PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE PLATFORM OR ANY PART OF THE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS TOUC. If you are not eligible, or do not agree to this TOUC, then you do not have our permission to use the Platform or any part of the Platform.
You acknowledge and agree that, as provided in greater detail in this TOUC:
- any Client and any App is licensed, not sold to you;
- you may use the Platform only as set forth in this TOUC;
- the Platform is provided “as is” without warranties of any kind and Dromni’s liability to you is limited;
- disputes arising under this TOUC will be resolved by binding arbitration, and by accepting this TOUC, as described in greater detail in Section 26, you and Dromni are each waiving the right to a trial by jury or to participate in a class action.
In the very early status of development of the current software, Dromni GmbH does not provide safety and security measures. If you use the software provided in the beta phase your recorded content will be sent unencrypted over public servers and no backups of your data will be created. Dromni GmbH will not be responsible or liable in any way for data theft, unauthorized copies or lose of data during the beta phase. In addition, Dromni GmbH does not control the content in a regular basis. Please be aware that some content are not in line with our guidelines. Please let us know if any of the content on our platform violates the rules.
Use this information at your own risk.
1. Platform Overview
Dromni is a platform for experiencing, creating, and publishing 3D reality captures and experiences. Users can create, share, and interact with virtual worlds and avatars.
You must be at least 13 years of age to use the Platform. By agreeing to this TOUC, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Platform; and (c) your registration and your use of the Platform complies with all applicable laws and regulations. If you are at least 13 but are under the age of 18, you may only use the Platform with your parent’s or guardian’s consent and your parent or guardian must provide consent after having read this TOUC. In such a case you represent and warrant and covenant that both you and your parent or guardian have read and consent to this TOUC (including all the conditions, limitations, disclaimers, and waivers provided herein). You further acknowledge and agree that by using the Platform you are accepting a benefit that you cannot return or disgorge and that we are relying on your representations regarding your ability to accept and perform this TOUC, and you therefore waive any right you may have under applicable law to void, rescind, or otherwise avoid this TOUC. If you are a parent or guardian consenting to this TOUC on behalf of a child between the ages of 13 and 18, you additionally agree to guarantee and be fully responsible for that person’s performance hereunder, including all financial obligations or liability he or she may incur, and all disclaimers and waivers of applicable legal protections provided herein, and you agree to take all actions (including executing such additional documents or agreements) necessary to effect and perfect the foregoing. In all other cases, you represent that you are 18 years or older and fully competent to enter into this TOUC, and you hereby agree and acknowledge that you have read, understood, and agree to be bound by this TOUC without modification.
If you are using the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this TOUC and you agree to be bound by this TOUC on behalf of that organization.
You further represent and warrant that you are not listed on or covered by any sanctioned person lists administered by a government of the European Union, the United States government or United Nations, including but not limited to the Common Foreign and Security Policy, United States Department of Treasury’s List of Specially Designated Nationals and Blocked Persons, the United States Department of Commerce’s List of Denied Persons or Entity List, and the United Nations Security Council Sanctions. You further represent that you are not located in a country subject to comprehensive United States sanctions, including Iran, Syria, Cuba, North Korea, or the Crimea region of Ukraine. Should you become listed on or otherwise subject to any such list or are in a country subject to comprehensive United States sanctions, then you agree to immediately cease use of the Platform.
3. Accounts and Registration
To access most features of the Platform, you must register for an account (your “User Account”). When you register, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password.
