WALKOUR
Terms and Conditions
Introduction
WALKOUR is a mobile application that
offers app-guided walking tours to end users. This means that an end user may
install the WALKOUR mobile application available through the Google Play Store
and, after creating an account and thereby accepting these Terms and
Conditions, choose to take one of multiple available app-guided walking tours.
This means, that the end user would choose either a free of charge tour or
purchase a paid tour and subsequently be guided by the app with the aid of GPS
technology to walk (or move otherwise) along a specific route and consume
digital content that may relate to their respective location. This digital
content may consist of spoken word audio, information, data, text, music,
sound, photographs, graphics, video, messages, quizzes, activities or other
materials.
Definitions
Agreement: this binding, legal agreement between End Users and
WALKOUR
Terms and Conditions: The Terms and Conditions as defined in this
Agreement, which the End User fully accepts when using the downloading the
WALKOUR App and using WALKOUR Service.
WALKOUR or we: WALKOUR, Einzelunternehmen
Simon Mayrshofer, Kaiser-Friedrich-Ufer 2, 20259 Hamburg, USt-Id:
DE312004644
End User (you): any individual that downloads and installs the
WALKOUR App and may consume and in some cases purchase Tours and the entailed
Content through the WALKOUR App
Account: the personal environment which is created by the End
User when he registers for the WALKOUR Service and to which the End User
obtains access after entering his Login Details;
Tour: a compilation of Content, compiled and offered by us or our licensors (i.e.e partnering content providers), which may be consumed
by the End User either for a fee or free of charge and subsequently be used to
go on a app-guided (walking) Tour along a specific
route, i.e. geolocations.
Content: digital content, consumed through the WALKOUR mobile application,
including – but not limited to – mobile tour guides containing information on
any kind of place of interest provided in the form of text, photos, video’s,
audio materials, and any other form;
WALKOUR Service: in the context of these Terms and Conditions, it
means any service provided by WALKOUR to the End User, including but not
limited to the WALKOUR App (mobile application) and the WALKOUR Website
WALKOUR App: the WALKOUR mobile application available through the
Google Play Store;
WALKOUR Website: the URL http://walkour.app and all its top level and
sub-domains;
Intellectual Property Rights: all intellectual property rights and related rights
such as copyrights, trademark rights, patent rights, design rights, trade name
rights, moral rights, database rights, neighbouring rights, as well as rights
to know-how, logos, domain names, service marks, inventions and sui generis
intellectual property rights, and all similar rights in any part of the world,
including
any registration of such rights and
applications and rights to apply for such registration;
1. Legal
Agreement and Applicability
1.1 The Terms and Conditions set
forth in this document apply to all individuals downloading and installing the
WALKOUR App and constitute a binding, legal agreement between these End Users
and WALKOUR.
1.2 No amendments or modifications
may be made except as set forth in the “Amendments to Terms and
Conditions" section below (section 2)
1.3 An up-to-date version of these
Terms and Conditions is always available through the WALKOUR App itself and
also accessible from the Google Play Store Page, where the user may choose download and install the app. You may at any time request a
new and most up-to-date copy of these Terms and Conditions by sending us an
email with the request to info@walkour.app.
1.4 The moment you install the
WALKOUR App on any device you (the End User) automatically enter into this
Agreement and accept all the Terms and Conditions described in this Agreement.
1.5 You warrant and represent that
you have the full legal capacity to enter into this Agreement.
1.6 In order to avoid any
discrepancy between applicable terms, your own terms and conditions (if any)
will not apply.
1.7 This Agreement may have been
translated into other languages. In case of a discrepancy between the
translated version and this English version, this English version shall
prevail.
2.
Amendments to Terms and Conditions
2.1 It may sometimes be required for
us to make changes to these Terms and Conditions (for instance due to business
developments, new regulations etc.). These amendments or supplements to the
Terms and Conditions will be visible and accessible to you through the WALKOUR
App. You may also, at any time, request the most up-to-date copy of these Terms
and Conditions via info@walkour.app.
2.2 Your continued use of the
WALKOUR Service after amendments to these Terms and Conditions implies that you
agree with the changed Terms and Conditions.
