Terms of Use

General Terms of Use of the SUNNYCLOCK App

Preamble

These General Terms of Use (hereinafter “Terms of Use“) of the mobile App (hereinafter referred to as “App“) define the rules of use of the SUNNYCLOCK App issued by “SUNNYCLOCK AG”.

The Terms of Use govern all terms of use between you (hereinafter “User“, or “You“) and SUNNYCLOCK AG (hereinafter “SUNNYCLOCK“, hereinafter “Parties“), unless otherwise agreed in writing.

Please read our Terms of Use so that you are aware of all aspects of your use of the App.

By using our App and services, you agree to our Terms of Use.

The Terms of Use, as amended from time to time, form an integral part of all contracts concluded between you and SUNNYCLOCK, which in the event of deviations shall take precedence over these Terms of Use and may contain additional provisions. Your Terms of Use are expressly excluded.

SUNNYCLOCK reserves the right to modify the Terms of Use of the App at any time in order to adapt them to changes in services, technical developments, changes in law or jurisdiction or to the introduction of new services. The relevant Terms of Uses are those valid at the time of use of the App.

1.   Contractual Party

The contracting party is SUNNYCLOCK AG, Wassergass 9, 8810 Horgen, Switzerland, e-mail: ask@sunnyclock.com, website: www.sunnyclock.com and you as user.

2.   Definitions

The following definitions shall apply in these Terms of Use:

The App is an Internet-based, cross-platform service for exchanging messages and planning events and activities between mobile phone users, which is offered by SUNNYCLOCK. The exchange can take place in single chat or group chat. The user of the App creates the respective message or event with the App on his authorised mobile device and creates groups to determine the recipients of the messages and events. The recipients are notified of the message and the event within the group and a push notification is sent with the information that new messages and events are available and can be retrieved. The messages and event invitations are then available for download by the recipients;

Terms of Use: describes the general terms of use and service of the App;

Individual Chat: Transmission of messages to a recipient;

Recipient: Users to whom messages are transmitted;

Group Chat: Transmission of messages to several recipients;

Message: Images, videos, texts, locations, voice messages or contacts that can be exchanged between users using the App;

User account: Account for a user’s mobile phone.

3.   Object of the Contract

The subject matter of the contract is the provision of the service and the associated App.

4.   Conclusion of the contract

You shall first download and install the App on your mobile phone. At the first opening, the registration process starts, during which you submit your offer to conclude a contract. SUNNYCLOCK accepts this offer by activating your App-user account.

5.   Conditions for Access

5.1   Download

1. You are responsible for providing the equipment and materials that enable access to the App.

2. To access and use the App, you shall have the following:

• A compatible mobile phone
• The mobile phone shall be able to receive SMS.
• Internet access

3. If these requirements are met, the App can be downloaded by you free of charge from the “Google Play Store” and “App Store” platforms.

5.2   Create and register your user account

1. First, you shall create a user account in order to use the App. You have to provide the following information:

• Mobile phone number
• Freely selectable user name

2. You guarantee to SUNNYCLOCK that the information provided during registration is correct, complete and up-to-date.

3. You can download and install the App for each of your mobile phones with its own telephone number and create a distinct user account. It is not possible to synchronize different user accounts.

6.   Payment

1. The use of the App is free of charge.

2. This shall not apply to:

• Contract costs of the mobile operator;
• Connection costs and access to the Internet; and
• All additional costs invoiced for loading the data

7.   Your Obligations and Duties

1. You shall use the App and the relative services only for the purpose of exchanging messages and scheduling as well as related activities.

2. It is your duty to verify to what extent the services offered are suitable to fulfil the legal requirements for data protection and to independently check to what extent it is permissible to use the services offered within the framework of the App for the purpose intended by you. SUNNYCLOCK does not provide any legal advice in this regard. It is pointed out that absolute data security cannot be guaranteed by technical procedures.

3. You are responsible for your activities, in particular for the messages and event data uploaded by you or by third parties attributable to you, stored in the system, made available for retrieval and / or transmitted or disseminated.

4. You shall ensure that your mobile phone is protected against unauthorised use by third parties.

5. The App and the services offered by the App shall not be used for illegal purposes and / or abusive, in particular

• no content prohibited by law shall be stored and transmitted or made available to third parties;
• no illegal or immoral content shall be placed in the system and transmitted or made available to third parties, not even by reference to such contents.

8.   Intellectual Property

1. SUNNYCLOCK is the exclusive owner of all intellectual property rights in the App and its content. Downloading the App does not grant you any rights to the intellectual property rights of SUNNYCLOCK.

