GENERAL
CONDITIONS OF USE
- WHYMPR -
The WHYMPR mobile
application (hereinafter called "the App") is published by the simplified
joint-stock company WHYMPR, whose head office is located at 289 Chemin du Clos du
Savoy - 74400 CHAMONIX - MONT-BLANC, registered under number RCS
829 892 207, represented by Mr Timothy MacLean in his capacity as CEO
(hereinafter called "WHYMPR").
The
App is designed to facilitate mountain excursions by suggesting existing
routes, offering professional advice and providing user feedback to any natural
person wishing to prepare for a mountain excursion for leisure purposes,
exclusive of professional use (hereinafter called the "USER" or the "USERS").
The
purpose of the present General Conditions of Use is to cover the relationship
between WHYMPR and the USERS using the App.
The USER acknowledges
that, prior to downloading the App and registering, he has read the present
general conditions of use and accepts them without restriction or reservation.
The
creation of an account by the USER implies unreserved acceptance of the present
general conditions of use as defined below, and the USER undertakes to abide by
them.
Article 2 -
Registration requirements
2.1 - Technical requirements
USERS must have their own equipment and connecting
instrument and internet connection, at their own expense, to use the App, it
being specified that certain functions can only be accessed without an internet
connection through a subscription to the paid version.
In any event, USERS remain responsible for their IT
environment and the compatibility of their equipment with the App.
2.2 - Registration and account creation
Only natural persons may register to use the App.
To access the services offered by WHYMPR on the App,
the USER must create an account by completing the form and filling in online
information and identification fields.
Registering to use the App is personal and an account
must be created for each USER, it being specified that each USER may create
only one account.
By registering, the
USER declares and guarantees that:
-
he is a natural person and enters into the contract as
such;
-
he is an adult and is fully legally entitled to make a
commitment under the present General Conditions;
-
he does not enter into the contract as a professional
or in the context of his professional activity.
When
his account is created, the USER is requested to select a password that the
USER undertakes to keep confidential and therefore he will refrain from
transferring it or communicating it to a third party. In the event of his
failure to do so, WHYMPR will not be held liable for unauthorised access to a
USER's account.
2.3 - Right to cancel
Pursuant
to the provisions of the Consumer Code, the USER has the right to cancel for a
period of fourteen calendar days with effect from registration to use the App,
without having to provide justification or incurring penalties.
However,
USERS are reminded that the right to cancel cannot be exercised for service
provision contracts of which performance has already commenced, with the
agreement of the consumer, before the expiry of the period of fourteen calendar
days.
This
will be the case each time that the USER downloads the App on to his mobile
telephone.
2.4 - De-registration and deletion of the App
Without prejudice to
his right of withdrawal, the USER has the opportunity to de-register and delete
his account at any time.
The USER is free to delete
the App by uninstalling it from his phone at any time, at no cost.
Article 3 - Description of the App functions
3.1 - Services available from the free version of the
App
Services
such as the social wall, the personal mountain logbook, a topographic map or
the description of community routes are accessible for free.
Other
services can be added in the future. WHYMPR allows itself to modify this
content at any time.
3.2 - Services available from paid subscriptions
Paid
subscriptions are available to access additional functionalities which will be
described in the App. WHYMPR allows itself to modify this content at any time.
3.3 - Content available from one off purchases
Content such as route descriptions created by
professionals are available for one off purchases. WHYMPR allows itself to
modify this content at any time.
Please note, the majority of the App's functions are
not available offline.
Article 4 - Tariffs and invoicing
WHYMPR
offers a free version of the App. However, WHYMPR reserves the right to convert
it to a paid version.
WHYMPR
sells services available from paid subscriptions. The description and length of
these services are presented in the App and will be made available at the price
indicated in the App.
WHYMPR
sells content from one off purchases. The description of this content is done
in the App and will be made available at the price indicated in the App.
WHYMPR
reserves the right to alter tariffs at any time.
The
paid subscriptions are to be paid by the USER directly from his smartphone
store. At the end of each subscription period, the subscription to the paid
version will be tacitly renewed in the absence of termination thereof by the
USER, without notice.