You are solely responsible for maintaining the confidentiality of the password(s) for your User Account, and you accept responsibility for all activities that occur under your User Account. If you have reason to believe that your User Account or is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
4. Client Licenses
Subject to your complete and ongoing compliance with the terms and conditions in this TOUC, Dromni grants you a limited, non-commercial (except as otherwise specified in this TOUC or other written agreement between you and Dromni), non-exclusive, non-transferable, non-sublicensable, revocable license to each copy of any Desktop Client or Mobile App (each, a “Client” or “App”) downloaded directly from Dromni’s website or from a legitimate marketplace (such as the Apple App Store, Apple Testflight, Google Play Store, Oculus, Steam, or Viveport Store), solely in an executable application format, for your personal use for lawful purposes, on a single compatible device you own or control, and to access and use the Platform in accordance with this TOUC. The terms “Desktop Client” and “Mobile App,” as used in this TOUC, include any updates or modifications to the applicable Client made available to you by or on behalf of Dromni (unless provided with separate terms, in which case those terms are hereby incorporated into this TOUC unless otherwise stated in those separate terms).
5. Dromni SDK License
Your use of any SDK is subject to your complete and ongoing compliance with the terms and conditions in this TOUC and the SDK terms applicable to the SDK (which are incorporated into this TOUC by this reference).
6. Trademark License
Subject to your complete and ongoing compliance with this TOUC, Dromni grants you a limited, non-commercial (except as otherwise specified in this TOUC or other written agreement between you and Dromni), non-exclusive, non-transferable, non-sublicensable, revocable license to use its trade names, trademarks, service names, and service marks (“Marks”), solely when used in compliance with the then-current Dromni brand guidelines (or any successor URL designated by Dromni) (the “Brand Guidelines”), and solely in connection with permitted uses under this TOUC. The Brand Guidelines are incorporated into this TOUC by this reference. Any goodwill in the Marks will inure solely to Dromni.
7. No Support
We are under no obligation to provide support for the Platform. In instances where we may offer support, the support will be subject to applicable published policies.
8.1. Payments Generally. Access to the Platform, or to certain features of the Platform, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise stated, all fees are in Euros and are non-refundable. If Dromni changes the fees for any part of the Platform, including by adding additional fees or charges, Dromni will provide you advance notice of those changes. If you do not accept the changes, Dromni may discontinue providing the Platform or applicable portion of the Platform to you. Dromni will charge the payment method you specify at the time of purchase. You authorize Dromni to charge all sums as described in this TOUC to that payment method. If you pay any fees with a credit card, Dromni may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. If you use the Platform to update or cancel any existing authorized payment, it may take up to 10 business days for the update or cancellation to take effect.
8.2. Subscription Service. Certain premium features on the Platform may be made available through purchase of a subscription (“Subscription Service”). Subscription Services involve automatically recurring payments for periodic charges and may be purchased through a third-party market. If you activate a Subscription Service, you authorize Dromni (or the applicable third-party market) to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums for your subscription to the Subscription Service on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you first purchase a subscription to a Subscription Service. Your account will be charged automatically on the Subscription Billing Date for all applicable fees and taxes for the next subscription period. Your subscription to the Subscription Service will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription to a Subscription Service before it renews in order to avoid billing of the next periodic subscription fee to your account. We (or the applicable third-party market) will bill the periodic subscription fee to the payment method you provide during purchase (or to a different payment method if you change your payment information). We may suspend or terminate access to a Subscription Service for any account for which any amount is due but unpaid. In addition to the amount due for any Subscription Service, a delinquent account may be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. In the event that an account is moderated for violation of this TOUC, any ongoing Subscription Service associated with the account may be cancelled, provided that the then-current subscription period will continue. Payments for Subscription Services are non-refundable. If you have activated a Subscription Service through a third-party market, you may cancel your subscription to that Subscription Service through the third-party market’s account settings or other procedures established by that third-party market. If you have questions, please email us at email@example.com.
9. User Content
9.1. User Content Generally. Certain features of the Platform may permit users to upload content to the Platform, including point cloud data, sensor data, messages, photos, videos, images, folders, data, text, software code, and other types of works (“User Content”) and to publish User Content on the Platform. You retain copyright and any other proprietary rights that you may hold in the User Content you post to the Platform.
9.2. Limited License Grant to Dromni. By posting, publishing, or otherwise developing User Content in the Platform, you grant Dromni a worldwide, non-exclusive, irrevocable, royalty-free, perpetual, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, make it interactively and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. You agree that the license granted to Dromni under this Section 9.2 applies to any User Content you previously posted, published, or otherwise developed in the Platform.
