General terms and conditions

WARNING
IT IS IMPORTANT THAT YOU CAREFULLY READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THE APPLICATION. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU AGREE TO ABIDE BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS AND DO NOT WISH TO ABIDE BY THEM, YOU MUST NOT ACCEPT THEM AND MAY NOT, THEREFORE, BENEFIT FROM THE SERVICES OFFERED BY THE COMPANY ON THE SITE.

1. Purpose


The mobile application "Racer Iwarm" (hereinafter "the Application") and the website accessible at racer1927.com (hereinafter "the Platform") offers, in particular, to set the parameters for the operation of the heated gloves, to monitor the performance of the batteries (hereinafter the "Services"); the Application also offers to notify the information to its users (hereinafter "the Users").
The Racer application and the User are hereinafter referred to together or individually as a "Party". The purpose of these general terms and conditions (hereinafter the "General Terms and Conditions") is to set out the terms and conditions for the provision of Services by Racer to Users, as well as to define the rights and obligations of the Parties in this context.
They may be supplemented, if necessary, by special terms of use, which supplement these General Terms and Conditions and, in the event of contradiction, prevail over them.
The General Conditions constitute a contract between the Company and the User and apply to the use of the Services.
They are accessible and printable at any time by a direct link in the "About" section of the Application.



2. Operator of the Application


The Application and the Services are operated by the company Racer, a simplified joint stock company with a capital of €5,776,000 registered in the Trade and Companies Register of Salon de Provence under number 502 226 749, whose registered office is located at 1 Rue de la Forge 13300 Salon de Provence (hereinafter "Racer").


Racer can be contacted at the following address: [email protected]



3. Acceptance of the General Conditions


By using the Application, the User declares to have read the General Conditions and to accept them without restriction by checking the box provided for this purpose.
This acceptance is full and complete, without modification of any kind. Any acceptance with reservations is considered null and void. Any User who does not agree to be bound by these Terms and Conditions must not use the Services or access the Application.



4. Access to the Application and Services


The Application and the Services are accessible to the User who is a natural person with full legal capacity to enter into commitments under these General Conditions;
Users who do not have full legal capacity, and in particular minors, may only access the Application and Services with the consent of their legal representative, which they guarantee.


5. Registration


5.1. How to download and use the Application


The Application is available on legal download platforms and can be downloaded free of charge from the Apple App Store and the Google Play Store.
In order for the Application to function properly, Racer must be able to access the User's continuous location.
In order to enable continuous location, User must take the necessary steps on his/her cell phone.


5.2 Opening an account (hereinafter "Account").


To use the Application and benefit from the Services, the User must open an Account by filling in a registration form, by completing all the required information, in particular his name, first name and email address, and choose a password.
The User agrees to provide Racer with any additional information requested by Racer. User expressly authorizes Racer to access and retrieve User's personal information and account usage data from the relevant third party social network.
User warrants to Racer that the information provided on such registration form or with the third party social network is accurate and not misleading.
The User agrees to inform Racer without delay of any change in such information by modifying the information entered in his personal space (hereinafter the "Personal Space") or at the contact address indicated in the article "Application Operator" herein.
The User acknowledges and accepts that the information entered for the purpose of creating or updating his Account is proof of his identity.
In the event that this information proves to be inaccurate, incomplete or not updated, Racer reserves the right to immediately suspend access to the Services, without the User being able to claim any compensation.


5.3. Terms of use of the Application


The User accesses the Services by logging into his Account with his login and password chosen at registration, which he acknowledges and accepts.
The User has the possibility to change his password at any time, in the "Settings" tab of his Account. It is recommended to change the password regularly.