2.3 In case you do not agree to the
changed Terms and Conditions, you need to stop using the WALKOUR Service
immediately.
2.4 It may occur that any provision
of these Terms and Conditions is or becomes illegal, void or invalid for
whatsoever reason including, but not limited to, overriding mandatory consumer
protection law. Such invalid provision shall not affect the validity of the
other provisions of these Terms and Conditions, and such invalid provision
shall be replaced by another provision which, being valid in all respects,
shall have an effect as close as possible to that of the replaced provision.
3. Access
to the WALKOUR Service
3.1 The WALKOUR Service entails the
right of the End User to access and use the WALKOUR App which enables the End
User to access Content and use this Content to receive information, including
but not limited to information on a specific object or location of interest,
for entertainment purposes, determined on the basis of the End User’s current
(GPS) location, including the (future) ability to create an Account.
3.2 WALKOUR shall perform the
WALKOUR Service to the best of its ability. However, the End User accepts that
the WALKOUR Service contains only the functionalities that he finds at the
moment of use (“as is” basis). Except as expressly provided in these Terms and
Conditions, WALKOUR makes no warranties of any kind, whether express, implied,
statutory or otherwise, including but not limited to any warranties of
merchantability or fitness for a particular purpose, quality, safety,
integrity, reliability or accuracy of the WALKOUR Service or the Content, or
that any part of the WALKOUR Service will be uninterrupted, error-free, timely,
secure, nor is it warranted either implicitly or expressly that any content is
safe in any manner for download.
3.3 To use certain advanced features
of the WALKOUR Service the End User might be required to create an Account, by
following the registration process in the WALKOUR App. The End User guarantees
that all provided (personal) data is up-to-date, correct and complete. If the
(personal) data of the End User is at any point no longer up-to-date, correct or
complete, the End User shall adjust or add the data required. The End User is
not allowed to create an Account in someone else’s name.
3.4 If the End User is under the age
of 18, he must have parent(s)’ or legal guardian(s)’ permission to create an
Account and use the WALKOUR Service.
3.5 If the person registering an
Account and using the WALKOUR Service does so on behalf of another person, he
represents that he has the legal authority to bind that person to these Terms
and Conditions.
3.6 During the registration, the End
User may be required to supply Login Details. The End User is responsible for
maintaining secrecy with regard to the Login Details for his Account. As soon
as the End User knows or has reason to suspect that his Login Details have come
into the hands of unauthorised persons, the End User must inform WALKOUR of
this without delay, without prejudice to his own obligation to immediately take
effective action, such as modifying his Login Details.
3.7 The End User accepts and
acknowledges that he is at all times responsible and liable for the use of the
WALKOUR Service by third parties via the End User’s Account. The End User
indemnifies WALKOUR against any and all damage and costs arising from and/or
related to the access to or the use of the WALKOUR Service by third parties via
the End User’s Account.
3.8 The End User may also log in on
the WALKOUR Service using his Facebook- or Google-account. The use of a
Facebook- or Google- account for the access to or use of the WALKOUR Service is
for the risk and responsibility of the End User. WALKOUR is not responsible
with respect to the availability and well-functioning of Facebook and/or
Google, nor for the correct functioning of the link between the WALKOUR Service
and Facebook and/or Google. The End User is not allowed to log into the WALKOUR
Service and/or create an Account using the Facebook- or Google- account of
another End User, person or company.
3.9 WALKOUR may at all times (i) make functional, procedural or technical changes or
improvements to the WALKOUR Service, including the WALKOUR App, the WALKOUR
Website and Content, (ii) (temporarily or permanently) take out (part of) the
WALKOUR Service for whatever reason, and/or (iii) take out of service, restrict
the use of or terminate Accounts, without becoming liable to the End User.
3.10 The End User is solely
responsible for the purchase and/or the proper operation of the infrastructure
necessary to use the WALKOUR Service, including any mobile device with
functions for (GPS) localisation. WALKOUR is never liable for damage or costs
on account of transmission errors, malfunctions or non-availability of
computer, data or telecom facilities, including the internet.
3.11 WALKOUR is in no way whatsoever
liable to the End User for any damage or costs arising our of or resulting from (parts of) the WALKOUR
Service being (temporarily) unavailable or for failures or outages of the
WALKOUR Service.
