Terms and Conditions of Use

Summary


Whaller Terms and Conditions of Use

Version of 19 May 2021

The website https://my.whaller.com (Hereafter the "Website") is a service published by WHALLER.

WHALLER is a simplified joint-stock company registered on the Nanterre Trade and Companies Register under the number n° 519 139 497 with its registered office at 3 rue Salomon de Rothschild, 92150 SURESNES ("WHALLER").

These General Terms of Use ("GTU") govern the access to and use of the Website and describe the terms and conditions for using the Website.

The Website offers any user who is registered on the Website, a free standard service which is described in the ‘Description of the Services’ section of the Website.

To become a member of the Website, any user must create a personal account and unreservedly accept these GTS of the website (which also include WHALLER’s Confidentiality Policy) when they register.

The member acknowledges that he/she cannot access the Website’s services unless he/she unreservedly accepts these GTU and agrees to abide by them.

Article 1 - Description of the Standard Service

The Standard Service is described in the "Pricing" section.

Article 2 - Liability of members

2.1 The Member is exclusively liable for the messages, content, and information he/she publishes on the Website. WHALLER shall not be liable for the content which members publish on the website and which WHALLER has no control or authority over. The Member, by posting his/her Member Content online and making it available to the Other Users on and/or through this Website, warrants that he/she holds all the rights and authorisations required by the beneficiaries concerned and that he/she has paid all the fees and payments owed in relation to these GTU, and notably to collective management societies.

The member declares that he/she is the author of the contributions and/or of his/her Member Content which he/she posts online and warrants WHALLER that he/she is the holder of all the copyrights, industrial property rights and authorisations, including from third parties, which are required to publish his/her contribution and/or Member Content. WHALLER reserves the right to ask the member to produce any substantiating document to certify that he/she holds the rights and/or authorisations required to publish his/her content and/or Member Content. In particular, the member holds WHALLER harmless against any action, claims, dispossession, and judgements against it following legal actions for unfair competition or parasitism, infringement and in general any action for the breach of a property right, in particular intellectual property (literary and artistic or industrial) or a right relating to the personality and/or image of a third party, on the occasion of the publication of his/her contribution and/or Member Content. In cases where WHALLER could be held to be legally liable due to a member breaching his/her obligations under these GTU and the legislation and regulations in force, WHALLER can serve third-party proceedings on the member.

The member expressly undertakes, under penalty of criminal or civil liability, to ensure that his/her contributions and/or the Member Content which he/she posts online are not of such a nature as to, without this list being exhaustive, notably (i) constitute an infringement of the intellectual property rights of third parties. In this respect, the member undertakes not to reproduce or communicate to the public on the Website elements which are protected by copyright, registered as a trademark or, more generally, protected by any other intellectual property right held by third parties without the prior consent of the holder or holders of such property rights; (ii) contain computer viruses likely to interrupt, destroy or alter the functionalities of the Website; (iii) glorify crimes or contain messages that are illegal, threatening, paedophilic, pornographic, defamatory, obscene, hateful, racist, anti-Semitic, xenophobic, revisionist or contrary to public order or morality; (iv) infringe the privacy or dignity of third parties (v) incite violence, fanaticism, crime, suicide, hatred on the grounds of religion, race, gender, sexual orientation, ethnicity; (vi) harass Other Users; (vii) promote or encourage any criminal activity or enterprise; (viii) solicit and/or disclose passwords and/or personal information for commercial or unlawful purposes; (ix) transmit chain letters, unsolicited mass mailings, instant messages, unwanted commercial messages or unsolicited mail; (x) contain advertisements and/or solicitations in order to offer products and/or services for sale through the Site; (xi) contain addresses or hyperlinks to external sites whose content is contrary to the laws and regulations in force, which infringe the rights of third parties or which are contrary to these conditions.

2.2 The member undertakes not to have recourse to the automatic use of information systems such as scripts to add members to his/her profile and/or to send comments or messages.

