GENERAL TERMS AND CONDITIONS OF USE
Version in force on January 2020
The purpose of these general terms and conditions of use (hereinafter the “GTCU“) is to define the terms and conditions of access and use of the Application – as defined below, as well as the rights and obligations of Users in this context. The Application is published by OLYTHE, a simplified joint stock company with a share capital of €2,900,000.00, registered with the Tours Trade and Companies Register under number 791 392 236, having its registered office at 67 rue Fromentel 37000 Tours, France, represented by Mr Guillaume NESA, its current President.
ARTICLE 1. DEFINITIONS
The following terms, whether used in the singular or plural herein, shall always have the following definition:
“Application“: refers to the OCICorp mobile application for the prevention of drink-driving developed by OLYTHE.
“Customer“: refers to the legal entity that has signed a contract with OLYTHE for the provision of the Data Management Platform linked to the Application.
- User Data: The data collected during the use of the Device, namely, the blood alcohol level, device number, geolocation, time, and date.
- Personal Data: Refers to all types of information, data and content collected in the context of the use of the Services provided by the Application, which, within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, make it possible to directly or indirectly nominate or identify a natural person.
“Device“: Refers to the OCIGO device connected via Bluetooth to the User’s Smartphone and communicating information to the Application, such as Device Status, measurement data, battery level. The Device is supplied directly by the Customer.
“Platform“: means the Platform accessible in SaaS mode enabling the Customer and its designated employees to manage and monitor the Data.
“Services“: refers to all the functionalities provided by the Application, subscribed to by the Customer with OLYTHE and which the User can access from his/her account in the Application.
“User“: means any natural person, accessing and using the Application and the Device, regardless of its location and the terms of its connection, who benefits from the Services provided by the Application and granted to the Customer and who is employed by the Customer or by the Customer’s subcontractors and whom the Customer has authorised to use all or part of the Services.
ARTICLE 2. GTCU ACCEPTANCE
The GTCU constitute a contract between the User and OLYTHE. Access to the Application is subject to the User’s express and unreserved acceptance of the GTCU. The first time the User connects to the Application, he must click on “accept”. Failure to accept the GTCU will not allow the User to access and use the Application.
OLYTHE reserves the right to modify and/or update the GTCU at any time without notice. The access and use of the Application shall be subject to the GTCU in force at the time of such access and use. The GTCU are available at any time on the Application and can be found in the settings.
If one of the clauses of the GTCU is null and void due to a change in legislation or regulations or declared as such by a final court decision, this shall in no way affect the validity and compliance with all the other clauses of the GTCU.
ARTICLE 3. DESCRIPTION OF THE APPLICATION
The Application developed by OLYTHE is designed to collect and process the information generated via the User’s Device and smartphone and transmit it to the Customer.
The Application and the Device offer services for the calculation of blood alcohol levels and recommendations from the measurement. The User blows into the Device which calculates his/her alcohol level. The result is sent directly to the Application which analyses it and provides the User with corresponding information. The User Data thus generated is sent to the Customer, who will be able to access it from the dedicated Platform.
The description of the Services as well as their operation are detailed in the user guides provided by OLYTHE to the Customer. The User is invited to consult the user guides.
ARTICLE 4. ACCESS TO THE APPLICATION
- 4.1 Conditions of access to the Application
Access to the Application is reserved exclusively to Users registered on the list of Users configured by the Customer. For each User, the Customer creates an account by entering an ID and an email address. The User then receives an email inviting him/her to create his/her personal password. The link provided is valid for 31 days. The access codes allowing access to the Services consist of the User’s identifier or email address, as well as the User’s personal password (hereinafter the “Access Codes“).
Each Authorised User can access the Services (i) by logging into the Application, (ii) by entering his/her Access Codes, i.e., the User’s personal identifier and password.
- 4.2 User Data Management
The results of the Device are analysed by the Application that generates the User Data. This User Data is accessible on the Application by the User and are transmitted to the Customer. The User can delete User Data directly from his account in the Application.
However, the User is informed that the deletion of a positive alcohol result will be notified to the Customer.
- 4.3 Responsibility for connection settings
User Access Codes are personal and confidential. The User undertakes to keep them secured and undertakes not to disclose them to third parties for any reason, in any way and in any form whatsoever.
If one of the User’s identification elements is lost or stolen, the User must inform the Customer without delay, who will then proceed with the immediate cancellation and/or updating of the Access Codes concerned. Under no circumstances can OLYTHE be held responsible for the loss, theft or forgetting of the User’s Access Codes and/or their fraudulent use. The User is solely responsible for accessing and using the Application with his/her Access Codes. The User undertakes to immediately inform the Customer and/or OLYTHE of any unauthorised use of his/her Access Codes, and/or any breach of the security of the Application.
