Dizmo User Agreement
This agreement (“User Agreement”) sets out the terms on which dizmo AG, Zürich, Switzerland (“Dizmo”) provides you access to its online services made available to users of its “dizmoSpace” software.
By clicking “agree”, you agree to this User Agreement to become effective and to be bound by the terms of this User Agreement. You are referred to as “you” or the “User”.
- “Application” means a software program developed by Dizmo or a third party developer for use specifically on dizmoSpace, including bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases and new versions of such software program. Applications are also referred to as “dizmos”. They are being distributed through the dizmoStore.
- “Device” is any type of equipment, device, virtual environment or digital surface on which a copy of dizmoSpace is installed using a valid license from Dizmo, with each virtual machine or other environment and each digital surface counting as one Device.
- “dizmoID” means a unique personal identifier that has been and is validly registered with Dizmo for the purposes of accessing and using the online services of Dizmo, including dizmoStore.
- “dizmoStore” is an online market place that Dizmo has created and operates which allows registered developers to distribute Applications to Users.
- “dizmoSpace” means Dizmo’s user interface and application environment software.
- “Registration Data” shall have the meaning set forth in article II.3 below.
- “Services” means the online services made available to Users by Dizmo under the Dizmo User Agreement.
- “User” refers to someone who has a dizmoID and uses dizmoSpace under a valid license.
- In order to access and use the Services, you have to register yourself with Dizmo. By doing so, you enter into this User Agreement and get a dizmoID.
- In order to register, you have to be of at least 18 years of age and permitted by applicable law to enter this User Agreement. If you are a minor or under disability, you may only enter into this User Agreement with the consent of a person having authority over you, and if you are of at least 13 years of age.
- When registering, you agree to provide correct and complete information as per the registration form (“Registration Data”). You agree to always keep the Registration Data correct and complete for the term of this User Agreement. Incorrect or incomplete Registration Data may result in the suspension or termination of this User Agreement and your dizmoID without prior notice.
- 4. The dizmoID is your personal key for accessing Services. You need a password to use it. You acknowledge and agree that you are solely responsible for (a) maintaining the confidentiality and security of your dizmoID and in particular the password associated to it (including without limitation by selecting a sufficiently complex password and changing it from time to time), and (b) all activities that occur on or through your dizmoID. Dizmo may treat any activities performed by a user logged in with your dizmoID as undertaken by yourself or with your approval. You agree to immediately contact Dizmo support if you have any suspicion that your dizmoID has been compromised. Dizmo shall not be responsible for any losses arising out of the unauthorized use of your dizmoID.
- During the term of this User Agreement, and subject to your valid dizmoID and User Agreement not being blocked, suspended or terminated, you may access and use in connection with your validly licensed copy of dizmoSpace the online services made available by Dizmo to you under and subject to this User Agreement (“Services”), except where a Service has been suspended with regard to you.
- Some of the Services are offered and may be used by you only against a charge set forth by Dizmo. If so, you may only use such paid-for Services insofar and for as long as you have paid the price for the Service or Service options you have selected in full in advance. Paid Services can normally be purchased by you on a monthly or yearly basis, and shall run for the period chosen and paid by you. The respective Service term starts on the date that you submit the annual or monthly (as applicable) charge and expires on the last date of the term chosen by you, unless terminated earlier in accordance with this User Agreement (for example, for an annual subscription term, if you submit payment for the subscription on July 1st, the subscription would expire on June 30th of the following year). If you have activated the option for an automatic renewal of a Service, your subscription shall automatically renew at the expiration of the then-current term for an additional term of the same duration, provided Dizmo is able to automatically charge you using the same payment method agreed and used for the former payment (Dizmo may attempt the charge up to five business days prior to the expiry of the current term); if the charge fails, Dizmo shall inform the User accordingly and the Service shall end without further warning at the end of its current term unless you make the necessary payment in time prior to the expiry. All fees and charges paid by you in relation to Services are non-refundable, except as required by law.
- A description of all current Services and listing of applicable charges, if any, are found on the website of Dizmo at www.dizmo.com and is in its latest version incorporated herein by reference (for changes, see Section V below). One of the Services is dizmoStore, as regulated further below (Section IV). It may be used to subscribe to Services.
