General terms and conditions of use of the "Diabnext" Mobile Application
(Version in effect on 24 July 2019)
The mobile terminal application called "Diabnext" (hereinafter the "Mobile Application") is published by Diabnext, a simplified joint stock company with a capital of 10,000 euros, whose registered office is located at 3, rue Léon Gatin - 78000 Versailles, registered in the Versailles Trade and Companies Register under number 839 538 337 and whose intra-community VAT number is FR32839538337 (hereinafter "Diabnext").
Diabnext can be contacted by e-mail at the following address: email@example.com, but also by post at the following address: 10 rue Treilhard 75008 Paris.
The publication director of the Mobile Application is Mr Laurent Nicolas.
The Mobile Application is hosted by Claranet, a simplified joint stock company with a single shareholder and a capital of €5,332,300.00, whose registered office is located at 2 rue Breguet 75011 Paris, registered with the Paris Trade and Companies Register under number 419 632 286 and whose telephone number is: 01 44 78 63 65.
The purpose of these general terms and conditions of use (hereinafter referred to as the "T&Cs") is to define the terms and conditions under which Diabnext allows users, natural persons of full age, registered and holding a valid account on the Mobile Application (hereinafter referred to as the "Users") to benefit from the services available from the Mobile Application as more fully described below.
1. OBJECT OF THE MOBILE APPLICATION
Although the Mobile Application is accessible and usable by any person, subject to the conditions described herein, it is recalled that the Mobile Application is mainly intended for diabetics.
The Mobile Application allows Users (i) to inform and centralize, as part of the self-monitoring of their diabetes, certain data relating to their health and daily activity, and (ii) to interact with the entire community of Users of the Mobile Application (hereinafter the "Services").
The Mobile Application may also be used for medical remote monitoring purposes within the meaning of the applicable regulations, allowing Users who have expressly consented to this additional device to share with their doctor or healthcare professional the data relating to their health and daily activity necessary for the remote monitoring act and centralized within the Mobile Application.
Since the Mobile Application is mainly intended for diabetics, it may contain information on medical and health-related topics. However, Diabnext is not a health professional and, as such, does not practice medicine or provide medical services or advice. The information contained in the Mobile Application is not intended to replace the advice of a doctor or other healthcare professional.
The User acknowledges and accepts that the Mobile Application and the Services are solely (i) reserved for strictly private use, excluding any professional purpose and (ii) intended for general informative and educational purposes, with the exception of medical information exchanged in the context of remote monitoring acts, it being specified that this information is the sole responsibility of the author and in no case Diabnext.
In order to access and use the Mobile Application, each User must:
- (i) have a compatible mobile device;
- (ii) activate the geolocation function of your mobile device (optional);
- (iii) have an Internet connection, the costs of using remote communication techniques (Wi-Fi, 2G, 3G, 3G, 4G, etc.) being borne by the User;
- (iv) create a user account from the Mobile Application (hereinafter the "User Account"); and
- (v) accept these T&Cs without reservation.
For optimal use of the Services, the Mobile Application may be used in combination with optional Diabnext connected devices, including those sold on the online store, provided that access to and use of the Mobile Application and Services is not conditional on the acquisition or use of such connected devices.
2. SCOPE OF APPLICATION OF CGU
These T&Cs apply to any access to and/or use of the Mobile Application and/or Services.
When creating his User Account, the User must read the TOS and tick the box "I have read and accept the General Terms and Conditions of Use of the DIABNEXT Mobile Application" provided for this purpose in the registration form.
By ticking this box, the User acknowledges that he accepts all the clauses of the GCU and that, as such, he cannot choose to have only part of the GCU applied or to express reservations.
Diabnext reserves the right to modify, at any time, all or part of these T&Cs and/or the Services. In this case, Users will be informed of any change to the T&Cs at least three (3) days before the effective date of the change. If the User continues to use the Services after the said effective date, the User shall be deemed to have accepted the modification.
For all intents and purposes, it is specified that these T&C do not apply to the acquisition of connected Diabnext equipment from Diabnext or any other reseller.
3. USER ACCOUNT
3.1 Creation, validation and use of the User Account
To access and use the Mobile Application, each User must log in to the User Account they have previously created.
The creation of a User Account is done from the Mobile Application homepage by entering a valid email address in the field provided. Upon confirmation of the entry of his e-mail address, the User is then invited to enter a unique four (4) digit code, sent to the e-mail address entered, in order to definitively validate the creation of his User Account.
