GENERAL CONDITIONS OF USE OF THE BODYGURU SERVICE
FOR ANDROID OS
The present GCU (general conditions of use) seek to define the terms and conditions according to which the company Next.com, a French société par actions simplifiée (SAS) [= simplified joint stock company] with a share capital of EUR 37,000, registered in the registre du commerce et des sociétés [= trade and companies register] of Paris under number 508 540 010, the registered office of which is at 6, Place d’Alleray, 75015 Paris, France (hereinafter referred to as the “Company”), shall provide and make the service “BodyGuru” (hereinafter referred to as the “Service”) available to Users.
The Service is an application which allows Users to view their health and fitness data aggregated from different sources on a unique interface. Its aim is to help users to track their level of physical activity and changes in weight to assist with daily training activities.
The Service is accessed through a mobile application which can be downloaded from the compatible application store of GOOGLE Inc, GOOGLE PLAY. It can be used by any individual over the age of eighteen wishing to use the Service for their own purposes and as part of strictly personal, non-commercial use.
The Service is intended for recreational use. The User is advised to check with a healthcare professional that the physical activity undertaken in relation to the Service is adapted to their state of health.
To access the Service, the User must download the application Bodyguru or select the Bodyguru application already installed on their Device (hereinafter referred to as the “Application”). They must then subscribe to the Service by creating a Bodyguru account or using their Social Network login details.
Access to and use of the Service are subject to the present GCU, which the User expressly accepts by using the Application.
Access to the Service is free. The Company reserves the right to amend the Service and its access conditions in accordance with the provisions set forth in Article 7.
ARTICLE 1 – DEFINITIONS
The following terms shall, unless stipulated otherwise, be interpreted in accordance with the definitions provided in this article:
Friend: refers to a User who has accepted an invitation from another User to join the Community;
Application: refers to the Bodyguru application, allowing access to the Service from a Device compatible with the Android operating system;
GCU: refers to the present general conditions of use of the Service;
Community: refers to all the Users using the Application;
Account: refers to the account created by the User to use the Service;
Content: refers, as appropriate, to content published on the Service (such as raw data or graphics, partner content, etc.) or Content produced by a User such as a comment or any other element that may be uploaded within the context of the Service, in particular, but not solely, by a User;
Illicit Content: refers to Content in violation of applicable laws (in particular the violations mentioned in Article 24 of the Law dated the 29 July 1881 on freedom of the press and Article 227-23 of the Penal Code) and in particular, without this list being exhaustive: content infringing, damaging or endangering (i) individuals’ rights, (ii) intellectual property, (iii) public order, (iv) respect for human beings or their dignity, (v) protection for those under eighteen years of age, (vi) encouraging, containing or inciting discrimination, abuse, hatred or violence towards an individual or group of individuals, (vii) inciting crime and offences, (viii) justifying, denying or questioning war crimes and/or crimes against humanity.
Login Details: refers to the login details enabling the User to create and connect to their Account to access all the functions of the Service. The Login Details correspond to either (i) their BodyGuru login and password, or (ii) their Social Network login and password;
Social Network: refers to the Facebook* service and/or any other similar service (such as Twitter**), which have no commercial relationship with the Company, which simply uses the public authentication and sharing functions of these Social Networks within the context of the Service.
Site: refers to the website which can be accessed at the following address: www.BodyGuru.com, offering information on the Service and providing links to compatible application stores to download the Application. The Site does not, however, allow Internet users to subscribe to the Service;
Company: refers to the company Next.com, a French société par actions simplifiée (SAS) [= simplified joint stock company] with a share capital of EUR 37,000, a subsidiary of France Télécom SA involved in innovation, registered in the registre du commerce et des sociétés [= trade and companies register] of Paris under number 508 540 010, the registered office of which is at 6, Place d’Alleray, 75015 Paris, France;
Device: refers to any mobile device using the Android operating system;
User: refers to any person using the Service.
