Walby Terms of Use (Non-Commercial Use)

PLEASE READ THESE TERMS OF USE CAREFULLY.

These Terms of Use govern the use of Walby, both in its mobile version as an app (“Walby App”), and as a web application (“Walby Web”) (collectively: “Walby”). Your contractual partner is drop2space GmbH, Lichtstraße 25, 50825 Cologne, Germany (“drop2space”, “we”, “us”).

Table of Contents

registration and walby account
scope of services
rights of use
granting of rights
technical requirements
customization of Walby, updates
third party rights and upload
third party websites/links, social networks, messenger services
removal of content
termination, restriction and deletion of accounts
limitations of liability
donations
sweepstakes
special terms for the apple app store
data protection
modification of terms of use
alternative dispute resolution
final provisions

1. Registration and Walby account

1.1 Registration is permitted to natural persons who have reached the age of 16.

1.2 The data requested during registration must be provided completely and correctly.

1.3 If there is a change in the data provided after registration, you are obliged to update your user profile accordingly.

1.4 The Walby account is personal and non-transferable. You may not grant other persons access to your Walby account and are obliged to keep your access data safe and protect it from access by third parties.

1.5 In case of suspicion of misuse by a third party, you will inform us immediately.

1.6 You are prohibited from using Walby if you have had a Walby account terminated for cause in the past pursuant to Section 10.4 of these Terms of Use.

2. Scope of Services

2.1 Walby allows you to link content of all kinds (e.g., texts, images, audio files, videos, links to websites and apps) to locations on a map and thereby create so-called “Drops”. There are different types of drops. For example, you can create drops that also form a route, contain photos, audios or website URLs.

Other users (and you) can like, comment on, pin, and share these Drops, although we reserve the right to disable the comment feature for individual Drops at our reasonable discretion. You can connect with other users through the Friends feature and join groups.

2.2 You can make a variety of settings through the user interface. For example, you can specify (i) whether your profile is only visible to a certain group of users, (ii) when using Walby, you share your location to be able to use location-specific services, (iii) whether you receive push messages (iv) and who can interact with your Drops.

2.3 We make Walby’s functionality available for use with reasonable availability at our data center’s network exit point. Temporary limitations may result from technical disruptions such as power supply interruptions, hardware and software failures, etc. We reserve the right to temporarily restrict services if this is necessary with regard to capacity, server security and to implement technical measures.

2.4 In order to carry out work on the system, there are scheduled maintenance periods during which certain functions may not be available or only available to a limited extent. This maintenance work is necessary to maintain the security and integrity of the servers and to prevent serious disruptions to the software or the loss of stored data.

3. Rights of use

3.1 The Walby app, Walby web and other software used are protected by copyright. All rights to Walby – with the exception of the rights of use expressly granted by these Terms of Use – are exclusively entitled to us or our licensor.

3.2 For the duration of the user agreement concluded with us, you are granted the non-exclusive, non-transferable right, limited in time to the term of the user agreement, to use Walby as Walby app or Walby web within the scope of their respective availability and to the extent provided by us in each case. Furthermore, you are granted the right to install the Walby app on a mobile device supported by the Walby app, i.e., for example, smartphone or tablet, and to use it exclusively in accordance with these Terms of Use.

3.3 You are granted the right to reproduce the Walby app to the extent that the respective reproduction is necessary for the use of the Walby app by you (e.g. when downloading, the installation of the Walby app on the terminal device, the loading of the Walby app into the working memory of the terminal device). You are not entitled to reverse engineer, decompile or disassemble the program code of Walby or to determine the source code in any other way or to use it for a purpose not intended by the subject matter of the contract. § Section 69e UrhG shall remain unaffected.

3.4 This also applies to all updates/upgrades and program supplements for Walby, including updates and upgrades of the Walby app, which are made available to you for download via the Apple App Store or the Google Play Store, unless they are the subject of a separate license agreement. In this case, only the terms of the license agreement applicable to the respective update/upgrade or program addition shall apply. You are obligated to install any updates/upgrades provided in order to keep Walby up to date (see also Section 6.1).

3.5 You are entitled to use the functionalities of Walby by means of the Walby app or Walby web, but you do not receive any copyright rights of use to the software used by us to provide Walby and the cloud service behind it.