- Access to and use of a Service requires a valid dizmo ID, dizmoSpace, Internet access and may be subject to further technical and legal preconditions. Dizmo does neither undertake nor warrant that you will be able to access and use any particular Service and do so as intended. It is strongly recommended that you maintain a high-speed Internet access and always the latest version of dizmoSpace.
- The Services are provided by Dizmo at no particular service levels, unless expressly agreed otherwise.
- You may use the Services only if and as long as you have a valid license for the copy of dizmoSpace with which you are accessing and using the Services.
- When using the Services, you shall comply with the policies posted by Dizmo in connection with such Services, including any “Acceptable Use Policies”, in their then current version.
- No Service, nor any part of thereof, may be reproduced, duplicated, provided, made available, offered, advertised, sold, resold, or otherwise exploited for or on behalf of a third party without the prior express written consent of Dizmo. Each Service may be accessed and used by you only for your own purposes. In line with the foregoing, you may use the Services in a professional context, but you are doing so at your own risk. The Services have been designed for private, non-commercial use and may not be suitable for professional use.
- The Services, or any feature or part thereof, may not be available in all languages, in all countries or to all Users and Dizmo makes no representation that the Services, or any feature or part thereof, is appropriate or available for use in any particular location and for any particular User. To the extent you choose to access and use the Service, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, any applicable local laws.
- The dizmoStore is accessed through dizmoSpace and permits you to purchase Applications and services made available by Dizmo and by third parties for free or against a charge.
- If you purchase an Application from Dizmo, whether for free or against a charge, it is licensed to you pursuant to the terms as per the Dizmo End User License Agreement, which shall apply accordingly, unless stated otherwise in the dizmoStore. By clicking the button for purchasing the Application, you agree to be bound by the terms in the Dizmo End User License Agreement for such applications, and any other terms provided for in the dizmoStore.
- If you purchase an Application from a third party, whether for free or against a charge, it is licensed to you by such third party pursuant to the license terms of such Application set forth in the dizmoStore (if no license terms are provided, then the terms of the Dizmo End User License Agreement shall apply accordingly, with all references to Dizmo being references to the third party). The contract for purchasing such Application is entered into directly between you and the third party identified in the dizmoStore; Dizmo is not party to such agreement related to such third party Application. Dizmo’s role is limited to the operation of the platform for selling the Application and handling of the purchase transaction (including payment of charges, if any, and delivery of the Application) for and on behalf of such third party.
- If you purchase a service provided by Dizmo through the dizmoStore, it shall be considered a Service under this User Agreement and governed accordingly.
- If you purchase a service from a third party through dizmoStore, such service shall be provided to you pursuant to the service terms of such third party as set forth in the dizmoStore. The service contract for such service is entered into directly between you and the third party identified in the dizmoStore; Dizmo is not party to such agreement related to such third party service. Dizmo’s role is limited to the operation of the platform for selling the service and handling of the purchase transaction (including payment of charges, if any, but not the delivery of the service) for and on behalf of such third party.
- If an Application or service is offered in the dizmoStore against a charge, such charge has to be fully paid before the Application may be downloaded or the service is provided. Payments can be made only using a wallet associated with your dizmoID. You can fund the wallet using the payment methods approved by Dizmo and made available to you on the website or within dizmoStore; they may vary from country to country. The amounts that can be stored in the wallet are in USD, they are limited to USD 1’000, and do not carry any interest. Dizmo may at its own discretion define the amounts that can be added to the wallet. Subject to applicable law, funds added to the wallet are non-refundable and non-transferable. Wallet funds have no value outside dizmoStore and can only be used to purchase Applications or services from dizmoStore. Subject to applicable law, wallet funds that are deemed abandoned or unused by law will not be returned or restored. By completing a purchase transaction through dizmoID, you agree that you will pay for all Applications or services you purchase through the Services and authorize Dizmo to deduct from the wallet all applicable fees due and payable in order to effect such payment.
- The charges stated in the dizmoStore are net, including any sales tax or value added taxes, as the case may be (based on your address), but exclusive of any import duties and other taxes and charges in your country. You acknowledge and agree that Dizmo has no obligation to provide you with a particular form of invoice, unless the law applicable to Dizmo requires otherwise.
