GENERAL TERMS AND CONDITIONS OF SALE AND OF USE OF OTAKAM

 

 

GENERAL TERMS AND CONDITIONS OF SALE AND OF USE OF OTAKAM

 

 

 

Ref. CGVU_OTAKAM_EN_24_06_2019

 

Welcome to the OTAKAM www.otakam.fr web site!

OTAKAM is aimed at all fans of cycling, with an application designed to enable cyclists to measure, relive and share their sporting exploits.

For OTAKAM, the satisfaction of our members is a priority. In addition to offering you a high quality service with innovative functionalities, we endeavour to protect all your personal data.

In accordance with the law, you must accept the General Terms of Use of the OTAKAM www.otakam.fr web site in order to benefit from the services on offer. To register as a member of OTAKAM and to benefit from the functionalities of the application, you must therefore read and comply with the T&Cs governing sales and the use of the OTAKAM web site (the “T&Cs”).

 

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These general terms and conditions governing sales and the use of the OTAKAM www.otakam.fr web site (the “T&Cs”) constitute a contract between PROESSA SPORT, a French Joint Stock Company; share capital: 85,120 euros; registered in Toulouse, France under no. 828 393 249; registered address: 10, Avenue de l’Europe, 31520 Ramonville Saint-Agne, France; EU VAT no.: FR86 828393249 (“PROESSA SPORT”), and adult natural persons or legal persons (the “Users”) for any use of the OTAKAM www.otakam.fr web site (“OTAKAM”).

 

PROESSA SPORT and the User shall hereinafter be referred to individually as a “Party” and collectively as the “Parties”.

 

THE PUBLISHER OF OTAKAM

 

The www.otakam.fr web site is published by PROESSA SPORT, a French Joint Stock Company; share capital: 85,120 euros; registered in Toulouse, France under no. 828 393 249; registered address: 10, Avenue de l’Europe, 31520 Ramonville Saint-Agne, France; EU VAT no. FR86 828393249, whose legal representative is Mr Jérôme LEGENNE, in his capacity as Chairman.

 

The publication manager is Mr Jérôme LEGENNE, in his capacity as Chairman of PROESSA SPORT.

 


 

THE HOSTING OF OTAKAM

 

OTAKAM is hosted by AWS FRANCE, a French Joint Stock Company with a sole shareholder; share capital: 100,000 euros; registered in Nanterre, France under no. 487482143; registered address: 52 rue du Port, 92000 Nanterre, France.

 

 

DESCRIPTION OF OTAKAM AND OF THE SERVICES

 

OTAKAM is a web site dedicated to cycling enthusiasts. OTAKAM offers cyclists performance analysis and monitoring functionalities to get to know their limits better in order to improve and turn every cycling trip into an intense experience.

 

OTAKAM enables cyclists who become Members of OTAKAM to assess their performances, view their competitive track record, measure, relive and share their sporting exploits. By registering with OTAKAM, Members may benefit from various functionalities for monitoring and measuring their sporting achievements, such as through the OTK Perf and OTK Index performance indicators allocated to each Member taking part in cyclosportive, whose results are public and may be accessed via OTAKAM. A detailed description of the Services offered by PROESSA SPORT is available on OTAKAM. Certain Services are only accessible to PREMIUM Members who have taken out a PREMIUM Subscription in return for payment.

 

 

1.    Definitions

 

Throughout these T&Cs, the terms that are defined below shall have the following meanings:

 

Account: an account opened on OTAKAM by a Visitor to become a Member.

 

Content: any element that is put online by the Members, including the comments in the “News” tab and the comments on the races.

 

Cyclosportive: a cyclosportive, or often simply sportive, is a short or long distance mass-participation cycling event, the time taken to complete the course being recorded. The italian term Granfondo is also commonly used for these events.

 

FFC: Fédération Française de Cyclisme, the French Cycling Federation.

 

FFC License: the “Pass cyclosportive” license of FFC that may offered at a special promotional rate as part of a partnership between PROESSA SPORT and the FFC, in accordance with terms and conditions that are displayed on OTAKAM.

 

Identifiers: personal and confidential access codes (login and password) enabling a Member to authenticate themselves and connect to their Account.

 

Member(s): any natural person who is an adult and is registered with OTAKAM and holds an Account.

 

OTAKAM: a web site published by PROESSA SPORT that is accessible at www.otakam.fr.

 

OTK Index: an indicator equal to the weighted average of the best OTK Perf indexes; the weighting takes into consideration the number of participants and the year of the races; the OTK Index begins at 1 for the best performers and is not capped.

OTK Perf: a performance index allocated by OTAKAM to measure performance in a cyclosportive, whatever the distance, the total ascent, the level of the participants, the weather and the conditions of the races; the OTK Perf index begins at 1 for the best performance and is not capped.