* Facebook is a service and trademark belonging to the company Facebook Inc, which is a third party company vis-à-vis the France Telecom group of companies.
** Twitter is a service and trademark belonging to the company Twitter Inc, which is a third party company vis-à-vis the France Telecom group of companies.
ARTICLE 2 – OBJECT
The present GCU seek to define the conditions according to which the Service is made available to Users and the conditions according to which Users must use the Service.
ARTICLE 3 – ACCESS TO THE SERVICE
3.1 Technical pre-requisites
In order to use the Service, the User must have a compatible Device and Internet access from the Device. Consequently, the ability of the User to access the Service can be affected by the performance of either of these points.
The User must verify that they have a package allowing them to access the Internet and must make enquiries with their mobile operator with regard to billing terms and conditions for downloading the Application and data consumption when using the Service. The Company shall not under any circumstances be held liable for any costs incurred as a result of using the Service and billed by the User’s mobile telephone operator. The User must check that he/she is not in violation of the terms of his/her (voice/data) subscription with his/her mobile phone operator.
3.2 Activation of the Service
To access the Service, and where the Application is not already pre-loaded on the Device, the User must download the Application to their Device from the compatible application store of GOOGLE Inc, GOOGLE PLAY
To use the social networking functions of the Service and to have access to Social Networking Content, the User must create an account on the Service using the Login Details for their Social Network. The Service will then be paired with the Social Network selected by the User.
It shall be noted that no information will be published on the “wall” or “timeline” of the User’s Social Network without their consent; the User may change their publication settings from within the Application.
Any User linking their Account with their Social Network account:
- is hereby informed and expressly accepts that aspects of their public identity such as their forename and/or surname, profile picture or avatar, such as they appear on the Social Network using the given Login Details, will be visible to the Community.
- authorises the Company to send direct electronic information messages about the Service to the e-mail address provided when creating the Account, as well as Service update notifications, sent directly to their Device when connecting to the Service.
At any time, the User may disconnect (in the “Preferences” panel) or unsubscribe from the Service (see Article 11.3 of the GCU). For any subsequent use of the Service, the User must re-enter their Login Details to connect to the service if they have disconnected, or re-subscribe if they have unsubscribed.
3.3 Account details
The Company reserves the right to delete any Accounts which have been inactive for more than 12 months under the conditions set forth in Article 11.2. The deletion of a User’s Account leads to deletion of any Content that may have been stored on the Account.
ARTICLE 4 – DESCRIPTION OF THE SERVICE
The Service primarily allows the User to track their weight and physical activity and to set objectives for each of these aspects, all the while sharing this information with their contacts on Social Networks.
The User can deactivate all notifications, choose the type of notifications that they wish to receive by category and choose the frequency of notifications from the preferences.
The Company reserves the right to show advertisements within the Application.
ARTICLE 5 – DURATION
Registration with the Service is valid for an indefinite period of time. It takes effect immediately after Account creation.
ARTICLE 6 – FEES
Registration and access to the Service are free of charge (excluding connection and internet access costs).
The User may be billed by their mobile operator, in particular for Internet access charges in accordance with the current tariffs charged on their package.
In the event of any changes to the access fees conditions of the Service or any of its functions, the User will be informed of this in accordance with the conditions set forth in Article 7.
ARTICLE 7 – SERVICE MODIFICATIONS
The Company reserves the right to change the Service, in particular by offering new functions, or modifying and/or removing certain functions. The User will have the option of ceasing to use the Service or continuing to use the Service in accordance with the new applicable general conditions of use.
ARTICLE 8 – USER OBLIGATIONS
The User undertakes to use the Service in line with its defined use and is asked to exhibit due judgment and prudence in respect of the information which they access and/or transmit to the Community from the Service. The User is hereby informed that any misuse of the Service is forbidden, especially the marketing of the Service.