4.
Operation of the WALKOUR Service
4.1 WALKOUR may at its discretion
suspend or terminate operation of the WALKOUR Service, including but not
limited to the WALKOUR App and Website, for maintenance or other reasons.
4.2 In addition, for maintenance
reasons, because of technical issues or for other reasons we may make any or
all of the WALKOUR Service unavailable from time to time.
4.3 WALKOUR makes no commitment,
warranty or guarantee that the WALKOUR Service will operate in a timely,
uninterrupted or error-free manner, or that the WALKOUR Service will meet End Users's purposes, but in any event will do our best to
ensure that it meets your requirements for satisfaction.
4.4 WALKOUR may also in its
discretion modify the features, availability, operation and/or look and feel of
the software from time to time without notice to our End Users.
5. Use of
the WALKOUR Service
5.1 Each and every use of the
WALKOUR Service by the End User is for the risk and responsibility of the End
User.
5.2 The End User is not permitted
to:
a. use the WALKOUR Service and/or Content in a
way that is contrary to the purpose and morals of the WALKOUR Service;
b. use the WALKOUR Service and/or Content in a way that is
discriminating regarding race, religion, gender, culture or heritage or which
is otherwise offensive;
c. use the WALKOUR Service
and/or Content in a way that calls for violence against and/or harassment of
others;
d. use the WALKOUR Service and/or Content in a
way that is false and/or misleading, including – but not limited to – the
adoption of a false identity and/or making the incorrect suggestion that the
End User is in any way commercially connected with WALKOUR or its licensors or
licensees;
e. use the WALKOUR Service and/or Content with
a (mobile) device which contains viruses, Trojan horses, worms, bots or other
software that can damage, disable or delete the WALKOUR Service or makes it
inaccessible, or which alters, damages or deletes the Content;
f. violate the Terms and Conditions, the Privacy Statement or
any applicable laws and/or regulations;
g. infringe the rights of WALKOUR and/or third parties,
including – but not limited to – Intellectual Property Rights and rights that
relate to the protection of privacy;
h. harm the interests and reputation
of WALKOUR;
i. collect data from End Users through the WALKOUR
Service and use this data for other purposes than those that are listed or
intended in the Terms and Conditions;
j. reproduce, publish or sell the Content which is obtained
through the WALKOUR Service;
k. use contact information which is provided by End
Users for any commercial, non-commercial or charitable communication as well as
any other unsolicited communication other than the intended purposes of the
WALKOUR Service;
l. use the WALKOUR Service for advertisement purposes, other than
with the express permission of WALKOUR;
m. engage third parties to perform any of the above mentioned
acts.
5.3 The End User acknowledges and
agrees that any personal information (such as reviews, comments etcetera) he
makes available through the WALKOUR Service can be used by other End Users. The
End User acknowledges that WALKOUR cannot enforce compliance with these Terms
and Conditions by other End Users.
6.
Content
6.1 The WALKOUR Service offers End
Users various Content. The End User can choose which (type of) information he
wishes to receive by accessing specific Content on his mobile device through
the WALKOUR App.
6.2 Content may be offered under
additional terms and conditions, such as – but not limited to – payment obligations
and restrictions to use, for instance to a certain time limit, or area or from
a certain age. For details, please refer to section 8. In any case the use of
Content is limited in accordance with article 9.
6.3 Upon fulfilment of any (payment)
obligations in accordance with article 8 to the extent required, the End User
may access the Content through his mobile device via his Account, subject to
the license granted in accordance with article 9.2. The Content shall be
available to the End User in his Account in accordance with article 8.5. In the
event of the End User completing a Tour or choosing to cancel a Tour, the
entailed Content will be removed from his Account and all rights of the End
User to the use of that Content shall terminate, unless otherwise specified by
WALKOUR.
6.4 WALKOUR reserves the right to
modify, refuse or delete Content or to restrict the use of the Content, or
subject the use of the Content to (additional) terms, if there are grounds to
do so according to WALKOUR and/or its licensors, without becoming liable to the
End User. This right includes the right to have the fore-mentioned actions
performed by third parties, such as licensors of WALKOUR.