6. Strictly personal use


Only one Account may be created per User. The User of the Services is considered to be the person whose personal information corresponds to that provided on the registration form, to the exclusion of any other third party.
The User therefore undertakes to use the Services personally, and not to allow any third party to use them in his place or on his behalf, including another User of the Services, unless he bears full responsibility.
The User is also responsible for maintaining the confidentiality of his login and password and expressly acknowledges that any use of the Services from his Account will be deemed to have been made by him.
In the event that the User notices that his Account is or has been used without his knowledge, he undertakes to notify Racer as soon as possible, at the address indicated in the article "Application Operator".


7. Description of the Services


The User has access to the Services in a form and with the technical means that Racer deems most appropriate.


7.1. Functionality of the Services available free of charge


Downloading the Application and creating an Account allows the User to have access to free features (hereinafter the "Free Features")
Racer reserves the right to integrate the services accessible free of charge into the Paid Services by modifying the General Conditions under the conditions set out in the article "Modifications to the General Conditions".


7.2. Features of Paid Services (hereinafter "Paid Features")


The User has the option of taking out a paid subscription (hereinafter "the Subscription"), and thus benefiting from additional features that are added to the Free Features.
User acknowledges and agrees that Racer may also modify, delete or add features.


7.3. Special provisions for the use of the Personal Area


The User's Personal Area allows the User, at his free choice, to enter any information he deems necessary in his Personal Area. The User acknowledges that this information is not stored on Racer's servers, but only on the User's telephone. User further warrants to Racer that such information is accurate and not misleading.


7.4. Other services


Racer reserves the right to offer any other Services, in a form and according to the functionalities and technical means it deems most appropriate to render said Services.
The User acknowledges that he/she is informed that any new Service may be offered as a Free Service or as a Paid Service, at Racer's discretion.

8. Financial conditions


8.1. Free services


The opening of an Account and the Services are provided by default to the User free of charge, it being understood that the User is solely responsible for all costs of access to the mobile Internet, as well as the cost of his communications.


8.2. Paid features


8.2.1. Price of Chargeable Features


The User may take out a Pay-Per-Use Subscription that is renewable by tacit agreement, and thus benefit from the Pay-Per-Use Features as described above.
The characteristics and the applicable price scale for the Paid Services are detailed on the Application, according to the means deemed useful by Racer.
The applicable Subscription formula is the one in force at the date of subscription and remains available in the User's personal Space, at any time, during the entire period of validity of the Account.
Prices are indicated in euros and include all taxes.
Racer reserves the right to revise the prices of the Subscription at any time at its own discretion. The User will be informed of such changes by Racer by any means deemed useful by Racer, at least fifteen (15) days before the new prices come into effect.
If the Subscription is not terminated in accordance with the conditions set out in the article "Termination", the new prices will come into effect on the date of renewal of the Subscription.


8.2.2. Terms of payment


In principle, the Subscription price is due in full on the date of subscription to the Paid Features for the initial period and on the Subscription renewal date for the renewal periods.
However, the price of the Subscription may also be paid monthly.
User is expressly informed and agrees that payment of the Subscription price will be made directly to the Store from which the Application was downloaded, and User will be responsible for providing proof of payment.
The User warrants to Racer that he/she has the necessary authorisation to proceed with the payment of the price.


8.2.3. Default of payment


The User is informed and expressly accepts that any delay in payment of all or part of the sums due on their due date will automatically lead, without prejudice to the provisions of the articles "Sanction of default" and "Termination", without prior notice:
- The forfeiture of all sums due by the User and their immediate payment;
- The immediate suspension of the Services in progress until full payment of all sums due by the User;


8.2.4. Right of withdrawal


The User expressly requests the execution of the Paid Functionalities during the period of his right of withdrawal.
Therefore, in the context of a Subscription, the User expressly declares that he/she agrees to the immediate start of the Paid Features and agrees to waive his/her right of withdrawal within a period of 14 days, without this affecting his/her right to terminate the Subscription at any time in accordance with the General Conditions.


8.2.5. Termination of the Subscription


The User may terminate the Subscription on the store where the Application was downloaded in accordance with the article "Closing the Account" of these General Terms and Conditions.


