GENERAL CONDITIONS OF USE
Article 1 – Preamble and object
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: firstname.lastname@example.org 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.