9.3. Limited License Grant to Other Users. By posting or sharing User Content with other users of the Platform in a public portion of the Platform, or by setting any of your User Content to public, you grant those users a non-exclusive license to access and use that User Content as permitted by this TOUC and the functionality of the Platform.
9.4. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Dromni and users of the Platform to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Dromni, the Platform, and this TOUC;
(b) your User Content, and the use of your User Content as contemplated by this TOUC, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Dromni to violate any law or regulation; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
9.5. Deleting User Content.
(a) Where permitted, you may delete copies or instances of your User Content that you have uploaded to your account through the normal functionality of the Platform. If you delete your User Content through use of that functionality, the licenses granted by you in this Section 9 to your User Content terminate as described in this Section 9.5 with respect to the particular copies or instances of your User Content that you have deleted.
(b) The termination of the licenses does not apply to any copies or instances of the same User Content that you have not specifically deleted from the Platform, including those that may be displayed elsewhere or that may be stored by other users to whom you transferred copies.
(c) The licenses under this Section 9 that you granted to your User Content that you have deleted through the Platform will survive termination solely to allow Dromni to: (i) retain server copies of particular instances of your User Content, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) enable the exercise of the licenses granted in this Section 9 for any other copies or instances of the same User Content that you have not specifically deleted from the Platform, including those that may be displayed elsewhere or that exist in other users’ account inventories.
9.6. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Dromni may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this TOUC or is otherwise objectionable. You understand that, when using the Platform, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. Most User Content, including reality captures, scans, reconstructed worlds, volumetric videos and avatars, available through Dromni is created by other users or third parties, and Dromni does not control or actively monitor the content or technical features of individual reality captures, scans, reconstructed worlds, avatars, or other User Content. You understand that any content you enter is at your own risk. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Dromni with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to this TOUC, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Dromni does not permit copyright-infringing activities on the Platform.
We comply with the provisions of the European Union Copyrights. Please review our copyright policy available at https://www.dromni.eu/legal/copyright (the “Copyright Policy”). The Copyright Policy is incorporated by this reference into, and made a part of, this TOUC.
You may not reproduce, distribute, publicly display, or publicly perform any part of the Platform except as otherwise expressly agreed in a separate written agreement between you and Dromni. You may not use any part of the Platform for any commercial uses or other uses outside the scope of what is expressly permitted in this TOUC without entering into a separate written agreement with Dromni that expressly allows that expanded use (such an agreement, a “Commercial Use Agreement”). Unless, and solely to the extent that, such a restriction is impermissible under applicable law or applicable third party license, you may not: (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for any portion of the Platform, or make or attempt to make any modification to any portion of the Platform (other than modifications of the type described in the applicable user documentation made available to you by Dromni) or (b) interfere with or circumvent any feature of the Platform, including any security, or access control mechanism. You may not use the Platform for any purpose other than a purpose for which the applicable part of the Platform is expressly designed. If you are prohibited under applicable law from using any part(s) of the Platform, you may not use them. You represent and covenant that you have complied and will continue to comply with the rights and obligations set forth in this TOUC with regards to your use of any part(s) of the Platform previously downloaded or accessed. We make no representation that the Platform is appropriate or available for use outside of the European Union. Access to the Platform from countries or territories or by individuals where such access is illegal is prohibited. Nothing in this Section 11 or in this TOUC is intended to restrict users from streaming their use of the Platform through a third-party streaming platform, including Twitch and YouTube, provided that such use is in compliance with all other terms of this TOUC, including the Brand Guidelines and in compliance with all applicable third-party terms relating to those third-party systems (such streaming, “Permitted Streaming”). This TOUC does not prohibit you from monetizing such streaming through third-party streaming platforms’ authorized monetization systems. Your use of any third-party streaming platform is subject to that platform’s terms.
