26 February 2019
The capitalised terms used in these License Terms have the following meaning:
Account: the personal environment of the Content Provider in the CMS, to which the Content Provider obtains access after entering its Login Details;
Application Market: the party providing the opportunity to End Users to download applications, such as App Store and Google Play;
CMS: the online content management system on the ViGu Website or the ViGu App which the Content Provider uses to create, upload and manage its Content;
Content: all information and/or data provided, changed, or uploaded by the Content Provider through the CMS, including – but not limited to – mobile travel guides containing information on museums and/or outdoor objects or places of interest provided in the form of text, photos, video’s, audio materials, and any other form;
Content Provider or you: each business, undertaking, legal entity, sole proprietorship or individual, whether or not acting in the conduct of any business or profession, who has created an Account and uses the ViGu Service by inter alia, uploading Content through the CMS;
Database: the database in which the Content is incorporated and which ViGu may make available to the Publication Partners;
End User: an individual using the Content through any of the Products or any of ViGu’s products (such as the ViGu App or the ViGu Website);
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;
ViGu App: the mobile applications ViGu;
ViGu Service: in the context of these License Terms, it means the service provided by ViGu to the Content Provider as further described in article 3;
ViGu Website: the URL http://ViGu.guide and all its top level and sub-domains;
ViGu or we: Virtual Guide OÜ, Sepapaja 6, 11415, Tallinn ESTONIA
License Terms: these license terms applicable to Content Providers;
Login Details: the name and password which the Content Provider provides when creating its Account and with which the Content Provider gains access to its Account;
Personal Data: personal data as defined in article 2(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, or a future European regulation which is intended to replace this directive;
Product or Products: the Publication Partner’s current and future products including, but not limited to, mobile applications, web interfaces/web devices, mapping/navigation/positioning devices, and/or other displaying devices, technology, and/or services;
Publication Partner: the (legal) person which has been granted access to the Database and to incorporate Content in its Product(s) (which could for instance be other application providers or platforms such as hotel booking companies, air ticket booking companies, navigation systems) including its agents, distributors, and other types of intermediary companies and/or persons.
2.1 By using the ViGu Service, you accept these License Terms. In order to avoid any discrepancy between applicable terms, your own terms and conditions (if any) will not apply.
2.2 It may sometimes be required for us to make changes to these License Terms (for instance due to business developments, new regulations etc.). You agree that we won't ask you to approve these changes. The most up-to-date License Terms can always be found on the ViGu Website [and in the ViGu App]. The amendments or supplements to the License Terms will also be brought to your attention during the use of the ViGu Service. Your continued use of the ViGu Service after changes to these License Terms implies that you agree with the changed License Terms. In case you do not agree to the changed License Terms, we suggest you to stop using the ViGu Service.
2.3 It may occur that any provision of these License Terms 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 the License Terms, 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.
3.1 The ViGu Service gives you the right to access and use the CMS, which enables you to upload, store, and manage, (i.e., modify, add, and delete) Content. The Content uploaded by you will become part of the Database. We make the Database available to Publication Partners who may incorporate the Content in their Products, as further described in article 7. This could lead to a greater exposure of your Content and could help you reach more people and/or attract more visitors. The purpose of the ViGu platform is to bring the Content Providers and the Publication Partners together.
3.2 As ViGu operates as a platform and does not interfere with the Content, we do not respond to requests from Content Providers to exploit and/or use the Content in any specific way. We can also not guarantee that a Publication Partner or End User is going to exploit the Content in a specific way nor that the exploitation of the Content will be successful.
3.3 As the ViGu Service is a free and open platform, Content Providers cannot claim exclusivity for a certain public object or place of interest; i.e. the ViGu Service allows every Content Provider to include a public object or place of interest in his Content.
3.4 We will provide the ViGu Service to the best of our ability. However, you must accept that the ViGu Service contains only those functionalities that you find at the moment of use (“as is” basis). Except as expressly provided in these License Terms, we make 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 ViGu Service or the CMS, or that any part of the ViGu Service will be uninterrupted, error-free, virus-free, timely, secure, nor is it warranted either implicitly or expressly that any content is safe in any manner for download.