9. Service Level Guarantee


Racer will use its best efforts to keep the Application running uninterrupted 24 hours a day, 7 days a week, and guarantees 98% availability of the Services except in cases of force majeure.
If necessary, Racer reserves the right to restrict or suspend access to the Application in order to carry out any maintenance and/or improvement operations. During such maintenance and/or upgrades, Racer will use its best efforts to make backups of the Account, so that it can be restored to its state at the time of such maintenance and/or upgrades.
Racer shall not be liable for any loss of content during maintenance and/or upgrades.
Racer also undertakes to take all necessary precautions, in view of the nature of the data and the risks presented by the automated data processing implemented for the purposes of the Services, to preserve the security of the data, and in particular to prevent them from being distorted, damaged or accessed by unauthorised third parties.



10. Hosting


Racer undertakes to ensure, under the terms of an obligation of means, the hosting of the Accounts and all content produced by the User, in accordance with the practices of the profession and the state of the art, on its own servers or by a professional hosting provider, carrying out its activity in accordance with the practices of the profession and the state of the art.
Racer undertakes to implement all technical means, in accordance with the state of the art, necessary to ensure the security of and access to the Services, including the protection and monitoring of infrastructures, the control of physical and/or immaterial access to said infrastructures, as well as the implementation of detection, prevention and recovery measures to protect the servers from malicious acts.
Racer also undertakes to take all necessary precautions, in view of the nature of the data and the risks presented by the automated data processing implemented for the purposes of the Services, to preserve the security of the data, and in particular to prevent them from being distorted, damaged or accessed by unauthorized third parties.



11. Obligations of the User


Without prejudice to the other obligations set forth herein, the User agrees to comply with the following obligations.
- The User undertakes, in his use of the Services, to respect the laws and regulations in force and not to infringe the rights of third parties or public order.
- The User acknowledges that he/she has taken cognizance of the characteristics and constraints, particularly technical, of all the Services. He acknowledges in particular that Racer will not be able to provide him with all the Services if he refuses the request for notifications, access to the contact list or continuous geolocation.
- User agrees to provide Racer with all documents, materials, data and information necessary for the proper performance of the Services, including, without limitation
- to provide a valid telephone number and to verify the accuracy of the contact information
contact information;
- to give sincere and not misleading information;
- more generally, User agrees to cooperate actively with Racer in the performance of this Agreement and to inform Racer of any difficulties in connection with such performance.
- The User warrants to Racer that he/she has all necessary permissions to allow Racer to send SMS and/or calls to his/her contacts in connection with the Services. In this context, the User indemnifies Racer against any complaint, claim and/or action by one or more other Users and/or any third party claiming that Racer has violated his or her right to the protection of personal data. Accordingly, the User agrees to indemnify Racer for any damages it may suffer and to bear all damages, costs, charges and expenses that Racer may be ordered to pay, or that may be provided for in a settlement agreement signed by Racer after obtaining the User's prior consent.
- User acknowledges that User shall not use his/her phone while driving.


12. Prohibited Behavior


It is strictly prohibited to use the Services for the following purposes:
- engaging in illegal, fraudulent or infringing activities against the rights or safety of third parties,
- undermining public order or violating laws and regulations in force,
- intrusion into the computer system of a third party or any activity of a nature to harm, control, interfere with, or intercept all or part of the computer system of a third party, violate its integrity or security,
- aiding or abetting, in any form or manner whatsoever, one or more of the acts and activities described above
- and more generally any practice that misuses the Services for purposes other than those for which they were designed.
It is strictly forbidden for any User to copy and/or misappropriate the concept, technologies or any other element of the Application for his or her own purposes or those of third parties.
The following are also strictly prohibited: (i) any behavior of such a nature as to interrupt, suspend, slow down or prevent the continuity of the Services, (ii) any intrusions or attempted intrusions into Racer's systems, (iii) any misappropriation of the system resources of the Application, (iv) any actions of such a nature as to impose a disproportionate burden on the latter's infrastructure, (v) any breach of security and authentication measures, (vi) any act that may prejudice the financial, commercial or moral rights and interests of Racer, and more generally (vii) any breach of these Terms and Conditions.
It is strictly forbidden to monetize, sell or grant all or part of the access to the Services or to the Solution, as well as to the information hosted and/or shared therein.

