Terms and Conditions (GTC) of calimoto GmbH

General Terms and Conditions (GTC)

of

calimoto GmbH

 

 

(as on November, 2017)


1. Scope

1.1. These Terms and Conditions regulate the business relations between
calimoto GmbH, with headquarters in Berlin, registered in the local court
of Charlottenburg under number HRB 175693 (in the following: “calimoto“)
and the persons who make use of the application by calimoto described
below.

1.2. The term “application“ as used in the following refers to the mobile
and web applications offered by calimoto and imply the functions and
services belonging to them, regardless of the used domains, systems,
platforms or devices.

1.3. The term „content“ resumes all the content either being transmitted by
users within the application or being other content being delivered to
calimoto like for example pictures, videos, texts, links, and information
about persons, places or tours.

1.4. The term “function“ shall be understood as separate service and
application areas and their respective content (e.g. map presentation,
picture upload, commenting on tours, etc.).

1.5. “Users“ are within the meaning of these Terms and Conditions all
persons who make use of the application offered by calimoto.

1.6. All terms and definitions used, like for example „user“, shall be
neutral in gender.

1.7. The user accepts these Terms and Conditions by using the application.
Contrary or alternative conditions proposed by the users shall not be
recognized, unless calimoto agreed on and accepted them expressly. The lack
of objection does not mean in any way acceptance or consent.


2. Limitation on
adult, natural entities

2.1. This application may only be used by natural entities. The users have
to have reached the age of 16 or have the authorization by their parents or
their legal guardian. They confirm this with the registration to this
service.

2.2. calimoto reserves the right to demand a proper confirmation of these
conditions from the users.


3. Scope of Service
and Changes

3.1. This application implies different functions. Some of them are freely
available; some of them require a registration, signing up for a premium
membership or the purchase of specific function packages.

3.2. Users will be informed separately about the actual costs and have to
give their expressed consent on the purchase.

3.3. The purchase of the paid features is done by so called “in-app
purchases“ in the respective app stores which offer the application (in
particular the Google PlayStore and the Apple AppStore). The purchasing
process is takes place directly between the respective user and the
particular app store. For these processes, the terms of payment, rights of
revocation and other regulations of the respective app store shall apply.

3.4. The functions offered within this application imply amongst others the
providing of street and landscape maps (in the following resumed as “maps“)
for creating and displaying individual or already prepared tours with
detailed information about the route (like route profile, length of the
tour, description of it in textual and visual form, pictures and/or videos
of the respective individual or selected tour), as well as acoustic and
visual direction commands of the created or selected tours. calimoto
especially offers the possibility to create individual user tours, the
selection of tours which individually match the user’s preferences and
tastes, such as detailed information about the respective selected tour
(like route profile, length of the tour, description of it in textual and
visual form, pictures and/or videos of the respective tour).

3.5. Furthermore, the services imply community functions which allow an
exchange of information between the users such as sharing content among
each other and in public.


4. Registration

4.1. Each user may only register once and only create one user profile.

4.2. Users have no legal claim of registration in order to use the
functions and content for registered users. Therefore, according to the
legal requirements, calimoto reserves the right to refuse a requested
registration with a corresponding message without giving any reason.

4.3. After the successful registration the user submits an offer for
signing an agreement for using the functions that need registration.
calimoto accepts this offer by activating the user account for the
application.

4.4. calimoto is authorized to eliminate irreversibly the incomplete
account including all the information inserted by the user, if the process
of registration isn’t undergone completely.

4.5. The user informs calimoto about his actual email address which can be
used by calimoto in order to contact the user. The user is responsible for
keeping the email address updated and for protecting the access data from
the access of third parties.


5. Changes in the
Scope of Service from calimoto

5.1. One of the key aspects of calimoto’s offered services is the constant
development of the application. This development implies eventual adaptions
to the technical and legal progress and the consideration of the users’
expectations in the use of the application.