 

PREMIUM Member(s): any Member that has taken out a PREMIUM Subscription.

 

PREMIUM Subscription: additional service(s) offered in return for payment to the Members by OTAKAM in the form of a yearly subscription giving the PREMIUM Members access to functionalities that are not accessible to the non PREMIUM Members.

 

Profile: a public profile, accessible only to the Members, comprising among other things the results and OTAKAM indicators of the Member. The information linked to the profile of a PREMIUM Member is only accessible to the Members.

 

Service(s): service(s) offered to the Members by PROESSA SPORT on OTAKAM, comprising among other things access to their Account for a personalised monitoring of their cycling performances with performance indicators, Badges and Trophies. The services also comprise the PREMIUM Subscription for PREMIUM Members. A detailed description of the Services on offer is available on OTAKAM.

 

Following: Members to whom the Member subscribes to follow their News.

 

Follower: another Member that follows a Member’s News.

 

T&Cs: the General Terms of Use of OTAKAM designed for Users and applicable to the whole of OTAKAM.

 

User(s): any natural or legal person who accesses OTAKAM as a Visitor or Member.

 

Visitor(s): any natural or legal person who browses OTAKAM without being a Member and who therefore has restricted access to OTAKAM.

 

 

2.     Subject-matter

 

These T&Cs lay down the terms and conditions governing sales and the use of OTAKAM and the Services.

 

The Users hereby acknowledge that these T&Cs were brought to their attention in a clear and understandable way, prior to using OTAKAM and the Services, and that they were given all the information stipulated by article L. 111-1 of France’s Consumer Code.

 

 

3.    Application and enforceability of the T&Cs

 

These T&Cs lay down all the provisions linked to the Services of PROESSA SPORT used by the Members and to the use of OTAKAM. Whenever a User accesses or uses OTAKAM, they are deemed to tacitly accept these T&Cs without reservations; these T&Cs shall prevail over all other terms and conditions, with the exception of those that shall have been expressly accepted by PROESSA SPORT.

 

These T&Cs, including Appendix 1 below, may be modified from time to time by PROESSA SPORT, bearing in mind that each use of OTAKAM shall be governed by the T&Cs that are in force on that date.

 

The T&Cs are made available to the Users on OTAKAM to enable them to use OTAKAM. By virtue of using OTAKAM, the Users acknowledge having become acquainted with their contents, having read them and having accepted them, without restriction or reservation, prior to any use of the web site.

 

 

4.    Access to OTAKAM

 

PROESSA SPORT endeavours to provide permanent access to OTAKAM, around the clock, 7 days a week. However, access to OTAKAM may be suspended at any point in time, without notice, such as due to breakdowns, faults or blockages of the network, of the system and/or of the means of communication, or due to maintenance work and corrections required for the updating and proper operation of OTAKAM and/or PROESSA SPORT.

 

PROESSA SPORT shall moreover be entitled to make any changes, deletions and/or additions to the content of OTAKAM, at any point in time, without notice and entirely at its discretion.

 

The User undertakes not to block access to and/or the proper operation of OTAKAM in any way that might damage, intercept or interfere with all or part of OTAKAM.

 

The Users should note that the act of accessing or remaining fraudulently in a computer system, impeding or distorting the operation of such a system, or fraudulently introducing or modifying data in a computer system constitute criminal offences.

 

PROESSA SPORT hereby disclaims liability for any direct or indirect damage due to any interruption, malfunction, suspension or stoppage of OTAKAM, whatever the reason for same, or for any direct or indirect damage that might result in any way to a person who accesses OTAKAM.

 

The Users hereby declare that they have the skills and the resources needed to access and to use OTAKAM.

 

PROESSA SPORT hereby disclaims liability for any elements beyond its control and any damage that may be caused to the technical environment of the Users, and in particular, their computers, telephones, smartphones, tablets, software applications, network facilities and any other equipment used to access or to use OTAKAM.

 

 

5.    Registering with OTAKAM

 

5.1. Terms governing registration

 

Only the home page of OTAKAM shall be accessible to Users who are not Members.

 

The Services shall be earmarked to the Members. In order to become a Member, a Visitor must first create an Account.

 

Registering as a Member on OTAKAM grants a User access to a personal and unique Account earmarked to them and accessible solely by use of their Identifiers.

 

Users may register by filling in the registration form featuring in the “Registration section, and by providing the following information:

 - Their identity: gender, first name, family name, nationality and date of birth;

- the cycling federation with which they have a sporting license;

- their e-mail address;

- their password.