Professional
content will be invoiced at the advertised prices, which may vary depending on
the content selected by the USER, it being specified that the amount is to be
paid from the smartphone store.
Articles
from the Consumer Code:
Article
L215-1:
For service provision contracts concluded for a specified period with a tacit
renewal clause, the professional service provider informs the consumer in
writing, by dedicated individual letter or email, at the earliest three months
and at the latest one month before the end of the authorised period in which
renewal may be declined, of the opportunity not to renew the agreement he
concluded with a tacit renewal clause. This information, issued in clear and
comprehensible language, states, in a clearly visible box, the final date for
non-renewal.
When this information has not been
sent to him in compliance with the stipulations of the first paragraph, the
consumer may terminate the agreement at no cost, at any time with effect from
the renewal date.
Advance payments made after the last renewal date or, in the case of agreements
of indeterminate duration, after the date of transformation of the initial
fixed-term agreement, are in this case refunded within thirty days of the date
of termination, after deduction of the amounts corresponding, up to that date,
to the performance of the agreement.
The provisions of the present
article apply without prejudice to those which legally subject certain
agreements to specific rules relating to consumer information.
Article
L215-2:
The provisions of the present chapter are not applicable to clean water and
sanitation services operators.
Article
L215-3:
The provisions of the present chapter are also applicable to the agreements
made between professionals and non-professionals.
Article
L241-3:
When the professional has not made the refund under the terms stipulated in
article L215-1, sums payable will bear interest
at the legal rate.
Mobile
operators may charge the USER for the internet connection needed to use the
App.
Article 5 - Obligations of the USER
The
USER undertakes:
-
to comply with the recommendations of WHYMPR and more
specifically with the terms of the present general conditions;
-
to use the App responsibly and with good judgement:
under no circumstances can the App replace the recommendations of a mountain
professional;
-
not to publish content (images, photographs, comments,
etc.) contrary to public order and to accepted standards of behaviour or
prejudicial to third parties (defamation, attack on private life, etc.);
-
not to publish content (images, photographs, comments,
etc.) prejudicial to intellectual property rights held by a third party;
-
to comply with current laws and regulations;
-
to make strictly personal use of the App and, in any
case, not to make professional or commercial use of the App and/or its content.
The
USER shall be fully and solely liable for any prejudice resulting from the
failure to respect the present general conditions, WHYMPR being exempt from all
liability relating thereto.
Article 6 - Liability
6.1 - Liability for the content posted by the USER
WHYMPR
accepts no liability for content posted to the App (images, photographs,
comments, etc.) by the USER but reserves the right to moderate or delete the
said content if it is prejudicial to the rights of a third party or
contravenes, in any way whatsoever, current laws and regulations.
6.2 - Accessibility of the App and malfunctions
WHYMPR
undertakes to make every effort to ensure that the App is accessible and
operational at all times. However, in this regard, WHYMPR is bound only by a
best-efforts obligation rather than a performance obligation, as WHYMPR offers
no guarantee of continuity of its services.
In
particular, no liability can be attached to WHYMPR in the event of any
malfunction or failure to operate by the App resulting from no or poor 3G/4G
coverage or the absence or poor quality of the GPS signal.
Furthermore,
WHYMPR reserves the right to temporarily interrupt accessibility to the App for
reasons of maintenance, to repair and/or upgrade. However, WHYMPR undertakes to
make every effort to minimise the interruption time.
Consequently,
the USER declares that he is familiar with the Internet and accepts its limits
and constraints. In particular, he acknowledges that:
-
the reliability of transmissions is random because, notably, of the
heterogeneous nature of the infrastructures and networks on which they
circulate and that, in particular, outages or overloading may occur;
-
restrictions to access to certain networks may exist and be dependent on the
conclusion of a specific agreement;
-
internet users can connect their computer equipment wherever they are and
notably can, as the case may be, divert, distribute, alter, destroy or falsify
data, software and/or content circulating on the internet, and can do so
notwithstanding the establishment of procedures to control access, notably by
password or other access codes. Consequently, it is the responsibility of the
USER to take all measures that he deems appropriate to ensure the security of
his equipment and his personal data, software or other items, in particular from contamination
by any virus and/or intrusion attempts to which he might fall victim;
-
all equipment used for connection to the App is and remains the entire
responsibility of the USER.