6.5 The End User accepts that the
Content contains only the functionalities and information that he finds at the
moment of use (“as is” basis). Except as expressly provided in these Terms and
Conditions, WALKOUR and/or its licensors makes no warranties of any kind,
whether express, implied, statutory or otherwise, including but not limited to
any warranties of merchantability or fitness for a particular purpose, quality,
safety, integrity, availability or accuracy of the Content. Furthermore
WALKOUR does not guarantee that the Content will be available in the language
of choice of the End User.
6.6 WALKOUR accepts no liability for
(in)correctness, (in)completeness or the (in)actuality of the Content that is
made available in the WALKOUR App or on the WALKOUR Website (whether or not
this Content originates from third parties).
6.7 If an End User is of the opinion
that certain Content infringes his rights and/or the rights of other End Users
or a third party the End User should notify WALKOUR immediately by sending an
email to info@walkour.app.
6.8 Some parts or features of the
WALKOUR Service may be subject to an age restriction. The End User hereby
represents that he is of sufficient legal age to use or participate in such
part or feature of the WALKOUR Service.
7.
Take-down rights
7.1 WALKOUR does not monitor and
does not intend to monitor the Content on its platform. We do, however, retain
the right to take appropriate action including removal of Content from our platform
if we are notified or otherwise determine that the Content infringes third
parties’ rights or is unlawful. In such case we will not be liable towards the
End User. If you have a court order or allegations that Content is illegal or
want to send a complaint about certain Content, please send all the required
information to info@walkour.app.
8. Paid
Content & Conclusion of Contract
8.1 These Terms and Conditions apply
to all orders placed via the WALKOUR mobile application.
8.2 For the use of the WALKOUR
Service, or a part thereof, a fee might be due. While some of the Tours (and
the entailed Content) available through the App may be consumed free of charge,
others may be offered for a fee. The End User will receive the relevant payment
details prior to the purchase of any Tour and the subsequent addition of the
Content to their device or Account. All payments will be in-app payments and
take place in the way as described in the WALKOUR App.
8.3 If the End User chooses to
purchase a Tour that is offered for a fee and places an order, a binding
contract is concluded with WALKOUR, Einzelunternehmen
Simon Mayrshofer, Kaiser-Friedrich-Ufer 2, 20259 Hamburg, Germany.
8.4 The provided information on our
available (app-guided walking) Tours represent legally
noncommittal requests to the purchase. Only with the completion of the ordering
process does the End User make a binding offer to conclude a purchase contract.
This contractual offer is considered accepted and therefore legally binding as
soon as the purchase is confirmed through the App.
8.5 The prices stated in the App are
charged for the temporary right of use of the Content provided (see section
8.8) and include taxes. Furthermore there may be
restrictions to this temporary right of use, for instance to a certain time
limit, or area or from a certain age. The End User will be informed of these
restrictions prior to placing an order.
8.6 Possible additional costs on the
part of other third-party providers (e.g. costs for
the mobile Internet connection on the part of a telecommunications provider)
are not included in the prices quoted.
8.7 The due payment amount can be
paid via PayPal, credit card or SEPA Direct Debit and the payment is handled by
the third-party payment service provider Braintree Payments.
8.8 The (app-guided walking) Tour
and the entailed Content offered can be consumed immediately after receipt of
the order confirmation within the App. The delivery is made in digital form by
making the Content available on Internet-enabled devices. It is the
responsibility of the consumer to ensure the suitability of the technical
equipment (mobile Internet connection, installation of the WALKOUR App on a
compatible Android device with GPS capabilities).
8.9 Any liability for technical
problems that are not our fault (e.g. on the part of
third-party providers Google, Facebook and others) is excluded.
8.10 The End User may have the right
to a contract revocation, depending on the applicable local laws. In Germany,
for instance, the End User has the right to revoke the contract within 14 days
without giving reasons. In order to exercise this right, the End User must
inform us within the specified period by means of a clear statement of his/her
decision to withdraw from the contract. In order to comply with the revocation
period, it is sufficient for the revocation notification to be sent before the
end of the period.