2.3 WHALLER shall not be held liable for any failure to keep the member's password confidential outside its network, nor for any use by a third party to whom the member has communicated his/her identifiers and password to or who has accessed his/her identifiers or the member's account because of a fault, incompetence, or negligence by the member.

The member shall not use the account, pseudonym, and the password of another member.

The member guarantees that the information which is supplied to WHALLER to register the member is accurate and shall inform WHALLER of any subsequent changes.

2.4 The member acknowledges that if his/her use of the website is contrary to the provisions of these GTU and the legislation and regulations in force in general, WHALLER reserves the right to unsubscribe the member from the Website’s service and to block the member’s access to the Website, immediately and without notice.

2.5 Should the member be liable for an infringement of the legislation in force or an infringement of the rights of third parties, WHALLER reserves the right to provide, on the request of any legitimate authority (court, administrative authority, police force), any information which allows or facilitates the identification of the offending member.

2.6 The member is exclusively responsible for all the equipment and software which is required to access and use the Website and/or services and the member is therefore exclusively liable for ensuring that his/her equipment functions properly, as well as for its access to the Internet. The member is therefore responsible for taking all appropriate measures to protect his/her own data, computer systems and/or software from contamination by any viruses. The member is also exclusively liable for the use he/she makes of the Website and/or the Services.

2.7 WHALLER’s services are reserved for people with the legal capacity to conclude contracts under French law. The services are therefore not accessible to minors except with the authority of their parents or legal guardian. Any minor who accesses the said services will be presumed to be acting under the authority of his or her parents or legal guardian.

Article 3 – WHALLER’s obligations and limitation of warranties

3.1 It is expressly agreed that WHALLER shall not be liable in any way whatsoever for the content which is published on the Website by the members.

3.2 It is expressly agreed that WHALLER shall not be liable in any way whatsoever for the disputes which could arise between members of the Website.

3.3 WHALLER does not warrant the quality of the Internet network or access to it and it cannot guarantee the absence of any interruption to the service itself on the Internet.

3.4 WHALLER shall not be liable for the malfunctioning of hyperlinks on the Website which refer to third-party websites (and which have been integrated by WHALLER itself or by the member or Another User), nor for their content and in particular advertising, products, services and/or any other material available on or from said third party websites.

3.5 WHALLER shall take all the reasonable measures available to it to ensure a quality access to the website and/or to WHALLER’s services. The Site is accessible 24 hours a day, 7 days a week except in the event of force majeure or the occurrence of an event outside WHALLER’s control, and subject to any breakdowns and maintenance work required to ensure that the Website functions correctly. Furthermore, WHALLER cannot be held liable for any malfunction to the network and/or to the servers or to any other event outside its control and which would either prevent or degrade access to the Website and/or to the other services. WHALLER reserves the right to interrupt, temporarily suspend or modify access to all or part of the Website and/or the said services, without notice, to carry out maintenance, or for any other reason, without the interruption giving rise to any obligation or compensation. WHALLER shall not be liable for any loss of any kind, including but not limited to loss of profits, customer churn, loss of data or other intangible assets, loss of earnings or any other loss or prejudice that may arise from the use of, or the inability to access the Website, even if WHALLER has been informed of the potential for such prejudice. In the event that the Website is liable for a violation of one of its obligations under these GTU, compensation shall only apply to direct, material, personal and certain loss, to the express exclusion of compensation for all consequential and immaterial losses and/or prejudice, such as financial and commercial losses, operating loss and loss of turnover, loss of data etc…

3.6 Any commercial dealings whatsoever which the member may have when using WHALLER’s services with WHALLER’s partners or advertisers present on the said services are performed directly with the partners or the advertisers without WHALLER being a party to these dealings Consequently WHALLER shall not be liable for any prejudice which the member could suffer consecutive on his/her dealings with WHALLER’s partners or advertisers.