4.1 In order to use the ViGu Service, you need to create an Account by following the registration process on the ViGu Website [or in the ViGu App]. The Content Provider will be asked to assign a contact person and provide contact information of the contact person. You need to make sure that all provided information is up-to-date, correct and complete. This is important to us as we may need to reach out to the Content Providers in certain cases (for instance with questions about your Content). No Content Provider is allowed to create an Account under someone else’s name.
4.2 If you are an individual under the age of 18, you are also welcome to register as a Content Provider but you need to have your parent(s)’ or legal guardian(s)’ permission to create an Account and to use the ViGu Service.
4.3 If you register an Account and use the ViGu Service on behalf of another individual, a company or other kind of business undertaking, you take responsibility for having legal authority to bind that individual, company, or other kind of business undertaking to these License Terms.
4.4 Login Details are required for registration. The Login Details must be kept secret to avoid unauthorised use of an Account. As soon as you know, or have reasons to suspect, that your Login Details have come into the hands of unauthorised persons, you should inform ViGu and take effective action immediately, by modifying the Login Details.
4.5 If you can no longer access your Account (for instance because the person who created the Account has left your company without leaving behind the Login Details), please contact us at support@ViGu.guide.
4.6 ViGu may use the contact information provided by you to send e-mails concerning the operation of the ViGu Service.
4.7 In case you give other people (third parties) access to your Account, their actions will be under your full responsibility. This implies that any damages to your Content or costs related to the use of paid ViGu services by such third parties will be due to your own account. These License Terms shall also apply to such third parties making use of your Account.
4.8 In certain cases, we may need to get in touch with you. If you do not respond to our query within three months, we assume that you no longer wish to make use of your Account and we will be entitled to terminate your Account and remove your Content.
4.9 In order to improve the ViGu Service, or for other reasons, ViGu may need to make functional, procedural or technical changes to the ViGu Service, including the CMS, and/or (temporarily or permanently) take out (part of) the ViGu Service. ViGu cannot be held liable for that.
4.10 The purchase and/or the proper operation of the infrastructure necessary to use the ViGu Service is the sole responsibility of the Content Provider. ViGu cannot be accounted for damage or costs related to transmission errors, malfunctions, or non-availability of computer, data or telecom facilities, including the internet.
4.11 We undertake all reasonable measurements to make sure the ViGu Service works impeccable at any time. In the event that the ViGu Service, or part thereof, is nevertheless (temporary) unavailable or not working properly, we cannot be held liable for any related damage or costs.
4.12 Note that we are not responsible for storage of your data, including your Content. That means that if you remove your Content from our platform or if we encounter technical problems your Content may be lost and we may not be able to retrieve your Content. We therefore recommend that you keep a copy of your Content on your own devices for storage purposes.
5.1 You are free to use the ViGu Service and you (i.e. the Account holder) are solely responsible and liable for the Content and management (i.e. modification, addition, and deletion) of the Content provided through your Account.
5.2 We may impose minimum standards upon the Content including, but not limited to, standards regarding technical requirements, quality, and information level and we may at any time, amend or supplement these standards. Feel free to contact us if you have any questions regarding these minimum standards.
5.3 No Content may be made available and the ViGu Service may not be used in any way that:
5.4 The Content made available by you through the ViGu Service may be used by us, Publication Partners and End Users in accordance with article 7.
5.5 In the following situations we may need to (i) refuse or remove Content, (ii) terminate your Account, or (iii) assign to the Content the status of ‘draft’ which means that the Content requires to be changed before it becomes accessible by Publication Partners or End Users:
ViGu may take such decision at its own discretion and irrespective of any formal analysis under applicable law. By taking any of the actions above, ViGu will not become liable to pay any compensation to the Content Provider.
5.6 If you are of the opinion that certain Content offered by another Content Provider infringes your rights and/or the rights of a third party, please notify ViGu immediately in accordance with article 13.