12. Prohibited Conduct
By using the Platform, you agree not to:
(a) use the Platform for any illegal purpose or in violation of any local, state, national, or international law;
(b) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
(c) share, publicly post, copy, or distribute another user’s User Content without their permission (except for Permitted Streaming);
(d) post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
(e) interfere with security-related features of the Platform, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform, including any SDK, except to the extent that the activity is expressly permitted by applicable law;
(f) upload to the Platform any software code, routine, or instructions that interfere with, or otherwise attempt to impair, the operation of the Platform, any user’s enjoyment of the Platform, or any user’s underlying code or hardware, including by:
(i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code;
(ii) making any unsolicited offer or advertisement to another user of the Platform;
(iii) attempting to collect personal information about another user or third party without consent; or
(iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform, or violating any regulation, policy, or procedure of any such network, equipment, or server;
(g) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Platform account without permission, or falsifying your age or date of birth;
(h) bypass any security or other features of the Platform designed to control how the Platform is used, harvest, or mine User Content from the Platform, or otherwise access or use the Platform in a manner inconsistent with individual human usage;
(i) use any robot, spambot, spider, crawler, scraper, or other automated means or interface not provided by us to access the Platform or to extract data;
(f) decipher, reverse engineer, decompile, or disassemble the Platform, any App or any Client, or the software used to provide the Platform, a App or a Client, in whole or in part, or authorize, direct, or cause a third party to do so;
(k) use, display, mirror, frame, or utilize framing techniques to enclose the Platform or any content available through the Platform (“Content”), or any portion or component of the Platform, unless and solely to the extent Dromni provides the means for embedding any part of the Platform or the Content;
(l) access, tamper with, or use non-public areas of the Platform, Dromni’s (or its infrastructure providers’) computer systems and infrastructure, or the technical delivery systems of Dromni’s providers;
(m) use the Platform in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party;
(n) sell or otherwise transfer the access granted under this TOUC or any Materials (as defined below) or any right or ability to view, access, or use any Materials; or
(o) attempt to do any of the acts described in this Section 12, or assist or permit any person in engaging in any of the acts described in this Section 12.
13. Termination; Discontinuation and Modification of the Service
You may terminate your User Account at any time by contacting customer service at firstname.lastname@example.org or through account deletion functionality that may be provided to you via the Platform. If you terminate your User Account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Platform.
If you violate any provision of this TOUC, your permission from us to use the Platform will terminate automatically. In addition, Dromni may in its sole discretion terminate your User Account on the Platform or suspend or terminate your access to the Platform at any time for any reason or no reason, with or without notice. Pre-paid fees, if any, will not be refunded if your User Account or access to the Platform is suspended or terminated due to violation of this TOUC.
We also reserve the right to terminate this TOUC, or modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform.
Upon termination of this TOUC, Sections 2, 3, 8, 9, 10, 11, 12, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28, and any terms that survive within the Ancillary Agreements (defined below), will survive.
14. Third-Party Platforms and Linked Websites
Dromni may provide tools through the Platform that enable you to export information, including User Content, to third party services, including through features that allow you to sign into a third party service using your Dromni account credentials, link your account on Dromni with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third-party services are not under our control, and we are not responsible for any third-party service’s use of your exported information. The Platform may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
15. Use of Data
16. IP Ownership, Reservation of Rights
The Platform, including any Clients, Apps and SDKs, is as between you and Dromni, owned and operated by Dromni. The Clients, Apps, SDKs, Content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Platform (the “Materials”), are protected by copyright, trade dress, patent, and trademark laws of the European Union and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Dromni, all Materials, including all associated intellectual property rights, are the sole and exclusive property of Dromni, its subsidiaries or affiliated companies, or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or use the Materials except as expressly authorized under this TOUC. Dromni reserves all rights not expressly granted in this TOUC. You do not acquire any right, title, or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this TOUC.