- 4.4 Minimum system requirements
Access to the Application requires that the User has a smartphone equipped with a broadband internet connection and on which the Application is installed, accessible from the AppStore for IOS systems and from Google Play for Android systems.
The User’s smartphone must have an operating system that is up to date with the version specified on the Application download page. The software version of the Application can be updated to add new features and services. The oldest version of the operating system that may be required for the update will be specified in the Application update page.
OLYTHE can in no way be held responsible in the event of difficulty in accessing the Application and Services if the User does not have the minimum configuration required. All costs relating to access to and use of the Application, whether they be hardware, software, or internet access costs, shall be borne exclusively by the User and/or the Customer who uses it. The User is solely responsible for the proper functioning and appropriate security of his/her computer equipment as well as his/her access to the Internet. OLYTHE will not be held liable in the event of damage to any equipment in the context of using the Application.
- 4.5 Application Availability
The Application is in principle, without this being guaranteed, accessible 24 hours a day, 7 days a week, subject to the occurrence of a force majeure or of an event beyond control, or interrupted, suspended, or limited in the context of maintenance operations and/or updates necessary for the proper functioning of the Application.
OLYTHE is only bound by an obligation of means concerning the accessibility, operation and availability of the Application and Services. OLYTHE reserves the right to interrupt, suspend or limit access to all or part of the Application due to legal or technical constraints.
The User expressly acknowledges that the aforementioned suspensions, interruptions or limitations may take place at any time without prior notice and that they will not give rise to any obligation or compensation to the User.
ARTICLE 5. PROPER USE OF THE APPLICATION
Given the nature and purpose of the Application, the User must act in a professional capacity for the needs of his/her professional activity. The User undertakes to use the Application only for these purposes exclusively or within the framework of a contract with his/her employer.
The User undertakes to use the Application in accordance with the GTCU, in compliance with applicable laws and regulations.
It is strictly forbidden to use the Application for the following purposes:
- interfering with the Application or accessing it by using a method other than that provided for in the GTCU and in the instructions provided.
- carrying out activities that are illegal, discriminatory, fraudulent or that infringe on the rights or safety of third parties.
- breach of public order or violation of the laws and regulations in force.
- aiding or abetting, in any form and in any manner whatsoever, to one or more of the acts described above.
- and more generally any practice diverting the Application to purposes other than those for which it was designed.
In addition, the User must:
- Ensure to be old enough to use the Application and follow the local regulations on alcohol consumption.
- Use the Application only in a professional context and refrain from passing a test to a third party without his or her consent.
- Refrain from sharing, especially on social networks, a negative result by reporting the commission of an offence.
- Refrain from sharing, especially on social networks, results with the aim of inciting alcohol consumption.
- Refrain from sharing results, especially on social networks, to boast about excessive alcohol consumption.
- Refrain from any sharing likely to harm the image or reputation of OLYTHE, especially on social networks.
- Make sure to be up to date on laws and regulations relating to alcohol consumption and road safety.
OLYTHE may suspend or terminate the User’s access to the Application in the event of non-compliance with this article, without prejudice to any damages that OLYTHE may request.
ARTICLE 6. WARRANTIES – LIABILITY
The Device analysis results sent to the Application have a level of reliability equivalent to that of professional devices. Calculations for the time required to return to an alcohol level of zero are based on current scientific data.
OLYTHE cannot however guarantee these results and calculations, which are for information purposes only, to inform the User and assist them with their choices, particularly as regards regulations.
Consequently, OLYTHE cannot be held liable for:
- A poor understanding or application of the applicable law in the country in which the Device and Application are actually used;
- Any misinterpretation of the results displayed by the Application;
- Any errors included in the information content provided by the Application, particularly in the “Alcohol and Health”, “OCIGO Technology” and “Alcohol and Driving” menus;
- An analysis error that may mislead the User about their blood alcohol content;
- Any damage suffered by the User related to his or her blood alcohol content, regardless of the result displayed and regardless of the measurement shown;
- Any offence committed by the User following the use of the Application;
It is also specified that the reliability of the results and calculations depend on the User’s strict compliance with the Device instructions for use, and on the recommendations made by OLYTHE in the Application.
OLYTHE is not responsible for the interpretation by the Customer, his employer, of the Data transmitted on the Platform.
OLYTHE undertakes to ensure the confidentiality and security of the Data present on the Application. However, OLYTHE makes no other express or implicit guarantee, including but not limited to, the continuity, performance and/or durability of the Application and/or to the suitability for a particular use or the adequacy of the Application to the User’s needs, nor does OLYTHE guarantee that it is free of anomalies, errors, or bugs or that it will function without failure or interruption. The Application is made available as is.
OLYTHE does not guarantee that the Application will always be free of viruses, worms, Trojan horses, or any other component likely to cause damage. It is up to the User to take all appropriate measures to protect his or her own hardware, Data, and/or software stored on his or her computer equipment against any attack.