The User is the sole judge of any information concerning their private life which they share with the Community through their Profile or comments. If the use of such information by third parties should cause any prejudice to a User, the latter cannot hold the Company liable.
The User alone is responsible for the use of their Login Details allowing them to access their Account on the Service and must ensure that this information is kept confidential, with the Company being unable to accept any liability for the consequences of any disclosure, even accidental, of these Login Details to a third party.
The User undertakes to not distribute Illicit Content on the Service.
The User shall also refrain from trying to mislead third parties by appropriating the name or company name of other persons, and more specifically, claiming to be an employee of the Company.
The User shall refrain from any use of the Service or other technologies of such a nature as to disrupt, diminish and/or restrict its normal functioning, in particular by distributing or uploading to the Service any programme or computer file or other malicious data or programme which might contain viruses or Trojan horses intended to damage or interfere with the proper functioning of the Service.
The User shall refrain from sending any unsolicited or unauthorised advertisements from the Service, and in particular engaging in spamming and distributing junk mail, as well as any act which may result in prejudice to third parties.
The User guarantees (i) that he/she does not live in a country that is the subject of an embargo by the United States government or that is designated by the United States government as a ‘terrorist supporting country’ and (ii) that he/she does not feature on a list of ‘prohibited or restricted parties’ established by the United States government.
Should any User fail to respect the rules set forth above and more generally all of the GCU, the Company reserves the unilateral right to delete the User’s Account without justification and block their access to the Service. The User will be informed by e-mail of any termination by the Company in this respect.
ARTICLE 9 – COMPANY OBLIGATIONS
The Company is responsible for implementing the necessary means to ensure the proper functioning of the Application and of the Service and shall take any measures deemed necessary to maintain the continuity and quality of the Service and of the Application.
The Company cannot be held liable for any use by a User of the Service which runs counter to the present GCU or applicable regulations/legislation, and in particular in the event of any fraudulent use, identity fraud, harassment, abuse or prejudice of any kind to individuals or to their rights or interests.
The Company cannot be held liable for any potential damages that may occur as a result of force majeure or the actions of a third party.
The Company more generally reserves the right to delete, without prior warning, any Content on the Service which contravenes the present GCU.
The Company cannot under any circumstances be held liable for any potential indirect damages suffered by the User when using the Service, in particular those services and activities offered by third parties external to the Company. Indirect damages are considered to be any damages which do not result exclusively and directly from failings in the Company’s services.
ARTICLE 10 – INTELLECTUAL PROPERTY
10.1 User rights and property (licence)
The User warrants to be and shall remain the owner of any Social Network Content that they publish and distribute through the Service, subject to the rights of third parties over some of this Content.
The Company hereby grants to the User, for the duration of their Account’s validity, a non-exclusive, non-transferable and revocable usage right, which cannot be subject to sub-licencing, over the interface and software applications necessary to use the Service, with it being understood that the Application incorporates components subject to third party licences, as mentioned in Article 10.2. The User guarantees that he/she will comply with the terms of any licences agreed with third parties that are applicable within the context of use of the Application.
This authorisation is subject to adherence to the present GCU and the Usage Rules available from the GOOGLE Inc, GOOGLE PLAY AppStore.
Authorisation does not authorise you to access or use any source code of the Application and/or the software components of the Application.
The User shall not:
a. use, copy, modify or distribute the interface and software applications making up the Application, including the Service, unless expressly authorised by the present GCU;
b. disassemble, decompile or transfer the interface and software applications making up the Application, including the Service, unless expressly authorised by applicable laws or regulations;
c. sub-licence or assign the interface and software applications making up the Application, or any aspects made available as part of the Service.
10.2 Third party rights and property
The Company and the companies forming part of its group are and shall remain the owners of the Service, the Application and the software, and associated graphic theme, trademarks, logos, concepts, technology and databases.