Once the unique code associated with the e-mail address has been entered, the User is invited to complete the information in his User Account by providing certain additional personal information relating to him:
- (i) his or her identity, including, but not limited to, surname, first name, sex, date of birth and a profile photo; and
- (ii) its pathology including, but not limited to, type of diabetes, year of diagnosis of diabetes, whether or not to use an insulin pen, whether or not to take medication, the unit used to measure blood glucose, the unit used to measure carbohydrate intake and its glycemic targets.
The mandatory information is marked with an asterisk.
The User undertakes to provide, when creating and using the User Account, accurate, complete and sincere information.
The User undertakes not to create or use any accounts other than the one initially created, whether under his own identity or that of third parties.
No password is associated with the User Account. In order to connect to the User Account, the User is invited to enter the email address associated with said User Account, a unique four (4) digit code being then sent to the associated email address, and then to enter said unique code.
The User acknowledges that any access and use of the Mobile Application and Services via his User Account is under his sole responsibility, unless he can demonstrate fraudulent use not resulting from any fault or negligence on his part. In this respect, the User undertakes to notify Diabnext as soon as possible of any misuse or fraudulent use of his User Account at the e-mail address indicated in the preamble to these GTU.
3.2 Modification of the User Account
At any time, the User may update all of the information in his User Account within his dedicated personal space within the Mobile Application, with the exception of the email address associated with the User Account. For any modification of this e-mail address, the User must send his request to Diabnext at the e-mail address indicated in the preamble to these T&Cs.
As such, the User is solely responsible for the damage he may suffer in the event of inaccuracy of the information concerning him and Diabnext may not, in any way, be held liable for information communicated by the User which may prove to be inaccurate, erroneous or fraudulent.
3.3 Period of validity of the User Account
Subject to the provisions below, the User Account remains valid for an indefinite period from its creation date, the User may access and use the Services during this period of validity.
3.4 End of the User Account
The User can terminate his User Account at any time by clicking on the button provided for this purpose within his dedicated personal space within the Mobile Application. In such a case, the User will no longer have access to the Mobile Application and Services, including his User Account.
In the event of inactivity of the account for a period of 2 years, Diabnext reserves the right to delete the User's personal data.
In the event of a breach by the User, Diabnext reserves the right, depending on the seriousness and duration of the breach, at its sole discretion, to suspend or delete the User Account, under the conditions of Article 8 below.
- 3.1 Creation, validation and use of the User Account
4. SERVICE DESCRIPTION
4.1 Diabetes self-monitoring
The Mobile Application provides Users with features to ensure global self-monitoring of their diabetes. Thus, the Mobile Application allows any User to import, inform, centralize and consult data relating to their health and daily activity within their User Account.
In addition to the data already provided by the User at the time of creation of his User Account, this data may refer to:
- (i) the health of the User, including, in particular, the level of glucose in the User's blood at a given time, the consumption of carbohydrates over a given period, the administration of tablets and the associated dosage, insulin injections and the associated dosage; and
- (ii) the User's daily activity that may affect his diabetes, including information on his diet (composition and meal times, illustrative photographs) and information on his physical activity (type of activity and duration).
All of this data (hereinafter referred to as the "Monitoring Data") may be imported into the User Account of the User concerned
- (i) manually and directly by the User via the fields provided for this purpose in the Mobile Application,
- (ii) via third-party applications that the User also uses, in particular Apple Santé or Samsung Health, provided that the User expressly consents to the import of the data contained in these applications into his User Account, and/or
- (iii) automatically through connected equipment that the User otherwise uses allowing the automatic import of data collected through such connected equipment, provided that the User has first paired the connected equipment concerned to his User Account.
No Tracking Data may be imported without the User's consent, who remains free, at any time, to stop importing into his User Account the data contained in the third-party applications referred to in (ii) above and/or importing into his User Account the data collected via the connected equipment referred to in (iii) above.
The Mobile Application also allows Users to set personal objectives, such as carbohydrate consumption and blood glucose levels. The User who wishes to use this functionality may be alerted and notified of the achievement or not of these objectives according to the terms and conditions set by him/her within the Mobile Application.
The creation of a User Account results in the creation of a public profile for the User concerned visible to the entire community of other Users, including a pseudonym, automatically and randomly assigned, certain Monitoring Data of the User concerned (including glucose levels, carbohydrates consumed, tablets and insulin administered), geolocation data of the User concerned, information on the last update date of this information and data. Each profile is accessible to all Users via the geolocation tool, the profile suggestion tool, and the User search form.