6.1 ViGu invests extensive resources to deliver the free-of-charge ViGu Service. The ViGu Service can bring the Content Providers most success if the Content Providers contribute with their promotion. Therefore, ViGu is looking for the Content Providers’ cooperation and kindly asks you to promote your audio guide(s) and the ViGu Service via your marketing and communication channels.
6.2 We invite you to promote your audio guide(s) and the ViGu Service via your marketing and communication channels as suggested - but not limited to – in the list below:
If you would like to know more about the marketing opportunities, please refer to our website ViGu.
6.3 As feedback is important to us to improve the ViGu Service, we may approach you to participate in evaluations of the ViGu Service. In the ViGu App and in the CMS, there are pre-defined opportunities to ventilate your valuable opinion and give your input as well. We would very much appreciate your input and collaboration in this respect.
6.4 We will use our reasonable best efforts to, free of charge:
7.1 We respect your Intellectual Property Rights and we expect you do the same with our Intellectual Property Rights. You will be and will remain the sole owner of all Intellectual Property Rights in relation to the Content that you make available through the ViGu Service. You can adjust, change and/or remove your Content at any time from the ViGu Service. The Intellectual Property Rights in relation to the ViGu Service, including the CMS and the Database, the ViGu App, and the ViGu Website belong exclusively to us or our licensors. This means, for instance, that you are not allowed to register any domain names, trademarks, or Google Adwords that are identical or similar to any object to which ViGu holds Intellectual Property Rights and that you are not allowed to reproduce, modify, reverse engineer, or publish the ViGu Service and/or the CMS for other purposes than those listed in these License Terms. Removal, hiding, making illegible or modifying notifications or statements with regard to our Intellectual Property Rights is not permitted.
7.2 As Content Provider you will be given the right to access and use the ViGu Service and the software that forms part of the ViGu Service, including the CMS, insofar as necessary for the use of the ViGu Service. You appreciate that ViGu may grant this same right to other Content Providers as well. We can only revoke this right granted to you in those situations as further described in these License Terms.
7.3 In order for us to be able to spread your Content and to give you free and global exposure, you acknowledge and accept that by making the Content available through the ViGu Service, you automatically and free-of-charge give us the right to use and reproduce your Content worldwide. This includes the right for us to make your Content available to third parties and to give third parties this same right to use and reproduce your Content. This right granted to us will not be exclusive, so feel free to have other parties than ViGu spread your Content as well. The right given to us to use and reproduce your Content includes, but is not limited to, the right to:
7.4 For the avoidance of doubt: in our agreements with the Publication Partners we strictly forbid the Publication Partners to sell any of your Content to any other party. Furthermore, your name and profile and copyright notice (if any) will always be accessible, linked or integrated with your Content when made available to the Publication Partners and End Users, unless for technical reasons this is not possible
7.5 The license you granted to ViGu to use and reproduce your Content as further described in article above, will stay in force as long as your Content is available through the CMS. Any removal by you of your Content, will automatically result in the same removal from ViGu’s systems and servers and from the Database. ViGu will, however, not be under the obligation to remove this Content also from all proxy servers or similar technical ‘cache systems’. Prior to the removal the Content may have already been downloaded by a third party (which could be an End User, a Publication Partner, or other third party). We can obviously not ensure the removal of the Content from any services, systems or devices under the control and operated by such third party nor can we prevent such third party from using the removed Content any longer.
7.6 We respect your Intellectual Property Rights in accordance with these License Terms and we will only work with those Publication Partners that agree to do the same. It may, however, be the case that, due to technical reasons, we or a Publication Partner make a publication of your Content without mentioning your name, or other designation as creator of the Content, or make any changes to the title of your Content or any minor changes to the Content itself. In those cases, the meaning of the Content itself will not be changed. You agree to accept such changes and not to object. Should such changes result in any distortion, mutilation, or other impairment of your Content that could be prejudicial to your name or reputation or to your dignity, you will of course have the right to object.