Article 4 – The Alert Procedure and Reporting Abuse

4.1 The member is asked, within the scope of the Alert Procedure described below, to report any fraudulent use of the Site which he/she is aware of, and in particular any message whose content contravenes the prohibitions set out above or more generally the laws and regulations in force to WHALLER.

4.2 Likewise any person who considers that a right that he/she may hold has been violated on the Website can inform WHALLER of this (in accordance with Article 6-1-5 of the law of 21 June 2004 n°2004-575) by letter with acknowledgement of receipt providing all of the following information : (i) the identity of the notifier (in the case of a natural person: surname, first name, date of birth, nationality, place of residence and profession or, in the case of a legal entity: its form, company name, registered office and the body that legally represents it); (ii) the description of the disputed facts and their precise location on the Website; (iii) the reasons why the content must be withdrawn, including the reference to the applicable legal provisions.

The member is informed that WHALLER can by law, withdraw any information or content, or render access to it impossible as soon as it becomes aware of its manifestly unlawful nature.

Article 5 - Personal Data Protection Policy

The member is informed that WHALLER must, by law, conserve certain personal data which it may have to disclose to the authorities on their request. WHALLER will therefore cooperate in accordance with the laws and regulations (the Personal Data Legislation) with the competent control bodies which could carry out inspections of the content and/or services which are accessible via the Platform or the Services or with illegal activities carried out by any User. WHALLER shall not be liable for disclosing any information in its possession in response to a request by the judicial, police or administrative authorities. The conservation and disclosure of this data is strictly regulated by law.

WHALLER declares that it is compliant with the General Data Protection Regulation (GDPR), in its capacity as data controller.

WHALLER shall therefore keep a register listing all the processing relating to its activity.

WHALLER also takes measures to ensure the security of Personal Data, such as, notably, the pseudonymisation and encryption of Personal Data; means to guarantee the permanent confidentiality, integrity, availability and resilience of the processing systems and services; means to restore the availability of and access to Personal Data within an appropriate timeframe in the event of a physical or technical incident; a procedure to regularly test, analyse and assess the effectiveness of the technical and organisational measures to ensure the security of the processing, in accordance with the obligations in Article 32 of the GDPR. In general, WHALLER shall protect the Personal Data notably to prevent it from being destroyed, lost, altered, or disclosed by third parties and by ensuring that its personnel who are authorised to process the personal data are bound by a contractual or legal non-disclosure obligation. WHALLER keeps the trace of each access to the Personal Information for a period of twelve (12) months and informs the Client of any irregular access.

The Member shall only disclose trustworthy and lawful information and shall inform WHALLER of any modification to this data.

WHALLER reserves the right to use these Personal Data in strict in compliance with the Personal Data Legislation.

Under the provisions of the Personal Data Legislation, the Member may withdraw his/her consent, and exercise his/her right in relation to accessing, querying, modifying, opposing, rectifying, deleting or the portability of his/her data or determine the use which is made of his/her data after death by sending his/her request in accordance with the following procedure: (i) a written request signed by the User and accompanied by a photocopy of an identity document ; (ii) the request is sent to WHALLER at the following address : 3 rue Salomon de Rothschild, 92150 Suresnes. Members can also contact the Data Protection Officer appointed by WHALLER directly at the same address.

Article 6 - Intellectual Property

6.1 WHALLER’s intellectual property. The general structure of the website and all the other components comprising it (such as the graphic charter, texts, photographs, logos, domain name, and all other elements including photographs and images) are the exclusive property of WHALLER or WHALLER has been authorised to use them, prior to any use by it.

Any reproduction and representation, in whole or in part, of the website and/or its component parts by any means whatsoever, without WHALLER’s express permission is therefore prohibited.

Any artificial use of a WHALLER account using automated processes such as robots or scripts or by any other means is strictly prohibited.