3.6 You may not make any edits or modifications to Walby. Copyright notices, serial numbers, version numbers, trademarks or other identification features of Walby may not be changed or removed by you under any circumstances. The same applies to the suppression of the display of corresponding features on the screen.

3.7 Walby may only be used for the agreed purposes.

4. Granting of Authorization

4.1 By posting (i.e. uploading, sharing, posting) content protected by intellectual property rights, you grant drop2space and its affiliates the worldwide, non-exclusive, transferable, sub-licensable, irrevocable right, limited in time pursuant to Section 4. 3, to use such Content (including hosting, making it available to the public, copying, distributing, modifying, displaying and reproducing it, in each case subject to moral rights) solely for the purpose of providing and improving the Service (including through the use of service providers) and only to the extent necessary to do so. This right of use is granted to drop2space free of charge.

4.2 By posting (i.e. uploading, sharing, posting) Content that is protected by intellectual property rights, you also grant each other user of the Service the worldwide, non-exclusive, irrevocable right, limited in time pursuant to Section 4.3, to access and use your Content (including copying, distributing, modifying, displaying and reproducing, in each case subject to moral rights) on the Service to the extent enabled by features of the Service.

4.3 The grant of the rights of use to drop2space and the other users will terminate if you close your account or if you or we remove your content from Walby in accordance with these Terms of Use. We will then remove all content (drops, comments, and the like) posted by you on Walby. As a result, you will no longer be viewable by other users of Walby. Please note that in the case of content shared with other platforms, we can only delete the content located on Walby. We have no influence on the deletion procedures at other platforms.

4.4 If drops of other users with whom you have interacted are deleted, all of your content (including copyrighted content, if applicable) will be irrevocably deleted.

5. Technical requirements

Walby requires a suitable end device, a current version of the operating system used and, in the case of Walby-Web, a supported browser in the current version, unless otherwise notified by us, as well as an Internet connection (necessary technical requirements). You are responsible for checking and ensuring the suitability of the terminal device you intend to use for Walby with regard to the aforementioned technical requirements.

6. Adaptation of Walby, Updates

6.1 We are entitled to adapt Walby to current technical developments, in particular with regard to new functions and to close security gaps, an increased number of users, due to changes in the law and changes in case law, and to change the technical features and functionalities of Walby in this context.

6.2 We provide updates at our own discretion to keep Walby up to date. There is no legal claim to the provision of an update. § 327f BGB remains unaffected.

7. Third Party Rights and Upload

7.1 When using Walby, you are obligated to observe all applicable legal provisions and laws as well as the rights of third parties. In particular, you are prohibited from the following:

(a) using content protected by law (e.g. by copyright, trademark, patent, design or utility model law) without being entitled to do so;

(b) the use of insulting or defamatory content, regardless of whether this content concerns other users or other persons or companies;

(c) the use of pornographic, violent, abusive, immoral or illegal content or the advertising, offering and/or distribution of pornographic, violent, abusive, immoral or illegal goods or services;

(d) the use of Walby for fraudulent purposes;

(e) unreasonable harassment of other users, in particular through spam or unauthorized advertising (cf. § 7 Law against Unfair Competition – UWG);

(f) the performance or promotion of anti-competitive or other illegal acts;

(g) the uploading of malware.

7.2 If a third party can claim the exclusive use of the uploaded content, the upload of this content is only permitted with the consent of the authorized user. Furthermore, personal data may only be uploaded within the framework of the applicable laws, in particular the German Art Copyright Act (Kunsturhebergesetz) and the European Data Protection Regulation (“DSGVO”).

7.3 You are prohibited from processing data from Walby by means of automated methods, in particular the use of scraping software, insofar as these are secured by a technical protective device.

7.4 You are prohibited from buying, selling or licensing any data from Walby except to the extent expressly permitted by these Terms of Use.

7.5 Notwithstanding our right to terminate under Section 10.4, in the event of a breach of this User Agreement, we may restrict your use of certain features of Walby (e.g., uploading and sharing of new content and the comments feature) for a limited period of time or disable your account. The nature and extent of any such restrictions will depend on the severity of the violation and the number and type of prior violations. You will be given an opportunity to respond in advance, explaining the reasons for our decision. In making our decision, we will give due consideration to your legitimate interests. Only in cases of a serious violation of this user agreement, if this also affects the rights of other users and immediate action is required according to objective standards, can a temporary deactivation of your user account take place without prior opportunity to comment. You will be informed of this immediately and given the opportunity to comment afterwards.