5.2. In connection with the continuous development, calimoto is allowed to
change the application as well as its functions without creating a lack or
defect, as long as this change is reasonable and doesn’t threaten the
contract purpose. In the case of users who are consumers, these reasonable
changes in the paid features imply:
– Changes who benefit the user;

– If the change is for adapting the services with the applicable law in
order to create an accordance, in particular if the legal situation has
changed;

– If the change is necessary for calimoto in order to fulfill judicial or
administrative decisions;

– If the change is necessary in order to close existing security gaps;

– If the change is purely technical or of procedual structure without
significant impact on the user;

– Changes without significant impact on the functions do not count to
changes in the in this sense. This is valid in particular for visual
changes and simple changes in the order of the functions.

5.3. calimoto informs that the access to the freely available functions is
not guaranteed. Any kind of restrictions may only be done if reasonable.

6. Temporal availability

The user acknowledges, that calimoto technically cannot guarantee the
uninterrupted operation of its own website, the third-party applications
and/or the own application (for example the tracking of location data by
GPS, visual and acoustic guidance and evaluation of sensor data). The user
therefore cannot claim the right for calimoto and its permanent
availability. calimoto reserves the right in particular, to restrict or
temporally suspend the application for purposes of maintenance, safety or
capacity according to their own judgement.


7. Regulations on users’ content and responsibility

7.1. calimoto is not responsible for the content of their users and
therefore does not recognize the content as its own.

7.2. calimoto reserves the right to not publish content, to undo the
publication of content, to block or delete content in any other way where
legally permitted and according to the reasonableness and in particular in
accordance to the Privacy Policy and the users’ personal rights, where
there is concrete, objective evidence of content violating official or
legal regulations, the rights of third parties or if they are immoral.
calimoto is not obligated to control content in advance.

7.3. The user makes a commitment about not publishing or sharing unlawful
content, in particular racist, pornographic, insulting or libelous content,
or content violating the rights of third parties, in particular copyrights
and copyrighted rights. Accordingly, the user is fully responsible for all
content he publishes and shares on the platform of calimoto.

7.4. If users upload pictures where one or more persons can be identified,
this may only happen with the permission of the third party or if it is
permitted legally.

7.5. If a user gets informed about or acknowledges on any other way that
his content has violated the current legislation, he has to immediately
delete the content from the platform of calimoto.

7.6. If users can contact other users within the application of calimoto,
they may not molest them in any way (for example with advertisement,
sexually understandable requests or repetitive requests when there is no
response or when the wish has been expressed not to be contacted).

7.7. For United States users: Under the Federal Communications Decency Act
of 1996, calimoto is not legally responsible, nor can it be held liable for
damages of any kind, arising out of or in connection to any defamatory or
otherwise legally actionable remarks, information, feedback or other
content made available on the application.


8. Usage Authorization
and extent of utilization

8.1. calimoto informs that the users may only use the application for the
personal purposes according to the contract.

8.2. Furthermore, users are not allowed to rent, confer, lease, sell,
change or give third parties access to the abovementioned aspects in any
technical way to the application, neither free of charge nor in return for
payment, without the expressed written permission by calimoto. The
prhobitons mentioned above are subject to mandatory legal requirements,
sublicences may not be given.

8.3. Sharing the application for example by sharing or making the access
data public with more persons is not allowed. This is also valid if the
persons do not use the application at the same time. If it is reasonably
certain that an account is used by more persons, we reserve the right to
disable the account. The user can enter an objection against the blocking.

8.4. Users may only use the application over the offered input masks and
interfaces (for example shall tours only be exported by the offered export
option to other devices). Actions that may harm the functionality of the
application, the software and the infrastructure, are forbidden (e.g.
scripts, robots, crawlers). An excessive load which is above the regular
frequency and intensity of use of the application is also forbidden in
particular.


9. Exemption

9.1. The users exempt calimoto from any claims that third parties may claim
because of a violation of their rights.

9.2. Insofar, users have to take the costs of an eventual necessary legal
defense including the costs for lawyers and court costs. An exemption by
the users does not take place if they are not responsible for the violation
of rights.