7.7 In case you do not agree with any of the changes made to your Content by any Publication Partner, or if you are of the opinion that your Intellectual Property Rights have been infringed or are being infringed by a Publication Partner, you may notify us thereof as soon as possible by sending a notification to support@ViGu.guide or by completing the support form at http://ViGu.guide/support (or by clicking on the link 'Support' in the bottom menu). We will then contact the relevant Publication Partner and try our best to stop and/or remedy the infringement. If it appears, to the opinion of ViGu, that your claim is lawful, we will decide to cease any form of cooperation with such Publication Partner. In no event, however, can ViGu be held liable or responsible for any infringements or alleged infringements of your Intellectual Property Rights by Publication Partners, End Users, or any other party, whether or not access to your Content was given by us to such third party. You hereby waive all rights to make claims against us in connection with any such (alleged) infringements by any third party and hereby indemnify and hold ViGu harmless for and against any and all third-party claims relating hereto.
8.1 We process your Personal Data and of persons using the Account, including but not limited to information entered when creating the Account, information provided when using the ViGu Service and uploading Content, and information collected on the use of the ViGu Service, such as: browsing history, IP address, information on your browser and operating system and user interactions with the browser.
8.2 To the extent necessary, you agree in advance to all processing by or on behalf of ViGu of the Personal Data referred to under article 8.1 for the purposes of:
8.3 To the extent necessary, you agree in advance to us providing access to any Publication Partner to the Personal Data referred to under article 8.1, excluding the Login Details, and all subsequent processing by or on behalf of this Publication Partner of this Personal Data, for the purposes of:
8.4 To the extent necessary, you give the permissions under articles 8.2 and 8.3 on behalf of any persons using the Account. You warrant that you have the necessary mandate from such persons to give such permissions.
8.5 The Content uploaded by you may contain Personal Data of others besides the Content Provider or persons using the Account. It cannot be excluded that the processing thereof (i) by us or on our behalf for the purposes set out in article 8.2, and (ii) by or on behalf of any Publication Partner for the purposes set out in article 8.3, requires permission from such others. If there is a significant risk that such permission would be required, you shall obtain such permission.
8.6 We will implement appropriate technical and organisational measures to protect the Personal Data referred to in articles 8.1 and 8.5 against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access.
8.7 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 8, but there are also other legal bases. For the avoidance of doubt, the permissions granted to us and the Publication Partners under this article are without prejudice to any other legal basis we and the Publication Partners might have for the processing referred to in this article.
9.1 The ViGu Service is provided by us free-of-charge. In the future paid features may be added for Content Providers, which will be optional for you to use. You will be notified of the existence of such paid features and you will be free to choose whether to use such paid features or not.
9.2 As Content Provider you may choose whether you wish to offer your Content for free to your visitors or whether you would like to sell it through the ViGu Service (Paid Content). If you wish to offer Paid Content you may need to contact us first support@ViGu.guide. We may in such case ask for additional information from your side.
9.3 The price for the Paid Content will be determined by you. Note, however, that we cannot control any changes made to this price by the Application Markets. Furthermore, note that we will always have the right to temporarily offer the Content for free after all or request you to moderate the price for the Paid Content, for instance for promotional purposes.
9.4 If you offer Paid Content to End Users, the fee for such Paid Content actually paid by the End Users shall be divided as follows (all excluding VAT):
For example, if End User is charged €4, ViGu will receive €1+0.2*€4= €1.80 and you will receive 0.8*€4 - €1= €2.20
9.5 Note that we will have the right to change the above percentages in the event that changes occur to the above division out of our control (for instance, due to a change in the rules set by third parties)
9.6 We will collect the fee from the End Users directly.
9.7 We will subsequently pay you your share. Note that we will only pay you your share of the fee after we have received from the End Users the full amount due. This means that we are not accountable for (non-) payment by the End Users; non-payment risks will be borne by you.
9.8 Any shortages or losses of fees for your Paid Content due to the conversion of the payments into another currency and/or fluctuating currency exchange rates will be for your risk and account.