13. Sanctioning of breaches


In the event of a breach of any of the provisions of the General Terms and Conditions or, more generally, a breach of laws and regulations by the User, Racer reserves the right to :
- suspend temporarily or permanently, without delay, the access to the Services of the User author of the breach or infringement, or having participated in it, and in particular, in case of providing erroneous, incomplete, misleading or outdated information during registration,
- remove any content related to the breach or violation in question, in whole or in part,
- take all appropriate measures and take any legal action,
- to warn the competent authorities, if necessary, to cooperate with them and to provide them with all the information useful for the research and the repression of illegal or illicit activities.
In the event of a breach by the User of an essential obligation arising from the General Terms and Conditions, or of a repeated breach thereof, Racer reserves the right to terminate the User's access to all or part of the Services, with immediate effect, by email. The termination shall be effective as of the date of dispatch by Racer of the written notice sent to the User pursuant to this clause. It shall automatically and without prior notice lead to the deletion of the User's Account, without prejudice to any other consequences that may arise in application of these General Terms and Conditions.

14. Racer's liability and warranty


Racer undertakes to use its best efforts to provide the Services diligently and in accordance with the rules of the trade, it being specified that it has an obligation of means, to the exclusion of any obligation of result, which the User acknowledges and expressly accepts.
Its responsibility is exclusively limited to the provision of the Services according to the terms described herein, to the exclusion of any other service. User further acknowledges and agrees that the Services are provided "as is" without warranty of any kind, express or implied. In particular, Racer does not warrant that:
- the Services, subject to constant research to improve performance and progress, will be totally free of errors, defects or faults;
- the Services, being standard and not offered solely for the User's own personal use, will specifically meet the User's needs and expectations;
- the Application will function in an uninterrupted manner, Racer reserving the right to momentarily interrupt access to the Application for maintenance reasons under the conditions of the article "Guarantee of level of service", and not being able in any case to be held responsible for disruptions or failures of the Internet or the telecommunication network, and more generally which would have their origin in circumstances which are external to it or resulting from the force majeure.
The User acknowledges and accepts that Racer cannot be held responsible if the execution of the Services is incomplete and/or impossible in the following cases
- if the User refuses to give Racer access to his/her contact list, to accept continuous geolocation and notification, which are essential to the proper functioning of the Service;
- in the event that User's cell phone is damaged during the performance of the Services, for whatever reason, in a manner that makes it impossible or partially impossible to perform the Services;
- if the User is located in a place where the connection to the operator's network is impossible and therefore the information cannot be transmitted in real time to Racer;
- if the Application does not work on the User's cell phone for any reason whatsoever.
Racer shall not be liable to User for any damages of any kind, whether direct or indirect, material, financial or moral, arising out of User's use of the Services and the Application.

15. Intellectual property


The Terms and Conditions do not grant the User any intellectual property rights of any kind in the Application, as well as in all text, images, audio-visual content and other content used by Racer on the Application, including the Terms and Conditions, trademarks, trade names and logos, software, structures, infrastructure and databases used by Racer within the Application, which remain the sole and complete property of Racer.
Any act of disassembly, decompilation, decryption, extraction, reuse, and more generally any reproduction, representation, distribution, adaptation, commercialization of the Application and/or of the texts, images, audio-visual contents and other contents operated by Racer on the Application by the User, not complying with the provisions of these Terms and Conditions, are prohibited and may be subject to legal proceedings.