 

Other information may be requested by PROESSA SPORT in addition to this, such as upon taking out a PREMIUM Subscription (e.g.: billing address). The mandatory or optional nature of the disclosure of a given element of information sought by PROESSA SPORT shall be indicated on the form beside each input field. Should the disclosure of the data be mandatory, the failure to disclose it shall result in a failure to process the request for registration of the Member or for their subscription to the PREMIUM Subscription.

 

During the registration process, the User hereby undertakes to provide information that is accurate and comprehensive, and to update this information subsequently where need be.

 

PROESSA SPORT reserves the right to request at any point in time that a Member provide evidence about their identity.

 

Should a User provide information that is false, incorrect, erroneous, inaccurate, expired or incomplete, PROESSA SPORT shall be entitled to deny them access to all or part of OTAKAM, as well as to suspend or to rescind their Account, without compensation or reimbursement.

 

Similarly, the Users are hereby informed that, pursuant to the creation of an Account, a Member’s modification of some of their personal data enabling the results of cyclosportive races to be attributed to them (such as the Member’s family name or first name, their date of birth) may lead to the resetting of their Account owing to the lack of continuity in the personal data enabling their identification as a Member. PROESSA SPORT hereby disclaims any liability for this, as acknowledged by the Members.

 

5.2. Authentication and security

 

Provided that the conditions for registration are met, the Members may access their Accounts and manage their Accounts using their Identifiers.

 

These Identifiers shall be strictly personal and confidential and must not be disclosed to or shared with third parties. PROESSA SPORT hereby disclaims liability for any Member’s loss of their Identifiers.

 

The Members shall be fully responsible for the use of their Identifiers by third parties or for any actions or declarations made via the “My Account” section, be they fraudulent or not. The Members hereby undertake to guarantee PROESSA SPORT against any claim in this respect.

 

Moreover, PROESSA SPORT does not have the means to check the identity of the persons that access OTAKAM, and therefore disclaims liability for any theft or misuse of the identity of a Member. Should the Member have reason to believe that a person is using their Identifiers or their Account, they must immediately mention this to PROESSA SPORT.

 

5.3 The Members’ Profiles

 

The Members acknowledge and agree that their Profiles, which contain their results, are public profiles that are accessible to any Member who visits OTAKAM.

 

5.4 Closing an Account

 

Members may request the closure of their Accounts by sending an e-mail to contact@otakam.fr, clearly stating in the subject line “Request for closure of an OTAKAM account” and setting out, in the body of the message, their family name and first name and their date of birth. The request must be made using the e-mail address that is registered with the OTAKAM Account of the Member. Any request for closure of the Account of a PREMIUM Member prior to the expiry of their PREMIUM Subscription shall not give rise to any refund from PROESSA SPORT.

 

PROESSA SPORT shall be entitled to close an Account that has been inactive for more than twelve (12) months or whose Content runs counter to the T&Cs.

 

Prior to any closure of an Account, OTAKAM shall notify the Member involved by e-mail about the impending closure of their Account. Should the Member who holds the Account not respond or make the Content comply with the T&Cs within fifteen (15) days, PROESSA SPORT may proceed to close the Account.

 

 

6.    PREMIUM Subscription

 

PROESSA SPORT offers additional services in return for payment to the Members as part of its PREMIUM Subscription. The PREMIUM Members shall benefit from:

 

  • Detailed and comprehensive access to the “Badges and Trophies”: non-PREMIUM Members may only view the number of “Badges and Trophies”, PREMIUM members can access comprehensive and detailed information about the “Badges and Trophies”, sorted by specific themes;

 

  • Detailed and comprehensive access to the Otakam data on cyclosportives that the Member has taken part in via the “My performances” tab: non-PREMIUM Members can only see details of their last cyclosportive (with a restricted view of the “Badges and Trophies”), the other cyclosportive in which they have taken part beforehand being displayed succinctly; a PREMIUM subscription provides more detailed information about all of the cyclosportives in which a PREMIUM Member has taken part as well as the “Badges and Trophies” linked to each cyclosportive;

 

  • Access to the filtering functionality for rankings of cyclosportives and OTAKAM rankings that enable PREMIUM Members to filter the results of a cycosportive based on the age and gender of the participants.

 

  • Access to the “Peloton of Challengers” functionality that focuses on cyclists who have a similar level of cycling performance to that of the PREMIUM Member and that have mostly taken part in the same cyclosportive as those that the PREMIUM Member has taken part in. The selection of the “challenger” cyclists is performed automatically by an algorithm designed by OTAKAM based on participation in cyclosportives and on each cyclist’s OTK Perf and OTK Index performance indicators.

 

Members wishing to take out a PREMIUM Subscription can do so on OTAKAM by clicking on the “Premium Members” tab.

 

The PREMIUM Subscription is a yearly subscription that begins on the date on which the subscription is taken out and that ends on the eve of the anniversary date of the subscription date.