10. Concession of
rights of use by users

10.1. The following concession is non-exclusive; this means users keep the
rights on their content.

10.2. The users give calimoto the right to use their legally protected
content, as long as it is necessary for the fulfilling of their contractual
obligations. This permission implies in particular to reproduce content and
make it public in order to save it on the servers of calimoto, to create
server backups or to give users access to the content by functions for
sharing.

10.3. This usage authorization is free of charge, undetermined by date and
place, non-exclusive and valid for all currently known types of use and
implies, if technically applicable, the reproduction, distribution,
digitalization, exhibition, presentation, transmission, the publicly
available making, public communication by vision, sound and data carriers,
the storage in data bases as well as the analogue and digital usage.

10.4. calimoto may commission third parties in order to exercise these
usage rights in the scope of the legal regulations (for example by
commissioning a subcontractor).

10.5. The user content may be edited or changed while protecting users’ the
personal rights (e.g. texts may be shortened ad published as teasers).

10.6. Furthermore, calimoto only uses these rights considering the
contractual and legal regulations about confidentiality and privacy as well
as the rights of objection.

10.7. The users give calimoto free of charge the non-exclusive and by time
and space unlimited right to reproduce, share, publish or edit the tour
data they generated in any other way, to use it or to make it available to
third parties free of charge or fee required, like for example location and
motion data as well as data about localities, in anonymized form even after
cancellation of the contract.


11. For United States
users: Trademarks and Intellectual Property

11.1. Trademarks. Calimoto and all other graphics, logos, page headers,
button icons, scripts, service names and other content that we use, manage
or control are trademarks, registered trademarks or trade dress of ours or
our subsidiaries, officers, employees, independent contractors, suppliers,
representatives, licensors, licensees, successors, assigns, agents,
partners, or other affiliates (collectively “Affiliates”) in the United
States or other countries or both. No one may use these trademarks or trade
dress in connection with any product or service that is not our product or
service without our express written permission. All other trademarks that
appear on the application are the property of their respective owners, who
may or may not be affiliated with, connected to, or sponsored by us or any
of our Affiliates.

11.2. Copyright. Except for content under license to us, we claim copyright
and all copyright protection afforded, under international law and United
States law relating to all text, graphics, logos, button icons, images,
audio clips, digital downloads, data compilations, software (ours or our
software suppliers), and all other content on the application. The
compilation of all content on the application is our exclusive property,
and it is similarly protected. We also claim a copyright, and all copyright
protection afforded, under international law and United States law to all
material described in the trademarks section above. Your access to all
information and content located on the application is strictly permitted
through the license granted to you under these Terms. Except for the
license granted to you and for the licenses granted to us in these Terms,
all rights, title, and interest in content, in all languages, formats, and
media throughout the world, including all copyrights, are and will continue
to be the exclusive property of ourselves and other parties. Except as
permitted by these Terms, you are prohibited from modifying, copying,
distributing, displaying, publishing, selling, licensing, creating
derivative works, or otherwise exploiting any content available on or
through the application without our prior written permission, or in the
case of content owned by a third party, without first receiving permission
from the owner of that content. You may not alter or remove any trademark,
copyright or other notice from copies of the content.

11.3. Infringement Claims. We respect the intellectual
property of others and ask that users do the same. In connection with the
application, we have adopted and implemented a Digital Millennium Copyright
Act (“DMCA”) policy respecting intellectual property that provides for the
removal of any infringing or unauthorized materials and for the termination
of a user’s ability to use our application, in appropriate circumstances,
if we determine that a user is infringing on the intellectual property
rights of others. If you believe that a user is, through the use of the
application, unlawfully infringing by submitting unauthorized content, and
wish to have the allegedly infringing or unauthorized material removed, the
following information in the form of a written notification (pursuant to 17
U.S.C. § 512) must be provided to our designated copyright agent
(“Designated Agent”): your physical or electronic signature; identification
of the works or rights that you claim to have been infringed;
identification of the content on the application that you claim is
infringing and that you request us to remove; sufficient information to
permit us to locate such content; your address, telephone number, and
e-mail address; a statement that you have a good faith belief that use of
the objectionable content is not authorized by the copyright or other
rights owner, its agent, or the law; and a statement that the information
in the notification is accurate, and that, under penalty of perjury, you
are either the owner of the copyright or other right that has allegedly
been infringed or violated or that you are authorized to act on behalf of
the copyright or other rights owner. Note that, pursuant to 17 U.S.C. §
512, any misrepresentation of material fact in a written notification
automatically subjects the complaining party to liability for any damages,
costs, and attorney’s fees incurred by us in connection with the written
notification and allegation of copyright infringement.

