GB_GeneralTermsofUse_Smartmob_PEAK

TERMS OF USE

Version of January 2020

The Site is published by DIGITAL GLOBAL PASS (hereinafter referred to as « DGP ») whose contact details appear in the « Publisher Information and Customer Service » menu.

Access to the services offered on the Peak website (hereinafter referred to as the “Site”) means unqualified agreement with these provisions (hereinafter referred to as the “ToU”).

The ToU are drawn up in English and available online at the Site. DGP reserves the right to amend its ToU.

ARTICLE 1 – Purpose  

These ToU lay down the conditions under which the Services presented on the Site are offered to any User. The Service offered on the Website gives Users access to a fitness service available on the Application (iOS and Android) and on a website. The service offers video exercises, training (exercise routines) and personalised training. A Blog section features articles on Fitness (hereinafter referred to as « Content »). Plan Users have unlimited access to these services, and Non-Plan Users have limited access to them (provided the User has an Internet connection) on their mobile or desktop device (provided it is compatible with the Content) as part of a weekly or monthly plan automatically renewed under the conditions defined in Article 3 of these ToU. The Mobile Operator bills the User for the Content.

Article 2 – Key characteristics and access to the Service 

The Service offered by the Company on the Site is accessible under a weekly or monthly plan and is automatically renewable for a subsequent period of one week or one month until termination by the User under the conditions mentioned in the article “Term and termination” of these ToU.

Digital Global Pass may, at its sole discretion, update the number and nature of the Contents offered as part of the Service.

Users wishing to subscribe to the Service must either click on an advertising banner in order to be redirected to a landing page or go to the Site and click on the Content they wish to download or view.

Depending on the case, they will either be redirected to their Operator’s payment page, or they will be asked to choose their Operator.

If the User is connected using 3G, he/she is redirected directly to the payment page of his/her Operator without having to enter his/her telephone number, which has been automatically recognized by his/her Operator. They must then confirm their plan by clicking on « confirm » or any equivalent term. He/she then receives a first text message sent by his/her Operator confirming his/her plan and a second text message sent by DGP informing him/her of his/her username and password.

If the User is connected via WIFI, he/she must then follow the instructions mentioned on the Site and/or on the Landing Page and enter his/her mobile telephone number. Once their telephone number has been entered, they will receive a confirmation code by text message which they must enter on the operator’s page, then click on « confirm » (or an equivalent term) to validate their plan.

Once their plan request has been confirmed, the User will have direct access to the Contents via their account and may access the Content depending on the type of Content included in the subscribed plan.

If the Content is not received, DGP may not under any circumstances be held liable since it does not control the Customer’s Internet network or their IT or telephone setup.

Access to and use of the Service requires the use of equipment, such as computers or mobile devices, means of communication (such as Internet access) and software. Both this equipment and the communication expenses arising from its use shall be paid for by the Users.

Any use of the Service by the User from his/her place of work by means of a business device must be made with the authorization of his/her employer or line manager.

The User must be of legal adult to access the Service. DGP will not be liable for use of the Service by Users who violate this rule. Consequently, minors must obtain the authorization of their parents (or persons with parental authority over the minor) before downloading or ordering the Contents offered on the Website(s).

Article 3 – Price and payment terms for the Services in connection with a plan

3.1. Prices

Access to the Services means that the User has subscribed to a plan billed via the Mobile Operator.

The prices applicable to the Service are presented on the Website and are accessible in the « Service Info / Pricing Terms Information » menu. They are expressed including all taxes (including VAT). Any change in the applicable statutory VAT rate shall be automatically added to the price of the Service on the date provided for by the regulations.

The price indicated does not include any additional cost linked to the Internet connection, billed by the Operator.

3.2. Payment methods

Payment for a Plan shall be charged to the User’s telecommunications operator’s bill or from his bank card.

To find out more or to cancel the plan, the User is asked to refer to the provisions relating to payment from the « Price Terms and Conditions Info » or the « Cancel your Plan » menu on the Site.

3.3 Proof of transactions

Electronic records stored by DGP shall constitute lawful evidence of the existence of (i) communications between the Parties, (ii) acceptance of the ToU and (iii) any use of the Services in connection with a Plan made on or through the Site. Similarly, the data recorded by the payment system used and chosen by the User (bank or payment institution or other), constitutes proof of all financial transactions between the User, DGP and the relevant institution.

