1. Scope of Agreement and Services, General Terms
- The Platform offers travel services where like-minded locals provide recommendations for the best places to see and experience their home town. Online or on-the-go, Users can explore and get to know their travel destination with the help of locals. As the content on the Platform is mainly provided by its users and thus out of our sphere, we do have no influence and it is subject to changes.
- These Terms and Conditions ("Terms") apply to all visitors, users, and others who access our Platform ("Users", "you", "your") by activating the check box. If you do not agree to the Terms, you may not use the Platform.
- WHISPEROCITY may amend these Terms from time to time. We will provide you with an updated version under whisperocity.com. Further, if you are a registered User, we will provide you with an advance notice of the changes via e-mail or directly though the Platform at least 14 days prior to the effective date of the updated Terms. If you do not contradict the amendment within a 14 days period, you are deemed to consent to the updated Terms. We will highlight your right to revoke and the consequences of not doing so in such notice. In case you contradict the amendments, the agreed version of the Terms remains in force, unless we terminate your registration according to Pt 13.2 below.
2. Registration and Account
- To be able to actively use the Platform, Users have to validly register for an account ("Account") by filling in the registration form or by using existing social media accounts (eg Facebook). Within the registration process, the User has to indicate his/her e-mail address as well as place of residence and choose an access password. You may also choose an individualised username that must not infringe any third party rights (eg trademark, copyright or naming rights) and must not be inappropriate. Otherwise, you will be allocated an automatically created username.
- Completing the registration process according to Pt 2.1 is to be qualified as a request for registration, only. We are not obliged to accept such request and reserve the right to reject any request for registration without having to state any reason. Acceptance by us shall be by way of a registration confirmation or by way of actually allowing the User to access the Platform.
- By the registration, the User represents and warrants that he/she is at least 16 years old as well as legally competent to use the Platform. Users must provide accurate and complete information and keep their Account information updated without undue delay. As the User's place of residence has essential importance for the quality of content on the Platform as a place for hometown-insiders, the User may change its place of residence every two years, only.
- By submitting the registration form, the User confirms the correctness of the provided information and compliance with the Terms. Users cannot register for more than one Account. However, it is possible to use one single mobile device for more than one Account but for the same WHISPEROCITY region.
- Users are at their sole discretion responsible for keeping the respective Account login information (username and password) confidential. We can only verify whether the access password matches a properly activated username. We shall not be obligated to perform any further verification. User shall notify us immediately if he/she becomes aware of any loss or unauthorized use of its login information. We will then block access to the respective Account and provide the User with new login information. In case of User's negligent breach of this information obligation, User shall be responsible for person that logs in at our Platform though the User's authorization details and any activities occurred.
3. User Profile and Whispers
- Through the registration process, Users create an individual profile ("Profile") with information about themselves. Further, Users have the possibility to upload, post and submit certain content to the Platform in order to share their experience and insider knowledge with others and provide recommendations, including texts, and images ("Whispers"). Whispers shall not be untrue or promoting own business activities but share insider knowledge about the hometown of the User.
- The User is solely responsible for ensuring that any submitted Whispers comply with all applicable laws, do not infringe any third party rights and are neither offensive nor improper. WHISPEROCITY is not responsible or liable for the conduct of any User.
- Further, the User represents and warrants that he/she has all required rights according to the provided Whispers for sharing them on the Platform. You represent and warrant for any Whispers you submit that you have all rights, powers and authorizations necessary to grant WHISPEROCITY the license rights according to Pt 5.2.
- The User shall inform WHISPEROCITY promptly about any legal complaint, claim or action related to its Whispers in order to allow WHISPEROCITY to delete or block the respective content.
- You agree that WHISPEROCITY is not responsible for your Whispers. WHISPEROCITY does not have any obligation to screen, monitor or edit any Whispers. If your Whispers violate the Terms or applicable laws, you shall have sole responsibility for the legal consequences and hold us harmless against any third parties claims and requests.
- We reserve the right to delete, block, deny or limit access to any Whispers provided by Users without giving any reason.