 

The PREMIUM Subscription is renewable tacitly, year on year. PREMIUM Members can rescind their PREMIUM Subscription by serving notice of termination within their Account at any point in time, at least fifteen (15) days prior to the expiry of the term that is under way at the time. The rescission of the PREMIUM Subscription of the PREMIUM Member shall become effective upon expiry of the term of the PREMIUM Subscription that is under way at the time.

 

 

7.    Prices – Terms of payment

 

7.1.    Prices

 

Access to OTAKAM is free of charge, with the exception of the services that are only accessible by PREMIUM Members as part of a PREMIUM Subscription.

 

The PREMIUM Subscription is a yearly subscription provided for a fee. The price of the PREMIUM Subscription is stated under the “Premium Members” tab, in euros including tax. The applicable rate of Value Added Tax shall be that which is in force in France at the time of the subscription to the PREMIUM Subscription or its renewal.

 

The costs of accessing and using the telecommunications network shall be borne by the Users, in accordance with the terms that are set by their access providers and telecoms operators.

 

7.2.    Terms of payment

 

By confirming their subscription to the PREMIUM Subscription, PREMIUM Members undertake to pay the price of their PREMIUM Subscription.

 

The PREMIUM Members may opt to pay the price of the PREMIUM Subscription either in one (1) single instalment on the date of the subscription, in which case they shall benefit from a preferential rate, or in twelve (12) monthly instalments that shall be debited monthly. Should a PREMIUM Member wish to close their Account before the end of their PREMIUM Subscription, all of the instalments that remain outstanding shall become due immediately, and no refund shall be possible.

 

For payments by bank card, PROESSA SPORT has selected the “STRIPE” payment solution that provides secure payment over the Internet for private individuals and businesses alike.

 

A PREMIUM Subscription may only be paid for using a bank card that is accepted by STRIPE.

 

At the time of their subscription to the PREMIUM Subscription, the Members must key in or disclose their card number and its expiry date on a page of the OTAKAM web site that is secured by an SSL certificate. The payment itself shall take place over the secure network of STRIPE. The banking information linked to the payment shall neither be recorded nor retained by PROESSA SPORT.

 

The bank account of the PREMIUM Member shall be debited as of the date of their subscription to the PREMIUM Subscription, which shall be considered as effective after confirmation of the payment by STRIPE.

 

 

8.    Right to withdraw

 

In accordance with the provisions of article L. 221-18 of France’s Consumer Code, Users who are consumers have a timescale of fourteen (14) whole days to withdraw following the date of the formation of the contract.

 

However, in accordance with article L. 221-25 of the same code, the right to withdraw as mentioned in the foregoing paragraph is not applicable to the Services provided under a PREMIUM Subscription, whose performance shall have begun upon receipt of the consumer’s confirmation, prior to the end of the period of fourteen (14) whole days.

 

The PREMIUM Subscription offered by PROESSA SPORT shall be applicable, effective immediately. Members who wish to benefit from the Services of the PREMIUM Subscription thus consent to the services of the PREMIUM Subscription being provided by PROESSA SPORT immediately, so that PREMIUM Members tacitly waive their right to withdraw in order to enable the Services of the PREMIUM Subscription to be provided before the end of the period of fourteen (14) whole days.

 

 

9.    Liability

 

PROESSA SPORT does not provide any warranty, whether express or implied, over OTAKAM, and hereby rules out any guarantee of satisfaction or of suitability for a particular purpose.

 

PROESSA SPORT hereby disclaims liability for the decisions that might be taken by the Members based on the data provided via the use of OTAKAM and of its Services. It is up to the Members to use this data in keeping with the prevailing regulations and in particular the recommendations of France’s C.N.I.L. data protection watchdog. The Users hereby guarantee PROESSA SPORT against any claims, complaints and/or actions of any kind, arising from any violation of these provisions.

 

In any event, should PROESSA SPORT be found liable, then whatever the nature or the grounds for the action:

 

- Only direct damage arising from the non-performance of its contractual obligations may give rise to compensation. Therefore, any indirect damage, such as any intangible or commercial loss, loss of earnings, of turnover, of orders or of clients, incurred by the Member and/or third parties, shall not give rise to any compensation.

- The amount of compensation that may be due by PROESSA SPORT shall be limited to the moneys received by PROESSA SPORT for the service involved.

 

In any event, PROESSA SPORT shall not be liable if the non-performance or the improper performance of its contractual obligations is due to the fault of the Member, or to the acts of a third party, or to force majeure.

 

 

10.  User Support Unit

 

PROESSA SPORT provides Users with various means of information and assistance on OTAKAM.

