Terms of Service
Last Updated December 04, 2023
THE DOCUMENT HEREIN GOVERNS THE TERMS AND CONDITIONS OF USE OF THE PLATO SERVICE AND CANCELS AND REPLACES ALL PREVIOUS DOCUMENTS. THE GENERAL TERMS AND CONDITIONS OF USE ARE VALIDATED BY THE END USER AND ARE THEREFORE BINDING ON THE CUSTOMER UPON THEIR FIRST CONNECTION. IN ANY EVENT, THE USE OF PLATO IMPLIES UNRESERVED ACCEPTANCE OF THESE GENERAL TERMS AND CONDITIONS OF USE. ANY TERMS OF PURCHASE OF THE CUSTOMER ARE NOT BINDING ON PLATO.
The purpose of these General Terms and Conditions of Service is to determine the conditions under which You benefit from the Service of Plato as described below, to which you login, in particular by means of the interface: The service is provided by the company Birdly, Inc, a company whose registered office is located at 2711 Centerville Road, Suite 400 Wilmington, DE 19808, registered under the number C3848506, acting through its CEO Quang Hoang.
These General Terms and Conditions of Service bind the Customer and any natural person to whom is legitimately given access to the Service of Plato, whether it is a User or a Guest.
You are informed that this service is reserved for the storage and the provision of copyright-free Data or Data for which You hold the rights of reproduction, communication and making available to the public subject to exceptions specific to copyright.
Access to and use of Plato is granted to you as a Customer, a user or a guest. In no case can this contract be considered as a distribution contract. Consequently, You are under any circumstance not authorized to sub-license the access from which You acquired hereunder.
These General Terms and Conditions of Service (these "Terms") apply to the services (the "Services", the “Service”) provided by Birdly, Inc. (“The Company”, "Plato", "Birdly" ) via https://www.platohq.com/auth/login (the "Application" or “the App”).
For the purposes of these terms, the following definitions apply:
- “Credit”: refers to tokens that can be spent to use Plato's services when Your subscription is Credit-based.
- “Customer”: refers to the organization (company, community, association, etc.) which has subscribed to the Service and which is generally Your employer or a client of Your employer. The Customer acts as the data controller/business regarding the Documents, Videos and the data they contain when they are personal data. By extension, the Customer shall designate, when relevant, any End User whose access has been created by said Customer or under the authority of said Customer.
- “Document”: refers to all of the digital information, gathered, recorded and managed under a single document name on a Storage Space. Interview, 1:1 and AMA Videos are to be considered as Documents.
- “Data”: refers to all the elements You can file on the Storage Space, that is to say digitized Documents in a format in accordance with the conditions required by the Service. The Data thus received may be kept in Your Storage Space for a specific retention period determined contractually with You.
- “Storage Space”: electronic space made available to you by Birdly, Inc. and allowing the remote storage of Your Data in accordance with the General Terms and Conditions of Use.
- “Guest”: third party that you authorize to access some of the Data present in Your Storage Space.
- “Update”: refers to improvements to existing functionality and the addition of new functionality, provided by Birdly, Inc in the form of regular periodic updates.
- “Seat”: refers to Your right to use Plato's seat-based services. When Yours subscription is seat-based, You can use Plato's services as long as your subscription is active.
- “Server”: refers to the digital infrastructure, which is secure, managed and administered by Birdly, Inc or its service providers to which End Users transfer their hosted content via their Plato access.
- “Service” (or “Services”): refers to the software as a service solution offered by Plato.
- “End User”: refers to a natural person, in particular an employee of the Customer, for whom access to Plato has been created in the form of a unique password associated with an email address provided by the Customer or by said natural person.
- “Mentoring Session”: refers to a video meeting in which a Mentor provides mentoring to one or several Mentees.
- “You”: refers to, collectively and jointly, the Customer and End Users.
The term "You" where the context relates to Mentee and “Mentee”, shall mean any legal person or entity accessing or using the services provided on by Plato, who is competent to enter into binding contracts, who is desirous of entering into mentoring programs to improve their work readiness skills.
"You" where the context relates to Mentor and “Mentor” means any legal person or entity accessing or using the services provided by Plato, who is competent to enter into binding contracts, who is desirous of implementing some mentorship programs through interaction, training and engagement with the Mentees.
The terms “We”, “Us”, “Our” etc. shall mean the Service and/or the Company, as the context so requires.
3. Service Description
- having received all the necessary information and documentation;
- having taken into account the technical and functional prerequisites and limits of the Service;
- that the Service meets Your needs.
The service is subject to updates which You will benefit from automatically. The Service is delivered using a SaaS model (software as a Service).
The Service is provided by Birdly, Inc under the brand name Plato. The Services include, (i) basic services aimed at providing “Mentoring as a Service” using cloud based computing systems such as the right to schedule and record video meetings, to file Data on the Storage Space, and (ii) optional services potentially agreed.
Users can opt-out of the recording of video sessions. In order to opt-out of the recording of the video sessions, a user has to contact his/her mentoring coach or account manager at Plato and / or to mention this objection to the mentor before the actual mentoring session begins. If any of the users in a session has opted-out of the recording, the video session will not be recorded. Users can access the recording of any video session they appear in by requesting such an access. Such a request must be made to the user's mentoring coach or account manager. In order for the request to be honored, all the users appearing in the video recording must agree to its disclosure to the requesting user. Plato's legal teams and attorneys may access the recording of video sessions if there is an allegation of poaching attempt or misbehavior during the session. Such a disclosure of a recording of a video session would be made only if there is a strict confidentiality agreement in place and only as permitted by the law.