The
USER acknowledges that he uses the App at his own risk and undertakes to take
all necessary precautions to use the App in compliance with the present general
conditions of use.
Consequently,
no liability can be attached to WHYMPR by the USER for any damage, notably in
the event of loss of data and/or damage to the USER's equipment, which may
occur as a result of using the App.
Therefore,
WHYMPR will accept liability only in the event of damage resulting from a
malfunction blocking access or making it impossible or very difficult for USERS
to use the App, which has been proved to be exclusively attributable to WHYMPR.
In
any case, the liability of WHYMPR, if it was proved, would be limited to supplying
access to the App pursuant to the terms of the present general conditions.
Reparation
for any other damage and notably any indirect damage, material or intangible,
such as moral prejudice, financial damage, loss of opportunity, earnings
forgone, loss of profit, damage to image, etc. is excluded
WHYMPR
holds an insurance policy guaranteeing the financial consequences of its civil
liability should it arise.
6.3 - Safety rules for
mountaineering activity - Liability of the USER
The USER uses the App under his
sole and entire responsibility. WHYMPR can under no circumstances guarantee the
quality, accuracy or exhaustiveness of the information supplied in the App.
WHYMPR
will under no circumstances accept liability for any document or content, including,
but not limited to,
any
error or omission in any document or content, or for any loss, injury or
damage of any nature incurred as a result of the use of any document or content
available on the App.
Minors
are requested not to use the App unless an adult is present.
It
is to be noted that information is supplied to the App by various users, mainly
non-professionals, based on their own experience, their own level of activity
and their own capabilities.
Also,
the USER recognises and expressly agrees that the App and its content is not
designed to fully meet his individual needs and that it is therefore his
responsibility to ensure that the route he has chosen is within his range,
accurate and accessible.
Information
made available on the App does not serve to replace the advice or
recommendations of a qualified professional when making decisions on the
ground.
Also,
the App must be used as a tool assisting direction-finding and decision-making
but cannot under any circumstances replace the assessment and judgement of the
USER who alone remains in control of his safety and his choices, particularly
in the face of external data.
In
this regard, it must be noted that the practice of sports and mountain
activities requires comprehensive knowledge of the terrain and conditions and
the acceptance of a degree of risk matching the individual's abilities and
experience.
Furthermore, the USER
is reminded that the natural world is permanently evolving and that the
conditions of accessibility and feasibility of a route may change depending on
the seasons, weather conditions, etc. and WHYMPR in no way guarantees the
protection of the USER against all these objective natural dangers.
The
USER is requested to submit any change and/or error of which he may be aware
and any comment concerning the route to WHYMPR in order to update the route
and/or improve the service.
In
any case, the USER is called upon to use the App with care and good judgement
in the interpretation and use of the documents and content. The USER remains
solely responsible for his safety and his choices during the excursion. Also,
he alone is capable of assessing his own physical capabilities.
In
particular, the USER must take account of the difficulty of the route, the
configuration of the space and of his technical and physical capabilities.
The
USER must be equipped with the necessary safety equipment for the activity in
question.
Before
his departure, the USER must familiarise himself with the following information
in particular:
- opening and closing hours of the
cable car serving the routes, if appropriate;
- emergency phone numbers;
- weather forecasts;
- possible municipal decrees governing
the activity in question.
WHYMPR accepts no liability in the
event of incidents of any kind which may result from the use or interpretation
of content supplied in the App.
It must be noted that the majority
of the functions of the App are not accessible without online access. Only the
paid version allows content to be seen without network coverage, provided that
the USER has selected and downloaded the said content while connected to the
internet. It is therefore the responsibility of the USER to make the necessary
arrangements in this regard before any excursion.
Article 7 -
Intellectual property
7.1 - Intellectual property rights of WHYMPR
The layout, structure
and graphic and textual elements of the App as well as all content directly
supplied by WHYMPR are the property of WHYMPR and subject to laws governing
intellectual property.