4.2 Social network
The Mobile Application also allows Users to interact with the entire community of other Users and to distribute and share information and content, including text, visual and audio content, with all or part of the Users (hereinafter the "User Content").
The creation of a User Account results in the creation of a personal profile that the concerned User can use to distribute and share User Content and/or Tracking Data according to the options and settings chosen by the User.
Each User can thus interact with any other User by:
- (i) subscribing to the latter's personal profile via the button provided for this purpose, it being understood that access to the personal page may be subject to the approval of the subscription request or may be granted as soon as the subscription request is made, at the choice of the User concerned;
- (ii) a member of a club, i.e. a page created on the initiative of Diabnext or one or more Users, intended to bring together Users sharing the same interest or having a similar geographical position, it being understood that access to the club may be subject to approval of the membership application by the club administrator or may be granted upon application, at the choice of the club administrator; or
- (iii) sending him a personal message directly via the messaging tool integrated into the Mobile Application.
Depending on the functionalities offered by the Mobile Application as possibly configured by the User when possible, the User acknowledges and accepts that the User Content and Tracking Data it disseminates may be viewed by:
- (i) the entire User community, in particular in the event that the User Content and/or Tracking Data are disseminated on a public personal profile, or when the User himself chooses to make them public;
- (ii) only a portion of the Users, in particular in the event that the User Content and/or Tracking Data are posted on a private personal profile, or when the User himself chooses to restrict their posting;
- (iii) to Named Users, in particular when the User uses the Mobile Application's messaging tool.
4.3 Remote monitoring
The Mobile Application also allows Users who have expressly consented to it, in addition to the self-monitoring and social network functionalities, to benefit from remote medical monitoring acts within the meaning of the applicable regulations, and in particular Article R.6316-1 3° of the Public Health Code, performed by a doctor or any other health professional.
As such, the Mobile Application allows the doctor or other healthcare professional (i) who is a member of the Diabnext Pro program and (ii) expressly authorized by the User to access and consult the User's data appearing on his User Account to interpret such data remotely and, if necessary, to make decisions relating to the medical care of this User.
As part of this remote monitoring system, the User benefits from a specific messaging tool that allows him/her to communicate directly with his/her doctor or healthcare professional in charge of performing remote medical monitoring procedures.
- 4.1 Diabetes self-monitoring
5.1 Obligations of the User
The User acknowledges and accepts that, with the exception of messages sent by his doctor or other healthcare professional in charge of performing remote monitoring acts via the specific messaging tool reserved for this purpose, in no way is the Mobile Application or the Services intended to provide or allow medical consultations or advice. As such, the User acknowledges and accepts that in no event shall access to the Mobile Application or use of the Services exempt the User from seeking advice from and/or consulting his doctor or any other healthcare professional for any matter relating to his diabetes, and more generally, to his health. Similarly, the User acknowledges and accepts that under no circumstances should the use of self-care features replace regular diabetes monitoring by a doctor or other healthcare professional.
The User warrants to Diabnext that it holds all rights and permissions necessary to publish the User Content and Tracking Data it puts online on the Mobile Application.
The User also guarantees Diabnext that the User Content and Tracking Data it puts online on the Mobile Application comply with the legal and regulatory provisions in force and in particular do not constitute a violation of the intellectual property rights of third parties, an infringement of persons (including defamation, insults, insults, insults, etc.), the right to the image of goods and/or persons and respect for privacy, or an infringement of public order and/or morality. As such, the User undertakes not to publish User Content and Monitoring Data that may constitute, in particular, an apology for crimes against humanity, a provocation to commit acts of terrorism and their apology, an incitement to racial hatred, hatred against persons on the grounds of their sex, sexual orientation or sexual identity or disability, as well as child pornography, incitement to violence, including incitement to violence against women, as well as attacks on human dignity.
In addition, the User expressly refrains from using the Mobile Application and/or Services:
- (i) for any purpose that is unlawful and/or contrary to these T&Cs;
- (ii) to encourage any illegal activity or any other activity that infringes the rights of Diabnext, other Users or any third party;
- (iii) in a manner that would disrupt or damage the Mobile Application, Services, devices, servers, networks or other property of Diabnext and/or any third party, including without limitation by introducing viruses or other malicious software; or
- (iv) for the purpose of referencing offers of goods or services, for any reason whatsoever.