16. Personal data relating to the User


As part of the Services, Racer collects personal data relating to the User, which it processes on its own behalf, in its capacity as data controller.
Racer has a personal data protection policy, the characteristics of which are set out in the document entitled "Personal Data Protection Charter", which the Customer is expressly invited to read.
The Company declares in particular that it complies with all legal and regulatory obligations incumbent upon it in terms of personal data protection, in particular to guarantee the security and confidentiality of the data collected and processed on its own behalf in its capacity as data controller. In particular, it undertakes to make all mandatory declarations to the Commission Nationale de l'Informatique et des Libertés.
Racer undertakes without limitation to:
- implement and maintain in force at all times all appropriate security measures with respect to the processing of personal data,
- keep a record of all processing activities carried out under the Terms and Conditions,
- to process Data only for the purposes as envisaged in the Charter on the protection of personal data;
- guarantee the confidentiality of the Data processed hereunder,
- ensure that persons authorized to process Data hereunder, whether permanent or non-permanent staff of Racer, its affiliates and any subcontractors, are committed to confidentiality or are subject to an appropriate legal obligation of confidentiality and receive the necessary training in the protection of personal data
- take into account, with respect to its tools, products, applications or services, the principles of data protection by design and data protection by default
- notify the User of any personal data breach in accordance with Article 34 of the GDPR if the breach is likely to result in a high risk to the User's rights and freedoms, and in any event to notify the breach to the competent supervisory authority unless exempted.
Racer uses subcontractors, whose servers are located in Europe, to host and store the Data.
If Racer hires other subcontractors, the subsequent subcontractor will be bound by the obligations of these Terms and Conditions. It is Racer's responsibility to ensure that the subsequent processor provides the same sufficient guarantees regarding the implementation of appropriate technical and organizational measures so that the processing meets the requirements of the GDPR. If the subsequent processor fails to meet its data protection obligations, the original processor shall remain fully responsible to the User for the other processor's performance of its obligations.
The Parties agree that Data may only be transferred by Racer and/or any authorized subcontractor hereunder or thereafter, to recipients established in a member country of the European Union or a third country ensuring an adequate level of protection and recognized as such by the CNIL or any other authorized body. If Racer changes the countries of destination, it shall inform the user without delay and obtain his consent. Where applicable, Racer shall provide the User with the updated list of countries of destination.

17. Racer's Data


User expressly acknowledges and agrees:
- (i) that the data collected via the Application is evidence of the reality of the operations carried out hereunder,
- (ii) that these data constitute the only mode of proof admitted between the Parties.
The User may access this data in his Personal Space.


18. Closing the Account - Stopping using the Services


The User using the Free Features of the Application may unsubscribe from the Services at any time and close his Account by following the procedure for deleting an account or by making a request to [email protected]
The User using the Paid Features can unsubscribe at any time, and terminate his Subscription directly on the store where the Application was downloaded.
The User acknowledges that the closure and deletion of his/her Account does not affect the Subscription and its tacit renewal, accessible exclusively via the User's personal Apple store and/or Play Store accounts, to which Racer does not have access, as indicated above.
User acknowledges and agrees that the amounts paid under the Subscription for the current month shall remain with Racer.
The User expressly acknowledges that Racer shall not be liable for any loss or alteration of information stored by the Registered User in his or her Account, which occurs after the deactivation of his or her Account, regardless of the cause, and in particular as a result of maintenance and/or upgrading of the Application.


19. Advertising


Racer reserves the right to insert, on any page of the Application and in any communication to the User, any advertising or promotional messages in a form and under conditions to be determined by Racer.

20. Force majeure


Racer shall not be held liable to the User in the event that the performance of its obligations is delayed, restricted or rendered impossible due to the occurrence of an event of force majeure. The following are considered as cases of force majeure, the hypotheses usually recognized by the jurisprudence and the French courts.
The occurrence of a force majeure event will initially suspend the execution of the Services for a period not exceeding three (3) months. In the event that the force majeure event continues beyond the aforementioned period, the Parties may terminate these General Terms and Conditions, ipso jure, without judicial formality, without prior notice and without right to compensation of any kind, by sending a registered letter with acknowledgement of receipt with immediate effect.