17. Third Party Software
The software you download comprises a package of components, including certain third-party software (“Third-Party Software”) provided under separate license terms (the “Third-Party Terms”). Your use of the Third-Party Software in conjunction with any Client, Apps or the SDK in a manner consistent with this TOUC is permitted, however, you may have broader rights under the applicable Third-Party Terms and nothing in this TOUC is intended to impose further restrictions on your use of the Third-Party Software. The Platform may contain or be provided together with open source software. Each item of open source software is subject to its own applicable license terms, which can be found at www.dromni.eu/third-party and/or in the Platform’s documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein.
18. Modification of this TOUC
We reserve the right, at our discretion, to change this TOUC on a going-forward basis at any time. Please check this TOUC periodically for changes. If a change to this TOUC materially modifies your rights or obligations, you will be required to accept the modified TOUC in order to continue to use the Platform. This TOUC will be identified by the most recent date of revision and will be effective immediately upon being made available through www.dromni.eu or otherwise through the Platform, except:
(a) if any such modification materially alters your rights under this TOUC, we will attempt to notify you directly through a message sent to the email address you have provided to Dromni, if any, or through a pop-up window or other notification when you access or use the Platform;
(b) such materially modified TOUC will be effective upon the earlier of your use of the Platform with actual knowledge of the changes or thirty days after the changes are made available to you; and
(c) no modifications to this TOUC will apply to any dispute between you and Dromni that arose prior to the date of such modification. Your use of the Platform after modifications to this TOUC become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of this TOUC or any modifications to this TOUC, then you agree that your sole and exclusive remedy is to discontinue any use of the Platform.
If you provide Dromni with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Platform (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Dromni will have the right to use such Feedback at its discretion, including the incorporation of such suggested changes into the Platform. You hereby grant Dromni a perpetual, unrestricted, irrevocable, nonexclusive, royalty-free license under all rights necessary to so incorporate and use your Feedback for any purpose.
You are responsible for your use of the Platform, and you will defend and indemnify Dromni and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Dromni Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with:
(a) your access to, use of, or alleged use of, the Platform;
(b) your violation of any portion of this TOUC, any representation, warranty, or agreement referenced in this TOUC, or any applicable law or regulation;
(c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or
(d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
21. Disclaimers; No Warranties
ALL PARTS OF THE PLATFORM AND ALL CONTENT AVAILABLE THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DROMNI ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PLATFORM AND ALL CONTENT AVAILABLE THROUGH THE PLATFORM, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE DROMNI ENTITIES DO NOT WARRANT THAT THE PLATFORM OR ANY PORTION OF THE PLATFORM, OR ANY CONTENT OFFERED THROUGH THE PLATFORM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. DROMNI EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE PLATFORM, OR THE QUALITY OR CONSISTENCY OF THE PLATFORM. DROMNI FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM OR ANY CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANY WARRANTY REGARDING ANY OF THE DROMNI ENTITIES OR THE PLATFORM THAT IS NOT EXPRESSLY STATED IN THIS TOUC. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE PLATFORM, YOUR DEALING WITH ANY OTHER USER, AND ANY CONTENT AVAILABLE THROUGH THE PLATFORM. YOU UNDERSTAND AND AGREE THAT YOU USE THE PLATFORM, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN CONTENT THROUGH THE PLATFORM AND ANY ASSOCIATED SITES OR PLATFORMS, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE PLATFORM), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE PLATFORM OR THE DOWNLOAD OR USE OF THAT CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
22. Limitation of Liability
IN NO EVENT WILL THE DROMNI ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PLATFORM OR ANY CONTENT ON THE PLATFORM, OR OTHERWISE ARISING OUT OF THIS TOUC (INCLUDING ANY ANCILLARY AGREEMENT), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY DROMNI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 26.5.c, THE AGGREGATE LIABILITY OF THE DROMNI ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PLATFORM OR OTHERWISE UNDER THIS TOUC, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO DROMNI FOR ACCESS TO AND USE OF THE PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM OR (b) €100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS TOUC THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS TOUC. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS TOUC. THE LIMITATIONS IN THIS SECTION 22 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
23. Third Party Disputes
DROMNI IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING ANY OTHER USER OF ANY PLATFORM, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE DROMNI (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
24. Governing Law
This TOUC is governed by the laws of Germany without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. If a lawsuit or court proceeding is permitted under this TOUC, then you and Dromni agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Munich, Bavaria for the purpose of litigating any dispute. We operate the Platform primarily from Germany, and we make no representation that content included in the Platform are appropriate or available for use in other locations.