The User undertakes not to borrow the identity of another User.
5.2 Diabnext's obligations
Diabnext undertakes, as part of an obligation of means, to provide access to the Mobile Application and Services in compliance with these T&Cs and to act diligently by implementing, within a reasonable limit, measures to remedy any malfunction brought to its attention.
The User acknowledges and accepts that Diabnext may be obliged to interrupt access to the Mobile Application and/or Services to carry out technical or maintenance work, regardless of its origin or cause, without this entailing any liability on the part of Diabnext. To the extent possible, Diabnext will inform Users on the Mobile Application home page as soon as possible and will use all reasonable means to reduce the period of unavailability of the Mobile Application and/or Services.
- 5.1 Obligations of the User
6.1 User's responsibility
The User is solely responsible for his or her use of the Mobile Application and/or Services, and in particular for compliance with his or her obligations under these T&Cs.
As such, the User indemnifies Diabnext against any complaint, claim, action, demand and/or recourse of any kind that other Users and third parties may make against Diabnext on the basis of the User's breach of any of its obligations or warranties under these TOU, or, more generally, the User's use of the Mobile Application and/or Services. The User undertakes to compensate Diabnext for any prejudice, loss and/or damage that it may suffer and to pay it all costs, charges and/or sentences that it may have to bear as a result.
6.2 Diabnext's liability
Diabnext's liability towards the User can only be incurred for facts directly attributable to Diabnext and causing direct prejudice to the User.
In no event shall Diabnext be liable to the User for any damage caused by the use of this website:
- (i) indirect damage, recognised as such by the French courts,
- (ii) damage resulting from misuse or use of the Mobile Application and/or Services not in accordance with these T&Cs, or
- (iii) damage resulting from facts attributable to the User, any other User or any third party.
Diabnext is not the publisher of User Content or Tracking Data. The User acknowledges and agrees that Diabnext has no a priori control over the User Content or Tracking Data published on the Mobile Application. Diabnext therefore cannot guarantee the accuracy, quality, truthfulness and reliability of the User Content or Tracking Data. Diabnext shall therefore not be liable for such User Content or Tracking Data, unless it can be demonstrated that Diabnext :
- (i) has knowledge of the unlawful nature of such content, and
- (ii) has not promptly acted, as a result of such knowledge, to remove such content or make it inaccessible.
Diabnext is not the publisher of any content exchanged between Users (in particular messages sent via the messaging tool or via the Mobile Application) or exchanges between Users and their doctor(s) or other healthcare professionals as part of remote monitoring acts, as Diabnext has no a priori control over such content. Diabnext acts only as a technical intermediary for the exchange of this content, which the User expressly acknowledges and accepts. As such, as a simple technical service provider not acting in any way as a doctor or health professional, Diabnext declines all responsibility for the information provided by doctors or other health professionals, and in particular for the accuracy, adequacy, exhaustiveness and quality of the information provided.
Insofar as the Mobile Application may contain content that contains links to third-party applications and/or websites over which Diabnext has no control, the User acknowledges and accepts that Diabnext cannot be held liable for the content of such third-party applications and/or websites.
The User acknowledges and accepts that Diabnext cannot be held liable for any inconvenience or damage related to the use of the Internet network, and in particular, without this list being exhaustive, the incorrect transmission and/or reception of any data and/or information on the Internet, the failure of any reception equipment or communication lines, any malfunction of the Internet network preventing the proper functioning of the Mobile Application and/or the Services.
The User acknowledges and agrees that the Mobile Application and Services, in particular the features enabling diabetes self-monitoring, are based on Monitoring Data provided by the User himself or through third party tools such as mobile applications (including Apple Santé or Samsung Health) or connected devices. In this context, Diabnext cannot be held liable for any consequences arising from inaccurate or incomplete Monitoring Data, except for the User to prove that this inaccuracy or incompleteness is the direct result of a fact attributable to Diabnext.
- 6.1 User's responsibility
7. INTELLECTUAL PROPERTY
7.1 Intellectual property of the User
Each User and holder of intellectual property rights to its User Content and Tracking Data. Each User also undertakes to respect the intellectual property rights and, in general, all the rights of other Users to their own User Content and Monitoring Data. In particular, the User is not authorized to download, copy, alter, modify, adapt, delete, distribute, transmit, broadcast, sell, sell, rent, lease, grant or exploit the User Content and Tracking Data of any other User, in whole or in part, in any manner whatsoever, without the express prior consent of the other User concerned.