The Service ensures the traceability of the various operations on the Storage Space. The elements of traceability are recorded in an operations log with regard to the identifications and the outgoing documents, transmissions and receptions of Data. In the context of traceability operations, Birdly, Inc complies with the legal requirements applicable to the collection of connection data, in particular the provisions of the General Data Protection Regulations (GDPR) and California Consumer Privacy Act (CCPA).
4. Entry Into Force
The Terms come into force with the acceptance by an End User, whether on behalf of the Customer or not, or from their validation when they first connect to the Plato Service. They remain applicable for the duration of the contractual relations binding the Customer to Birdly, Inc or to its distributor in the event that the Customer has acquired the licenses to use Plato through the latter and/or during the time You have an account granting You access to the Services.
On the condition that you comply with these Terms, Plato hereby grants you a non-exclusive, non-transferable, revocable license to access the Services (including any Plato Material therein) solely for the purpose of enabling you to use the Services in the manner permitted by these Terms. If Plato, in its sole discretion, elects to provide any upgrade that replaces or supplements the original Services, this license will govern any such upgrade unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Plato may review, improve, change, or discontinue (temporarily or permanently) the Services or any features, information, materials, or content on the Services at any time, with or without notice to You. If you no longer wish to use the Services following any such modifications, you may terminate these Terms.
The Mentee/Mentor unequivocally agrees that these Terms and the aforementioned Policy constitute a legally binding agreement between the Mentee/Mentor and the Company, and that the Mentee/Mentor shall be subject to the rules, guidelines, policies, terms, and conditions applicable to any service that is provided by the App, and that the same shall be deemed to be incorporated into these Terms, and shall be treated as part and parcel of the same. The Mentee/Mentor acknowledges and agrees that no signature or express act is required to make these Terms and the Policy binding on the Mentee/Mentor, and that the Mentee/Mentor's act of visiting the any part of the App constitutes the Mentee/Mentor's full and final acceptance of these Terms and the aforementioned Policy
The Plato Service operates in part thanks to the implementation of solutions published by service providers partners of Birdly, Inc. As such, in the event that Birdly, Inc uses a provider's solutions, You will have a way of being informed by Birdly, Inc.
Acceptance of these General Terms and Conditions of Use implies acceptance of the principle of using third-party providers. Within the framework of the use of the Plato Service, You may be led to accept the general terms and conditions of use of the service or services offered by the service provider partners of Birdly, Inc.
Birdly, Inc is free to change third-party providers. In the event that Birdly, Inc decides to change service providers, Birdly, Inc undertakes to provide You a way of being notified in advance of said change and to provide You a way to make remarks or objections to the change.
The Services may require the use of certain third party products and services ("Third Party Services"). Use of any Third Party Services that are not directly integrated into the Services, such as your own online calendar is at your sole risk and will be governed by separate terms and conditions, separate privacy policies relating to usage of data you may share through the Third Party Services in the course of using the Services, other applicable policies, and may include separate fees and charges. Plato may display content from third parties through the Services or may provide information about or links to Third Party Services. Your interactions with any such third parties not directly integrated in the Services, and any terms, conditions, warranties, or representations associated with such interactions, are solely between you and the applicable third parties. Plato is not responsible or liable for any loss or damage of any sort incurred as the result of any such interactions or as the result of the presence of such third-party information. If you are not able to access or use the Third Party Services for any reason, you may not be able to use all of the Services, and your sole remedy will be to terminate these Terms.
6. Accessing The Service
Access to the Plato Service is granted to You by Birdly, Inc, on the condition that you comply with the Terms and that You represent and warrant that you (a) have at least the required number of years to be considered a person of full age in your country of residence, (b) have not been previously suspended or removed from using the Services.
In some cases, access to the Plato Service takes place via the creation by one of its customers with account creation rights. End users will be notified of their access to the Plato Service by receipt of a confirmation email including a means to set a password allowing this access.
To access the Services, you must create an account. You agree to (a) provide accurate, truthful, current and complete information when creating an account; (b) maintain and promptly update your account information; (c) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer; (d) promptly notify Plato if you discover or otherwise suspect any security breaches related to the Site; and (e) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.
7. Using The Service
The use of the Plato Service is under your sole and entire responsibility.
Birdly, Inc has no way of knowing or predicting what types of Data are or will be present in the Documents that its Customers store in Plato or discuss during a Mentoring Session. You are solely responsible for the Data that you decide to share, Birdly, Inc cannot in any case be held liable in this respect, whether or not it is Personal Data.
You are solely responsible for the accessibility of the Plato Service made under Your control, which concerns both the maintenance of the security of the access codes or links allowing you this access and the definition of the authorization rules with regard to the users likely or not to access the Plato service.
The Plato Service may comprise a certain number of features, You are solely responsible for activating or not activating certain features of the Service, Birdly, Inc cannot be held responsible for the activation or non-activation of certain features of Plato. The range of Plato features can be modified when an Update is published by Birdly, Inc as part of its service.
The use of the Plato Service does not exempt You from making backups of your Data elsewhere than on the Plato space.
