ARTICLE 1. DEFINITIONS
Within the meaning of the general conditions of use, the expressions below will have the following definition:
TOS : means the present general terms and conditions of use applicable to the Services.
Coach: Any sports professional who benefits from a personal space on the Platform (the "Personal Account") and who offers Services.
As a reminder, according to article L. 212-1 of the Sports Code: "Only holders of a diploma, professional title or certificate of professional qualification may teach, lead or supervise a physical or sports activity or train its practitioners, as a main or secondary occupation, on a regular, seasonal or occasional basis, in return for payment, subject to the provisions of the fourth paragraph of this article and article L. 212-2 of this code:
1° Guarantees the competence of its holder in terms of the safety of practitioners and third parties in the activity in question;
2° And registered in the National Directory of Professional Certifications under the conditions provided for in Article L. 6113-5 of the French Labour Code.
Personal Data means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity.
Identifiant désigne l’identifiant personnel associé au compte de l’Utilisateur ainsi que tout code confidentiel ou mot de passe délivré à l’Utilisateur par GYMKEE SAS puis modifié par l’Utilisateur et permettant à l’Utilisateur de s’identifier afin d’accéder aux Services.
Payment process means the system set up by GYMKEE SAS in order to obtain payment for the service ordered on the platform.
Regulation on personal data means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 applicable as from 25 May 2018 (hereinafter, "the General Regulation on Data Protection") and the French Data Protection Act No. 78-17 of 6 January 1978 as amended by Act No. 78-17 of 6 January 1978 relating to data processing, files and freedoms, and amended by Act No. 2004-801 of 6 August 2004.
Parties jointly designate GYMKEE SAS and the User.
Platform refers to mobile applications, sites accessible via the address www.gymkee.io or any other domain name extension.
Services refers jointly to training and nutrition monitoring services by personal trainers and any other services provided by GYMKEE SAS through its Website Platform as defined in Article 6 of these Terms and Conditions of Use.
User means any physical person who uses the platform and accesses the Services offered by GYMKEE SAS by this means.
Unless otherwise specified in the TOS:
- Whenever a word or phrase has a defined meaning, any other form of that word or phrase has a corresponding meaning;
- Words in the singular include the plural and vice versa;
- A reference to a document, standard, legislative provision, code or any other document implies any modification or update of that document, standard, legislative provision or code;
If a period of time is specified and dates back to a given day or the day of acceptance of the TOS, that period of time shall be calculated as including that day.
ARTICLE 2. PURPOSE OF THESE GENERAL TERMS AND CONDITIONS OF SERVICES AND VERSION IN EFFECT
The purpose of these GCU is to define the conditions under which Users can access and use the Services.
Any User who accesses the Services of the Gymkee platform undertakes to respect, without reservation, the present GTCU.
If the User does not agree with all or part of the TOS, it is strongly recommended that the User does not use the Platform and Services.
GYMKEE SAS is free to modify, at any time, the present GCU, in particular in order to take into account any legal, regulatory, jurisprudential or technical evolution. The version that prevails is the one accessible online at the following address: www.gymkee.io/en/terms-of-use. The User is therefore required to refer to the version accessible online on the date of his access to and use of the Services.
The User is expressly informed that the only authentic version of the Terms and Conditions of Use of the Services is the one online on the Platform, which he acknowledges and accepts without restriction, undertaking to refer to it systematically each time he connects..
ARTICLE 3. CAPACITY
Use of the Services is reserved for Users who are physical persons of full age and capable of taking out obligations in accordance with French law, as well as minors aged at least 16 years old.
A person under 16 years of age may only use the Services of GYMKEE SAS if he/she provides explicit authorisation from his/her legal representatives under the conditions provided for by law.
The User may use the Services on behalf of third parties over whom he has parental authority or for whom he is recognised as a tutor or curator in accordance with French law.
ARTICLE 4. INFORMATION, RESPONSIBILITIES AND GUARANTEES RELATING TO THE MEANS OF ACCESS TO SERVICES
GYMKEE SAS puts in place the means necessary for the proper functioning of the Services. GYMKEE SAS takes the necessary measures to maintain the continuity and quality of the Services.