The access and use of the Application by the User can in no way engage the responsibility of OLYTHE, for any reason whatsoever. Access to and use of the Application is the sole responsibility of the User.
No advice or information, whether oral or written, obtained by the User during the use of the Application can create guarantees not expressly provided for by the GTCU or entail the liability of OLYTHE in the event of damage, of any nature whatsoever, caused to the User or to third parties because of the misuse by the User of the Application, in violation of the provisions of the present article and more generally of non-compliance with the GTCU.
To the fullest extent permitted by applicable law, OLYTHE expressly excludes its liability for any damage, direct or indirect, resulting from or in connection with access to the Application, its use, its malfunction, or unavailability, whatever the reason, nature, and duration. OLYTHE is responsible only for direct damage that could be caused to the User because of poor performance and/or non-performance of its obligations under the GTCU.
The User acknowledges that OLYTHE remains free to correct and/or modify the Application at any time and without prior notice, without this correction and/or modification entitling the User to any recourse whatsoever.
OLYTHE cannot be held liable in all cases where the non-execution or poor execution of the GTCU resulting from a case of force majeure or from a fortuitous event beyond its control.
ARTICLE 7. INTELLECTUAL PROPERTY – USER LICENCE
The Application and the Device, including its source codes and architecture, the Services, all the content present on the Application and published by OLYTHE, the design of the Device as well as the names, signs and logos used to designate the Application, the Device, the Services and/or OLYTHE (hereafter the “Protected Elements“) are protected by intellectual property rights (such as in particular all copyrights, patent rights, trademarks, design and model rights, database producer rights, and any other existing or future French and international intellectual property rights) and belong to OLYTHE or to third parties who have authorised OLYTHE to use them.
In particular, OLYTHE has registered designs with the European Union Intellectual Property Office (EUIPO) under the following numbers:
The use of the Application and the Device in no way confers on the User a right of ownership and/or an intellectual property right over the Protected Elements, except for a personal right of access, non-exclusive, non-transferable, non-assignable and limited exclusively to the use of the Application and the Device in accordance with its purpose and in compliance with the GTCU, for the duration of their use.
It is strictly forbidden to represent, reproduce and/or exploit the Protected Elements, in whole or in part, in any form and by any means whatsoever, without the prior written consent of OLYTHE. The User undertakes not to copy, modify, assemble, decompile, alter, sell, rent, lend, broadcast, distribute or transfer all or part of the Application, the Device and/or the Services, create derivative works from the Application, the Device and/or the Services, or authorise a third party to commit such acts, without OLYTHE’s prior written consent.
Failure to comply with the provisions of this article constitutes a violation of the intellectual property rights of OLYTHE and/or third-party licensors and is liable to result in civil and criminal proceedings.
ARTICLE 8. PERSONAL DATA PROTECTION
OLYTHE is concerned about the protection of Users’ personal data and undertakes to protect them in accordance with the applicable regulations and in particular Regulation (EU) n°2016/679 of April 27, 2016 known as the “General Data Protection Regulation” or “GDPR”.
ARTICLE 9. DURATION, SUSPENSION AND TERMINATION
The GTCU come into force as of their acceptance by the User and for the entire duration of access and use of the Application and the Device by the User.
In the event of use of the Application by the User not complying with the GTCU, in the event of a breach by the User of the GTCU, or more generally in the event of a violation of applicable laws and regulations, OLYTHE may automatically suspend or terminate, without prior formal notice, without notice or compensation, all or part of the User’s access to the Application. OLYTHE may impose this suspension or termination without prejudice to all other rights, actions, and remedies that OLYTHE may have to obtain compensation for the prejudice it may have suffered as a result of these failures.
Access to the Application will also be terminated immediately (i) upon notification by the Customer terminating the authorisation it has given to the User to access and use the Application and/or (ii) upon termination of the contract concluded between the Customer and OLYTHE.
At the end of the GTCU for any reason whatsoever, the User’s access will be automatically deactivated.
ARTICLE 10. MISCELLANEOUS PROVISIONS
The GTCU are concluded intuitu personae. The rights and obligations resulting therefrom may under no circumstances be assigned or transferred by the User, for any reason whatsoever, without the prior written approval of OLYTHE.
The failure of either party to enforce at any time any of the provisions of the GTCU shall not be construed in the future as a waiver of its rights hereunder.
ARTICLE 11. APPLICABLE LAW AND JURISDICTION
These GTCU are subject to French law.
The parties declare their intention to seek an amicable solution to any difficulty that may arise concerning the validity, interpretation, or execution of the GTCU. Within the limits permitted by law, in the event of persistent disagreement, the dispute will be submitted to the competent court designated in the contract concluded between the Customer and OLYTHE.