 

For any additional issue or information, the User Support Unit of PROESSA SPORT is at the disposal of any User and may be contacted by e-mail at contact@otakam.fr, or by telephone on +33 [0]5.34.32.03.45, Monday to Friday, from 9am to 12pm and from 2pm to 5pm.

 

 

11.  Content – Reporting abuse

 

11.1 The Members can publish Content on OTAKAM, for instance under the “My news” tab, that may be used to communicate with friends in connection with cyclosportives.

 

The Members undertake not to publish any Content that runs counter to public morals and to the statutory and regulatory provisions, and to act at all times with utmost respect and courtesy towards the other Members, OTAKAM, PROESSA SPORT and third parties.

 

11.2    The Members may report to PROESSA SPORT any abuse that they come across on OTAKAM by sending an e-mail to the User Support Unit to report abusive content.

 

 

12.  Intellectual property rights

 

The entire OTAKAM web site (structure, presentation and content) constitutes a work that is protected by prevailing French and international copyright laws, and intellectual property laws in general.

 

PROESSA SPORT owns, or holds licenses over, all the elements comprising OTAKAM, such as the texts, data, databases, software applications, drawings, models, graphics, photographs, animations, sounds, and all downloadable documents.

 

All the rights, including in particular the exploitation rights, the reproduction rights and the rights to extract on any medium all or part of the data, files and other elements featuring in the pages of OTAKAM, as well as the rights to show and reproduce all or part of OTAKAM on any medium, and the modification, adaptation or translation rights, are reserved exclusively to PROESSA SPORT and to its eventual successors and assignees, subject to the pre-existing rights of any third parties that may have authorised PROESSA SPORT to digitally reproduce and/or integrate their works into OTAKAM, whatever the nature of said works.

 

Any total or partial reproduction, showing, extraction, broadcasting or re-broadcasting of the content of OTAKAM by any process whatsoever, without first securing the express permission of PROESSA SPORT, shall be prohibited, and would constitute an infringement of intellectual property rights punishable by articles L. 335-2 et seq. of France’s Intellectual Property Code.

 

Users may reproduce the texts and Web pages of OTAKAM on a paper medium, subject to complying with the following cumulative conditions: dissemination must be free of charge, the integrity and the purpose of the documents that are reproduced must be respected (no modifications or alterations), the purposes of OTAKAM’s use of its information and elements must be respected, the source must be clearly and legibly cited, mentioning the name of OTAKAM, its Internet address and the rights of PROESSA SPORT.

 

The trademarks, the company names and the logos featuring on OTAKAM are protected. Any full or partial reproduction of these trademarks or logos without the express authorisation of PROESSA SPORT or of its successors and assignees shall therefore be prohibited, as per the meaning of this term in article L. 713-2 of France’s Intellectual Property Code.

 

The Users also undertake not to crack the protection codes of the software applications or the databases nor to decipher the access keys, where these software applications or databases are equipped with an access control or protection system.

 

 

13.  Personal data – cookies – hypertext links

 

13.1. Processing of personal data

 

Some personal data belonging to the Users may be gathered as part of their use of OTAKAM and of the Services.

 

PROESSA SPORT undertakes to comply with the prevailing statutory and regulatory provisions in accordance with France’s data protection law no. 78-17 of 6 January 1978, as subsequently modified, and EU Regulation no. 2016/679 of 27 April 2016 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”).

 

PROESSA SPORT undertakes to take all the requisite precautions to preserve the security and the confidentiality of the personal data to which it may have access, and in particular to prevent it from being modified, misappropriated, or accessed by unauthorised third parties. PROESSA SPORT specifically undertakes not to access or use the personal data of the Users for any purposes other than OTAKAM, including the handling of any complaints.

 

The Users hereby acknowledge taking note of the information concerning the rules governing their personal data featuring in Appendix 1 of the T&Cs (EU Regulation no. 2016/679 of 27 April – GDPR, and France’s law no. 78-17 of 6 January 1978), and hereby grant their consent to the gathering and processing of their personal data by PROESSA SPORT in connection with OTAKAM and the provision of the Services.

 

The contact details of the data protection officer are as follows: Jérôme LEGENNE, Chairman of PROESSA SPORT; Users may send any complaints concerning their personal data to delegue-donnees@otakam.fr.

 

13.2. Cookies

 

The Users acknowledge and agree to PROESSA SPORT anonymously installing one or more cookies onto their terminals with a view to permanently improving OTAKAM, for instance in order to facilitate the management of OTAKAM and the recognition of the Members.

 

Users may configure their browsers to prevent the installation of these cookies. The Users are however informed that taking such a step would have a negative impact on their use of OTAKAM, which may be disrupted, or even made impossible.