GYMKEE SAS aims to make the Services accessible 24 hours a day, 7 days a week, except in the event of force majeure or an event beyond the control of GYMKEE SAS and subject to maintenance periods, possible breakdowns, technical contingencies linked to the nature of the Internet network or acts of malice or any damage to GYMKEE SAS hardware or software. GYMKEE SAS cannot be held liable for disruptions to the Internet network due to cases of force majeure and due to maintenance operations of the Services planned by GYMKEE SAS. GYMKEE SAS also cannot be held liable for the installation and operation of terminals used by the User to access the Services and not provided by GYMKEE SAS.
More generally, GYMKEE SAS may under no circumstances be held responsible due to an interruption of the Services, whatever the cause, duration or frequency of this interruption.
The transfer rates and response times of information circulating from the GYMKEE SAS platform to the Internet are not guaranteed by GYMKEE SAS. The User acknowledges that the speed of transmission of information does not depend on the Services offered by GYMKEE SAS, but on the inherent characteristics of the electronic communications networks and the technical characteristics of its connection mode (cable, ADSL, 3G, 4G, etc.) and its Internet access.
GYMKEE SAS shall in no way be held responsible for repairing any indirect damage suffered by the User when using the Services. Indirect damages are those which do not result exclusively and directly from the failure of the GYMKEE SAS Services.
Any software, downloaded by the User, or obtained in any other way while using the Service, is at the User's own risk.
ARTICLE 5. ADVANCE SERVICE INFORMATION
The Platform offers the User the possibility:
- to set up a personalised coaching programme
- to follow his or her progress during the sessions by means of statistical data collected on the Platform
- to consult the next appointments
- to set up and provide nutritional program advice
All the services provided by the Platform are accessible subject to creating a personal account on the platform.
Nevertheless, the equipment (in particular computer, telephone, software, electronic means of communication) enabling access to and use of the Services are at the exclusive charge of the User, as are the electronic communication costs (in particular telephone costs, Internet access costs) resulting from their use. It is up to the User to 'inform the operators concerned of the price of use of the said equipment or services. The User is solely liable for their prices.
ARTICLE 6. SERVICE DESCRIPTION
(a) Account creation
The use of all or part of the Platform requires the prior creation of an account. The creation of an account with validation of the TOS is equivalent to acceptance of the present terms and conditions. By creating an account, the user creates a personal space on the Platform.
The validation of the TOS is a necessary condition for the creation of the account.
The creation of an account is free of charge and open to any natural person meeting the conditions of capacity set out above or to any legally constituted legal entity acting through a duly authorised representative.
The creation of an account requires the provision of your email address and a secret, personal and confidential password, date of birth, height and weight.
The User is responsible for the accuracy and updating of the information he or she provides.
The User is responsible for maintaining the confidentiality of his or her User ID and password, for restricting access to your computer, and for all activities that occur under his or her Account or with his or her User ID and password.
(b) Deleting the account
The User can delete your account by choosing to do so by clicking on the delete account button in the settings.
The account deletion entails the removal of all stored data after a period of 30 days from the validation of the deletion. The User may reconsider the decision within 30 days of the request. Beyond this period, all data stored by GYMKEE SAS will be lost.
(c) Closing or suspending the account
GYMKEE SAS has the right to close or suspend the use of your account in the event of non-compliance with these TOS, after sending an email of formal notice which remains without effect for a period of 5 working days.
In the event of fraud or attempted fraud, GYMKEE SAS may suspend your account without delay and without formality. In particular, is considered fraudulent the fact of :
- pretending to be any other person or entity or misrepresenting your identity;
- behaving inappropriately or improperly on the Platform or when using the Services;
- using the Platform's services for illegal or unlawful purposes;
In the event that your Account is closed at the initiative of GYMKEE SAS, it is strictly forbidden for the User to open a new Account, with the same or a different email address or by an intermediary without the prior written authorisation of GYMKEE SAS.
6.02 Personalized coaching program
The Platform offers a personalized coaching service based on programs made available to the User according to his personal goals and physical condition.