3.4. Withdrawal deadline

In accordance with French consumer rights’ legislation (French Consumer Code, article L. 121-21), we hereby inform the User that they have a period of fourteen (14) clear days from acceptance of and subscription to the Service to exercise their right of withdrawal without having to provide any justification for the said withdrawal or pay any penalties, with the exception, where applicable, of the return costs.

The fourteen (14) day period shall run from the date on which the agreement is entered into.

To exercise their right of withdrawal, the User must notify us of their decision by means of a straightforward statement to be sent to us as soon as possible:

• e-mail: customer@peak-workout.co.uk

Or by

• by regular post to be sent to the following address (does not require postage):

Service Client, Libre Réponse 94119 – 13629 Aix en Provence cedex 1

The User must specify in their request the following items in order to enable the processing of its request:

– the full contact details (surname, first name, postal address, email address) of the User;

– the name of the relevant department;

– the reason for the request;

– the User’s telephone number and/or email address as provided at the time of subscription;

– the payment method used;

– if billed by Mobile Operator, the mobile telephone number;

– bank account details.

An acknowledgment of receipt is sent to the User by email when we receive their request for withdrawal.

If the User withdraws  from this agreement, we shall refund all payments received from the User no later than (14) fourteen days from the day on which the Company is informed of their decision to withdraw from this agreement.

Article 4 – Use of the Services

The Services are available in the United Kingdom. By using the Services, the User undertakes to respect the rights of third parties and to comply with the stipulations of the ToU and the laws in force. The User undertakes in particular to:

  • provide truthful, accurate, up-to-date and complete information about him/her;
  • not to use the Services for business, commercial or non-private purposes;
  • not breach any civil or criminal rule;
  • not to disseminate information or content that causes the Services to malfunction, such as software, viruses, logic bombs, etc.

DGP cannot be held liable if a User does not comply with the ToU. Non-compliance with any of the above obligations constitutes a breach by which DGP may terminate the contract. In any event, the User shall hold DGP harmless against and indemnify it from any claim or recourse of third parties resulting from a breach by the User of his/her obligations under this contract and, in particular, of the representations above.

Article 5 – DGP’s Liability

5.1 Use of the Website

As the Service offered by DGP is based on the use of complex technologies, DGP makes no undertaking to obtain a given outcome and no such outcome undertaking may be required of in respect of the provision of the Service; DGP’s only undertaking is to provide the means.

DGP shall make its best efforts to make the Service accessible at all times, excluding cases of force majeure, events beyond its control and maintenance operations necessary to ensure the proper operation of the Service.

Without prejudice to the foregoing, the User acknowledges that the Service is provided to him/her « as is » by DGP and without any implicit or explicit guarantee of any kind, in particular with regard to the User’s complete satisfaction.

The User acknowledges in particular that they may not hold the Company liable in the event that they believe that the Service and/or their Content does not meet with their expectations.

Notwithstanding any exemption from liability stipulated elsewhere in these ToU, DGP shall not be liable in particular in the following cases:

– difficulties in accessing the Service due to total or partial non-compliance by the User of his/her obligations, the use by the User of devices not suited to the characteristics of the Service or the Content offered, a failure and/or overload of telecommunications networks or due to third parties, and in particular telephone operators;

– contamination by virus or any other risk factor related to the Content, Service and the User’s equipment, or other malicious intrusion by third parties despite the reasonable security measures put in place by the DGP;

– improper use of the Service by the User;

– damage that the User’s equipment may suffer, for which the under the User is solely liable.

–   infringement by a User of the rights of a third party, including infringement of intellectual property and copyright,

In particular, DGP shall not be held liable for any interruptions to the Services due to causes not directly attributable to it and/or beyond its control, for example due to a malfunction of the telephone network.

As part of the provision of the Service, DGP is therefore required to use the services and distribution networks of third-party companies, over which it has no control.

DGP cannot therefore be held liable in particular for possible delays in the distribution of the Content ordered by the User, permanent or temporary interruptions in the transmission of data to the User’s Terminal, or for any other service provided by a third party.

The Service may be suspended by the DGP for maintenance purposes for periods not generally exceeding 48 hours for which the Customer may not demand any compensation.

DGP may, at any time, partially or fully cease providing the Service.