 

13.3. Hypertext links

 

OTAKAM contains hypertext links enabling access to web sites that are not published by PROESSA SPORT. The latter therefore disclaims any liability for the content of the web sites to which the Users may gain access via these links.

 

The creation of hypertext links pointing to the home page of OTAKAM shall be permitted. However, any links pointing to specific pages of OTAKAM shall require the prior authorisation of PROESSA SPORT.

 

The URL of the target page must be clearly indicated. The other web site must not make OTAKAM look as though it is part of its site, distort the content of OTAKAM, nor refrain from clearly indicating that the User is being redirected to OTAKAM. The pages of OTAKAM must not be nested within the pages of another web site, but may be displayed in a new window.

 

No “mirroring” of OTAKAM, i.e. putting it online under another URL, shall be permitted.

 

 

14.  Miscellaneous

 

These T&Cs set out all of the parties’ obligations in relation to their subject-matter.

 

Any tolerance or waiver by one of the parties concerning the application of all or part of the undertakings stipulated in the T&Cs, whatever the frequency and duration thereof, shall not be tantamount to a modification of these T&Cs, nor shall it generate any rights whatsoever.

 

Should one or more provisions of the T&Cs be deemed or be declared invalid in application of a law or a regulation, or pursuant to a final ruling of a court or authority that has jurisdiction, the other provisions shall retain their full validity and scope.

 

 

 

 

 

15.  Applicable law

 

These T&Cs shall be governed and interpreted in accordance with French law, to the exclusion of any other law or international convention, whatever the place where the User is located.

 

 

16.  Disputes

 

16.1 Evidence

 

PROESSA SPORT may use as evidence of any act, any and all programs, data, files, recordings, transactions and other elements (such as logs or other statements) of a computerised or electronic nature or in a computerised or electronic format or medium, created, received or stored, directly or indirectly, by PROESSA SPORT or by its providers of technical services, for instance in any database.

 

To that end, the recordings kept in the computer system of PROESSA SPORT or of its providers of technical services, are hereby deemed to constitute valid evidence of the communications between the parties, of the use of the web site and of the payments made between the parties, and may be produced as evidence in the event of a dispute.

 

All invoices shall be archived on a durable and reliable medium so as to correspond to a faithful and lasting copy.

 

16.2. Amicable settlement

 

Save in case of an emergency justifying the bringing of summary proceedings, in the event of a dispute, before bringing proceedings before the courts that have jurisdiction, the parties undertake to seek an amicable settlement as quickly as possible.

 

Either party may notify the other about the existence of the dispute by registered post with acknowledgement of receipt, in order to request an amicable settlement.

 

Should no solution have been found and made official in a written document signed by the representatives of both Parties within thirty (30) days following the sending of the abovementioned letter by registered post with acknowledgement of receipt, the parties shall regain their full freedom of action.

 

16.3. Mediation – settlement of disputes

 

Should the parties fail to reach an amicable settlement, PROESSA SPORT and the User shall defer to the appropriate French courts, to which they hereby grant exclusive jurisdiction, including in case of multiple parties, rejoinder or incidental claims, and even in the case of summary proceedings or proceedings brought pursuant to a petition.

 

In accordance with articles L. 611-1 et seq. of France’s Consumer Code concerning the amicable settlement of disputes, any consumers shall have the right to resort to a consumer affairs mediator, free of charge, in a bid to attain an amicable settlement of the dispute between them and a business. To that end, PROESSA SPORT guarantees to its Users who are consumers an effective mechanism for activating the mediation process.

 

PROESSA SPORT complies with the mediation process implemented by UNION SPORT & CYCLE, with MEDICYS, the court bailiffs’ centre for mediation and amicable settlement.

 

Should any consumer clients experience any problems in dealing with PROESSA SPORT, they may resort free of charge to mediation through MEDICYS:

  • https://conso.medicys.fr
  • 73, Boulevard de Clichy, 75009 Paris, France

 

The mediation of consumer disputes shall not apply to complaints raised by Users who are consumers before the customer service unit of the business, to direct negotiations between Users who are consumers and the business, and to proceedings brought by a business against a client who is a consumer.

 

Moreover, in accordance with article 14 of Regulation EU no. 524/2013, the User is hereby informed that the European Commission has implemented a settlement of disputes platform, designed to foster the independent online settlement of disputes between consumers and businesses in the European Union via extrajudicial channels.

 

This platform is accessible by clicking on the following link: https://webgate.ec.europa.eu/odr/.

 

Should the mediation fail, either party may petition the courts that have jurisdiction in accordance with the abovementioned terms.