7.1 Fees and Payment Terms
Plato provides its services with two schemes : seat based and credit based.
7.1.1 Seat based
With seat-based subscriptions, Plato provides an annual subscription for access to its Services (each month period, a "Subscription Period") at the prices set forth on the Services, paid in advance of the beginning of each applicable Subscription Period. If the applicable fees are not paid prior to the beginning of the Subscription Period, your access to the Services will be terminated until you pay the applicable fees. Plato, at its sole discretion, may modify its pricing during any Subscription Period and such pricing changes will be effective as of the directly subsequent Subscription Period.
7.1.2 Credit based
With credit-based subscriptions, You spend Your available Credits to use Plato's credit-based services, on a “pay-per-use” scheme: each Mentor sets an amount of Credits that You have to pay in order for You to attend a Mentoring Session. The available slots for a specific Mentoring Session are defined by the Mentor. When You book a Mentoring Session, you select one of the time slots that the Mentor has listed as available.
If You don't have enough Credits when You want to book a Mentoring Session, You will have the possibility to purchase additional Credits.
Credits can be associated with an expiration date. In that case, each Credit can be spent only before its expiration date. The default expiration date for most Credits purchased from Plato is set to be one year after the purchase date. Some Credits may have a different validity period (for instance those acquired with a gift card will usually have a shorter validity period).
When You purchase some Credits, the expiration date for said Credits is advertised in the interface before you proceed to payment.
You can see the expiration dates associated with each of your Credits in Your “Credits” page on Plato's interface. The Credits related to a Mentoring Session are withdrawn from Your Credits account when said Mentoring Session is actually completed. If the case be, the Credits that have the nearest expiration date are withdrawn first.
You will receive notifications, by e-mail and in Plato's interface, when some of Your Credits are about to expire. The emails will be sent 90, 60 and 30 days before the actual expiration date of each batch of credits that will expire in the next future.
If you have any question about the way Plato's Credits work, Your credits, etc., please contact us.
Any Credit that has expired is withdrawn from your account on the date of its expiration.
All payments must be made: (a) in U.S. Dollars and (b) by credit/debit card via an authorized Plato payment processor or (c) by money transfer. You hereby: (i) authorize Plato (or its authorized payment processor) to charge the credit/debit card number provided to Plato; and (ii) represent and warrant that You are authorized to use and have fees charged to the credit/debit card number provided to Plato. You may withdraw such authorization by utilizing the cancellation mechanism provided via the Services, or, if no mechanism is available via the Services, emailing Us at email@example.com.
7.1.4 Late payments
If Customer fails to make payment in full within seven (7) days from the due date, Customer shall also pay a late fee in an amount equal to one percent (1%) of the current charges per month or the maximum statutory rate under applicable state law, whichever is less. Late payment fees shall accrue from the due date. Customer shall pay all amounts incurred by Plato in connection with the collection of late payments, including, but not limited to, reasonable attorneys' fees and costs. Any dishonored payment will be subject to a $25.00 processing fee or the maximum amount allowed by law.
8. Your Obligations
It is Your responsibility, prior to the validation of these Terms, to check the adequacy of your computer equipment with the Service offered.
You must at least be equipped with the following computer and telecommunications hardware without which You will not be able to access the Service, namely at least:
- a terminal (computer, smartphone, tablet, etc.) with a broadband internet connection and the hardware needed to attend Mentoring Sessions (usually a web camera, a microphone, speakers or headphones, etc.).
- a recent generation of internet browser, the latest available version being highly recommended, or, the Plato mobile application, if it is available, which is aimed at running on a smartphone or tablet.
The equipment, cost of telephone communications and access to the Internet, as well as any necessary authorization relating thereto, are your responsibility or that of the Customer that created Your access to Plato. It is up to You to be appropriately equipped, in particular in terms of computer hardware and electronic communications, to access the Website and the Service and take all appropriate measures to protect your Data stored on, from or to Your computer hardware against any breach or damage. You agree not to hinder the proper functioning of the Website and/or the Service in any way whatsoever, in particular by transmitting any element likely to contain a virus or likely to otherwise damage or affect the Website and/or the Service and, more broadly, the information system of Birdly, Inc and/or its co-contractors and suppliers. You acknowledge that you know and understand the Internet and its limits and, in particular, its functional characteristics and technical performance, the risks of interruption, the response times to consult, query or transfer information, the risks, whatever they may be, inherent in any transfer of Data, in particular on an open network such as the Internet. In order to ensure the confidentiality of the processed Data, Birdly, Inc may ask you during the setting up of the Service to identify You using a code or a connection link. This code or link is strictly personal. You agree to keep it and not communicate it to anyone.
The End User and consequently the Customer is solely responsible for the consequences resulting from the communication of a personal code or connection link to any third party, voluntary or accidentally, without prejudice to the damages that Birdly, Inc could claim from You due to the damage suffered as a result. All actions and interactions made on the Web Site or with the Service under the authority of Your account and/or credentials, will be deemed having been made by You.
You will ensure that your Guests abide by the provisions set out in this article. Depending on the type of access that You grant them, Your Guests may need to identify themselves using a username and password or use a direct link to an item in your Plato Storage Space that you have decided to share with Your Guest. These login details as well as these access links are confidential. You agree to inform Your Guests and release Birdly, Inc of any responsibility relating to the use made of these identifiers or these access links by Your Guests or any other person authorized or not to access the Service.