2. All rights for duplication and representation are reserved. This also applies to downloadable documents. All texts, graphics, symbols, photographs, plans, logos, videos, sounds, brands and in general all elements of which the App consists, may not be the subject of any representation, reproduction, exploitation or outsourcing, in whole or in part, on any medium without the express prior permission of SUNNYCLOCK.

3. You expressly undertake not to sell, rent, sublicense, or otherwise distribute the App and/or content to any third party.

4. You expressly undertake that the use of the App does not infringe the rights of SUNNYCLOCK in any way and in particular that the use does not involve product counterfeiting or unfair or parasitic competition.

9.   Rights of Use of the App

1. For the duration of this contract, you receive the non-exclusive, non-transferable and non-sublicensable right to use the App. This right is granted solely for its own use and within the framework of the use of the App and to the exclusion of any other purpose.

2. Unless otherwise expressly regulated in the respective applicable contract, software and rights, in particular industrial property rights such as trademarks, patents, designs and copyrights as well as further documents and data, provided to you for use, remain the property of SUNNYCLOCK or its licensors. Rights of use granted to you may not be further transferred.

3. This license does not grant you any right to use the content. You are in particular strictly forbidden to:

• Perform any adaptation, modification, translation, transcription, editing, compilation, reverse translation, assembly, disassembly or transcoding or reverse engineering of the entire App or any part thereof, the services and/or the content;
• Create works derived from the licensed App;
• To use software or processes intended to copy the content without prior permission by SUNNYCLOCK;
• Export the App, or combine it in whole or in part with other software programs; reproduce the App in whole or in part, by any means and in any form, permanently or temporarily;
• Extract or reuse, including for private purposes, a substantial or non-essential part of the contents of the databases and archives created from the App without the prior written permission of SUNNYCLOCK;
• Set up systems capable of hacking the App and/or content in whole or in part, or of violating the mobile App’s Terms of Use.

4. If you violate these prohibitions, you are liable to prosecution and damages. The terms of this license apply to all updates provided by SUNNYCLOCK that replace and/or supplement the original App, unless such update is accompanied by a separate license. In this case, the terms of that license will prevail.

5. You exempt SUNNYCLOCK and its various agents from all claims of third parties which are asserted against SUNNYCLOCK as a result of a culpable violation of the obligations listed in these Terms of Use and/or as a result of other culpable damaging actions of a third party attributable to you. In addition, you shall indemnify SUNNYCLOCK for further damages, including the costs of any legal proceedings and defence that may be required. This obligation also exists in the event of misuse of the user account by third parties, insofar as you are at fault for this.

10.   Rights and Obligations of SUNNYCLOCK

1. SUNNYCLOCK shall provide the App and the respective services in accordance with the provisions of these Terms of Use.

2. SUNNYCLOCK will refrain from doing anything that is or could be suitable to endanger the security and integrity of the stored data and information.

3. SUNNYCLOCK will continue to develop the App, especially with regard to the findings of IT security technology. New functions can also be developed, and existing functions can be replaced by new ones or removed from the system.

4. SUNNYCLOCK is entitled to change the security system, in particular the encryption system, at any time and to convert it to a new state-of-the-art system.

5. SUNNYCLOCK is entitled to interrupt the access to the App und its services, if there is a risk for the security of data.

6. In the event of a culpable violation of legal regulations or these Terms of Use by you or a third party attributable to you, SUNNYCLOCK is entitled to temporarily block the access to the App and its services in whole or in part. This does not affect the right to termination without notice for good cause.

7. SUNNYCLOCK reserves the right to have all or part of the services to be provided under this contract performed by third parties.

11.   Warranties

1. The statutory warranty rights apply.

2. By using the App, you assume responsibility for any negative consequences that may be caused by the App. It is your responsibility to take all appropriate measures to protect your own data and/or the software stored on your mobile phone (mobile phone, computer) against damage (in particular malfunctions, viruses, hackers …).

12.   Liability and Limitations of Liability of SUNNYCLOCK

1. As far as legally permitted and for whatever legal reasons, the liability of SUNNYCLOCK is excluded. Liability for auxiliary persons and substitutes of SUNNYCLOCK as well as for the conduct of third parties (e.g. manufacturers or suppliers of SUNNYCLOCK) is also expressly excluded within the scope of what is legally permitted. In particular, the liability of SUNNYCLOCK for indirect damages or consequential damages such as loss of profit, unrealized savings or claims by third parties for consequential damages or damages due to loss of data is excluded to the extent permitted by law. In particular, SUNNYCLOCK is not liable:

• In the event of a fault, loss, delay or error in the transmission of data that is beyond the control of SUNNYCLOCK;
• For direct or indirect damages of any kind resulting from the use or inability to use the App and in particular any financial or commercial loss or data loss, in particular in the information system of the user of the App;
• For direct and indirect damages of any kind resulting from the content and/or use or inability to use websites linked to the App, or websites accessed by you through the App;
• For damages of any kind suffered by users, their equipment, their computer and telephone equipment and the data stored therein, or for possible effects on their personal, professional or commercial activities;
• For sending messages and/or data to a wrong, incorrect or incomplete address;
• If data does not reach SUNNYCLOCK for whatever reason, or if the data that SUNNYCLOCK receives is unreadable or cannot be processed;
• In the event that you cannot access or use the website, the App and/or the services for any reason, in particular in the event of maintenance, updating or implementation of technical improvements; and
• If the connection is interrupted for any reason.