It is expressly agreed that if DGP were to be held liable, such liability would in any event be limited to compensating only the direct losses, to the exclusion of any indirect losses, whatever they may be (such as, notably, disappearance, loss, damage to data and/or any damage likely to alter the Customer’s devices).

The Site may contain images and links to websites managed by third parties (“Third-Party Sites”). DGP has no control over the Third-Party Sites and assumes no liability for their content, including the content of links presented on the Third-Party Sites, or any modifications or updates made to a Third-Party Site. DGP is not liable for the dissemination on the Web or any other form of transmission received from a Third-Party Site, or even the malfunction of the Third-Party Site(s). These links are provided by DGP for convenience only, and the inclusion of any link does not mean that DGP approves the content of these sites or implies any association between DGP and the site operators. Users are responsible for reading and complying with any charter relating to the protection of privacy displayed on the Third-Party Sites, as well as their terms of use.

5.2 Use of the Services

DGP may not be held liable in the event of an act of fact on the part of the User resulting from a third party or force majeure. Exceptional bad weather, natural disasters, fires, floods, lightning, electronic surges, attacks, strikes, failures of network and payment operators, computer viruses and any event of force majeure or unforeseen events within the meaning of Article 1218 of the Civil Code are considered to be cases of force majeure.

DGP shall use the resources necessary to provide its Service. It may not be held liable for any technical problem not caused by its Service, problems of electronic communications due to the Internet service provider of the User, the mobile operator and the devices or computer of the User, for any technical reason, such as curative or preventive maintenance, interruption or deterioration of networks, or affecting the availability of the Service. Furthermore, DGP may not be held liable if updates are necessary for the proper functioning of the Site, in the event of delays in sending and/or receiving messages sent and received by Users in the context of the Services. DGP reserves the right to temporarily suspend access to the Content for maintenance and repair work on the Website.

5.3 Information and content provided by Users

The relevant User shall be liable for the consequences of the disclosure of information and content provided by the User. Furthermore, he/she waives any recourse against DGP, in particular on the basis of any possible infringement of its right to likeness, honour, reputation or privacy, resulting from the dissemination or disclosure of information about him/her under the conditions provided for in these ToU, in particular by the article « Right of access and protection of personal data »,  because the User has previously, freely and explicitly consented to such disclosure by registering with the Service and in application of these Terms of Use.

DGP shall not be held liable for (and the consequences of) the accuracy or inaccuracy of the information and content provided by Users.

Article 6 – Term and Termination

The ToU are entered into for an indefinite period which begins on the day the User subscribes to his/her Plan on the Site. They may be terminated by the User at any time in accordance with the procedures referred to in the subsequent paragraphs of this article.

Users who wish to cancel their plan are asked to refer to the provisions relating to this subject from the “Price Info” or “Cancel Your Plan” menu in the “Service Info” menu.

Article 7 – Intellectual Property Rights 

The brands, whether figurative or not (hereinafter together « the brands ») displayed on this Site or in any newsletter are brands, whether registered or not, belonging to DGP and third parties. The mention of the brands on this Site does not in any way implicitly or explicitly constitute a concession of the right of use, a licence or any authorisation relating to the said brands without a written agreement from DGP or the relevant third party. Any use, not explicitly authorised by the holders, of the brands mentioned on the Website and in its content, other than that granted hereunder, is strictly prohibited.

Furthermore, the User acknowledges that the Service (including in particular the user interface, the editorial content as well as the scripts and software used to implement the Service) contains protected information and elements belonging to DGP and/or its licensors and which are protected by intellectual property laws, including in particular copyright. Similarly, and more generally, all content, such as logos, graphics, photographs, animations and texts contained on the Site and in the Services (such as the Contents) are the intellectual property of DGP or its partners and may not be reproduced, used or represented without the express authorisation of DGP or its partners, under penalty of legal proceedings.

The rights of use granted by DGP to the User are reserved for private and personal use within the context and for the duration of its use of the Services. Any other use by the User is prohibited without the authorisation of DGP.

In particular, the User undertakes not to modify, copy, reproduce, download, distribute, transmit, commercially exploit and/or distribute in any way whatsoever the Services, the pages of the Site, or the computer codes of the elements making up the Services and the Site.

ARTICLE 8 – Cookies

The User is asked to refer to the cookie policy available on the Site or by clicking here.