8.1 Restriction on use of the Service
You are solely responsible for your conduct (and the conduct of anyone who uses the Services on your behalf) with respect to the Services, which you use at your own risk. Except as expressly permitted in writing by Plato, you will not do, and will not permit any third party to do, any of the following:
- rent, lease, lend, sell, sublicense, or create derivative works of the Services;
- distribute the Services or make the Services available over a network where it could be used by multiple devices at the same time;
- modify, disclose, decompile, reverse engineer, disassemble, attempt to derive the source code, underlying ideas, or algorithms of the Services or any part of the Services, except to the extent required by applicable law;
- remove, alter, or obscure any copyright, trademark, or other proprietary rights notice or labels on or in the Services;
- use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit Plato's other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Services;
- use the Services for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms;
- attempt to gain unauthorized access to the Services or their related systems or networks;
- use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store, process or transmit material in violation of the rights of Plato or any third party;
- impersonate or use the Services by misrepresenting your affiliation with a person or entity;
- build a competitive product or service, or copy any features or functions of the Services;
- disclose to any third party any performance information or analysis relating to the Services;
- access (or attempt to access) the Service and/or the materials or services by any means other than through the interface provided by the Service. The use of deep-link, robots (in particular in order to scrap some of the Services data, whether publicly accessible or not), spiders or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service or its content, or to assess the Services' vulnerabilities, or in any way reproduce or circumvent the navigational structure or presentation of the Service, materials or any content, or to obtain or attempt to obtain any materials, documents or information through any means not specifically made available through the Service could lead to suspension or termination of the Mentee/Mentor's access to the Service;
- abuse, harass, threaten, defame, disillusion, erode, abrogate, demean or otherwise violate the legal rights of any other person or entity, engage in advertising to, or solicitation of, other Mentee/Mentors of the Services to buy or sell any products or services. The Mentee/Mentor may not transmit any chain letters or unsolicited commercial or junk email/messages to other Mentee/Mentors via the Services. It shall be a violation of these Terms to use any information obtained from the Services to harass, abuse, or harm another person, or to contact, advertise to, solicit, or sell to another Mentee/Mentor of the Services;
- publish, post, disseminate, any information which is information that is false, inaccurate or misleading, grossly harmful, harassing, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering, or otherwise unlawful in any manner whatever under any law, rule or regulation currently in force;
- cause or permit any third party to do any of the foregoing.
8.2 Program Rules
By participating in at least one of the Plato Mentoring Sessions (also referred to as "Sessions" hereinafter), you agree to the following Session Rules:
Plato is rooted in trust and confidence. You agree that you will hold in confidence and shall not disclose to any third party any Confidential Information (as defined below) you obtain as a result of using any of the Services or engaging in any Session. In addition, you agree that you shall not use Confidential Information for your own benefit or the benefit of a third party without the explicit consent of the person who disclosed such Confidential Information to you. "Confidential Information" means any and all information and material that is marked as confidential, is identified as confidential, or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
You agree that you will not, directly or indirectly, solicit, recruit or hire other Session participants, whether you participate as a Mentor, a Mentee or any other category or participant.
8.2.3 Good Behavior
The Service permits the Mentor or Mentee to post, or upload data to each other or to the larger community, and the Mentor or Mentee undertakes to ensure that such material is not offensive or objectionable, and is in accordance with applicable laws. The Mentor or Mentee expressly agrees that any such material that is deemed to be objectionable/offensive may be removed from the Service immediately and without notice, and further that the Mentor or Mentee access to the Service may also be permanently revoked, at the sole discretion of Plato.
8.2.4 Mentors' obligations and commitments
As a Mentor, You have special obligations and commitments. Some of them may be described in various documents that You might need to agree to and sign in order to become a Mentor on Plato, for instance a Plato Mentorship Commitment Document.
9. Our Obligations
We use all reasonable technical means to ensure secure hosting of the storage servers and the Data they contain against any malicious intrusion (hacking, data theft, etc.).
You are informed that the Service does not contractually integrate or provide any identification or protection against viruses. Birdly, Inc strongly advises you to install on your computer an anti-virus system capable of identifying and destroying infected files. In no event will Birdly, Inc be held responsible for the consequences of downloading a file infected with viruses from a Plato Storage Space.
9.2 Recovery and Retrieval of Data
Birdly, Inc implements all means reasonably possible in order to ensure the recovery on your computer hardware or on any other similar or compatible computer hardware, of the Data that You will have stored on your Storage Space as soon as possible, subject to normal operation of the Internet network and in the absence of any interruption in service made necessary by maintenance, repair or upgrade operations.
Birdly, Inc will have fulfilled its recovery commitment as soon as all of the Documents referred to in the previous paragraph have been made available to you on the Internet. This is part of the principle of reversibility of the service. Optionally and at the request of the Customer, the Data may be restored to her/him in full, at any time, according to the following technical and financial terms:
- The Data will be restored in a common computer format, such as CSV files, ZIP archives, mp4 videos, etc.
- Data will be restored by making it accessible to You via an Internet connection. Birdly, Inc reserves the right to invoice the time spent by its staff in setting up this recovery, especially if you ask for a restitution on physical media such as DVD-ROM, USB-storage, etc.), the cost of the computer support to which the Data will be transferred as well as the cost of sending this support by Registered Letter with Acknowledgement of Receipt.