4. Use Restrictions
- It is important that the Platform is used safely and in accordance with the law. Thus, Users are prohibited to use the Platform, in particular but not limited, to ("Use Restrictions"):
- Make untrue statements and allegations or provide Whispers against better knowledge;
- Misuse the Platform for promotion of own services;
- Promote any illegal activity, or advocate, promote or assist any unlawful act;
- Submit any material or content that is pornographic, obscene, improper, offensive, threatening, harassing, libellous, hate-oriented, harmful, defamatory, racist, xenophobic, shocking, inappropriate for families, illegal, or otherwise objectionable;
- Violate legal rights (including the rights of publicity and privacy) of others or submit any content that could give rise to any civil or criminal liability under applicable laws or that otherwise may be in conflict with these Terms;
- Submit or encourage the submission of any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, patent, or right of publicity, or which otherwise constitutes or promotes counterfeit materials or goods;
- Decompile, disassemble, reverse engineer, copy, transfer, or otherwise use the Platform or any content except as permitted by copyright law;
- Crawling, scraping, caching or otherwise assessing any content on the Platform via automated means;
- Submit any material or content that attempts to falsely state or otherwise misrepresent your identity or affiliation with a person or entity;
- Submit material or content that promotes, provides, or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group;
- Submit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation;
- Use the Platform in a manner that (i) is likely to interrupt, suspend, slow down or hinder the continuity of the Platform, (ii) constitutes an intrusion or attempt to break into the Platform or our IT infrastructure, (iii) will divert of the Platform' system resources, (iv) may place a disproportionate load on the infrastructure of the Platform, or (v) constitutes an attack on security and authentication measures of the Platform or our IT infrastructure;
- Intrude into a third party's computer system, engage in any activity that may damage, control, interfere with or intercept all or part of a third party's computer system and violate its integrity or security, or otherwise transmit any materials or content that is harmful for third party information systems (including but not limited to viruses, worms, Trojans);
- Distribute any part of the Platform, including but not limited to any content, in any medium without prior written authorisation of us or the respective owner;
- Otherwise use the Platform for purposes other than those for which it is designed.
- We may remove or block your Whispers and/or Account in case we – in our sole discretion – determine a violation of the Terms or applicable laws. Further, we reserve the right to – in our sole discretion – restrict your access, temporarily or indefinitely block or terminate your Account, warn Users because of your actions or issue you a warning, especially if:
- you breach the Terms;
- we are unable to verify or authenticate any relevant information you provide to the Platform;
- Users complain about your activities on the Platform;
- we believe that your actions may cause any loss or liability to other Users or to us.
5. Intellectual Property Rights and Licence
- You retain all ownership rights in any Whispers you provide us through the Platform. WHISPEROCITY does not claim ownership of any Whispers other than the license grant in Pt 5.2.
- You hereby grant WHISPEROCITY the non-exclusive, transferable, sublicensable, royalty-free, worldwide, perpetual right to use, host, store, reproduce, publish, edit, adapt and distribute your Whispers, including but not limited to all texts, images and videos, as submitted from or through your User Account (even by using the picture search function within the mobile application) or in any modification thereof made by us or third parties engaged by us, without any reference/credit to you. This license includes the right for WHISPEROCITY to use your Whispers for our own advertisements and promotions on the Platform, other websites and offline. The manner, mode and extent of advertising and promotions are in our sole discretion without any requirement to notify you or entitlement of you to any remuneration.
- This license even persists when you terminate your User Account. In case you delete your Whispers, they will be removed from the Platform. However, you acknowledge that due to the viral spread of online content, the deletion does not affect any past license grant to third parties. Thus, if your Whispers have already been shared with others (by you or by us), such usage by third parties shall still be covered by the initial license.
- Except the content provided by Users, elements of the Platform, such as text, pictures, illustrations, as well as design and structure of the Platform and structure and contents of the database are subject to copyright protection and the protection of intellectual property. Unless WHISPEROCITY expressly agrees in writing, these elements may not be copied, sent, made available, presented, performed, modified, translated or utilised.