9.9 You may request us to prepare a statistical report regarding the purchase and use of the Paid Content by Publication Partners and End Users. The information included in such reports are leading and binding for the calculation of the fee amount to be paid to you.
9.10 The statistical reports will be provided to you monthly and we will pay you the relevant fee amounts within 30 days after sending the relevant report. We will strive to make all payment in time. Nevertheless, any late payment does not give you the right to suspend your obligations under these License Terms, including the license provided in article 7, nor does it entitle you to interest on such late payment.
9.11 If we owe you less than EUR 10, the payment will be postponed until the month in which we owe you in aggregate EUR 10 or more.
9.12 If you owe us money for whatever reason we will be allowed to offset any such payment obligation to any of our own payment obligations to you.
10.1 You warrant and guarantee that:
10.2 You agree to indemnify, defend and hold harmless ViGu, 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) any violation by you of these License Terms or any other agreement between you and us, (ii) any third party claim of (alleged) infringement by you of Intellectual Property Rights arising from your Content and/or use of the ViGu Service, (iii) incorrect and/or misleading information provided by you through the ViGu Service, (iv) any use you make of the ViGu Service, or (iv) any unlawful act performed by you. ViGu will provide you with a written notice of any such claim, action, proceedings, damage, obligation, loss, expenses, and/or costs. You must cooperate as fully as reasonably required in the defence of any claim. We reserve the right, at our own expense, to assume the exclusive defence and control of any matter subject to indemnification by you.
11.1 Your use of the ViGu Service is at your own risk, which means that ViGu, to the extent permitted under mandatory law, cannot be held liable for any damage that you suffer resulting from using the ViGu Service.
11.2 When we made a mistake or did something unlawful and ViGu is nevertheless liable to you, the liability will at all times be limited to the direct damage and up to an absolute maximum of EUR 1000 per event (a sequence of events will be regarded as one event).
11.3 Direct damage is understood to mean exclusively:
11.4 Any liability of ViGu for damage other than direct damage (“indirect damage”), including – but not limited to – consequential damage, loss and/or damage of data, loss of profits, loss of goodwill, loss of customers, loss of reputation, and lost sales, is excluded.
11.5 The limitations and exclusions of liability mentioned in the preceding paragraphs of this article shall not apply if and insofar as the damage is the result of intentional or wilful recklessness on the part of ViGu.
11.6 The existence of any right to compensation is always conditional on the Content Provider reporting the damage to us in writing a soon as possible after it has become aware of the damage. Any claim for compensation vis-à-vis ViGu will lapse simply by the expiry of twelve months after the damage first arose.
12.1 Neither party to these License Terms is liable to perform any obligation 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 us, power failures, strikes, riots, government measures, fire, natural disasters, floods, failure of suppliers of us, shortcomings by third parties which were engaged by us, disruption of the internet connection, hardware failures, and failures in (telecommunication) networks.
13.1 ViGu 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 Content Provider who created the Content.
14.1 The agreement between the you and ViGu comes into effect at the moment you create the Account and accept these License Terms and will remain in force until it is terminated in accordance with this article.
14.2 Each party may elect to terminate the agreement:
14.3 We will have the right to immediately terminate the agreement and remove the Content and/or block the Content Provider’s Account if (i) such is in line with our Notice and Takedown procedure, (ii) ViGu and/or a Publication Partner receives notice or has knowledge that the Content infringes upon or violates the (Intellectual Property) Rights of a third party, and/or (iii) article 5.5 applies.
14.4 In the event the agreement is terminated, for whatever reason:
15.1 ViGu may transfer rights and obligations arising from these License Terms to third parties and will notify you of this. Should you not agree with such transfer, you must discontinue the use of the ViGu Service and terminate your Account.
15.2 The License Terms and the use of the ViGu Service are subject to Dutch law. The applicability of the Vienna Sales Convention 1980 is expressly excluded.
15.3 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 ViGu Service or the License Terms will be brought before the competent court in Estonia.