6.03 Tracking of progress through the sports workouts
Progress monitoring is based on the storage of personal data recorded by the Platform as the sessions progress. The Platform offers a visual presentation of all this data in the form of graphs.
6.04 Nutritional advice
The platform offers the possibility of associating a nutritional counselling service with the use of the sports coaching service. The service makes it possible to set up a nutritional programme and ensure its tracking.
6.05 Data storage
(a) Data Stored
GYMKEE SAS undertakes to store all the data relating to the Users' training and nutritional programmes, whether this data has been entered manually by the User or recorded automatically by the Terminal.
The data can be removed at any time by the User by means of the data deletion functionalities.
(b) Storage duration
The data is stored for as long as the User deems necessary and for a period of thirty days after deletion of the account.
(c) Purpose of the storage service
The purpose of this storage service is to enable the User to centralise all the data relating to his training programs to enable him to monitor his progress.
(d) Accessing stored data
GYMKEE SAS undertakes to make its best efforts to ensure permanent access to the data stored on its servers.
The information stored by GYMKEE SAS is under the full and complete control of the User. The User has the right to delete at any time any information that he no longer wishes to keep in your storage space.
Stored personal data can only be used in connection with your services. GYMKEE SAS undertakes to guarantee the confidentiality of the information stored by any appropriate technical security means and in accordance with the rules of art, as well as the urnon-use for purposes other than those proposed to the User and which he is free to accept or not. GYMKEE SAS may anonymise your data and use them in order to improve its sports and nutritional training algorithms and thus the quality of the services offered to Users.
The Client may give temporary access to his personal data to his coach so that he can examine the work done and propose a personalised training programme.
ARTICLE 7. ACCESS TO SERVICES
The services offered on the Platform are either free or charged for. The free services are freely accessible on the Platform after the user has logged in to his account. Paid services are subject to an indication of the description of the service and the corresponding price. The use of paid services will give rise to an express acceptance by validation of the order with acceptance of these Terms and Conditions.
The fact that the services are provided free of charge does not call into question the contractual nature that binds GYMKEE SAS and the User.
All contractual data (contracts, purchase orders, invoices) relating to your orders as well as exchanges and communications with the support and sales departments are stored and archived on a Heroku server (SalesForce). The transmitted data is not exported to non-EU countries.
ARTICLE 8. PRICE
8.01 PRICES AND TAXES
In accordance with Articles L. 112-2 and L. 112-3 of the French Consumer Code, the price of the Services available on the Platform, provided by Gymkee, the Coaches or any other authorised service provider, is indicated in Euros, either excluding tax (HT) or including all French taxes (TTC). The price of the Service is that in force on the day of the Order.
The total amount due and its details are indicated on the confirmation page of each Order.
The price is due in full after confirmation of the order.
The User can pay for your purchases:
- By credit card (Carte Bleue, Visa, Eurocard/ Mastercard). GYMKEE uses the secure payment service provided by STRIPE, INC. Confidential data (16-digit credit card number, expiration date and CVX code) are directly transmitted encrypted to the STRIPE, INC. server. GYMKEE does not have access to these data, and payment will be effective at the time of order validation.
ARTICLE 9. USER'S OBLIGATION
The User undertakes to always provide true and sincere information on the day it is entered and in particular not to use false names or addresses, or names or addresses without being authorised to do so.
The User undertakes to order the Services offered by the Platform for exclusively personal purposes and needs.
ARTICLE 10. DISCLAIMER OF RESPONSIBILITY
The Coach is solely authorized and responsible for dealing with complaints or claims relating to sports sessions and recommendations in the implementation of the program through the application. GYMKEE SAS declines all responsibility in this respect.
However, GYMKEE SAS, at its sole discretion (and without any obligation to do so), may act as an intermediary between a Customer and the Establishment in order to assist and facilitate the settlement of disputes.
Each Coach remains solely responsible for the accuracy and completeness of the information he provides to the User either directly or through the Platform.
GYMKEE SAS excludes all liability in the event of interruptions or non-transmission of data and gives no guarantee as to the relevance of the information, software, products and services offered on the Platform.
