TERMS OF USE
OPAS
These Terms of Use
relate to the use of the mobile traveler
guide application ‘OPAS’ of Dialost B.V. as defined below.
We advise you to read
these Terms of Use carefully so you are aware of your rights and
responsibilities when you use the service. You can download and print these
Terms of Use http://www.dialost.eu/p/terms-of-use.html .
Article
1 Definitions
1.1 The capitalized terms listed below have the
following meaning in the Terms of Use
Account: the personal
environment which is created by the User when he registers for the Service and
to which the User obtains access after entering his Login Details;
Application: the
mobile application (“Mobile Traveler
Guide”) OPAS, that provides User
with information concerning objects of interest in its environment, based on
his or her current (GPS) location;
Content: the mobile travel guides
containing information on specific objects or places of interest,
provided in the form of text, photos, video’s and audio-visual materials and
any other form,
developed by third parties and made available to User by Dialost through the Service;
Dialost: Dialost
B.V. i.o, is a company with limited liability established and existing under
the laws of The Netherlands, having its registered office in (1171KA) Badhoevedorp,
the Netherlands, at Windestraat 12, www.dialost.eu, registered with the Chamber of Commerce under number
34267670
Intellectual
Property Rights all
intellectual property rights and related rights such as copyright, trademark
rights, patent rights, design rights, trade name rights, database rights and
neighbouring rights, as well as rights to know-how and sui generis
intellectual property rights;
Login
Details: The Dialost and/or Facebook-, Twitter- or Google+- username or e-mail
address and password which the User provides when creating its Account and with which the User
gains access to its Account;
Party: User
or Dialost;
Privacy Statement: the
privacy statement, available via http://www.dialost.eu/p/faq.html ;
Service: the service provided by Dialost to User, as further
specified in article 3;
Terms of
Use: these terms
of use;
User: a
person
that is using the Service with or without an Account for the use of the Service;
Article 2 Applicability
2.1
The Terms
of Use apply, to the exclusion of any terms and conditions of the User or third
parties, to all agreements of Dialost with the User and to each and every use
made by the User of the Service. These Terms of Use also apply to the use of
the Service by third parties via the User’s Account.
2.2
Dialost is at all times authorised to amend or
supplement these Terms of Use. The most up-to-date Terms of Use can always be
found on the website. The amended or supplemented Terms of Use will be brought
to the User’s attention during the User’s use of the Service. If the User
continues to use the Service after these Terms of Use have been amended or
supplemented, by such action the User irrevocably accepts the amended or
supplemented Terms of Use. If the User does not agree to the amended or
supplemented Terms of Use, the only option open to the User is to cease using the
Service.
2.3
If at any
time any provision of these Terms of Use is or becomes illegal, void or invalid
for any reason whatsoever including but not limited to overriding mandatory
consumer protection law, such invalidity shall not affect the validity of the
remainder of the Terms of Use and such invalid provision shall be replaced by
such other provision which, being valid in all respects, shall have effect as
close as possible to that of such replaced one.
Article 3 The Service
3.1
The
Service entails the right of User to access and use the Application which
enables the User to access Content relevant to a specific location and use this
Content to receive information on a specific object or location of interest,
determined on the basis of Users current (GPS) location, including the ability
to create an Account with (personal) data regarding the User.
3.2
Additional
conditions may apply to the use of the Service, and in particular the (use of)
Content, by the User. These conditions shall be made available in the Application.
3.3
Dialost
shall perform the Service to the best of its ability, however the User accepts
that the Service contains only the functionalities that he finds at the moment
of use (“as is” basis). Except as expressly provided in these Terms of Use, Dialost
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 or accuracy of the
Service, the Application and the Content.
Article 4 Access to and availability of the
Service
4.1
To use certain advanced
features of the Service the User might be required to create an Account, by
following the registration process in the Application. The User guarantees that
all provided (personal) data is up-to-date, correct and complete. If the (personal)
data of the User is at any point no longer up-to-date, correct or complete, the
User shall adjust or add the data required. The User is not allowed to register
an Account in someone else’s name.