In order to recover your data, you must contact Birdly, Inc and open a support ticket.
9.3 Data Transfer
Birdly, Inc implements all means reasonably possible to ensure the transfer of Your Data, subject to normal operation of the Internet network and in the absence of any interruption in Service made necessary by maintenance, repair or upgrade operations. Transfered Data is always encrypted.
9.4 Data Confidentiality
Subject to the applicable legal provisions, Birdly, Inc implements all the technical means reasonably possible within the framework of a Service comprising both a storage service and the provision of Data, to ensure and respect, provide and enforce the strictest confidentiality on the existence and content of files, Documents and Data stored through the Service, within the limits hereof.
9.5 Optional Offers
Birdly, Inc may offer other optional value-added services. These services can actually be provided by third parties. In addition to these, the conditions of use of third-party services may then be applied.
10.1 End User Commitments
As a user of the Service, you agree to use it on your own behalf or, if Your access has been created on the behalf of a Customer, on the behalf of the Customer who has subscribed to said Service and under whose responsibility your access was created. You agree to use the Service only according to its instructions or within the framework of the missions which have been entrusted to You by it, in particular with respect to the clause “Your Obligations” above. Your responsibility prevails that of the Customer vis-à-vis Birdly, Inc. The Customer may, if necessary, turn against You following a breach or violation of these General Terms and Conditions on your part.
10.2 Plato's Responsibility and Liability
Plato’s service is provided “as is”, without warranty of any kind, express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and non-infringement. You bear the risk of using it. Plato gives no express guarantees, warranties, or conditions. Plato does not hold any liability nor accept any penalty regarding the service it provides, provided, should have provided or will provide. To the maximum extent permitted under applicable laws, Plato excludes all implied warranties, penalties and liability including merchantability, fitness for a particular purpose and non-infringement.
This limitation applies to (a) anything related to Plato services, content (including code), or third party applications; and (b) claims for breach of contract, warranty, guarantee, or condition; strict liability, negligence, or other tort; or any other claim; in each case to the extent permitted by applicable law. It also applies even if Plato knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your state, province, or country may not allow the exclusion or limitation of incidental, consequential, or other damages; if that is the case, Plato’s responsibility is limited to the amount that was actually paid for Your access to Plato’s service during the passed three (3) months.
11. Obligations Related to Data
Birdly, Inc, in its capacity as Data Processor and Data Controller, undertakes to protect Your Data with measures that follow the best practices of the industry.
11.1 Response to Special Requirements
Birdly, Inc makes no warranty as to the ability of the Website, the Application and/or the Service to meet Your specific expectations or needs. Likewise, Birdly, Inc cannot guarantee that no error or other operational or usage problem will appear during the use of the Website and/or the Service nor that the Service or the Application will fulfill your expectations.
Birdly, Inc does not guarantee that the results and information obtained will be free from any error or any other defect. Birdly, Inc is bound, as regards the provision of the Service, by an obligation of means.
In no case, can Birdly, Inc be responsible for damages such as in particular: financial, commercial damage, loss of Customers, any commercial disorder, loss of profit, loss of brand image, loss of computer programs suffered by You which could result from the non-execution of these Terms, which damages are, by express agreement, deemed to have the character of indirect damage.
Birdly, Inc will under no circumstances be liable for damage resulting, even partially, from a total or partial non-performance of Your obligations, as well as for all indirect damage even if it is aware of the possibility of such damage occurring.
Birdly, Inc assumes no commitment or responsibility for delays, alteration or other errors that may occur in the transmission of items from the Services when these events result from the use of networks or from a failure on Your part. Birdly, Inc is not responsible for the unavailability of networks (software or hardware) that are not entirely under its direct control, nor for any modification, suspension or interruption in the distribution of the Service, as well as for continuity, durability, conformity, compatibility or performance of these or the absence of bugs.
You acknowledge and agree that the Internet or any other network used for the transmission of stored Data may be saturated and/or that the Data exchanged by means of the network may be diverted and consequently, You release Birdly, Inc from any responsibility in this regard.
Similarly, Birdly, Inc cannot be held liable for interference by third parties in the communication and transmission systems that You use or malfunctions or stoppage of the Service due to negligence, faults or any act whatsoever on your part or by a third party.
Birdly, Inc cannot in particular be held responsible for any failure when receiving Data and/or invitation messages sent, since these failures result from the filtering and/or blocking techniques implemented by technical intermediaries, such as access providers. In the event that You notice such failures, You are invited to contact Your Internet Service Provider.
The responsibility of Birdly, Inc is in any event capped at the last 3 months of invoicing relating to the service concerned by a claim whether these amounts have been paid directly to Birdly, Inc or through a distributor.
11.2 Data Integrity
When recovering/downloading Data and/or Documents, it is Your responsibility to test and verify that they comply in all respects with the files allegedly deposited and that they integrate correctly with the original computer applications or with similar computer applications.
You agree to indicate to the address firstname.lastname@example.org any anomaly which you will have noticed within 24 hours of receiving the Data by communicating your name and your email.
11.3 Ownership of Data
The Data that You store on the servers used to perform the Services remains Your property, whether full and exclusive or shared property (especially regarding the Mentoring Sessions and their content).
Birdly, Inc cannot be held responsible for the processing operation, the distribution or the presence in Your Storage Space or the recovery on your computer terminal, of Data obtained fraudulently and/or prohibited by law or regulations.