11.4. Our Designated Agent is:

Hans-Joachim Allenfort

calimoto GmbH

Brandenburger Straße 5a

14467 Potsdam (Germany)

Email: support@calimoto.eu


12. Careful tour selection by the user, Principle of personal
responsibility

12.1. The user acknowledges the fact, that the successful drive of a tour,
regardless of if it is individually created by the user or if it is a
selected tour, depends most of all on his driving skill, the used vehicle,
as well as inner and external influences (weather, traffic situation,
physical condition). The user takes full responsibility for choosing the
right tour and the right way to drive regarding the abovementioned
conditions.

12.2. Accordingly, calimoto does not take any responsibility and liability
for

– making sure that the user has the physical and mental ability to drive
the tour he chose with a motorcycle, a two-wheeler or any other vehicle;

– making sure that the user is equipped appropriately for the tour he
chose;

– if the respective weather conditions allow the user to drive down a tour
he chose without having more risk for his life, body and health in the road
traffic than the usual elevated risk for motorcycle drivers;

– correct information about the route or ubication;

– for the permission to use the visual and acoustic commands according to
the relevant road traffic regulations and only in accordance with the
abovementioned conditions and technical tools;

– the possible need of a specific mount for the used device in order to
record sensor data, whereby the user shall consider the technical data and
the manufacturer specifications, as well as the legal requirements.

12.3. The user acknowledges that a tour offered by calimoto, for whatever
reasons, might be subject to temporal or long-term road closures (e.g. by
local authorities because of natural events, traffic disruptions of any
kind, etc.). It is the user’s full responsibility to pay attention to the
local (administrative) orders about the road closures and to pay attention
to warnings (for example from the internet, radio or TV about natural
events and traffic disruptions of any kind) and to adapt his actions and
behavior to them.

12.4. The user acknowledges that the road traffic regulations (in
particular the StVO) have full priority before any kind of command by the
route navigation from calimoto.

12.5. calimoto does not warrant or guarantee the full access, to the public
or to other users, to content being sent to the calimoto system or being
forwarded over it by users or other third parties including devices
connected to them (for example cell phones). calimoto especially does not
warrant the completeness and correctness of content being made available
for use from users to other users. The usage of third-party content may be
subject to further Terms and Conditions which can be accessed by the user.

12.6. The following regulations about liability of calimoto remain
unaffected from the regulations made under this number.


13. Liability by
calimoto

13.1. For all users, except United States users: For damage caused by
slightly negligent violations from calimoto of their obligations, calimoto
is liable in so far as it is a foreseeable and contract-typical damage
which has been a direct result of the breach of duty. In particular, the
liability of data loss will be limited to the typical recovery effort which
would be the case if regular backup copies would have been made,
appropriate to the level of risk. Is the slightly negligent violated
obligation of minor importance, calimoto is not liable.

13.2. For all users, except United States users: The abovementioned
limitation of liability also implies

any possible compensation claims by the users for the compensation of such
expenses he had, trusting in the receipt of a contractual performance and
which reasonably could be done. calimoto shall be unrestrictedly liable in
case of damages for harm to life, body and health, should the cause of the
damage be based on intent or gross negligence by calimoto or one of its
legal representatives or the respective vicarious agents, as well as
calimoto is unrestrictedly liable for any further damages caused by intent,
grossly negligent violation of the obligations or by fraudulent intent of
the abovementioned persons. Furthermore, calimoto is liable for damage that
are implied in the mandatory legal liability and under any guarantee
assumed by calimoto. As long as nothing else has been determined in the
above mentioned, there is no liability in any other case irrespective of
their legal grounds.