8. Websites/links of third parties, social networks, messenger services

8.1 Walby may also contain links or references to databases, websites, services, etc. of third parties, in particular those that have been posted by the respective users. We are not liable for the accessibility, existence, content or security of these databases, websites or services. We are not responsible for the data protection, content, links, changes or updates of third-party websites.

8.2 When using Walby, you also have the option to share content on third-party social networks (e.g. Facebook) and via third-party messenger services (e.g. WhatsApp). We are not responsible for these services and are not liable for any misuse of this content.

9. Removal of content

9.1 Removing content that you have posted to Walby is possible at any time. If you have created a drop, you can remove it at any time. By doing so, you also remove the drop from the history of users who have already interacted with it. If you have interacted with someone else’s drop, you can also remove your respective content at any time.

9.2 We have no influence on the content you have shared from Walby on other platforms.

9.3 If Your Account is deleted (Clause 10.5), all Content created by You will be removed immediately, subject to Clauses 9.1 and 9.2.

9.4 We may remove content that violates these Terms of Use or applicable law.

9.5 If we remove content created by you due to a violation of these Terms of Use, we will notify you immediately, stating the reason. If you do not agree with our decision, you can request a review of the decision with or without giving reasons. You will then be notified within a reasonable period of time after the review has been completed whether the decision will be upheld or the content in question will be restored.

9.6 You may use Walby’s reporting features (e.g., within the Drops) to notify us of Content that you believe violates these Terms of Use.

9.7 Knowingly unfounded or intentionally duplicate reports pursuant to Section 9.6 or requests pursuant to Section 9.5 constitute a violation of these Terms of Use on your part.

10. Termination, restriction and deletion of accounts

10.1 The user agreement is concluded for an indefinite period.

10.2 You may terminate the User Agreement at any time without giving reasons.

10.3 We may terminate the User Agreement at any time without giving reasons by giving fourteen (14) days’ notice to the end of the month.

10.4 Both parties may terminate the user agreement without notice in accordance with the statutory provisions if there is good cause for doing so. Good cause shall be deemed to exist in particular if one party breaches obligations resulting from these Terms of Use and the terminating party, taking into account all circumstances of the individual case and after weighing the interests of both parties, cannot reasonably be expected to continue the User Agreement until the expiry of a notice period. If the important reason is a breach of these Terms of Use, termination shall only be permissible after the fruitless expiry of an appropriate remedial period or after a warning without success. The granting of a reasonable remedial period or a warning is not required if the other party seriously and finally refuses to fulfil its obligations or if, after weighing the interests of both parties, special circumstances justify immediate termination.

10.5 After effective termination of the user agreement, we will immediately delete the associated account.

11. Limitation of liability

11.1 We shall be liable – irrespective of the legal grounds – without limitation for damages arising from injury to life, body or health which are based on an intentional or negligent breach of duty by us or our vicarious agents. We shall also be liable without limitation for other damage caused by intentional breach of duty or grossly negligent breach of duty by us or our vicarious agents.

11.2 For property damage and pure financial loss due to simple negligent breach of material contractual obligations, our liability is limited to the damage foreseeable and typical for this type of contract at the time of conclusion of this usage agreement; material contractual obligations are those whose fulfilment characterises the contract and on which you may rely.

11.3 Liability is excluded in all other respects.

11.4 Insofar as liability is limited or excluded in our favour, the limitations or exclusions shall also apply to the personal liability of our employees, legal representatives and vicarious agents.

11.5 The limitations and exclusions of liability pursuant to this clause 11 shall not affect our liability pursuant to the mandatory statutory provisions of the Product Liability Act, due to fraudulent concealment of a defect and the assumption of a guarantee for the quality of an item.

11.6 We are not obliged to actively monitor the User Content and in this respect also accept no liability. If we become aware of illegal content through a report in accordance with section 9.6 or in any other way, we will remove it immediately in accordance with section 9.4.

12. Donations

12.1 Within Walby, it is not possible to donate directly to organisations, associations or similar (“fundraisers”).

12.2 Users can, however, draw attention to donation offers from fundraisers via the Walby Drops and call for donations. This will result in a redirection to fundraiser offers. Walby and drop2space have no relationship to these offers. Donations are subject solely to the terms and conditions of the fundraiser.