Article 9 – Protection of customer personal data

1.    Whereas

The following information is provided to you so that you can become aware of the commitments in terms of the protection of the Digital Global Pass’ personal data, the rights you have in this respect, and the conditions under which your personal data are collected, processed, stored and archived.

All of Digital Global Pass’s commitments are described in its applicable personal data protection policy (the data protection policy) available on request from the following address: rgpd@digitalgp.com or on the website www.dgp-legal.com/donnees-personnelles-dgp/.

As part of its business, Digital Global Pass carries out automatic processing of your personal data (hereinafter “processing”). Accordingly, Digital Global Pass may collect your personal data when it:

  • offers you services;
  • responds to your requests regarding the use of its services

 

2.    The personal data processed by Digital Global Pass

 

2.1        Categories of Personal Data Processed

In the context of your contractual or commercial relationship with Digital Global Pass the following categories of personal data are principally collected:

  • Personal data disclosed by you (data that the Company may collect when you subscribe for products and services it provides or distributes or reports to its partners);
  • Personal data on the operation of products and services, in particular when using online services;
  • Personal data from third parties, other services or public information when allowed;
  • Personal Data inferred or calculated by the Company in compliance with data protection requirements.

As a rule, Digital Global Pass does not process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, health data, genetic data and biometric data for the purpose of uniquely identifying an individual, or data on an individual’s sex life or sexual orientation. Such processing will only be implemented by the Company, if authorized by regulation or if you have given your consent, for example by subscribing or using services for that purpose, such as community services or meetings, or by choosing to provide them to us.

2.2        The Legal Basis for the Collection of your Personal Data

In compliance with data protection regulations[1], Digital Global Pass collects your personal data and implements processing respecting the rights of its customers on the basis of your consent, where necessary for the performance of pre-contractual or contractual measures, to comply with its legal or regulatory obligations or where justified by its legitimate interests.

By way of example, the following are considered to be in the legitimate interests of Digital Global Pass: the improvement of the knowledge, segmentation, profiling or prospecting of its customers.

The legal and regulatory requirements by which  Digital Global Pass is bound are described in its Personal Data Protection Policy.

2.3        Duration of Data Storage

Personal data are stored in accordance with the duration required for the purposes for which they are collected, either during the term of the agreement, plus the legal time-bar periods, or to ensure compliance with the legal or regulatory obligations to which Digital Global Pass is bound.

The storage periods for personal data are specified in the personal data protection policy available on the website www.dgp-legal.com/donnees-personnelles-dgp.

2.4        Recipients of Personal Data Processed by Digital Global Pass

The personal data collected, as well as the personal data subsequently gathered by Digital Global Pass, are intended for it as the Data Controller. As such, it ensures that only authorized persons can access it.

Your data may be communicated, shared or pooled by companies in the Digital Virgo group. They may be communicated to their service providers, partners, third parties you have authorized or to third parties in order to meet legal or regulatory obligations or for the execution of contractual measures.

The third parties likely to be recipients of your data are listed in the personal data protection policy.

Digital Global Pass is not responsible for the processing of your personal data which you may have authorized to third parties and which are not shared with them, such as social media. It is your responsibility to refer to the data protection policies of these third parties to verify the conditions of the processing carried out or to exercise your rights in respect of this processing.

3.    Purposes of Processing

The personal data collected will be used for the purposes indicated in the personal data protection policy available on the website, such as the use of the services offered by Digital Global Pass and the management of access to the service.

4.    Security Measures

Digital Global Pass takes into consideration the nature of the personal data and the risks involved in the processing and the technical, physical and organizational measures necessary to safeguard the security of the personal data and prevent them from being distorted, damaged or accessed by unauthorized third parties.

Digital Global Pass selects subcontractors or service providers that provide safeguards in terms of quality, security, reliability and resources to ensure the implementation of technical and organizational measures, including with regard to the security of processing. Sub-contractors and service providers undertake to maintain confidentiality levels that are at least the same as those of Digital Global Pass.

To secure transfers outside the European Union, Digital Global Pass may, for example, put in place Binding Corporate Rules (BCR) or any other clauses safeguarding data security, in order to control flows. Where applicable, flows outside the European Union implemented by the Digital Global Pass are covered by the personal data protection policy available at the following address: www.dgp-legal.com/donnees-personnelles-dgp.

5.    Your Rights

Your rights with regard to the protection of your personal data may be exercised solely in accordance with the terms and conditions provided for in the personal data protection policy available on the website and by the regulations relating to the protection of personal data.

