoever the rights and obligations of these GTCU and/or the Contract without the express, prior and written consent of Bernie. In accordance with the provisions of Article 1216 of the Civil Code, any assignment of the said contract must be recorded in writing, on pain of nullity.In the event of assignment in accordance with the conditions defined above, the assignor shall be jointly and severally liable with the assignee, with regard to the assignee, for the performance of the obligations arising therefrom. Any securities granted by the assignor to guarantee such performance shall remain in force, to which the assignor expressly consents.If the assignment is carried out despite Bernie's refusal, Bernie shall be entitled to terminate the contract to the exclusive detriment of the Owner and/or Tenant, without notice, by simple notification, without prejudice to any damages that Bernie may also be entitled to claim from the Owner and/or Tenant as a result.16. SUBCONTRACTING
The Owner and the Tenant expressly acknowledge and accept that all or part of the Services covered by the GTCU may be subcontracted by Bernie to any service provider of its choice.17. INTEGRAL PART OF THE CONTRACT
Unless expressly provided otherwise, the Contract(s) and the GTCU constitute the entire agreement between the Parties and replace all previous contracts between the Parties relating to the Site, the Services and the subject matter of the Contract(s). Each Party acknowledges that its liability with regard to the commitments and guarantees set forth herein, whether involuntarily or deliberately, shall be limited to the breach of the Contracts. Nothing in this Article shall be understood as exclusive or limiting liability in the event of fraud.18. APPLICABLE LAW AND JURISDICTION
The present GTCU and the operations resulting therefrom between the Parties are governed by and subject to French law.All disputes to which the present GTCU may give rise, concerning their validity, interpretation, execution, resolution, consequences and follow-up, and which could not be resolved amicably between the Parties, will be submitted to the competent courts under the conditions of common law. As an exception to the provisions hereof and provided that the Owner and/or the Tenant is qualified as a Professional, all disputes or disagreements to which the GTCU could give rise will be submitted to the competent court of Paris, exclusively competent.When the Owner or the Renter is a Consumer, it is informed that it may in any event have recourse to conventional mediation, in particular with the Consumer Mediation Commission (Article L. 612-1 of the French Consumer Code) or with existing sector-based mediation bodies, or to any alternative dispute resolution method (e.g. conciliation) in the event of a dispute.19. CAPACITY OF THE PARTIES
The Parties declare that they have the necessary capacity, right, power and authority and have taken all necessary measures to use the Site, as well as to sign the Contracts, enjoy the rights and perform their respective obligations hereunder, in particular with regard to the Services. The Owner and the Tenant expressly certify that they are capable persons within the meaning of Articles 1145 et seq. of the Civil Code. Each Party declares to the other that neither the signature nor the execution of these provisions contravenes or will contravene any obligation or contract that it may have with a third party.20. ABSENCE OF WAIVER
No failure or delay by Bernie in exercising any right or remedy hereunder shall constitute a waiver of such right or remedy, nor shall it prevent or restrict the further exercise thereof or any other right or remedy. No single or partial exercise of any such right or remedy shall preclude or limit the further exercise of such right or remedy.21. NOTIFICATIONS – CLAIMS
All correspondence for the attention of Bernie (including complaints) should be sent by e-mail to the following e-mail address: legal@bernie.re, and/or by registered letter with acknowledgement of receipt to the postal address at the top of this document.