4.2
During the
registration, the User must supply Login Details. The User is responsible for
maintaining secrecy with regard to the Login Details for his Account. As soon
as the User knows or has reason to suspect that his Login Details have come
into the hands of unauthorized persons, the User must inform Dialost of this
without delay, without prejudice to his own obligation to immediately take
effective action, such as modifying his Login Details.
4.3
The User
accepts and acknowledges that he is at all times responsible and liable for the
use of the Service by third parties via the User’s Account. The User
indemnifies Dialost against any and all damage and costs arising from and/or
related to the access to or the use of the Service by third parties via the
User’s Account.
4.4
The User
may also log in on the Service using his Twitter-, Facebook-, or
Google+-Account. The use of a Twitter-, Facebook-, or Google+- account for the
access to or use of the Service is for the risk and responsibility of the User.
Dialost is not responsible with respect to the availability and
well-functioning of Twitter, Facebook and/or Google+, nor for the correct
functioning of the link between the Service and Twitter, Facebook and/or
Google+. The User is not allowed to log into the Service and/or create an
Account using the Facebook-, Twitter- or Google+-account of another User, person
or company.
4.5
Dialost
may at all times (i) make functional, procedural or technical changes or
improvements to the Service,
including the Application and Content, and (ii) (temporarily or permanently) take out of
service, restrict the use of or terminate Accounts on the Service,
without becoming liable to the User.
4.6
The User
is solely responsible for the purchase and/or the proper operation of the
infrastructure necessary to use the
Service, including any mobile device with functions for (GPS) localization. Dialost 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.
Article 5 Use of the Service
5.1
The User
is not permitted to:
a. use the Service and/or Content in a way that is
contrary to the purpose and morals of the Service;
b. use the 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 Service and/or Content in a way that calls for
violence against and/or harassment of others;
d. use the 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 User is in any way
commercially connected with Dialost or its licensors;
e. use the 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 Service or makes it inaccessible, or which alters,
damages or deletes the Content;
f. violate the Terms of use, the Privacy Statement or any
applicable laws and/or regulations;
g. infringe on the rights of Dialost 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 Dialost;
i.
collect
data from Users through the Service and use this data for other purposes than
those that are listed or intended in the Terms of Use;
j.
reproduce,
publish or sell the Content which is
obtained through the Service;
k. use contact information which is provided by Users for
any commercial, non-commercial or charitable communication as well as any other
unsolicited communication other than the intended purposes of the Service;
l.
use the Service
for advertisement purposes, other than with the express permission of Dialost;
m. engage third parties to perform any of the
abovementioned acts.
5.2
The User
acknowledges and agrees that the personal data he makes available trough the Service
can be used by other Users. The User acknowledges that Dialost cannot enforce
compliance with the Terms of Use by other Users.
Article 6 Content
6.1 The Service offers Users different Content. The User
can choose which (type of) information it wishes to receive by downloading
specific Content on his mobile device.
6.2 Content may be offered under additional terms and
conditions, such as –but not limited to- (periodic) payment obligations and
restrictions to use, for instance to a certain time limit, or area. In any case
the use of Content is limited in accordance with article 8.
6.3 Upon fulfillment of any (payment) obligations in
accordance with article 7, User may download the Content onto its mobile device
or into its Account, subject to the license granted in accordance with article 8.2.
After download the Content shall be available to User in its Account if
applicable. User may, at any time, delete or remove the Content from its Account.
Upon removing the Content, all rights of User for the use of that Content shall
terminate, unless otherwise specified by Dialost.
6.4 Dialost 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
Dialost and/or its licensors, without becoming liable to the User. This right
includes the right to have the forementioned actions performed by third
parties, such as licensors of Dialost.