6. Reporting Violations
- WHISPEROCITY tries its best to protect your as well as other people's rights. However, WHISPEROCITY does and cannot screen or monitor Whispers as regards to potential violations of applicable laws or other people's rights due to the large number of Whispers and the lack of visibility of potential infringements.
- If you believe that content on the Platform violates your or other people's rights (e.g. intellectual property or privacy rights), is in any other way improper or violates these Terms, you can report such violation to WHISPEROCITY (e.g. via e-mail). WHISPEROCITY will duly review reported content and make diligent efforts to eliminate infringing content and to take legal action as appropriate. We may – at our sole discretion – also inform the accused User to better understand and solve the situation.
- If a User infringes other people's rights, we will – at our sole discretion – disable its User Account when appropriate.
7. Subscription and Contract Conclusion
- WHISPEROCITY offers the Users different subscription models in order to fully use the Platform, share and explore Whispers. This includes a limited free access, a subscription per WHISPEROCITY region (usually a city or country) against one-time subscription fee and unlimited access against a subscription fee ("Subscription"). The current purchase and Subscription options including the respective prices can be seen here.
- The presentation of our services and Subscriptions on the Platform does not represent an offer in the legal sense. The application for a Subscription by the User via the Platform constitutes a binding offer in the legal sense and its contractual declaration on the basis of these Terms. Before the User places the Subscription offer by completing the in-app-purchase on his/her mobile device though the respective app store (eg Apple App Store or Google Play Store), we will summarise the Subscription details allowing the User to review the order and check pricing details.
- Acceptance by us shall be by way of a separate confirmation of the Subscription sent to the User via e-mail. We may in our sole discretion reject a Subscription offer by the User.
8. Prices and payment
- The prices displayed on the Platform on the date you place your Subscription order include the statutory turnover tax (VAT).
- Payment shall be made by one of the methods you have selected during the order process directly to WHISPEROCITY or in case of in-app-purchases via the respective app store (eg Apple App Store or Google Play Store) though the payment methods provided by the app store operator.
- The prices shall be due without delay but at the latest upon 14 days following the date you receive our Subscription confirmation indicating the agreed prices via e-mail.
- In the event of negligent default in payment by the User, we shall charge the statutory, annual default interest of 4 %. Further, in the event of negligent default, the User is obliged to bear the actual costs and expenses required for an expedient legal prosecution incurred by us, particularly costs of a collection agency, resulting from the applicable directives for maximum fees in collection proceedings, as well as the costs of attorneys.
9. Right of withdrawal
- If the User is a Consumer, the following provisos apply:
- Withdrawal of the Subscription:
- You have the right to withdraw from the Subscription contract within 14 days without giving any reason.
- The withdrawal period will expire after 14 days from the day of the conclusion of the contract.
- To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
- Effects of the withdrawal:
- If you withdraw from this contract, we shall reimburse to you all payments received from you for your Subscription on the Platform, without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract.
- We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
- If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.
I/We* hereby give notice that I/We* withdraw from my/our* contract for the provision of the following service:
Name of Consumer(s):
Address of Consumer(s):
Signature of Consumer(s) (only if this form is notified on paper)
* Delete as appropriate.
- The User acknowledges that the main service of the Platform is the provision of access to Whispers which have been shared by local Users. Thus, the Platform's content is mainly provided by Users. Due to the great extent of content, information, material and data provided by Users, WHISPEROCITY does not have influence on the availability, correctness, reliability and accuracy of specific contents. Accordingly, the Platform is provided in the state it is with no guarantee for a certain number of Whispers being available and without WHISPEROCITY's warranties of any kind, either express or implied, as to the accurateness and appropriateness of the Whispers. The User shall check any information provided via Whispers prior to taking any business decision.