On this data, you have dedicated rights:

  • a right to information relating in particular to the purposes, legal bases for the processing, the recipients, the existence of a transfer outside the European Union or the duration of the storage of your data;
  • a right of access allowing you to have confirmation that personal data about you is being processed;
  • a right of rectification allowing your data to be rectified or supplemented;
  • a right to erasure where: your personal data are no longer necessary for the purposes for which they were collected; you have withdrawn your consent; you object to the processing concerning you; the processing does not comply with the applicable legal and regulatory provisions; and where the personal data relates to children under the age of 16 in some cases, provided that one of the legal conditions does not apply;
  • a right to take your data with you ( portability) relating to personal data, which does not infringe the rights and freedoms of third parties and exclusively under the conditions set out in the data protection policy;
  • a right to object;
  • a right to limit data, in particular when the processing is unlawful;
  • a right to complain to the designated supervisory authority, the CNIL;
  • a right to give instructions concerning the storage, erasure and communication of your data after your death to a trusted third party designated by decree.

Digital Global Pass would like to inform you that failure to complete or change your data may have consequences for the processing of certain requests in the course of the contractual relationship, and that your request in connection with the exercise of your rights will be stored for monitoring purposes.

These rights may be exercised electronically at the following address service-rgpd@digitalvirgo.com or by post to the following address Service GDPR, 350 rue Denis Papin 13 594 Aix en Provence Cedex 3 accompanied by a copy of any identity document that you have signed.

Digital Global Pass has appointed a Data Protection Officer with the following contact details: service-rgpd@digitalvirgo.com

6.    Profiling and Scoring

During your relationship with  Digital Global Pass, you may be subject to marketing profiling, so that Digital Global Pass may offer services and products that meet your expectations, profile and needs.

7.    Promotion of Services

Subject to legal exceptions, Digital Global Pass may only send you information about its services and products if the said services or products are similar to those to which you have already subscribed to or consented to at the time of collecting the email address or your personal contact details. You may unsubscribe at any time by clicking on the link in the email or by answering STOP within the text message received.

Article 10 – Claims

Any complaint submitted by the User to DGP  may only relate to the 12 (twelve) months preceding the date of receipt of said complaint. It must be in writing and sent either by post to the following address Service client – Libre Réponse 94119 – 13 629 Aix en Provence 1 – France (mailing does not require postage) or by email to: customer@peak-workout.co.uk.

DGP shall not be required to process any requests submitted by other methods. To be admissible, any request must include at least the following information:

– the full contact details (surname, first name, postal address, email address) of the User;

– the name of the relevant department;

– the reason for the request;

– the User’s telephone number as provided at the time of subscription;

– the payment method used;

– if billed by Mobile Operator, the mobile telephone number;

– a copy of the payment systems operator’s detailed invoice:

– bank account details.

Article 11 Agreement between the Parties

The ToU are a contract governing the relationship between Digital Global Pass and the User. They supersede all previous provisions and express all the rights and obligations of the User and DGP under this agreement.

Failure by one of the parties not to claim a breach by the other party of any of the obligations referred to herein may not be interpreted for the future as a waiver of the obligation in question.

If one or more provisions of the ToS are held to be invalid or held as such pursuant to a law, a regulation or following a final decision by a court with jurisdiction, the other provisions shall retain their full force and effect.

ARTICLE 12 – Disputes

These ToU shall be governed by French law.

In the event of a dispute (for which only French courts will have jurisdiction), the User shall first contact DGP to find an out-of-court solution.

Mediation of Consumer Disputes:

In accordance with the provisions of the French Consumer Code on “the process of mediation of consumer disputes,” the User is entitled to use, free of charge, the mediation service offered by DGP. The « consumer rights » mediator thus provided is MEDICYS.

After prior written steps taken by Users with DGP, this mediator may be contacted for any consumer dispute whose settlement has not been successful, in the following manner:

– electronically: www.medicys.fr;

– or by post: MEDICYS-Centre de Médiation et Règlement Amiable des Huissiers de Justice, 73, Boulevard de Clichy, 75009, Paris

If there is any dispute relating to the interpretation, performance and/or validity of these ToU that cannot be resolved out of court, the rules of legal jurisdiction shall apply.  


[1] General Data Protection Regulation no. 2016/679 of 27 April 2016