The use of the App
confers no right on USERS other than their personal, non-transferable and
non-exclusive use of the App and its content.
Consequently, USERS
cannot, under any circumstances and in any way, reproduce, represent,
distribute, market, copy, translate, adapt, extract and/or decompile all or
part of any one of the elements reproduced in the App and all or part of the
App in general, without the prior express written agreement of WHYMPR, except
for the content which they have originated or which belongs to a third party,
subject, in such circumstances, to observing the terms of the licence chosen by
their author.
7.2 - Intellectual property rights of the USER
The USER remains the
sole and only holder of the intellectual property rights over the content which
he publishes in the App (whether it be sharing an experience or creating a new
route, including textual elements, photographs, etc..), when these are original,
under the terms of the intellectual property code.
On the other hand, the
USER is reminded that as purely technical and objective data do not constitute
originality, defined as the "imprint of the author's personality" by French
jurisprudence, they are not intended to be protected by copyright and may
therefore be freely used and reproduced.
Furthermore, it is
expressly agreed that by posting content to the App, the USER acknowledges that
the said content may be distributed to all the App's users.
In particular, the USER
expressly acknowledges and accepts that evaluations and comments made about his
excursion shall be freely distributed on the App and accessible to all users of
the said services as information for the user community. The USER may, however,
decide not to share his content or his feedback with the community by disabling
the share button.
The USER therefore
grants WHYMPR, worldwide and for the entire duration of copyright protection,
the right to reproduce, modify, represent the said content on the App, without
any financial reward, which the USER explicitly acknowledges.
In addition, the USER
declares and guarantees that he is the owner of the content that he puts online
and that it is free of all rights, or, at the very least, that he has the
necessary rights for their distribution through the App, and the Site.
THE USER also
undertakes that each person represented, as the case may be, has given his
consent to the use and distribution of his image.
THE USER exempts WHYMPR
from all potential claims by third parties against him on the grounds of
violation of their rights.
7.3 - Intellectual property rights of third-party
publishers
Certain content
supplied by the App is and remains the intellectual property of a third-party
publisher.
It is then the
responsibility of the USER to familiarise himself with the terms of the licence
chosen by this publisher for each content element and to comply with them,
subject to civil and criminal liability with respect to this third party.
This content will be
identified as such on the App by showing the corresponding logo and reference
will be made to the applicable licence.
In particular, the
content distributed under the Creative Commons BY-NC-SA Licence subject to the terms of the licence whose provisions
are listed in the following website: https://creativecommons.org/licenses/by-sa/3.0/deed.en.
Article 8 - Personal information
Typology of data collected:
The personal information collected and subsequently processed by WHYMPR
is that supplied voluntarily by the USER via the App.
User name, forename,
last name, email, town, country, preferred language.
Purpose of data collection:
-
to enable the USER to
create a single account to identify himself to the other members of the
community;
-
to adapt the services
and excursions offered by WHYMPR to the USER;
-
to communicate with
the USER by email in order to inform him of the new services available on the
App.
The USER authorises WHYMPR to save his personal information in a file,
to enable the smooth operation of the
services offered within the App, computerised profiling of the USERS and
customer management.
Transmission of data
to third parties:
The information collected may, as necessary, be transmitted to our
technical service providers (IT service providers, host sites, etc.), to ensure
a positive response to the USER's requests.
The USER's personal information is not transferred outside the European
Union.
The USER agrees that WHYMPR may use personal information for its own
marketing activities.
Duration of data
storage:
The data are stored and kept for the period of time strictly needed to
achieve the above-mentioned purposes.
USERS are informed that, under current French and European regulations,
they have the following rights subject to proof of identity:
-
the right to object,
for legitimate reasons, to their personal data being used for any other
purposes than those stated in the current agreement to which they have
consented;
-
the right to object,
at no cost, to the collected data being the subject of current or future commercial
processing by the processing
controller;
-
the right to be
informed about the processing operations to which their personal data are
subject;
-
the right to obtain
information on the processing operations concerning personal data managed by
WHYMPR and all information allowing knowledge of and, if appropriate, objection
to the rationale governing the processing of the said data;
-
the right to obtain a
copy of their personal data and the right of correction, portability, updating,
deletion of all or part of the said data.