 

 

17.  Contact details – Complaints

 

PROESSA SPORT

10, Avenue de l’Europe, 31520 Ramonville Saint-Agne, France

Registered in Toulouse, France under no. 828 393 249

EU VAT no.: FR86 828393249

e-mail: contact@otakam.fr

Tel: +33 [0]5.34.32.03.45


appendix 1: PERSONAL DATA

Information provided to the Users concerning their personal data (per EU Regulation no. 2016/679 of 27 April, a.k.a. the “GDPR”, and France’s law no. 78-17 of 6 January 1978)

 

As part of the use of OTAKAM and the Services, after their consent shall have been secured to that end, and in accordance with the provisions that are set out below, the personal data of the Users may be gathered and processed by PROESSA SPORT.

 

  1. The personal data that is gathered

 

The personal data that is gathered shall include the following:

  • the information that the Members provide by filling in the form for the creation of their Account and/or for taking out a PREMIUM Subscription, or while communicating with PROESSA SPORT (by any means of communication, whether online or offline, or by responding to questionnaires),
  • this shall comprise the name, gender, date of birth of the Members, as well as their contact details, such as their postal address, e-mail address,
  • information about the transactions performed by PREMIUM Members,
  • the results of the cyclosportives (timings, rankings, categories),
  • the data gathered through the cookies and other similar technologies used on OTAKAM (such as IP addresses) and from electronic messages, used to recognise the Members, remember their preferences, and where applicable to present them with Content that is likely to be of interest to them.

 

This personal data may only be disclosed to PROESSA SPORT by the Users to whom this personal data relates or where such data has been made public pursuant to cyclosportives.

 

  1. Legal information for Users

 

The following legally mandatory information is hereby brought to the attention of the Members by this Appendix, as well as upon the gathering of personal data on OTAKAM:

 

  • Identity and contact details of the data controller

 

The identity and contact details of the data controller are as follows: PROESSA SPORT, a French Joint Stock Company; share capital: 85,120 euros; registered in Toulouse, France under no. 828 393 249; registered address: 10, Avenue de l’Europe, 31520 Ramonville Saint-Agne, France; represented by Mr. Jérôme LEGENNE in his capacity as Chairman.

 

  • Contact details of the data protection officer

 

LEGENNE Jérôme

PROESSA SPORT

10, Avenue de l’Europe, 31520 Ramonville Saint-Agne, France

delegue-donnees@otakam.fr

 

  • Purposes and legal basis of the processing of personal data (the “Data Processing”)

 

The purposes of the Data Processing by OTAKAM are as follows:

  • identification of the persons who use OTAKAM and/or the Services;
  • provision of Services to the Members, such as for the creation of the OTK Perf and OTK Index indicators, the rankings, the allocation of the Badges/Trophies, the creation of the pelotons of friends and of challengers, the friends functionalities;
  • administration of the Services used by the Users;
  • marketing and/or sending information to the Users.

 

The legal basis of the Data Processing by OTAKAM is as follows:

  • the Data Processing is necessary for the performance of the contractual relationship that the User wishes to form with PROESSA SPORT concerning OTAKAM and/or the Services, the personal data being needed for the performance of the Services;
  • the Data Processing is necessary to protect the legitimate interests of PROESSA SPORT by enabling it to retain evidence of the transactions with Users and/or to recover any debts that might be owed to it by Users;
  • the Data Processing is based on the consent of the Members who wish to use OTAKAM and/or the Services, and who may revoke their consent at any point in time in accordance with the procedure laid down in article 1.7 of this Appendix;
  • the Data Processing is administered in accordance with the provisions of France’s data protection law no. 78-17 of 6 January 1978 and EU Regulation no. 2016/679 of 27 April 2016 (the “GDPR”) as well as all other prevailing and applicable legal provisions (the “Prevailing Regulations”).

 

  • The recipients of the personal data

 

The recipients of the personal data are: PROESSA SPORT, and where applicable, the service providers that are subcontractors of PROESSA SPORT and that are involved in the provision and/or the administration of OTAKAM and/or the Services, in the course of which involvement they might have to perform Data Processing (only where this is strictly necessary), bearing in mind that in such a case, the Data Processing shall take place in keeping with all the prevailing and applicable rules and regulations.

 

Some personal data may also be made public on OTAKAM for the attention of the other Members, as acknowledged and agreed by the Members.

 

  • Transfers of the personal data

 

The Users are hereby informed that the data controller may transfer their personal data to a non-EU country or to an international organisation covered by an adequacy decision taken by the European Commission, bearing in mind that transfers to a country or an international organisation not covered by an adequacy decision may only take place provided that appropriate safeguards are put in place and the Users involved have enforceable rights and effective remedies, under the prevailing regulations.