13.3. For United States users: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO
EVENT SHALL WE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES, ARISING
OUT OF OR RELATED TO (A) THESE TERMS, (B) CONTENT AND/OR YOUR USER CONTENT,
(C) THE APPLICATION, AND/OR (E) ANY ASPECT OF THE APPLICATION, HOWEVER
CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, BREACH
OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR
OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR
PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
LIMITATION MAY NOT APPLY TO YOU. In no event shall our total liability to
you for all damages exceed an amount greater than $125 USD. The foregoing
limitations will apply even if the above stated remedy fails of its
essential purpose.

13.4. For United States users: You agree to indemnify, defend, and hold
harmless us and our affiliates from and against any and all claims, losses,
expenses, damages, and costs (including, but not limited to, direct,
incidental, consequential, exemplary, and indirect damages), and reasonable
attorneys’ fees, resulting from or arising out of, under, or relating to:
your use, misuse, or inability to use the application; any infringement of
a third party’s rights (including but not limited to intellectual property
rights); a breach of a representation or warranty made by you; your user
content; any defamatory, offensive, fraudulent, or illegal use of the
application by you; any improper disclosure of content by you; and any
violation by you of these Terms, our Privacy Policy, any of our other
Policies.

13.5. For United States users: To the maximum extent permitted by
applicable law, YOU ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT,
YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO
RELEASE, WAIVE, AND DISCHARGE all claims, actions, demands, suits, or
proceedings (“Claims”) against US and our AFFILIATES, including any and all
liability for actual and/or consequential damages, costs, and expenses
(including litigation costs and attorneys’ fees) of every kind and nature
arising from or in any way related to (a) THE APPLICATION, (B) CONTENT,
ANd/OR YOUR USER CONTENT, and/or (c) any inaccuracy, untimeliness, or
incompleteness of ANY AND ALL CONTENT obtained or accessed by or through
the application. FURTHER, if YOU ARE A RESIDENT OF THE STATE OF CALIFORNIA,
you waive your rights under California Civil Code Section 1542, which
states, “A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have materially
affected his or her settlement with the debtor.” You understand that any
fact relating to any matter covered by THESE TERMS may be found to be other
than now believed to be true, and accept and assume the risk of such
possible differences in fact. In addition, you expressly waive and
relinquish any and all rights which you may have had under any other state
or federal statute or common law principle of similar effect, to the
fullest extent permitted by law.


14. Warranty

14.1. calimoto makes efforts to keep the application available constantly.
Nevertheless, the user recognizes that the complete availability cannot be
realized technically. Especially maintenance, safety and capacity issues
which are not within the control of calimoto (e.g. disruptions to public
communication networks, electricity outages, etc.) can lead to temporary
non-availability of the application.

14.2. To users who are entrepreneurs apply the commercial duties to
examination and notification. Any claims of defects in case of entrepreneur
users shall be statute-barred within twelve months, with exception of
fraudulently concealed defects.

14.3. In other respects, the statutory warranty is valid.


15. Sanctions

15.1. Because of the essential importance of the functionality and
integrity of the application, any users being subject to concrete
indications about violating legal provisions, rights of third parties, the
good morals and/or the General Terms and Conditions, will be sanctioned.

15.2. The imposed sanctions shall be based on the factual circumstances,
the legitimate interests of the concerned parties and be in consideration
of whether an accidental misconduct is involved or a deliberate violation.

15.3. The following gradual range of sanctions can be used:

– Deleting content.

– Admonishment of a user.

– Limitation or restriction of the use of the application.

– Block a user temporarily.

– Final exclusion of a user, eventually combined with an exclusion order.

15.4. The legal provisions regarding the right to terminate shall not be
affected by the agreements made as specified above.