- WHISPEROCITY provides the Platform with due care. However, it is not possible to entirely avoid errors, infringements by third parties or mistakes in the Platform and in the content originating from Users. WHISPEROCITY can – also in consideration of the risks of the internet – not warrant the accuracy, reliability, quality, suitability, safety, completeness and timeliness of the Platform and its content. In consideration of these circumstances, some information on the Platform may not be up to date, complete or accurate. Nevertheless, WHISPEROCITY will make diligent efforts to duly eliminate any noticed or notified error.
- WHISPEROCITY is not obliged to provide certain IT infrastructure and will thus not be liable for any modification, suspension or discontinuation of the Platform or the loss of any Whispers. WHISPEROCITY can furthermore not guarantee that the Platform is available uninterruptedly. Temporary connection interruptions may occur. WHISPEROCITY reserves the right to do maintenance works at any time without prior notice.
- You also acknowledge that the Internet may be subject to breaches of security and that the submission of Whispers or other information may not be secure.
- Nothing in this Pt 10 shall limit or exclude any statutory warranty claims by Consumers against WHISPEROCITY for defects in our services considering the background of the service provision.
- WHISPEROCITY shall not be liable for damages caused by slight negligence. No limitation of liability does apply to damages caused by intent or gross negligence, injury of life, personal harm and injury of health.
- Your use of any information or materials provided by Users on the Platform is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to reasonably review Whispers by others and secure that they meet your expectations.
- The User shall fully indemnify and hold WHISPEROCITY harmless from and against any claims, damages, liabilities, costs, losses and expenses arising out of (i) User's negligent breach of the Terms, (ii) User's negligent violation of any third party right, including without limitation any intellectual property, right of publicity, or privacy right and/or (iii) any of its Whispers or use of the Platform causing negligently damage to WHISPEROCITY or a third party.
- Unless otherwise agreed, the User's registration is concluded for an indefinite period. However, the User's Subscription is concluded for a period of one year ("Term").
- The Subscription is automatically renewed for a further year and the User shall be obliged pay the then current Subscription fee therefore in case he/she does not terminate the Subscription one day prior the end of the respective Term. We will provide the User with an advance notice of the Subscription renewal via e-mail or directly though the Platform at least one day prior to the termination date. If the User does not contradict the renewal within this period, he/she is deemed to consent to the Subscription renewal. We will highlight the User's right to revoke and the consequences of not doing so in our notice.
- Each party may ordinarily terminate the registration as well as Subscriptions in writing to the end of each calendar month by giving one day prior written notice to the other party. This termination does not affect already existing claims by WHISPEROCITY against the User in connection with its activity on the Platform.
- In case of a termination of the registration, you can no longer submit and edit Whispers. Further, your Whispers will no longer be accessible through your Profile (eg other users will not be able to navigate to your Profile). However, those materials and data may persist and appear within the Platform.
- In case of a termination of a region-based Subscription, the consequences as set out in Pt 13.3 affect your Whispers concerning the respective WHISPEROCITY region, only.
14. Data Protection
- By clicking the respective checkbox in your User Profile , you explicitly agree that WHISPEROCITY uses your contact details (username and e-mail address) to send you e-mails (newsletters) and/or push notifications though your mobile device about our services, new projects and special offers. You can revoke this consent declaration at any time for the future (eg via e-mail). If you forward WHISPEROCITY's newsletter to third parties, you are obliged to obtain the consent of the recipient prior to sending (opt-in). If the consent to process personal information for marketing purposes is revoked, WHISPEROCITY will stop sending further information and/or marketing materials in due time.
15. Final provisions
- Any legal dispute arising from the use of the Platform shall be governed exclusively by Austrian substantive law, without giving effect to any principles of conflicts of law. In case the User is a consumer, this choice of law is effective to the extent that no more stringent consumer protection law at consumer's residence is applicable.
- All disputes directly or indirectly relating to or in connection with the use of the Platform, including the question of applicability of these Terms, shall be governed exclusively by the Austrian court having jurisdiction for 1010 Vienna, Austria. In case the User is a consumer, this provision only applies if the consumer neither has his/her domicile, usual place of residence nor is employed in Austria.
Version as of January 2017