You are solely responsible for choosing whether or not to process this data within Plato’s Service, keeping it, sharing it, sending it or destroying it, and assume sole responsibility for these choices.
Birdly, Inc nevertheless informs you that it is bound to collaborate with any judicial authority duly mandated to store, control or even eliminate the Data stored on its servers.
Birdly, Inc cannot be held responsible for defects and/or interruption of the Service in cases of force majeure.
11.4 Downloads and Cookies
You may be offered, as part of the provision of the Service, the downloading of software(s) likely, in particular, to facilitate the use of the Service. You agree when using this software as part of the Service to comply with these Terms. In any event, You acknowledge that any computer program that Birdly, Inc would suggest you download within the framework of the use of this Service remains the property of its owners or rights holders. Birdly, Inc also reserves the exclusive right to carry out any intervention on this software of which it is the owner both for maintenance and interoperability with any other program or hardware.
In order to allow You to Connect to the Service there may be a need to place cookies or use similar technologies on Your terminal. Cookies and similar data can be stored in the local storage space of Your browser. You can refuse certain cookies or similar data, in particular by modifying the parameters of Your browser. However, the refusal of certain cookies or similar data may prevent You from benefiting from all the functionalities of the Service.
11.5 Limitations and Changes
You acknowledge having received, in particular online, complete information on the Service and subscribe to it with full knowledge of the facts.
Birdly, Inc cannot be held responsible for any alleged inadequacy of the Service with Your needs. Birdly, Inc also reserves the right to:
- set up technical barriers limiting the number, type and/or size of the Data exchanged and/or the number of Guests in order to limit abuse or misuse of the Service. You will be informed of the technical limitations made to the use of the Online Service by email, sent to the address used to connect to the Service;
- modify these Terms.
11.6 End Users' Responsibility for Data
You are solely responsible for the Data that You wish to have processed by the Service and, in particular, to store on Your Storage Space. As a result of which, You are responsible for all damages that may arise from the communication of Data, in particular erroneous or incomplete, but also contrary to regulations.
You are responsible for all damages caused by You to Birdly, Inc. You agree to indemnify Birdly, Inc, in the event of a request, claim or conviction, in particular for damages, of which Birdly, Inc would be subject as a result of non-compliance with Your obligations or as a result of damage caused to others or to itself by the Data that You have had processed, stored or disseminated using the Service.
You guarantee Birdly, Inc against any complaint, claim or requirement from third parties who invoke a violation of their rights, following the use of the Service made by You.
You acknowledge that any use of the Service with Your Identification elements is presumed to have been made by You and will be charged to You, on Your responsibility to provide proof to the contrary.
12. Service Interruption
You are informed and accept that all or part of the Service may, in particular for reasons of repair, upgrade or maintenance, be temporarily interrupted. Birdly, Inc cannot be held responsible for the consequences resulting from any interruption. Birdly, Inc will make every effort to restore the Service as soon as possible. As far as possible, Birdly, Inc will inform You of any foreseeable interruption of the Service planned or greater than 24 (twenty-four) hours.
Birdly, Inc is entitled to carry out an Interruption as of right:
- In the event of violation of the terms of these Terms, of any misuse of the functionalities of the Service, Birdly, Inc will be entitled to proceed to the automatic termination of the Service by simple email, without You being able to request any compensation in this respect. Your Data will then be definitively deleted from the servers of Birdly, Inc within 30 days without You being able to claim any damage in this respect.
- In the event that Birdly, Inc is informed of the use of the Service for the purposes of storage or dissemination of Data contrary to these Terms or to the applicable laws and regulations, in particular of the State or Country from which You access the Service, Birdly, Inc will be entitled to immediately discontinue the Service without notice. You will then be informed by email. Your Data will then be definitively deleted from the servers of Birdly, Inc within 30 days without You being able to claim any damage in this respect.
13. Support and Assistance
As part of the Service, Birdly, Inc may provide technical support to End Users. Depending on the existing contract between the Customer and Birdly, technical support may be free of charge or billable.
14. Intellectual Property
Birdly, Inc is the sole owner of the software created by it and required for the operation of the Service and all related documentation.
Intellectual property rights, in particular of use and exploitation, relating to other elements of the Service may have been acquired by Birdly, Inc or conferred to Birdly, Inc, in particular the rights to use and exploit “open source” and third parties’ software elements.
Birdly, Inc grants You a right to use the software whose use is strictly limited to the proper functioning of the Service. This right of use cannot be detached from this Service. Birdly, Inc reserves the exclusive right to carry out any intervention on this software both for maintenance and for interoperability with any other program or hardware.
15. External Links and Services
15.1 External Services
15.2 External Links
Some links on Plato’s website point to resources, documents and sites which are not located within the platohq.com internet domain and, therefore, are not managed or controlled by Birdly, Inc.
Some of these links are included to point the reader to other possibly relevant resources.
A link to a document or site other than those included within the platohq.com domain does not necessarily imply that Birdly, Inc :
- endorses the organization(s) or person(s) providing them,
- agrees with the ideas expressed, or
- attests to the correctness, factuality, appropriateness, or legality of the contents.
16. Force Majeure
Birdly, Inc cannot be held responsible for the partial or total non-fulfillment of its obligations or any delay in the execution of the latter, if this non-performance or delay was caused by the occurrence of unforeseeable, reasonably irresistible and external events.