16. Termination of the
Contract

16.1. The registered user is allowed to terminate the contract about usage
of the application with calimoto at any time.

16.2. calimoto on the other hand is only allowed to properly terminate the
contract with a notice period of two weeks. This provision shall not affect
calimoto’s right to declare an immediate extraordinary termination to the
concerned user if an important reason is given. In particular, an important
reason is given, if the circumstances lead to the assumption that the
concerned user has acted in an unlawful way within the use of the platform
of calimoto, especially if inserted content into the system of calimoto
which violates the property rights of third parties or if he registered
with several profiles.

16.3. The termination has to be made in text form at least. Deleting the
application from the user’s device does not mean a termination declaration.

16.4. It is the responsibility of the users to save their data before the
end of the contract in case of a termination. calimoto is permitted to
delete irreversibly any kind of data stored while the period of the
contract.

16.5. All of the content and personal information will be deleted with the
termination of the contract. Shared content or comments will be excluded
out of respect for other users, so that conversations, advice or other
content does not lose its value or reverse their meaning. In this case the
user’s name will be anonymized. The users have the right to demand the
deletion of their remaining personal data.

17. Modification of the GTC

17.1. calimoto reserves the right to modify the
GTC at all times with future effect, unless the modification would be
unreasonable to accept for the user. In the case of users being consumers,
the GTC may be changed in these cases:

– If the change is for adapting the services with the applicable law in
order to create an accordance, in particular if the legal situation has
changed;

– If the change is necessary for calimoto in order to fulfill judicial or
administrative decisions;

– If there are completely new services or elements of service from calimoto
as well as technical or organizational processes demand a description in
the General Terms and Conditions;

– Changes who just benefit the user.

17.2. In such cases, calimoto will either send the GTC to the email address
the user has indicated with two weeks in advance before the GTC takes
effect or with a notification dialogue within the application.

17.3. If the user does not object to the new GTC within the two weeks after
receiving the email or reading the dialogue within the application, the
changed GTC are taken as accepted. calimoto will inform the users along
with the change notification about the consequences of an omitted
objection.

17.4. If the user objects the new GTC within the given period, calimoto has
the permission to properly terminate the contract with the user within one
week.

17.5. The users can also accept the new GTC with an express consent.


18. For United States users: Compliance

18.1. You represent and warrant that you shall comply with all applicable
laws, statutes, ordinances, and regulations regarding use of the
application, regardless of your geographic location. We will cooperate with
law enforcement agencies in any investigation of alleged unlawful activity
of which we are made aware of regarding the use of our application and may
contact law enforcement if we are made aware of any use of our application
which potentially violates any applicable laws, statutes, ordinances, or
regulations. We make no representation that the application is operated in
accordance with the laws or regulations of, or governed by nations other
than the Federal Republic of Germany. By accessing the application you
certify that you meet your country’s and our express age and other
eligibility requirements for use of the application. Those who access or
use the application do so of their own volition and are entirely
responsible for compliance with applicable law.

19. Final Provisions

19.1. The contractual relationship with calimoto is not transferable to
other persons or companies.

19.2. In the case of entrepreneurs, the law of the Federal Republic of
Germany is valid as long as no mandatory statutory provisions dictate
otherwise.

19.3. Place of performance for users who are entrepreneurs is Berlin. If
the user is merchant, legal entity of public law or a special public fund,
or has no general place of jurisdiction within the Federal Republic of
Germany, the place of jurisdiction is Berlin. calimoto reserves the right
to permit his claims at any other permissible place of jurisdiction.

19.4. For United States users: We are an
independent contractor only. These terms do not create any
employer-employee, agency, joint venture, or partnership relationship.

19.5. For United States users: If the application is being acquired on
behalf of the United States Government, then use, duplication, or
disclosure of our application by the United States Government is subject to
restrictions set forth in these Terms and as provided in the Federal
Acquisition Regulations and the Defense Federal Acquisition Regulation
Supplement, as applicable.

19.6. The contractual languages are German and English.

19.7. Platform of the European Commission for Online Dispute Resolution for
consumers is: https://ec.europa.eu/consumers/odr/

calimoto is not obligated and not willing to participate in a dispute
resolution before a consumer conciliation body.