For any query or request concerning the protection of the right to
privacy, the USER may contact WHYMPR at the following address:
support@whympr.com or by letter to the following postal address: 289 Chemin du
Clos du Savoy, 74400 Chamonix.
In addition, as WHYMPR pays particular attention to the protection of the
privacy of the USERS, the latter are informed that they may at any time
deactivate the geo-tracking function but also that this will result in making
part of the services offered by the App inaccessible.
Similarly, USERS may at any time delete their travel history and all
personal content put online.
Article 9 - Data
security
WHYMPR pays particular
attention to the protection of the personal data of the USERS against any form
of damage, loss, diversion, intrusion, disclosure, alteration or destruction.
This vigilance takes
the form of:
-
using SSL
encryption in data transmission;
-
requiring WHYMPR
employees with access to the personal data of its USERS to observe strict
confidentiality;
-
data back-up.
Article
10 - Account termination - Removal of access to the App
In the event of failure
by the USER to discharge any of the obligations for which he is responsible,
WHYMPR reserves the possibility, without prejudice to damages, if any, which it
could claim, to legally terminate the USER's account and to remove all access
to the App under the terms below:
- In
the event that the breach can be corrected by the USER, WHYMPR will give the
USER notice to discharge his obligations, by email sent to the address supplied
by the USER. If the USER does not accede to this request within the period
stated in the letter of notice, WHYMPR will be legally entitled to terminate
the contract and to delete the USER's account.
- In
the event that the breach identified concerns a key obligation of the agreement
and cannot be rectified or is the result of lack of awareness or violation of a
regulation, WHYMPR will be entitled to terminate the account and remove all
access to the App without giving any prior notice, within twenty-four (24)
hours following receipt of this notification by email at the address given by
the USER.
In
any case, in the event of termination, regardless of the reason, the USER must
cease all use of the App and its content.
Article 11 -
Force majeure
WHYMPR
cannot accept any liability in the event that it fails to perform any of its
obligations as a result of an event of force majeure, i.e. an unforeseeable,
irresistible external event, which prevents or renders abnormally difficult the
performance of the obligation in question.
Article 12 -
Non-waiver
The
fact, for WHYMPR, of not implementing, not requiring the implementation of, or
of not exercising any of the provisions of the present general conditions cannot
be interpreted as waiving the right to subsequently invoke this provision or
any other.
Article 13 -
Amendments of the present general conditions and applicable version
WHYMPR
reserves the right to amend the provisions of the present general conditions at
any time and without prior notice.
The USER will be notified of any amendment at the email address he
supplied to WHYMPR. He must read and accept the new provisions of the general
conditions if he wishes to continue to use the App.
In the event of any contradiction between the terms of the French
version of the present general conditions and the terms of the
general conditions in another language, the French
version shall prevail.
Article
14 - Transfer
The USER hereby authorises WHYMPR to transfer the benefit of the present
terms and general conditions in favour of any other legal person, in the event
of merger, absorption, transfer of goodwill, or of the branch of activities or
any other operation involving a change of co-contractor.
The transferee shall then fully replace WHYMPR in the rights and
obligations resulting from the present General Conditions.
Article
15 - Independence of the clauses
In the event that one
or more stipulations of the present conditions is invalidated, the validity of
the other stipulations cannot be contested unless indissociable from the
invalidated provision.
Article
16 - Applicable law and jurisdictional
competence
16.1The present General Conditions are subject to French law.
16.2In the event of a dispute concerning notably the present General
Conditions or the use of the App, the USER is informed that he may refer it
free of charge to a consumer ombudsman, external to WHYMPR, to seek an amicable
resolution of the dispute, under the terms of the consumer code.
The USER will find
information on this topic and a list of ombudsman bodies on the European
platform for the Online Dispute Resolution system between consumer and
professionals, available at the following address: https://webgate.ec.europa.eu/odr/main/?event=main.home.show
16.3Failing mediation, the jurisdictional competence is that of the
French courts.
The competent court
shall be appointed in accordance with the rules of procedure in force in France
at the time of the dispute.