- All charges have to be paid fully in advance, and all sales of Applications and services in dizmoStore are final. All charges paid are non-refundable, except where applicable law requires otherwise. If a sale transaction has to be reversed due to applicable law, any refunds are again added to your wallet; Dizmo will not make any refunds in cash or otherwise, except where required by applicable law.
V. Service and Contract Changes
- Dizmo may change the descriptions and charges of Services at any time, at its discretation and without prior notice by amending its website. In particular, Dizmo may at any time, in its own discretion and without prior notice add, change and remove Services and related charges, including instituting new charges.
- As an exception to the foregoing paragraph, changes to the Services already subscribed and paid for by you, including the charges for such Services, will become effective only upon the following end of the term for which you have already paid for the Services. If you do not agree to any such changes to the Services, including price changes, and you have chosen an automatic renewal of the term of such Service, then you must cancel the Service prior to the end of the current term. Dizmo will inform you of the change by sending an e-mail to your last known e-mail address pursuant to your Registration Data.
- Notwithstanding the foregoing paragraph, Dizmo may at any time apply changes also to Services already subscribed and paid for by you during the current term of such Services if such changes (a) either do not material change the general nature, functionality and purpose of the Service or (b) become necessary from a security, performance or otherwise technical or organizational point of view or (c) are triggered by changes on the part of Dizmo’s suppliers or service providers. Dizmo will attempt to inform you reasonably in advance of such changes.
- Any changes to this User Agreement shall be agreed in writing. However, Dizmo may change this User Agreement by providing you advance notice either through dizmoStore (upon your next login) or by sending an e-mail to your last known e-mail address pursuant to your Registration Data (or using another form of personal communication). Such changes shall be deemed accepted by you and become effective as of the date (a) on which you indicate your acceptance within dizmoStore, or (b) if Dizmo has not received your written notice of your termination of this User Agreement at the latest within 30 days of Dizmo’s notice of the proposed changes to you.
VI. Termination and Suspension
- This User Agreement is effective until terminated. Unless terminated earlier, Services are provided to you for as long as they have been paid for by you or, if not paid for or for the time thereafter, if and to the extent Dizmo is making them available to you, which it may do at its discretion.
- Dizmo may at any time terminate or suspend this User Agreement and any Service provided under this User Agreement for convenience without giving further reason or advance notice, except that in the case of paid-for Services already paid for by you, such termination or suspension shall become effective only upon the end of the term for which you have already paid.
- Dizmo may at any time, by giving notice to you, terminate or suspend this User Agreement, your dizmoID and any Service with immediate effect for cause, including, without limitation, if:
- You have breached any provision of this User Agreement or any other policies that are referenced herein or posted on the Services, or reasonably appear to have done so; or
- A law enforcement authority, a judicial body, or other government agency in Dizmo’s reasonable belief asks, expects or recommends Dizmo to do so; or
- Dizmo encounters unexpected technical or security issues or problems that affect the provision of Services; or
- You appear to have participated, or be involved, in fraudulent or illegal activities; or
- You have failed to pay fees owed by you in relation to the Services or purchases on dizmoStore; or
- This is, in Dizmo’s reasonable opinion, necessary to protect its reputation or other key business interests in connection with you, the Services or your use of the Services; or
- There is a general discontinuance or material modification to the Services or any part thereof; or
- Dizmo is required to do so by law or concludes that it may have to do so for Dizmo, you or your use of the Services remaining in compliance with law, including without limitation if a Service or parts of it in Dizmo’s assessment may infringe third party rights.
- You may at any time, by giving notice to Dizmo, terminate this User Agreement. You may also at any time have your dizmoID temporarily blocked or suspended.
- Upon termination of this User Agreement or of a Service, you will lose access to such Service, including any and all data and information stored by Dizmo in connection with the Service(s) affected, and Dizmo has no responsibility or other obligation to retain copies or backups of such data and information. The termination or suspension of this User Agreement, a Service or the dizmoID does not entitle you to any refund of charges already paid, but unused. Also, in case of a suspension of your dizmoID, the performance of the Services may continue, even though you may not be able to access and benefit from it.