12.3 The respective fundraiser is exclusively responsible for questions and complaints regarding donations, donation receipts and their issuance.

13. Competitions

Periodically, we and/or our partners may organise competitions, contests or similar promotions (collectively, “Competitions”). In addition to these Terms and Conditions of Use, the respective additional competition conditions also apply to the competitions, which take precedence over these Terms and Conditions of Use in the event of deviations.

14. Special Provisions for the Apple App Store

If the Walby App is downloaded from the App Store of Apple Inc., One Apple Park Way, Cupertino, California, USA, 95014 (“Apple”), the following additional terms apply:

14.1 Apple is expressly not a party to this User Agreement and accordingly is not responsible for the Walby App and its content.

14.2 If and to the extent that maintenance or technical support is required by law, it will be our sole obligation as the provider of the Walby App and not Apple.

14.3 Use of the Walby App is only permitted on an Apple product that you own or control and, to the extent permitted by the terms and conditions of the App Store, except that the Walby App may also be accessed and used from other accounts associated with the purchaser through family sharing or volume purchasing.

14.4 If the Walby App fails to conform to any warranty given or any applicable warranty right, you may notify Apple and Apple will refund to you the purchase price, if any, of the Walby App; provided, however, that to the maximum extent permitted by applicable law, Apple makes no other warranties or representations with respect to the Walby App, and any other claims, losses, liabilities, damages, costs or expenses attributable to a breach of any warranty are the sole responsibility of us as the provider of the Walby App.

14.5 We, as the provider of the Walby App, and not Apple, are solely responsible for handling and asserting any claims related to the Walby App or your possession and/or use of the Walby App in relation to Apple. The same applies to the investigation, defence, settlement and discharge of third party claims of potential infringement of third party intellectual property rights. In this respect, such claims are to be made exclusively against us, as the provider of the Walby App, and not against Apple.

14.6 You represent and warrant that (i) you are located in a country that is not subject to a U.S. government embargo or designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not on any U.S. government list of prohibited or restricted parties.

14.7 Both Apple and its subsidiaries are third party beneficiaries of this License Agreement. Upon entering into this Agreement, Apple is granted (and is deemed to have accepted) the right to enforce the User Agreement against you.

15. Data protection

15.1 We comply with the data protection provisions applicable to us, in particular the rules of the GDPR. The technical and organisational measures we have taken meet the high standards required by the GDPR. You can find more details in our data protection information.

15.2 You can obtain further information from our data protection officer at datenschutz@drop2space.com.

16. Adaptation of the Terms of Use

We reserve the right to amend these Terms of Use at any time, insofar as this is necessary for valid reasons, in particular due to a changed legal situation or supreme court rulings, technical changes or further developments, new organisational requirements of mass traffic, regulatory gaps in the Terms of Use, changes in market conditions or other equivalent reasons and does not unreasonably disadvantage you. You will be notified of any changes to the Terms of Use by e-mail at least six (6) weeks before they come into force. The changes will become effective if you do not object in writing or by e-mail within this period of six (6) weeks (beginning with receipt of the change notification) and we have pointed out this legal consequence to you in the change notification. In the case of services provided free of charge, we are entitled at any time to amend, cancel or replace the terms of use with other terms of use and to make new services available free of charge or against payment.

17. Alternative Dispute Resolution

17.1 The EU Commission has set up an internet platform for the online settlement of disputes (“ODR platform”) between entrepreneurs and consumers. The ODR platform can be reached at https://ec.europa.eu/consumers/odr/. In this context, we are also obliged to inform you of our e-mail address. This is: hello@walbyapp.com.

17.2 In the event of disputes, we are not obliged or willing to participate in an out-of-court dispute resolution procedure before an arbitration board in accordance with the German Consumer Dispute Resolution Act (VSBG).

18. Final Provisions

18.1 The law of the Federal Republic of Germany shall apply. In the case of consumers who do not conclude the contract of use for professional or commercial purposes (§ 13 BGB), this choice of law shall only apply insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

18.2 This User Agreement conclusively contains the terms and conditions applicable between us and you for the use of Walby. Deviating provisions shall only apply if we have expressly confirmed them.

18.3 If any provision of this User Agreement is or becomes invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions.