Effective Date: 14 May 2020
Your acceptance of these Terms of Service with Horseshoe UG (haftungsbeschränkt) (“Detrauma”, “us”, “we” or “our” as applicable), as of the Effective Date and as modified from time to time (“Terms”), is required in order for you to access and use the “Services”, defined as the Detrauma services as enabled by the Detrauma application and/or website presenting these Terms (“App”), including the functionality and Content (as defined below) Detrauma makes available.
If you violate any of these Terms, your permission to use the Services automatically terminates, unless such violation is waived by us in writing at our sole discretion.
You must be over 13 years of age to use the Services. You are allowed to access and use the Services only if you are legally permitted to do so via the laws of your jurisdiction, including laws regarding minimum age requirements. You acknowledge that use of the Services requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator.
1.0 LICENSED RIGHTS TO SERVICES AND CONTENT
1.1 Subject to your compliance with these Terms, particularly sections 2, 4, 6 and 7 below, we grant to you a fee-bearing, non-exclusive, non-transferable right and license to use the Services and access and use the images, audio, video, graphics, text, posts, comments, signals, ratings, and any other text, content, material, information or data accessible via use of the Services, including any of the foregoing from other users (collectively, “Content”). You shall not sublicense, sell access, resell, transfer, distribute, make derivative works or improvements of, monetize or commercially exploit or make available, the Services.
1.2 You hereby grant to us without charge the perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, create derivative works and improvements of, and distribute your Content for purposes of providing, developing, improving, and promoting the Services. You hereby grant to all other users of the Service the perpetual, irrevocable, worldwide, non-exclusive right to access and use your Content as part of the Services. Further, you agree that we are free to use and implement in perpetuity without compensation, attribution or obligation to you any feedback, improvements, recommendations, ideas, and error corrections you voluntarily provide to us relating to the Services.
1.3 No other right or license to the Content is provided, and no other license shall be implied, by course of conduct or otherwise. We retain all right, title and interest in and to the Services, and all associated intellectual property rights. Except as expressly authorized by these Terms, you shall not use, reproduce, or distribute Content contributed by other users or by us.
2.0 TERMS APPLICABLE TO CONTENT
2.1 All Content, whether publicly posted on or privately transmitted via the Services, is the sole responsibility of the user from which such Content originated. You are entirely responsible for all Content that you contribute. You shall not transmit Content or otherwise conduct or participate in any activities via the Service which, in our sole judgment, is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction.
2.2 You agree not to upload, download, display, or distribute any Content or otherwise engage in any activity in connection with the Service that:
(a) is hateful, offensive, libelous, defamatory, obscene, pornographic, lewd, abusive, erroneous, or threatening;
(b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil or criminal liability, or otherwise violate any applicable local, state, national, or foreign law or regulation;
(c) promotes illegal or harmful activities or substances;
(d) constitutes infringement of the intellectual property rights of any party;
(e) creates an impression that is incorrect, misleading, or deceptive, including by impersonating others or otherwise misrepresenting your identity or affiliation with a person or entity;
(f) is for the purpose of soliciting other users to join commercial organizations or groups other than groups established pursuant to the Services; and
(g) reveals other people’s private or personally identifiable information without their express authorization and permission.
You represent and warrant that all Content you submit is accurate and not misleading to the best of your knowledge, is not confidential, and is not in violation of these Terms or third party rights.
We may, in our sole discretion, terminate the Services as to any Content that we believe in our sole judgment is not in compliance with these Terms. We may preserve and disclose Content if required to do so by law or judicial or governmental mandate or as reasonably determined useful by us to protect the rights, property or safety of Detrauma, users and/or the public.
2.3 You may be exposed to Content that is offensive, indecent, objectionable, false or erroneous. You must evaluate, and shall bear all risks associated with, the use of any Content, including any reliance on the accuracy, quality, integrity, completeness, or usefulness of such Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of your Content, failure to comply with or enforce these Terms, or for any act, omission, or conduct of any other user.
2.4 Detrauma, any Service, other users, or a third party may provide links to other websites or login access via such links. Such third party links and services shall not be construed as an endorsement, sponsorship, or affiliation. We exercise no control whatsoever over such other non-Detrauma websites, services and web-based resources and are not responsible or liable for the availability thereof or the content, advertising, products or other materials thereon, or for any damage or loss incurred or suffered by any user in connection therewith. Your access and use of same, including information, material, products and services therein, is solely at your own risk.
2.5 We do not guarantee the authenticity of the identity of any user. Users are solely responsible for authenticating the identity of other users. You acknowledge that identities may be concocted and that other users may be acting under false pretences or acting without authority.
3.0 REGISTRATION DATA AND SIGN-ON CREDENTIALS
You will receive, or will be permitted to create, username information (“Sign-On Credentials”). If you create your own Sign-On Credentials, such Sign-On Credentials are subject to our approval and we reserve the right to refuse or revoke any Sign-On Credentials at any time and for any reason.
You are wholly responsible for maintaining the confidentiality of your Sign-On Credentials and wholly liable for all activities occurring under such Sign-On Credentials. You shall not transfer to any party your Sign-On Credentials, or use the Sign-On Credentials of another, without our prior written consent. You shall immediately notify us at email@example.com of any unauthorized use of Sign-On Credentials or any other breach of security. We will not be liable for any loss or damage arising from failure to comply with this section or from unauthorized use of the Sign-On Credentials.
You can create your Sign-On Credentials via the website, or through your account with a third party such as Facebook or Google. If you choose the third party account option, we will create your Sign-On Credentials by extracting from your third party account certain personal information such as your name and email address and other personal information that your privacy settings on your third party account permit us to access.
You must provide us with accurate, complete and up-to-date information for your Sign-On Credentials and must update such information, as needed, to keep it accurate, complete and up-to-date. If you do not do so, we may have to suspend or terminate your Sign-On Credentials.
4.0 SITE AND SERVICE INTEGRITY
4.1 You shall not use the Services or engage in any activity that in any manner could damage, disable, overburden, or impair the Services, or any Detrauma server, or the network(s) connected to any Detrauma server, or interfere with any other party’s use and enjoyment of the Services. You shall not attempt to falsify or alter Content posted by others except via normal and intended operation of the Services. You may not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers or to any of the Services, through hacking, password mining or any other means, or exploit bugs or weaknesses in the Services.
4.2 You are prohibited from violating or attempting to violate any security features of the Services, including, without limitation:
(a) accessing Content not intended for you, or logging onto a server or account that you are not authorized to access;
(b) attempting to probe, scan, or test the vulnerability of the Services, or any associated system or network, or to breach security or authentication measures without proper authorization;
(c) interfering or attempting to interfere with Services to any user, host, or network, including, without limitation, by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”;
(d) using the Services to send unsolicited messages, including, without limitation, promotions or advertisements for products or services;
(e) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity;
(f) forging any TCP/IP packet header or any part of the header information;
(g) accessing or tampering with non-public areas of the Service, our computer systems, or the technical delivery systems of our providers;
(h) accessing or searching the Service by any means (automated or otherwise) other than through the currently available, published interfaces that are provided by us (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with us; or
(i) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by us in providing the Services.
4.3 You shall not engage in harvesting or other collection of information about other users, without our prior and each such user’s prior written consent. You agree not to use or launch any automated system, including without limitation, “robots”, “spiders”, “crawlers”, data mining tools etc. that accesses the Services, including in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using conventional on-line web browsers.
4.4 You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services. The Services are for your personal and individualized use only. Without limiting the generality of the foregoing, you shall not publish, distribute or transmit to the general public via any medium, whether via print, online, or otherwise, the Content or Services, except through or as otherwise authorized by us, and you shall not engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Services. You may not use any meta tags or other hidden text or metadata utilizing any Detrauma trademark, logo URL or product name without our express written consent. You shall not remove any copyright, trademark or other proprietary rights notices visible via use of the Services.
4.5 While we will use reasonable efforts to back up site data and make such data available in the event of loss or deletion, we have no responsibility or liability for the deletion or failure to store any Content. It is your sole responsibility to back up all your Content. We have no obligation to store, maintain or provide you a copy of any Content that you or other users provide when using the Services. We reserve the right to mark as “inactive” and archive Detrauma accounts that are inactive for an extended period of time. Further, Detrauma may monitor and collect information (including but not limited to technical and diagnostic information) about your usage of the Services in order to improve the Services and to verify compliance with these Terms.
4.6 Because no online system is perfectly secure or reliable, the Internet is an inherently insecure medium, and the reliability of hosting services, Internet intermediaries, your Internet service provider, and other service providers cannot be assured, you accept security risks, and the responsibility for choosing to use a technology that does not provide perfect security or reliability.
5.0 DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION
5.2 DO NOT RELY ON THE SERVICES, ANY INFORMATION THEREIN, OR ITS CONTINUATION. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND we ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE of the services or TO STORE OR DISPLAY ANY content, user COMMUNICATIONS OR PERSONALIZATION SETTINGS. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM use of the services. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, title AND NON-INFRINGEMENT. Specifically, we make no warranty that
(a) the Service will meet your requirements, goals or needs,
(b) Services access will be uninterrupted, timely, secure or error-free, or
(c) any errors or deficiencies will be corrected.
Further, scheduled and preventive maintenance as well as required and emergency maintenance work may temporarily interrupt services or access to the website. We reserve the right to discontinue or change the Service in any way and at any time, with or without notice to you, without liability.
5.3 We do not represent or warrant that Content available on or from the Service are accurate, complete, reliable, current or error-free or that the Services are free of viruses or other harmful components and, accordingly, you should exercise caution in the use and downloading or use of same. You download, access or otherwise obtain Content from the Service at your own discretion and risk and you are solely responsible for your use thereof, and any damages to your computing device, and any loss of data, and any other damage or harm of any kind, that may result therefrom.
5.4 Excluding only damages arising out of our gross negligence, fraud, or wilful misconduct, we shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of revenue, profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), resulting from use or inability to use the Content or any Service; the cost of procurement of substitute services; unauthorized access to or alteration of a user’s Content; statements or conduct of any third party on the App or any Service; or any other matter relating to Detrauma, Content or the Service. Any liability to you or any third party in any circumstance is limited to US$50 in the aggregate. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
5.5 You agree to defend, indemnify, release and hold harmless us, our suppliers, and all officers, directors, employees, consultants, agents, and representatives of any of the foregoing (collectively “Indemnified Parties”) from and against any and all claims (including third party claims), losses, liability, damages, and/or costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with:
(a) your unauthorized access to or use of, the Content and Services,
(b) your violation of these Terms, or
(c) your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. Further, in the event you have a dispute with one or more other users, you hereby release the Indemnified Parties from claims, demands and damages (actual, direct and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, foreseeable and unforeseeable, arising out of or in any way connected with such disputes.
We have certain products that you may optionally purchase using the purchase facilities on app stores.
Fees and any other charges for the use of the Services, if any, are described on the app stores. Fees may change from time to time. If we change fees or charges, we will give you reasonable notice. If they do change, your continued use of the App after the change indicates your agreement with the new fees and charges after the effective date of the change. Any change to fees and other charges will not be applicable to the billing period in which the change occurs. We reserve the right at any time to correct any inadvertent pricing errors, to change or revoke any limited-time offer, and to correct any errors or inaccuracies in the App. You are responsible for all taxes applicable to the fees in any applicable jurisdiction.
7.0 GENERAL PROVISIONS
7.1 Service Discontinuance.
We may from time to time modify or discontinue, temporarily or permanently, access to the App or any Service thereon (or any part, feature, or functionality thereof). We shall not be liable for any such modification, suspension or discontinuance.
7.2 Account Termination.
We reserve the right, in our sole discretion, to remove or reject any Content by you, or to deny, restrict, suspend, discontinue, or terminate your account or access to the Service or any portion thereof at any time, with or without prior notice or explanation, for any or no reason, and without liability. We may additionally terminate your account for cause, including for:
(a) violation of these Terms;
(b) abuse of Service resources or any attempt to gain unauthorized entry to the App or Services;
(c) use of the App or any Service in a manner inconsistent with the purpose of the Services;
(d) your request for such termination; and
(e) the requirements of applicable law, regulation, court or governing agency order.
Our termination of any user’s access to the App or any Service may be effected without notice and, on such termination, we may immediately deactivate or delete any user’s account and Content, and/or bar any further access to the App and Services. We shall not be liable for any termination of access to the App or Services.
You are granted no right, title or license to any third party trademarks by these Terms, or to any of our trademarks or servicemarks except as expressly set forth in these Terms. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers, including Detrauma.
7.4 US DMCA.
If you believe that your work has been copied and is accessible on this site in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following in writing:
a) identification of the copyrighted work that you claim has been infringed;
b) identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material;
c) your name, address, telephone number, and email address;
d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
e) a statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf. The above writing must be electronically or physically signed by you. If we receive such a claim, we may refuse or delete Content as described under this section hereto, or terminate a user’s account in accordance with these Terms.
Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 can be contacted via firstname.lastname@example.org and is located at Detrauma UG (haftungsbeschränkt), August-Bebel-Strasse 86, 14482 Potsdam, Germany.
In addition to forwarding your notice to the person who provided the allegedly illegal content, we may send a copy of your notice (with your personal information removed) to Lumen (www.lumendatabase.org) for publication and/or annotation. We reserve the right to remove Content alleged to be infringing or otherwise illegal without prior notice and at our sole discretion. In appropriate circumstances, we will also terminate a user’s account if the member is determined to be a repeat infringer.
7.5 Governing Law.
These Terms, the Services, the App and Content, and any disputes related to or concerning any of the foregoing (including tort as well as contract claims, and whether pre-contractual or extra-contractual) shall be governed by the laws of Germany. The choice of law rules of any jurisdiction, the United Nations Convention on Contracts for the International Sale of Goods, and the American Law Institute’s Principles of the Law of Software Contracts shall not apply and neither party shall invoke any of the foregoing in any proceeding between the parties. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms, the Services, the App or Content, must be filed within one (1) year after such claim or cause of action arose, or be forever barred.
7.6 Dispute Resolution.
Any disputes between or claims brought by you or us arising out of or related to these Terms, the Services, the App or Content (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes) shall be referred to and finally settled by binding arbitration before the International Court of Arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) in effect at the time of arbitration except as inconsistent with this section. The arbitration shall be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings shall be held in Berlin, Germany. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, shall be kept confidential. Except as required by law, no party shall make any public announcements with respect to the proceeding or the award, except as required to enforce same. You and we agree that by entering into this Agreement, the parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Notwithstanding the foregoing, nothing in this section shall preclude the right and ability to file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto. All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers’ fees and costs, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim.
These Terms shall not be assigned, delegated, or transferred by you, in whole or in part, whether voluntary, involuntary, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent shall be void. We may at any time assign these Terms without prior consent or notice. These Terms shall be binding on, and inures to the benefit of, the parties and their respective and permitted successors and assigns.
7.8 Injunctive Relief.
You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the Content, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we shall be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
The Terms constitute the entire agreement between you and us and govern your use of the Services, superseding any prior agreements. You may be subject to additional terms and conditions that may apply when you use affiliate or third party content or services. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. No waiver of any provision of these Terms shall be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Nothing herein shall be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party.
END OF TERMS OF SERVICE