- Any liability of Dizmo in connection with a premature or termination for cause or convenience is disclaimed to the extent permitted by law.
- If your dizmoID has been suspended by Dizmo, you shall not circumvent such suspension.
- In addition to a termination or suspension for cause by Dizmo, Dizmo may also elect to exclude you for a limited or unlimited period of time from again entering into a User Agreement or using the Services, whether under the same or a different identity or through another person. You agree to comply with such exclusion for the period of time it has been issued. Any attempt to circumvent or violate such exclusion shall permit Dizmo to immediately terminate the User Agreement involved for cause, and claim for damages.
VII. Disclaimer of Warranties and Liability
- You understand and agree that the Services are provided on an “as is” and “as available” basis without any guarantees or warranties, except where expressly stated otherwise. Dizmo and its affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors expressly disclaim any and all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. In particular, Dizmo and its affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors make no representation, guarantees or warranty that
- the Services will meet your requirements;
- your use of the Services will be timely, uninterrupted, secure or error-free;
- any information obtained by you as a result of the Services will be accurate or reliable; and
- any defects or errors in the software underlying the Services will be corrected.
- Dizmo does not represent, warrant or guarantee that the Services will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion, and Dizmo disclaims any liability relating thereto. Any material downloaded or otherwise obtained through the use of the Services is accessed at your own discretion and risk, and you will be solely responsible for any damage to your device, computer, or loss of data that results from the download of any such material. You further acknowledge that the Services are not intended or suitable for use in situations or environments where the failure or time delays of, or errors or inaccuracies in, the content, data or information provided by the Services could lead to death, personal injury, or severe physical or environmental damage.
- You understand and agree that Dizmo and its affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors, insofar permitted by applicable law, shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data, cost of procurement of substitute goods or services, or other intangible losses (even if Dizmo has been advised of the possibility of such damages), resulting from:
- the use or inability to use the Services (always including dizmoStore);
- any changes made to the Services or any temporary or permanent cessation of the Services or any part thereof;
- the unauthorized access to or alteration of your transmissions or data;
- the deletion of, corruption of, or failure to store and/or send or receive your transmissions or data on or through the Service;
- statements or conduct of any third party on the Services; and
- any other matter relating to the Services.
- You agree to fully indemnify and hold Dizmo harmless for and against any loss, damage, claim or expenses which Dizmo may suffer resulting from any breach by you of this User Agreement, any applicable third party contract, or any applicable law or regulation.
VIII. Data and Data Protection
- Dizmo may in performance of its Services obtain from you data related to identified or identifiable individuals or legal entities for the purposes of processing them exclusively for you (“Personal Data”). Dizmo will process Personal Data only on behalf and for the purposes of, and only as instructed by you. Dizmo will apply technical and organizational measures it considers reasonable for its respective Services to prevent unauthorized processing and accidental loss of such Personal Data, but does not undertake or warrant for any particular level of data security or safety. Dizmo may store Personal Data on own and third party servers in any country worldwide, including in jurisdictions without an adequate level of data protection.
- You undertake and warrant that
- any of Dizmo’s processing of Personal Data for the purposes of providing the Services and any of your related instructions to Dizmo in connection with the Services is in compliance with applicable data protection laws, and will not cause Dizmo to violate applicable data protection laws, and
- you have made or obtained any notifications, registrations, regulatory approvals and data subject consents required for such processing, and
- you will promptly and adequately respond to any requests from data subjects.
- If you request Dizmo to assist you in your compliance with applicable data protection laws, you understand and agree that Dizmo is not required to provide you with such if Dizmo lacks the necessary resources and skills or if you are not paying for such efforts in advance the amounts reasonably requested by Dizmo on a time and material basis.
- Dizmo does not undertake any backup of any data or other information stored using or within the Services, or is required to undertake special steps from protecting such data of yours and other information related to you from unauthorized access, manipulation or loss. You understand and agree that it is your responsibility to ensure that you at any time maintain copies of any data or information stored using the Services, and that you do not use the Services to store any sensitive data or information or other business critical content.