Is expressly considered as force majeure or fortuitous event, in addition to those usually accepted by the jurisprudence, the following cases: total or partial strike, lockout, riot, civil disturbance, insurrection, civil or foreign war, nuclear risk, embargo, confiscation, capture or destruction by any public authority, bad weather, epidemic, blocking of means of transport or supply for any reason whatsoever, earthquake, fire, storm, flood, water damage, government or legal restrictions, legal or regulatory changes to forms of marketing, blocking of electronic communications, including electronic communications networks, machine shutdown or incident, one or more computer viruses, attack by one or more hackers, and all cases not predictable by Birdly, Inc, calling into question the norms and standards of its profession and any other case beyond the control of the Parties preventing the normal execution of the obligations arising from this Contract.
Birdly, Inc will inform the Customer of any delay resulting from a case of force majeure and will take all measures to try to remedy it.
If the delay caused by force majeure exceeds ninety (90) calendar days, each party may terminate this Agreement.
Payment will remain due for the obligations already fulfilled and the Parties will settle their accounts accordingly, without being able to claim any compensation of any kind whatsoever.
17. Protection Of Personal Data
The contractual terms governing the processing of Personal Data by Birdly, Inc, are described in our Data Protection Agreement (DPA), which is available here and which is incorporated by reference to these Terms. Should you require a signed version of this DPA, please contact us by e-mail at email@example.com.
17.1 Birdly, Inc As Business/Data Controller
Under these terms, it is agreed that Birdly, Inc processes the personal data of its contacts with the Customer as business / data controller within the meaning of the applicable regulations (in particular CCPA and GDPR). Birdly, Inc is to be considered a business / data controller when it processes Personal Data of users of its services whose account has been created on their own behalf as natural persons (hereafter Individual Users), for instance mentors that have created an account as individuals. Birdly, Inc also processes certain data regarding Users: login credentials and logs for accessing the Service. As such, Birdly, Inc undertakes vis-à-vis the Customer and/ or the End Users to scrupulously apply the provisions of the applicable regulations on personal data and to guarantee the Customer and / or the End Users against any recourse exercised by a natural person with regard to personal data.
17.2 Birdly, Inc As A Service Provider/Data Processor
Under these terms, it is agreed that Birdly, Inc, when it performs Plato Services, including hosting activities and the content stored there, to process the personal data of users whose account has been created on the behalf of a customer which is not an individual, acts as a service provider/data processor, the Customer being the data controller / the business within the meaning of the aforementioned applicable regulations. In other words, Birdly, Inc is a processor when it processes the personal data of users whose access to Plato services has been created on the behalf of a Customer (hereafter Corporate Users).
It is up to You to identify precisely the processing to which We may have access. For more details on the nature of the operations carried out, the purposes of the processing, the data and the persons concerned, reference is made to our service contract or our general/specific terms.
Under the applicable regulations, We are obliged to inform You immediately if any of Your instructions appear to Us to constitute a violation of the regulations on personal data. We will not be required to comply with such instructions.
As a service provider/data processor, we are committed to:
- access and process Your personal data in accordance with Your instructions and/or the instructions of the Customer that created Your access to Plato ;
- access and process Your data only for the services defined between us;
- send You without delay any request from a consumer/data subject concerned by a processing executed on Your behalf which would have been submitted to us directly so that you can respond to her/him in good time.
In order to comply with the obligations of the privacy laws, we have notified our staff of a set of rules intended for the protection of personal data and are implementing regular awareness-raising measures.
As a business/data controller, it is Your responsibility to communicate to us by any means necessary the instructions that we must follow in the context of access to and, where appropriate, the use of Your Data.
The instructions provided may not in any case have the purpose or effect of modifying the service to which you have subscribed.
You further agree:
- to comply with the applicable regulations with regard to personal information/data in your capacity as business/data controller and to act as guarantor for any lawsuit or conviction relating to Your use of the Services including Data in Your Storage Space;
- to guarantee that the data which We access or which We process on Your behalf are Yours or failing this that You have all the necessary authorizations;
- to inform Us of any development relating to Your data processing which could have an impact on the implementation and compliance with the Terms herein;
- to provide Us, if You have designated one, with the contact details of your DPO or GDPR referent;
- to provide Us as necessary with the information necessary for keeping Our data processing record as a service provider/data processor.
Each Party implements the appropriate technical and organizational measures to secure and protect the processing of personal information/data. We therefore offer you a range of technical and functional solutions, but you are the only decision maker on whether or not to implement these measures. It is up to you to assess your risks and how to deal with them.
You must constantly make sure that the user profiles are correctly configured. Likewise, all authentication codes if any must be set and changed regularly. As such, You should not keep the default, manufacturer, or operator codes. You must pay particular attention to Your mobile device fleet.
If We identify a violation of Your Data within our services, We undertake to notify You without delay so that you can notify the appropriate data subjects or authorities by yourself. We undertake to communicate to You all the information necessary to comply with this notification obligation. In the event of a breach of personal data on Your own equipment, You are required to notify Us without delay if this breach is likely to affect the provision of Our services.
You authorize Us to use Our own service providers/data processors (“subsequent processors” within the meaning of the GDPR). We guarantee that the data processors that we choose provide themselves all the appropriate guarantees with regard to the protection of personal information/data.