All such information, software products and services are provided "as is" without warranty of any kind. The Coaches referenced on the Platform are independent of GYMKEE SAS. GYMKEE SAS shall not be liable for the acts, errors, omissions, failures or negligence of the Coaches and excludes all liability for any physical, material or immaterial damage caused by the Establishments and/or within the Establishments and/or by their products and services, whether such damage is direct or indirect.
In case of use without recourse to a coach of the Platform, the User acknowledges that such use is made under his full and entire responsibility.
GYMKEE SAS is not responsible for the use made by the User of the programs made available to the User on the Platform.
ARTICLE 11. CANCELLATION/SUSPENSION OF YOUR ACCOUNT
GYMKEE SAS may, at its sole discretion, limit or suspend your access to the Service, at any time and in the event of a breach by you of the provisions of this Contract or of the rights of third parties and/or applicable laws and regulations.
ARTICLE 12. THIRD PARTY SITES
In the event that the Services contain hypertext links to websites published by third parties (hereinafter the "Third Party Sites") over which GYMKEE SAS has no control, GYMKEE SAS assumes no responsibility for the content of the Third Party Sites or for the content to which the Third Party Sites may refer. The presence of hypertext links to Third Party Sites does not mean that GYMKEE SAS approves in any way whatsoever of the content of the Third Party Sites. GYMKEE SAS is not responsible for any modification or update concerning the Third Party Sites. GYMKEE SAS is not responsible for the transmission of information from the Third Party Sites, nor for their malfunctioning.
ARTICLE 13. COPYRIGHT PROTECTION
GYMKEE SAS retains, on an exclusive basis, the ownership of all rights, titles and interests as well as all intellectual and industrial property rights in and to the Service (including logos and trademarks, software, databases, website, applications and content made available on the Service ("GYMKEE SAS IPR").
Any illegal or unauthorised use of GYMKEE SAS IPR constitutes a violation of our intellectual property rights (including copyright and database).
ARTICLE 14. PERSONAL DATA PROTECTION
14.01 PERSONAL DATA RELATING TO THE USER
GYMKEE SAS expressly invites the User to consult its personal data protection policy, which is an integral part of these GCU.
14.02 COOKIES AND IP ADDRESS
GYMKEE SAS expressly invites the User to consult its policy on the protection of personal data, which is an integral part of these GCU, in order to be aware of GYMKEE SAS's policy on cookies. At the request of the judicial authorities, GYMKEE SAS may transmit the User's IP address so that the User can be identified in cooperation with his Internet service provider.
ARTICLE 15. MAJOR FORCE
Force major occurs when an event beyond the debtor's control, which could not reasonably have been foreseen at the time of acceptance of the UGC and whose effects cannot be avoided by appropriate measures, prevents the debtor from performing its obligation.
The case of force major suspends the obligations of the party concerned during the time of the force major if this event is temporary. Nevertheless, the Parties shall endeavour to minimise its consequences as far as possible.
Failing this, if the impediment is definitive, the parties shall be released from their obligations under the conditions provided for in Articles 1351 and 1351-1 of the Civil Code.
ARTICLE 16. DISCLAIMER
The fact that one or other of the Parties does not avail itself of one or more stipulations of the GCU shall in no way imply the waiver by that Party of its right to avail itself of such stipulations at a later date.
ARTICLE 17. PARTIAL NULLITY
In the event that certain provisions of the TOS are unenforceable for any reason whatsoever, including because of an applicable law or regulation, the parties will remain bound by the other provisions of the TOS and will endeavor to remedy the unenforceable provisions in the same spirit as that which prevailed at the time of conclusion.
ARTICLE 18. APPLICABLE LAW AND JURISDICTION
The TOS are subject to French law. Any difficulties relating to the validity, application or interpretation of the GCU will be submitted, in the absence of an amicable agreement, to the competent jurisdictions by application of the law.
ARTICLE 19. MEDIATION
The User, if he so wishes, may also refer the matter to the Consumer Ombudsman on the list maintenaid by the Ministery of the Economy and Finance.
The User is informed that the referral to the mediator can only take place after a prior attempt to resolve the dispute directly with the Lawyer by means of a written complaint.
The User may also have recourse to the European Commission's online dispute resolution platform.