IX. Links and Third Party Materials, Contributions
- Certain content, components or features of the Services and of the Applications or services offered through dizmoStore may include materials from third parties and/or hyperlinks to other web sites, resources or content. You understand that by using any of the Services, you may encounter content and/or hyperlinks that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services, Applications and other services offered through dizmoStore at your sole risk and that Dizmo shall have no liability to you for content, components or features that may be found to be offensive, indecent, or objectionable.
- Certain Services, Applications and other services offered through dizmoStore may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites or other offerings. You acknowledge and agree that Dizmo is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. Dizmo, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
- Certain Services (including dizmoStore), Applications and other services offered through dizmoStore may permit you to contribute content that may become available to other Users or the public. When doing so, you agree not to publish any content that may be deemed offensive, indecent, or objectionable, to abide strictly by applicable law when making such contributions, and not to infringe any third party rights. If you contribute content, you hereby grant Dizmo and all relevant third parties a royalty-free, non-exclusive, perpetual right to use the content as intended and represent and warrant that you own or have obtained all necessary rights to grant such license. Dizmo reserves the right to
- partially or fully remove, without notice, any content it believes is in violation of this User Agreement, and
- provide information on the User responsible for such content to public authorities and private parties pursuing such violations for what Dizmo believes are legitimate reasons.
X. Trademarks and Proprietary Rights
- Dizmo, the Dizmo logo, dizmoSpace, dizmoStore and other Dizmo trademarks, service marks, graphics, and logos used in connection with the Services are trademarks or registered trademarks of dizmo AG in Switzerland and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Services may be the trademarks of their respective owners. You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Services.
- You acknowledge and agree that Dizmo and/or its licensors own any and all legal right, title and interest in and to the Services, including but not limited to graphics, user interface, the scripts and software used to implement the Services, and any software provided to you as a part of and/or in connection with the Services (the “Services Software”), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Services (including the Services Software, or any other part thereof) contains proprietary and confidential information that is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Services in compliance with this User Agreement. No portion of the Services may be reproduced in any form or by any means, except as expressly permitted in these terms.
- Subject to your compliance with this User Agreement and your payment of any applicable fees, Dizmo grants you, for the term of this User Agreement, a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services. This right does not permit any resale or commercial use of any Services, or its contents, and no derivative use of any Services or its contents. All rights not expressly granted to you in this Agreement are reserved and retained by Dizmo. This User Agreement does not result in any assignment or transfer of any rights.
XI. Miscellaneous Provisions
- Notices to be provided by Dizmo to you may be validly communicated via e-mail to the last known e-mail address pursuant to your Registration Data; sending an e-mail to such address shall be considered valid notice under this License Agreement, and shall be considered received within 24 hours.
- Dizmo is at any time entitled to assign this User Agreement or any rights or obligations hereunder to a third party. You may not assign this License Agreement or any rights or obligations hereunder to a third party without the prior written consent of Dizmo.
- This User Agreement constitutes the entire and only agreement between the Dizmo and you relating to the subject matter of this License Agreement. Any changes to this User Agreement shall be valid only if agreed in writing, unless provided otherwise herein.
- You shall comply with all applicable laws and regulations in connection with its activities pursuant to this User Agreement.
- Failure of Dizmo to enforce a right under this User Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
- Should any part or provision of this User Agreement be held to be invalid or unenforceable by any competent court, governmental or administrative authority having jurisdiction, the other provisions of this User Agreement shall nonetheless remain valid and the provision held to be invalid or unenforceable shall be replaced by a substitute provision that best reflects, to the extent permitted under applicable law, the economic interest reflected in the provision held to be invalid or unenforceable.
Governing Law and Jurisdiction
- To the extent permitted by applicable law, this User Agreement shall be exclusively governed by and construed in accordance with the substantive laws of Switzerland, excluding its conflict of laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.
- To the extent permitted by applicable law, the exclusive place of jurisdiction for any dispute, claim or controversy arising under, out of or in connection with or related to the User Agreement (or subsequent amendments thereof), including, without limitation, disputes, claims or controversies regarding its existence, validity, interpretation, performance, breach or termination, shall be the city of Zurich, Switzerland.
Last updated: October 14, 2014