2. Furthermore, SUNNYCLOCK assumes no liability in the event of improper use of the mobile phone and/or an incident related to the use of the mobile phone while using the App. SUNNYCLOCK is not liable for any damage caused to you, your mobile phone, your computer and telephone equipment and the data stored therein or for any possible effects on your personal, professional or commercial activities.

3. To the extent permitted by applicable law and to the extent that SUNNYCLOCK is held liable for any damages not included herein, SUNNYCLOCK’s liability shall be limited solely to specific, actual and ascertained damages.

4. Work for the analysis and elimination of problems for which SUNNYCLOCK is not liable will be charged to you on a time and material basis.

13.   Risk Factor Internet

1. The technical services of the mobile Internet require a certain processing time for answering, displaying, querying or transmitting services.

2. You declare that you know the limitations and problems of the Internet and accept that SUNNYCLOCK cannot be held responsible for in particular the following:

• The characteristics and limits of the Internet and in particular the functional characteristics and technical performance of the Internet;
• Problems related to connection and/or access to the Internet and/or websites;
• Problems related to the availability and congestion of networks;
• Problems related to network failure or saturation;
• Problems related to runtime, access to online information, response times to display, view, retrieve or otherwise transmit data;
• The risk of interruption;
• The lack of protection of certain data against possible misuse or piracy;
• The risk of being infected by viruses that may be circulating in the networks mentioned.

14.   Technical Restrictions

1. You shall ensure that you have an Internet connection sufficient for the operation of the App. SUNNYCLOCK is not responsible for a malfunction of the App if the internet connection is missing or weak. Some services in the App may not work in case of a bad internet connection.

2. For the proper functioning of the App it is necessary that certain functions of the mobile phone are activated (camera, location, networks, …). If these functions are not activated or not present on your mobile phone, some services in the App will not work. SUNNYCLOCK cannot be held responsible for non-functioning services.

3. SUNNYCLOCK will ensure that the App is released on the App stores and that the App is compatible with most mobile phones on the market. Due to the large number of models, different operating systems (current or not), additional costs of the providers and different software installed by you, SUNNYCLOCK cannot guarantee the perfect compatibility of the App with all mobile phones and is therefore not responsible for malfunctions.

15.   Data Protection

SUNNYCLOCK processes personal data in accordance with the Privacy Policy. You will find information about how SUNNYCLOCK protects your personal data and your privacy in the Privacy Policy.

16.   Contract Duration, Termination, Ending

1. The contract for the use of the App begins with the first use of the App and is concluded for an indefinite period. You can delete your user profile on the App server and then the App on your mobile phone at any time. With the deletion of your account the contract will terminate automatically.

2. The right of both parties to terminate the contract without notice for good cause shall remain unaffected. An important reason for SUNNYCLOCK to terminate the contract without notice is especially given if the user behaves in a way that endangers the availability and integrity of the App service or if SUNNYCLOCK stops the App service.

3. The user account on the App server will be closed after the end of the contract. For further information, see section 6 Privacy Policy.

17.   Final Provisions

17.1   Amendements to the Terms of Use

Changes to these Terms of Use are possible at any time and will be communicated to you. Without your written objection, the changes shall take effect within one month.

17.2   Severability Clause

Should contractual provisions between the parties be or become invalid, this shall not affect the validity of the remaining contractual content. The omitted provision shall be replaced by a provision which comes as close as possible to the economic purpose of the omitted provision. This shall also apply in the event of a loophole.

17.3   Applicable Law

The Terms of Use are subject to Swiss substantive law to the exclusion of any references to foreign law. The negotiating language is German.

17.4   Settlement of disputes

In the event of differences of opinion in connection with this contractual relationship, the parties undertake in good faith to seek an amicable settlement. They shall endeavour to reach an amicable settlement on at least one date. If no agreement is reached, only the ordinary judge at SUNNYCLOCK’s registered office can be called upon. Mandatory legal consumer courts remain reserved.

The currently valid version of the Terms of Use can be viewed and printed out at www.sunnyclock.com.

 

Version 11. March 2019