21. Waiver


The fact that one of the Parties has not exercised any right or power in application of the provisions of the General Conditions, or has exercised it late, shall not be interpreted as a waiver to exercise all or part of this right or power, and any single or partial exercise of any right or power shall not prevent a new implementation of this right or power.


22. Invalidity


If any of the provisions of the General Terms and Conditions should be declared null and void or unenforceable by reason of any law, regulation or final decision of a competent court, only that provision shall be null and void, and the other provisions shall remain in full force and effect.


23. Modification of the General Terms and Conditions


Racer reserves the right to modify the General Terms and Conditions at any time and in particular reserves the right to modify and/or stop offering all or part of the Services at any time at its own discretion.
The User will be informed of these modifications by any useful means, at least fifteen (15) days before their entry into force (hereafter: the "Notice Period").
The modified general conditions will apply at the end of the Notice Period:
- for free features ;
- to any Subscription taken out, or renewed, after their entry into force.
Thus, current Subscriptions will be governed by the General Conditions in their old version until the day of renewal.
On that date, the new version of the General Terms and Conditions will apply.
The Customer who does not accept these modifications shall :
- terminate his or her Subscription, according to the terms and conditions set out in the article "Closing the Account" when the User has a Subscription,
- unsubscribe from the Services.
Otherwise, the User will be deemed to have accepted the modified terms and conditions.
Any User who uses the Services after the entry into force of the modified terms and conditions is deemed to have accepted these modifications.


24. Language


In the event of a translation of the General Terms and Conditions into one or more languages, the language of interpretation shall be the French language in the event of a contradiction or dispute over the meaning of a term or provision.

25. Mediation


In accordance with Article 14 of Regulation (EU) 524/2013, the consumer Customer can access the "Online Dispute Resolution" platform set up by the European Commission, in order to facilitate the independent settlement by extrajudicial means of online disputes between consumers and professionals in the European Union.
Link to the platform: https://ec.europa.eu/consumers/odr/main/


26. Applicable law and jurisdiction


The present general conditions are governed by French law.
In the event of a dispute concerning the validity, interpretation and/or execution of these general conditions, the parties agree that the courts of Toulouse shall have exclusive jurisdiction to judge the matter, subject to the conditions of common law.
The User is informed that he can in any case resort to a conventional mediation, in particular with the Commission of the mediation of consumption (C. cons. art. L 612-1) or with the existing authorities of sectorial mediation, or with any alternative mode of settlement of the disputes (conciliation, for example) in case of dispute.

27. Mediation


National or cross-border disputes that may arise concerning the validity, interpretation, performance or non-performance, interruption or termination of this contract, may be submitted to mediation at the request of the consumer.
The website of https://medicys.fr describes the mediation process used and allows consumers to file an online request for mediation with supporting documents.
The dispute cannot be examined by the mediator if :
- the consumer does not justify having tried, beforehand, to resolve his dispute directly with Racer by a written complaint,
- the request is obviously unfounded or abusive,
- the dispute has been previously examined or is being examined by another mediator or by a court,
- the consumer has made his request to the mediator within a period of more than one year from his written complaint to Racer,
- the dispute does not fall within its field of competence.
Mediation is free of charge for the consumer (unless the consumer voluntarily uses a lawyer, a third party of his choice or an expert).
The mediator may not receive any instructions from the parties nor be remunerated according to the result.
The mediation of consumer disputes is subject to the confidentiality obligation provided for by article 21-3 of law n°95-125 of February 8, 1995 relating to the organization of the jurisdictions and the civil, penal and administrative procedure.
The parties remain free to submit their dispute to a judge within the framework of the applicable legal provisions.