8.11 If a contract revocation is
desired, such a declaration can be addressed within 14 days after order
confirmation by e-mail to info@walkour.app or via the refund request form
within the app.
8.12 A valid revocation of the
purchase contract leads to immediate reimbursement of the originally charged
amount, at the latest within 30 days after receipt of the revocation. Unless
otherwise agreed, the refund shall be made using the same means of payment as
was used for the original payment.
9.
Intellectual Property Rights
9.1 The Intellectual Property Rights
in relation to the WALKOUR Service, including the information made available
via the WALKOUR Service such as the Content, texts, look-and-feel, templates,
video-, audio- photo-material and the App and website of WALKOUR, are held by
WALKOUR or its licensors.
9.2 Under the conditions set out in
these Terms and Conditions, WALKOUR will grant the End User a limited,
personal, revocable, worldwide, non-exclusive, non-sublicensable and
non-transferable right to access and use the WALKOUR Service, including the
Content, insofar as is necessary for the non-commercial use of the WALKOUR
Service. This license does expressly not entail the right for the End User to
publish, reproduce or make available the WALKOUR Service and/or the Content in
another medium or for any third party.
9.3 Nothing in these Terms and Conditions
is intended to transfer any Intellectual Property Rights to the End User. The
End User shall refrain from any act that infringes the Intellectual Property
Rights of WALKOUR or its licensors, including – but not limited to – the
registration of domain names, trademarks or Google Adwords
that are identical or similar to any object to which WALKOUR or its licensors
holds Intellectual Property Rights, as well as the reproduction, modification,
reverse engineering or publishing of the WALKOUR Service, including the
Content, for other purposes than those listed in these Terms and Conditions,
unless permitted by applicable mandatory law.
9.4 The End User is not permitted to
remove, make illegible, hide or modify notifications or statements with regard
to Intellectual Property Rights.
10.
Personal Data
10.1 WALKOUR processes Personal Data
of the End User [using the Account] in the course of providing the WALKOUR
Service, including but not limited to information entered when creating the
Account, information provided when using the WALKOUR Service and information
collected on the use of the WALKOUR Service.
10.2 To the extent necessary, the
End User agrees in advance to all processing by or on behalf of WALKOUR of the
Personal Data referred to under article 10.1 for the purposes of:
a.
developing and offering the WALKOUR Service, the WALKOUR App and the WALKOUR Website;
b. communicating with the End User about WALKOUR and
its products and services;
c. generating
statistical data (including by means of Google Analytics);
d. protecting WALKOUR's information systems.
10.3 WALKOUR shall implement
appropriate technical and organizational measures to protect the Personal Data
referred to in article 10.1 against accidental or unlawful destruction or
accidental loss, alteration, unauthorized disclosure or access.
10.4 Under European data protection
law, a legal basis is required for the processing of Personal Data. This legal
basis can be the granting of permission, as set out in this article 10, but
there are also other legal bases. For the avoidance of doubt, the permissions
granted to WALKOUR under this article are without prejudice to any other legal
basis WALKOUR might have for the processing referred to in this article.
11.
Indemnities and warranties
11.1 The End User warrants and
guarantees that he is entitled to use the WALKOUR Service and that he will act
in accordance with these Terms and Conditions.
11.2 The End User agrees to
indemnify, defend and hold harmless WALKOUR, its successors, assigns,
affiliates, agents, directors, officers, employees and shareholders from and
against any and all claims, actions, proceedings, damages, obligations, losses,
expenses and costs, including reasonable attorneys’ fees and other litigation
expenses, resulting from (i) an attributable breach
of these Terms and Conditions by the End User, (ii) any use the End User makes
of the WALKOUR Service, including Content, or (iii) an unlawful act performed
by the End User, or (iv) any third party claims resulting from the above.
11.3 The Service may contain links
to third party websites that are not owned or controlled by WALKOUR. WALKOUR
has no control over, and assumes no responsibility or liability for, the
content, privacy policies, or
practices of any third party websites.
12.
Liability
12.1 WALKOUR accepts no liability
for damage that result from the provision of the WALKOUR Service, an unlawful
act, or any other cause, to the extent that is permitted under mandatory law.