The content (other than Member Content and Other Users' content) which is included or accessible on and/or through the Site, including any text, graphics, logos, names, trademarks, designations, tabs, features, images, sounds, data, photographs, graphics, and any other equipment or software ("WHALLER Content") is the exclusive property of WHALLER or its licensees and is protected by intellectual property law and is subject to the laws and regulations which apply in this case. The WHALLER Content may not be downloaded, copied, altered, modified, deleted, distributed, transmitted, broadcast, sold, rented, licensed, or used (in whole or in part) in any way whatsoever without the express written consent of WHALLER or its licensees. The member agrees not to use or operate the WHALLER Content for purposes other than those mentioned in the present GTU. In addition, the member is not authorised to modify, improve, edit, translate, decompile, disassemble, or create one or more work(s) derived from the WHALLER Content (in whole or in part), unless this has been expressly granted to it by WHALLER or by the owners of this/these content(s) in a separate agreement.

6.2 The member’s intellectual property. If the member is registered and holds an account which he/she uses to post his/her content and comments online ("Member Content"), WHALLER does not acquire any ownership rights over the Member Content. When the member makes his/her Member Content available to the other users (either individually or collectively), the member declares that he/she accepts that they have the right, free of charge and exclusively for personal purposes, to view and share his/her Member Content on the Website or from the Website, on other electronic communication media, for the entire time his/her Member Content is hosted on the Website. In addition, during the time his/her Member Content is hosted and within the strict framework of the functionalities enabling the Website to be accessible via the Internet or other electronic communication media, the member authorises WHALLER to reproduce/present his/her Member Content and where necessary, adapt the format for this purpose. The member is also informed that because of the inherent characteristics of the Internet, the data, which is transmitted, and notably his/her Member Content are not protected against the risks of misappropriation and/or piracy and that WHALLER cannot be liable for this. The member is responsible, for, where applicable, taking all appropriate measures to protect these data.

6.3 The intellectual property of the Other Users. Other members and/or subscribers to the Website ("Other Users") may post items or comments in accordance with the GTU and other Specific Conditions. The member shall not access the content of Other Users for any reason other than a personal non-commercial use, as provided for and authorised by the normal functionalities of the Website. If the member wishes to use the content of an Other User for any other use, notably commercial, the member must obtain the Other User’s prior permission.

Furthermore the member shall not export the contents of Other Users to websites constituting or including elements which constitute (i) a violation of the intellectual property rights of third parties, (ii) an attack on persons (including defamation, insults, insults, etc.) or privacy, (iii) an incitement to violence or hatred against any individual or group, (iv) an incitement to cruelty to animals, (v) sexually explicit or strongly suggestive content (vi) an incitement to consume drugs or any other illegal activity, or in general (vii) a violation of public order and morality or, more generally, an infringement of the applicable regulations in force.

Article 7 - Modification of the Website

WHALLER reserves the right to modify its services or the Site, in particular by making new features available or by modifying and/or deleting features which are currently offered to members on the Website.

Article 8 - Termination of an Account by a Member

Except where provided to the contrary, the member may request to unsubscribe from the Website at any time by going to its "My account page".

WHALLER will process any request to unsubscribe from the Website in accordance with the timeframes imposed by law.

WHALLER will inform the member, via an information screen, if it suspends one of the website’s services when the member connects to the said service.

Article 9 – Governing law

These GTU are governed by French law.

Any claim in relation to the application of the GTU must be sent to WHALLER’s Customer Department via the website by clicking on the "Contact" section of the Website or by letter addressed to: WHALLER, 3 rue Salomon de Rothschild, 92150 SURESNES, so that it can be processed as quickly as possible.

In the event of a dispute, the parties shall seek an amicable solution before taking any legal action. If these attempts fail, all disputes concerning the validity, interpretation and/or performance of these General Conditions of Use and Sale must be brought before the French courts, even in the event of multiple defendants or third-party notices.