6.5 The User accepts that the Content
contains only the functionalities and information that it finds at the moment
of use (“as is” basis). Except as expressly provided in these Terms of Use,
Dialost 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 Dialost does not guarantee that the Content will be available in
the language of choice of User.
6.6 Dialost accepts no liability for (in)correctness,
(in)completeness or the (in)actuality of the Content that is made available in
the Application (whether or not this Content originates from third parties).
6.7 If a User is of the opinion that certain Content
infringes its rights and/or the rights of other Users or a third party the User
should notify Dialost immediately by sending an email to abuse@dialost.eu.
Article 7 Prices and payment
7.1
For the use
of the Service a fee is due. Content may be offered for a fee, or free of charge.
The User will receive the relevant payment details prior to adding the Content
to the device or Account. Payment takes place in the way as described in the
purchase program for the Application (for instance the Appstore, Marketplace
and other application purchase programs of mobile operating systems).
7.2
Payment
for the Content takes place in the way as described in the Application. All
in-App payments will go through the relevant In-App purchase program (for
Apple, Android or other operating systems).
7.3
If a
periodic payment is agreed and/or no payment by direct debit is possible or
agreed, the User must pay within 30
days after the invoice date, unless explicitly agreed otherwise in writing.
7.4
If Dialost
has not received (full) payment after the expiration of this term, the User
will immediately be in default, without any advance demand or notice of default
being required. From the time of default, the User owes interest equal to the
statutory interest.
7.5
If the
User remains in default of payment of the claim after a reminder or notice of
default, Dialost may decide to refer the debt for collection. In that case all
costs incurred by Dialost in connection with late payments are charged to the
User.
7.6
The User
is not entitled to suspend any payment obligation.
Article 8 Intellectual Property Rights
8.1 The Intellectual Property Rights in relation to the Service,
including the information made available via the Service such as the Content,
texts, look-and-feel, templates, video-, audio- photo-material and the website of
Dialost, are held by Dialost or its licensors.
8.2 Under the conditions set out in these Terms of Use, Dialost
will grant the User a limited, personal, revocable, worldwide, non-exclusive,
non-sublicensable and non-transferable right to access and use the Service,
including the Content, insofar as is necessary for the non-commercial use of the
Service. This license does expressly not entail the right for the User to publish,
reproduce or make available the Service and/or the Content in another medium or
for any third party.
8.3 Nothing in these Terms of use is intended to transfer
any Intellectual Property Rights to the User. The User shall refrain from any
act that infringes the Intellectual Property Rights of Dialost 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 Dialost
or its licensors holds Intellectual Property Rights, as well as the
reproduction, modification, reverse engineering or publishing of the Service,
including the Content, for other purposes than those listed in the Terms of Use,
unless permitted by applicable mandatory law.
8.4 The User is not permitted to remove, make illegible,
hide or modify notifications or statements with regard to Intellectual Property
Rights.
Article 9 Privacy
9.1 By registration, providing Login Details and by using the
Service, the User will provide personal data to Dialost. This personal data
will be processed in accordance with the Privacy Statement http://www.dialost.eu/p/faq.html of Dialost and the applicable laws and regulations.
Article 10 Indemnities and warranties
10.1
The User
is liable for and indemnifies Dialost completely against any damages and costs
which Dialost suffers or makes as a result of (i) an attributable breach of the
Terms of Use by the User, (ii) any use the User makes of the Service, including
Content, or (iii) an unlawful act, or (iv) any third party claims. All costs
and damages that in any way relate to such a claim will be reimbursed by the
User.
10.2
The User
guarantees that he is entitled to use the Service and that he will act in
accordance with the Terms of Use. The User indemnifies and holds Dialost
harmless against claims of third parties arising out of the User acting in any
way unlawful.
10.3
The Service
may contain links to third party websites that are not owned or controlled by Dialost.
Dialost has no control over, and assumes no responsibility or liability for,
the content, privacy policies, or practices of any third party websites.