Pursuant to Articles L. 113-2 and L. 113-4 of the Intellectual Property Code, the Application is a collective work subject to the following third party rights:
For the Android version:
• TrimPath Template v1.0.38 is distributed in accordance with the terms of the Apache version 2.0 licence (http://www.apache.org/licenses/LICENSE-2.0.html)
• Iscroll v4 Copyright (c) 2011 Matteo Spinelli Iscroll v4 is distributed in accordance with the terms of the MIT licence (http://www.opensource.org/licenses/MIT)
The User acknowledges that they shall acquire no intellectual property rights over elements belonging to the Company and its group. The User shall also strictly refrain from using these elements for anything other than use of the Service in accordance with the present GCU.
All improvements, updates, spin-off products, and changes with regard to the Service and the Application, whether they have been implemented, created or developed by the Company or its group, are and shall remain the property of the Company and/or its group, and the User expressly acknowledges and accepts that any contribution in the form of services, suggestions, ideas, relations, identification of faults, expenditure, or any other contributions made by the User, shall not grant them any right, title or interest in any one of the elements or components making up the Service.
ARTICLE 11 – SUSPENSION AND TERMINATION
11.1 Suspension or cessation of the Service
The Company reserves the right to suspend or stop the Service on the GOOGLE Inc, GOOGLE PLAY AppStore, at any time and for any reason whatsoever subject to having informed the User in advance. In the event that the Service is suspended or stopped, the User will be informed by means of an on-screen information notice when connecting to the Service or by any other means (e-mail etc.).
11.2 Suspension or termination of a User’s Account by the Company
11.2.1 Cases leading to suspension or termination
The Company reserves the right to lawfully suspend or close the Account of a User, without indemnity, in particular in the following cases:
- if a User uses the Service in contravention of the present GCU or more generally uses the Service for illicit purposes,
- any act of piracy or attempt to illicitly use information distributed over the network, caused by or originating in the User’s Account or the connection with the User’s equipment;
- the User marketing the Service in any form whatsoever to one or more third parties or using the Service in an abusive manner;
- for urgent security reasons in the event of an attack or attempted attack on the integrity and security of the Account or Service.
11.2.2 Terms of suspension or termination
Any termination or suspension by the Company in the instances mentioned in Article 11.2.1 will be reported to the User by any means possible, and in particular by means of an e-mail sent to the e-mail address provided by the User. Nonetheless, any violation of the present GCU causing prejudice to the Company or to third parties will entitle the Company to suspend the Account immediately and to terminate the Account definitively if the User is unable to prove that they are not responsible for the breach in question.
In the event that the Company has suspended the Account of a User for one of the reasons mentioned in Article 11.2.1 and following a suspension period of 8 days, the Company may lawfully terminate the User’s Account if the cause of the suspension has not been remedied during this period.
In the event that the Service is definitively ceased, the User will be informed of this by any means possible, and in particular by e-mail.
11.3 Account termination by a User
The User may terminate their Account at any time by sending the Company a message from their e-mail address used for the Service to the following address: firstname.lastname@example.org.
In this instance, their access to the Service will be terminated and all of the data associated with the Account will be deleted (where applicable subject to any legal data conservation obligations for which the Company is responsible).
Exclusive responsibility lies with the User to backup all of their Content on their own storage medium prior to deletion of the Content.
ARTICLE 12 – PERSONAL DATA AND STATISTICAL DATA
12.1 All personal data collected by the Company as part of the Service upon Account creation will be processed in accordance with applicable data protection laws and will be used to provide the Service and to send information e-mails to the User.
It shall be noted that when the User creates an Account using the Login Details of a Social Network of which they are a member, their personal data will be processed by the company managing the Social Network in question. Consequently, the User is invited to refer to the personal data processing policy of the relevant company.
Pursuant to applicable data protection laws, the User may at any time access their personal data held by the Company, and request its modification or deletion by sending an e-mail to the following address: email@example.com.