25.1. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from any part of the Platform (the “Additional Terms”), such as additional license agreements for any downloadable Content, an SDK, or rules that apply to particular features or content on the Platform, subject to Section 18 (Modification of this TOUC). All Additional Terms are incorporated by this reference into, and made a part of, this TOUC.
25.3. Except as expressly permitted in this TOUC, this TOUC may be amended only by a written agreement signed by authorized representatives of all parties to this TOUC.
25.4. You may not assign or transfer this TOUC or your rights under this TOUC, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this TOUC at any time without notice or consent.
25.5. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this TOUC, or any provision of this TOUC, be a waiver of any subsequent breach or default or a waiver of the provision itself.
25.6. For purposes of this TOUC,
(a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”;
(b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list;
(c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive;
(d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole;
(e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and
(f) whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa. The headings set forth in this TOUC are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. Unless otherwise specified, references to “€” and “euros” are to the currency of the European Union. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
25.7. If any part of this TOUC is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
26. Dispute Resolution and Arbitration
26.1. Generally. In the interest of resolving disputes between you and Dromni in the most expedient and cost effective manner, you and Dromni agree that every dispute arising in connection with this TOUC will be resolved by binding confidential arbitration in English. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this TOUC, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this TOUC. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS TOUC, YOU AND DROMNI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
26.2. Exceptions. Despite the provisions of Section 26.1, nothing in this TOUC will be deemed to waive, preclude, or otherwise limit the right of either party to:
(a) bring an individual action in small claims court;
(b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available;
(c) seek injunctive relief in a court of law; or
(d) to file suit in a court of law to address an intellectual property infringement claim.
26.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 26 within 30 days after the date that you agree to this TOUC by sending a letter to
Am Bluetenring 48,
that specifies: your full legal name, the email address associated with your account on the Platform, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Dromni receives your Opt-Out Notice, this Section 26 will be void and any action arising out of this TOUC will be resolved as set forth in Section 24. The remaining provisions of this TOUC will not be affected by your Opt-Out Notice.
(a) All disputes arising out of or in connection with this contract or its validity shall be settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law;
(b) The arbitral tribunal shall be comprised of a sole arbitrator
(c) The seat of the arbitration shall be located in Munich, Germany.
(d) The language of the arbitration shall be German.
(e) The law applicable to the merits shall be German Law.
(f) The Parties agree that the arbitration shall be conducted as Expedited Proceedings and that Annex 4 of the DIS Arbitration Rules shall apply
26.5. Notice; Process
5.a. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified courier service (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Dromni’s address for Notice is:
Am Bluetenring 48,
The Notice must:
(i) describe the nature and basis of the claim or dispute and
(ii) set forth the specific relief sought (“Demand”).
5.b. The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Dromni may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Dromni must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
26.6. Decision. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
26.7. No Class Actions. YOU AND DROMNI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Furthermore, unless both you and Dromni agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
26.8. Modifications to this Arbitration Provision. If Dromni makes any future change to this arbitration provision, other than a change to Dromni’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Dromni’s address for Notice, in which case your account with Dromni will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
26.9. Enforceability. If Section 26.7 is found to be unenforceable or if the entirety of this Section 26 is found to be unenforceable, then the entirety of this Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 24 will govern any action arising out of or related to this TOUC.
27.1. Consent to Electronic Communications. By using the Platform, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
27.2. Emails. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
28. Contact Information
The Platform is offered by Dromni GmbH, located at
Am Blütenring 48,
You may contact us by sending correspondence to that address or by emailing us at email@example.com.