Article 11
Liability
11.1
Dialost
accepts no liability for damages that result from the Service, an unlawful act,
or any other cause, to the extent that is permitted under mandatory law.
11.2
When Dialost
is liable to Users for damages arising from any cause whatsoever, this
liability is at any time limited to the direct damages up to an absolute
maximum of EUR 5.000,-- per event (a sequence of events will be regarded as one
event).
11.3
Direct
damage is understood to mean exclusively:
a. damage to property, however this damages shall not be
compensated if the agreement is rescinded (“ontbonden”);
b. reasonable costs incurred to prevent or limit direct
damages that could be expected from the
event on which is the liability is based;
c. reasonable costs incurrent in determining the cause of
the damage.
11.4
Any liability
of Dialost for damage other than direct damage (“indirect damages”) as
specified in article 11.3, including – but not limited to – consequential
damages, loss and/or damage of data, loss
in connection with claims, materials, services and/or software of third
parties, loss of profits and lost
sales, is excluded.
11.5
The
limitations and exclusions of liability mentioned in the preceding paragraphs
of this article will lapse if and in so far as the damage is the result of
intentional or willful recklessness on the part of Dialost or its managers
(“own actions”).
11.6
The
creation of any right to compensation is always conditional on the User
reporting the damage to Dialost in writing a soon as possible after it has come
about. Any claim for compensation vis-à-vis Dialost will be cancelled simply by
the expiry of twelve (12) months after the damage first arose.
Article 12 Force majeure
12.1
Neither Party to this Terms of Use is liable
to perform any obligation, including any warranty obligation agreed between the
Parties, if prevented there from by force majeure.
12.2
Force majeure is taken to mean inter alia:
illness of employees and/or absence of key employees needed for the Service,
power failures, strikes, riots, government measures, fire, natural disasters,
floods, failure of suppliers of Dialost, shortcomings by third parties which
were engaged by Dialost, disruption of the internet connection, hardware
failures and failures in (telecommunication) networks.
Article 13 Duration and termination
13.1
The User
is at any moment entitled to discontinue the use of the Service and to
terminate its Account for convenience (“opzeggen”).
13.2
If there
are grounds to do so, without any further notification being required and
without becoming liable to pay compensation, Dialost reserves the right to
terminate the User’s Account (temporarily or permanently) or to delete Content,
specifically in but not limited to cases in which the User, in Dialost’s
opinion, has breached any of the provisions in these Terms of Use, without
prejudice to Dialost’s right to take further legal action and/or its
entitlement to compensation.
13.3
Dialost
points out that the User can not invoke the cooling off period as referred to
in article 7:46d section 1 of the Dutch Civil Code. The reason for this is that
Dialost provides the Service immediately with the consent of the User as
mentioned article 7:46i section 5 subsection 1 of the Dutch Civil Code.
13.4
In the
event of termination for cause (“ontbinding”) of the agreement for the use of
the Service, no reversal will take place of that which Dialost has already
delivered and/or performed and User has paid. Where applicable, amounts
invoiced by Dialost before the termination in connection with that which Dialost
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.
13.5
Upon
termination of the agreement for the use of the Service for any reason
whatsoever, the User’s right to use the Service terminates immediately and
access to the Service is refused. Upon termination for any reason whatsoever,
Dialost will remove User’s Account. However, Dialost remains entitled to use
the personal information provided by User in accordance with the Privacy
Statement.
Article 14 Miscellaneous
14.1 The Terms
of Use and the use of the Service is subject to Dutch law. The applicability of
the Vienna Sales Convention 1980 is expressly excluded.
14.2 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
Service, the Content or the Terms of Use will be brought before the competent
court in Amsterdam.
14.3 Dialost
may transfer rights and obligations arising from these Terms of Use to third
parties and will notify the User of this. When the User does not accept the
transfer of rights and obligations he may discontinue the use of the Service
and terminate his Account.
***