The User alone is responsible for the personal data that they have disclosed to the Community through the Service.
The Company may be required to send information about the User to specially authorised bodies within the context of legal requisitions in accordance with the law.
Throughout the use of the Service and for evidential purposes, data about the User and use of the Service will be stored and archived confidentially by the Company in accordance with the law.
12.2 The Application also collects information about the use of the Application and sends this information to the Company for statistical analysis for the purposes of improving the Application and the corresponding Service. All information collected in this regard will be used anonymously and will not under any circumstances be associated with a particular Account or User. This information is collected and processed in accordance with applicable laws. The data will only be used to improve the Application and corresponding service. The User may deactivate the collection of this information at any time. An option to this effect has been included on the “preferences” page of the Application.
ARTICLE 13 – MISCELLANEOUS PROVISIONS
If one or more provisions stipulated in the present GCU are null and void or declared as such pursuant to a particular law, regulation or following a final ruling passed by a competent authority, all other provisions in this document shall preserve their legal effect and scope.
Any provisions deemed to be null and void shall be replaced by provisions seeking to replicate the content of the initially approved provisions insofar as possible.
The parties cannot be held liable, or considered to be in breach of the present GCU, for any delay or non-performance, when the cause of the delay or non-performance is associated with a force majeure event as defined by the case law of French courts.
The User may not under any circumstances assign or transfer to a third party, for a consideration or otherwise, in any form whatsoever, their Account or the prerogatives ensuing from the present GCU without prior written consent from the Company. The Company may transfer the rights and obligations ensuing from the present GCU, including data pertaining to the User’s Account, to any company taking over or continuing the Service’s provision, irrespective of the legal form of this take-over or continuation, and shall inform the User of this, in accordance with the conditions set forth in Article 7.
The present GCU represent the entire agreement between the parties involved in the general conditions of access to the Service and shall replace any agreements or declarations previously made, be they spoken or written, pertaining to the object of the present GCU.
Any claim or dispute in relation to the Service, and in particular regarding Illicit Content, must be sent in writing using the contact form under the “Contact” link on the Site, or by writing to firstname.lastname@example.org.
ARTICLE 14 – APPLICABLE LAW
The present GCU are governed by French law.
In the event of any dispute resulting from the present GCU or pertaining thereto with a commercial entity, the competent courts shall be those falling within the jurisdiction of the Cour d’Appel [= Court of Appeal] of Paris. In the event of any dispute resulting from the present GCU or pertaining thereto with an individual, the competent court shall be the court with jurisdiction over the place of domicile of the individual.
© Next.com. All rights reserved
A joint stock company with capital of 37,000 euros, registered with the Trade and Companies of Paris under number 508 540 010.
Headquarters: 6 place d'Alleray, 75015 Paris, France.
Mailing adress: Next.com - Service BodyGuruLite - Marketing Next Technocentre 38 rue du Général Leclerc, 92130 Issy-les-Moulineaux
Telephone: + 33 (0)1 44 44 22 22
Joint stock company with capital of 10,595,434,424 Euros, registered with the Commerce and Companies of Paris under number B 380 129 866.
Headquarters: 6 Place d’Alleray, 75505 Paris Cedex 15, France.
Telephone: + 33 (0)1 44 44 22 22
Warning: All rights of reproduction and distribution reserved.
Third parties rights
BodyGuruLite includes third parties softwares detailed below which rights are owned by the following third parties:
• TrimPath Template v1.0.38 is distributed under Apache v2.0 licence (http://www.apache.org/licenses/LICENSE-2.0.html)
Copyright (c) 2008-2011 Nitobi Software Inc., et. al.,
PhoneGap is distributed under MIT licence (http://www.opensource.org/licenses/MIT)
v4 Copyright (c) 2011 Matteo Spinelli
Iscroll v4 is distributed under MIT licence (http://www.opensource.org/licenses/MIT)
For more details, check http://cubiq.org/