 

  • Period of retention of the personal data

 

The period of retention of the personal data shall be as follows:

  • Given that the personal data is needed for the operation and/or administration of OTAKAM and/or the provision of the Services, the personal data of the Users shall be kept:
  • for as long as the Users remain Members, i.e. for as long as the Users shall not have stated their intention to no longer be Members or to no longer allow their personal data to be kept, by means of a personal request sent to the following address: contact@otakam.fr (in accordance with the provisions of point 1.7 of this Appendix 1);
  • to the extent of a maximum period of 36 (thirty-six) months following the termination of the Account of any given Member, pursuant to which the Member’s personal data shall be deleted;
  • any personal data that may be used to establish evidence of a right and/or a contract, or that must be retained under a legal obligation, may be kept for a period of time that exceeds the abovementioned period and may be archived in accordance with the prevailing legal provisions (in particular those laid down by France’s Commercial Code, Civil Code and Consumer Code);
  • personal data concerning a prospective client who is not a Member may be retained for a period of two (2) years following its gathering by the data controller or the last contact with that prospective client;
  • public data such as the results of cyclosportives (rankings, timings, category) may be retained for a period of ten (10) years as of the date of the event.

 

  • The rights that the Users may exercise by contacting the data controller

 

The Users may request the following from the data controller:

- confirmation that their personal data is or is not being processed;

- access to their personal data as well as any available information as to its origin;

- the rectification or erasure of this data;

- the imposition of a limitation upon the processing of their personal data;

- the portability of their personal data in accordance with the prevailing regulations, that provide among other things that data subjects whose personal data is processed have the right to receive the personal data that they have provided to a data processor in a common, structured and machine-readable format, and have the right to transmit this data to another data controller without this being opposed by the data controller to whom the data was disclosed, where: (i) the Data Processing is based on the data subject’s consent in accordance with the prevailing regulations, or on a contract in accordance with the prevailing regulations, and (ii) where the processing takes place using automated processes, bearing in mind that when data subjects exercise their right to request the portability of their personal data, they have the right to request that their personal data be transmitted directly from one data controller to another, where this is technically feasible.

 

The Users may also contact the data controller and invoke:

- their opposition to the processing of their personal data;

- their opposition at any point in time to the processing of their personal data for marketing purposes, including for profiling;

- the withdrawal of their consent to the processing of their personal data at any point in time (this shall not jeopardise the lawfulness of any data processing based on their consent that was performed prior to the withdrawal of their consent).

 

The Users may exercise their rights as identified in this Appendix by sending a request to the following e-mail address: contact@otakam.fr

 

However, a User’s exercising of their right to request the erasure of their personal data and/or to challenge the processing of their personal data and/or to impose limitations on the processing of their personal data and/or to withdraw their consent to the processing of their personal data at any point in time shall result in the User being unable to access and/or use OTAKAM and its Services.

 

  • Complaints to France’s CNIL [data protection watchdog]

 

The Users have a right to file complaints with France’s data protection authority, CNIL, either by post at 3 Place de Fontenoy, TSA 80715, 75334 Paris 07, France, or online on the www.cnil.fr web site.

 

  • Information about the contractual nature of the provision of the personal data

 

Regarding the provision to the Users of information about whether the requirement to provide their personal data is regulatory or contractual or whether it is required for the formation of a contract and whether the data subject has an obligation to provide the personal data, as well as about the possible consequences of any failure to provide this data, the Users are hereby notified of the following:

  • the request for disclosure of personal data is contractual (forming part of the relationship that the Users wish to form with PROESSA SPORT by using OTAKAM and the Services),
  • the provision of this data, inasmuch as it is necessary for the performance of the Services, is required for the formation of this contractual relationship,
  • the Users must therefore disclose their personal data if they wish to use OTAKAM and/or the Services,
  • any failure to disclose this personal data shall mean that the Users are unable to use OTAKAM and/or the Services.

 

  • Automated decision-making

 

No automated decision-making, as per the meaning of this term in the prevailing rules and regulations, shall take place using the personal data that is gathered.

 

  • Subsequent processing of the personal data

 

In case of any subsequent processing of the Users’ personal data for purposes other than those for which the personal data was gathered, as identified above, the data controller shall inform the data subjects affected concerning this other purpose and shall provide them with any other relevant legal information that may be required.

 

  • Minimum age of persons who can disclose their personal data

 

Personal data may only be gathered from persons aged 18 or over. The Users of OTAKAM must be adults in order to be able to access and to use OTAKAM and its Services; accordingly, by requesting the Services that are accessible via OTAKAM and/or by disclosing personal data to PROESSA SPORT, the Users represent and warrant to PROESSA SPORT that they are at least 18 years old. This provision shall not detract from the undertaking provided by the Users to PROESSA SPORT, under which they represent and warrant to PROESSA SPORT that they have the legal capacity to use the Services and/or OTAKAM.