7.2 Intellectual Property of Diabnext
The User acknowledges that the Mobile Application and all the elements that compose it (and in particular, and without this list being exhaustive, all texts, graphics, images, logos, names, trademarks, names, names, sounds, photographs, videos, drawings, data, software) are protected by intellectual property law and are and remain the exclusive property of Diabnext, or are granted under license to Diabnext.
Access to and/or use of the Mobile Application and/or Services does not constitute recognition of any right and, in general, does not confer on the User any intellectual property right relating to any element of the Mobile Application. In particular, the User is not authorised to download, copy, alter, modify, adapt, delete, distribute, transmit, broadcast, sell, sell, rent, lease, concede or exploit the elements that make up the Mobile Application and referred to in the previous paragraph, in whole or in part, in any way whatsoever, without the express prior consent of Diabnext.
Subject to the provisions of Article 8 below, Diabnext grants the User a personal, non-exclusive and non-transferable right to access, display and use the Mobile Application and Services, including the components of the Mobile Application, for use strictly in accordance with these TOU.
- 7.1 Intellectual property of the User
8. NON-COMPLIANCE WITH CGU
In the event of the User's failure to comply with his obligations under these GCU, i. e. arising from articles 1 to 11 of these GCU, or under any applicable law or regulation, Diabnext reserves the right to take any action it deems necessary and in particular to delete User Content and Tracking Data published by the User on the Mobile Application, to suspend and/or delete the User's User Account and/or to terminate the right of access, display and use granted to the User in Article 7.2 above, after notification of the breach or, in the event of a breach that can be remedied, after prior formal notice to comply without effect within a reasonable period of time specified in the said notice.
The User acknowledges and agrees that in the event of a breach that may affect the security of the Mobile Application and/or the publication of any content that does not comply with these TOU, Diabnext may take the aforementioned measures immediately after notifying the User of the breach.
These measures are without prejudice to any other rights of Diabnext, including damages to which Diabnext may be entitled.
9. PERSONAL DATA
Diabnext, as controller, is committed to protecting the privacy and personal data of Users in accordance with legal requirements and in particular Regulation No. 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Law No. 78-17 of 6 January 1978 on data processing, files and freedoms.
10. FORCE MAJEURE
In the event of an event of force majeure, as defined in Article 1218 of the Civil Code, leading to a temporary impediment to performance by one of the parties, the respective obligations of the parties shall be suspended and no party shall be held liable as a result.
If the force majeure event persists for more than thirty (30) consecutive days, and/or if, as soon as it occurs, it causes one of the parties to be definitively prevented from performing, the party to whom the force majeure event is opposed shall be entitled to terminate these GCU automatically.
The User acknowledges and accepts that Diabnext may freely assign these T&Cs and all rights and obligations attached thereto to any third party without the prior written consent of the User. The User agrees that such assignment releases Diabnext for the future.
The fact that Diabnext does not invoke any provision at any given time shall not be deemed to constitute a waiver of such provision or of the right to invoke such provision at a later date and/or to claim compensation for any breach of such provision.
The User acknowledges and accepts that the T&Cs do not create any subordination, agency, association or joint venture between Diabnext and the User or between Diabnext and physicians and other health professionals performing remote monitoring acts. Diabnext, the User, physicians and other health professionals each act in their own name and on their own behalf, without being able to bind the other in any way whatsoever.
If any of the provisions of the T&Cs are held to be null and void and declared invalid pursuant to any law, regulation or final decision of a competent court, such provision shall be deemed unwritten, without affecting the validity of the remaining provisions and shall be replaced by a valid provision of equivalent effect, which the parties undertake to negotiate in good faith.
11.5 Assistance - Information - Complaint
Any request for information, clarification, assistance, or complaint relating to the Services and/or the Mobile Application should be addressed to Diabnext by e-mail or by post to the contact details given in the preamble to these T&Cs.
11.6 Applicable law and jurisdiction clause
These T&Cs are governed by French law.
In the event of a dispute between a User and Diabnext not settled within one (1) month of Diabnext receiving a written complaint from the User addressed to Diabnext under the conditions of Article 11.5 above, each party may bring this dispute before the competent French courts, it being specified that the User may use any alternative dispute resolution method and in particular a mediation procedure by accessing the European online dispute resolution platform at the following address: http://ec.europa.eu/odr which will attempt an amicable resolution.
- 11.1 Assignment