12.2 When WALKOUR is nevertheless
liable to the End User for any damage arising from any cause whatsoever, this
liability will at all times be limited to the direct damage up to an absolute
maximum of EUR 1.000,-- per event (a sequence of
events will be regarded as one event).
12.3 Direct damage is understood to
mean exclusively:
a. damage to property, however this
damages shall not be compensated if this Agreement is rescinded;
b.
reasonable costs incurred to prevent or limit direct damage which could
reasonably be expected to result from the event on which is the liability is based;
c. reasonable costs incurred to determine the direct
damage and liability.
12.4 Any liability of WALKOUR for
damage other than direct damage (“indirect damage”) as specified in article
12.3, including – but not limited to – consequential damage, loss and/or damage
of data, loss in connection with claims, materials, services and/or software of
third parties, loss of profits, loss of reputation and lost sales, is excluded.
12.5 The limitations and exclusions
of liability mentioned in the preceding paragraphs of this article shall not
apply if and in so far as the damage is the result of intentional or wilful
recklessness on the part of WALKOUR.
12.6 The existence of any right to
compensation is always conditional on the End User reporting the damage to
WALKOUR in writing a soon as possible after he has become aware of the damage.
Any claim for compensation vis-à-vis WALKOUR will lapse simply by the expiry of
twelve (12) months after the damage first arose.
13. Force
majeure
13.1 Neither party to this Agreement
is liable to perform any obligation, including any warranty obligation agreed
between the parties, if prevented therefrom by force majeure.
13.2 Force majeure is taken to mean
inter alia: illness of employees and/or absence of key employees needed for
WALKOUR, power failures, strikes, riots, government measures, fire, natural
disasters, floods, failure of suppliers or licensors of WALKOUR, shortcomings
by third parties which were engaged by WALKOUR, disruption of the internet
connection, hardware failures and failures in (telecommunication) networks.
14.
Duration and termination
14.1 With respect to the WALKOUR App
the Agreement between the End User and WALKOUR comes into effect at the moment
the End User installs the WALKOUR App on his mobile device and accepts these
Terms and Conditions. With respect to the WALKOUR Website the agreement between
the End User and WALKOUR comes into force at the moment the End User visits the
WALKOUR Website [and starts using the WALKOUR Service].
14.2 The End User is at any moment
entitled to discontinue the use of the WALKOUR Service and to terminate his
Account for convenience.
14.3 If there are grounds to do so,
without any further notification being required and without becoming liable to
pay compensation, WALKOUR reserves the right to terminate the End User’s
Account (temporarily or permanently) or to delete Content, specifically in but
not limited to cases in which the End User, in WALKOUR’s opinion, has breached
any of the provisions in these Terms and Conditions, without prejudice to
WALKOUR’s right to take further legal action and/or its entitlement to
compensation.
14.4 WALKOUR points out that the End
User cannot invoke a statutory cooling off period because WALKOUR provides the
WALKOUR Service immediately with the consent of the End User
14.5 In the event of the termination
of this agreement, no reversal will take place of that which WALKOUR has
already delivered and/or performed and the End User has paid. Where applicable,
amounts invoiced by WALKOUR before the termination in connection with that
which WALKOUR has already properly performed or delivered in the implementation
of the agreement will continue to be owed with due observance of the provision
in the preceding sentence and will become immediately due and payable in full
at the time of the termination.
14.6 Upon termination of the
agreement for the use of the WALKOUR Service for any reason whatsoever, the End
User’s right to use the WALKOUR Service terminates immediately. Upon
termination for any reason whatsoever, WALKOUR will remove the End User’s
Account. However, WALKOUR remains entitled to use the Personal Data in
accordance with article 10.
15.
Miscellaneous
15.1 To the extent that national or
international rules of law do not prescribe mandatory conditions to the
contrary, any and all disputes arising from or related to the WALKOUR Service,
the Content or these Terms and Conditions will be brought before the competent
court in Hamburg, Germany.
15.2 WALKOUR may transfer rights and
obligations arising from these Terms and Conditions to third parties and will
notify the End User of this. When the End User does not accept the transfer of
rights and obligations he may discontinue the use of
the WALKOUR Service and terminate his Account.