We reserve the right to carry out, as part of Our services, cross-border data flows, but We guarantee You compliance by the designated local entity, whether it is a subsidiary of Our company or a third-party provider, for the respect of privacy laws.
At the end of the contract and no later than the last day of the contract, it is up to You to indicate to us whether We should delete or restore the personal data to You. Once the data has been deleted or transferred, We do not keep a copy of it and will therefore not be able to send You a new copy of the data.
Each Party undertakes to inform the other of any authority’s control concerning its operations, in particular relating in whole or in part to Your Data, and will take, if necessary, the measures necessary to answer the questions asked by said authority.
You can audit Our compliance with the obligations defined herein once a year. Unless there is a proven data breach, this audit is carried out by means of a compliance questionnaire that You will send us on the anniversary of Our contract. In the event of a data breach, this audit may be carried out in the form of an on-site inspection, the conditions of which will be defined by mutual agreement.
Depending on the thresholds defined by the applicable data privacy laws, each Party may be required, as far as it is concerned, to keep a record of processing activities. Each Party undertakes to communicate to the other, on first request, all the information necessary for the maintenance of said record.
In accordance with applicable laws, Our responsibility as a service provider/data processor can only be engaged in the following limiting cases:
- We have not complied with the obligations provided for by the applicable law which are our specific responsibility as service provider/data processor or;
- We have acted outside of Your documented instructions or;
- We acted contrary to Your written instructions.
In all cases, the compensation for damage and the compensation caps are those defined in Our service contract or Our general/specific conditions.
In the event of regulatory changes or recommendations from the appropriate authorities, We reserve the right to modify the Agreement herein. Any new version of the Agreement herein will be notified to You before its entry into force.
In addition, You are informed that the details of the data use policy of Birdly, Inc as well as other resources relating to the confidentiality of the data, notably contained in the Documents that You upload in Plato, are available on its websites
17.3 Birdly, Inc And The Customer As Joint Controllers
When the use of the Plato services implies the processing of personal data related to Individual Users as well as those related to Corporate Users, for instance when a Mentoring Session implies an Individual User as the mentor and one or several Corporate Users as mentees, Birdly, Inc and the Customer are deemed being Joint Controllers. In such a case, Birdly, Inc’s responsibilities and obligations are those applicable to it as a Controller for the processing of Personal Data related to Individual Users and the Customer’s responsibilities and obligations are those applicable to it as a Controller for the processing of the Personal Data related to Corporate Users.
18. Miscellaneous Provisions
Non-waiver: The fact that one of the Parties does not take advantage of a breach by the other Party of any of the obligations referred to herein cannot be interpreted, for the future, as a waiver of the obligation in question.
Independence of the Parties: The Parties acknowledge that they each act on their own account as independent parties from each other. These general terms and conditions do not constitute an association, a franchise or a mandate given by one of the Parties to the other Party. Neither Party may make an undertaking in the name and on behalf of the other Party. In addition, each of the Parties remains solely responsible for its actions, allegations, commitments, services, products and personnel, no active or passive solidarity may be retained between them, which the Parties expressly accept.
Agreement in relation to proof: Data and documents in electronic form exchanged between the Parties will be evidence, provided that the person from whom they originate can be duly identified and that they are established and kept under reasonable conditions to guarantee their integrity, accuracy, reliability, durability and longevity.
Address for service: For the purpose of execution of the agreement herein and except for special provisions, the Parties agree to send all correspondence to their respective registered offices. Any change of address must be reported to the other party by all acceptable means, including registered letter with acknowledgement of receipt.
Commercial references: each Party may cite the name of the other as a commercial reference in accordance with commercial usage, in particular on their respective websites.
Headings: The headings of each section in these Terms are only for the purpose of organizing the various provisions under these Terms in an orderly manner, and shall not be used by either Party to interpret the provisions contained herein in any manner. Further, it is specifically agreed to by the Parties that the headings shall have no legal or contractual value.
Nullity: If one or more stipulations of the agreement herein are held to be invalid or declared as such pursuant to a law, a regulation or following a final decision judged by a competent court, the other stipulations will keep their full force and scope.
If any provision of these General Terms and Conditions or related clauses and conditions, in particular mentioned in the appendix, turns out to be invalid, the remaining provisions of these General Terms and Conditions and clauses and conditions remain fully applicable. Insofar as such an invalid provision can be interpreted in such a way that it is valid, that provision must then be interpreted as such.
19. Governing Law And Disputes
The Parties expressly agree that this Contract is subject to California law. Any dispute relating to the interpretation and/or execution of this Agreement must, first of all and as far as possible, be settled by means of amicable negotiations between the Parties.
IN THE ABSENCE OF AN AMICABLE AGREEMENT BETWEEN THE PARTIES WITHIN ONE (1) MONTH FROM THE DATE OF FIRST PRESENTATION OF THE REGISTERED LETTER WITH ACKNOWLEDGMENT OF RECEIPT NOTIFYING THE DIFFICULTY IN QUESTION, ANY DISPUTE MUST BE SUBMITTED TO THE COMPETENT COURTS OF SAN FRANCISCO, CA, USA, NOTWITHSTANDING PLURALITY OF DEFENDANTS AND THIRD PARTIES, INCLUDING EMERGENCY PROCEDURES AND PROTECTIVE PROCEDURES, ON REFERRAL OR ON REQUEST.