Date: March, 31th 2016
1. Conditions and Definitions
1.1. Tideways is a service provided by Tideways GmbH, Königswintererstraße 116, 53227 Bonn, Germany (hereinafter also referred to as "Tideways"). References to Tideways encompass the software, its functions and services as well as related websites.
1.2. "You" and "your" refer to you, as a user of Tideways. "We", "us", and "our" refer to Tideways. "Content" means all content and information like text, images, photos, video, messages, ratings, links or any data on performance, a person or a location.
1.3. These General Terms of Service (hereinafter referred to as "ToS") represent the exclusive basis for all legal relationships established between us and you, related to the use of Tideways.
1.4. By accessing or using Tideways, you are agreeing to these ToS and concluding a legally binding contract with us. Do not access or use Tideways if you are unwilling or unable to be bound by the ToS.
1.5. Insofar as we have not explicitly agreed to their application in writing, your possibly deviating business conditions shall not apply. Even though they may be enclosed and the contract may have been supplemented, a reference to your own business conditions does not constitute our acceptance of their applicability.
1.6. Tideways is offered only to business customers, not to consumers. Consumers are natural persons who conclude the respective legal transaction for a purpose which is outside their trade, business or profession.
2. Scope of service
2.1. Our services include analysis services. Our concrete service obligations to you are derived from the service descriptions on our website, https://app.tideways.io/ as well as other agreements in contractual offers and agreements reached in concepts insofar as these have been agreed or confirmed in writing (all together hereafter described as âagreementâ).
2.2. If the agreement is not available, if it is inadequate or if in certain cases its scope is doubtful, the services to be provided shall include the tasks usual within the sector which are necessary to fulfill the agreed contractual purpose.
2.3. The contract upon which these ToS are based is a service contract.
2.4. Individual target agreements such as statistical values, growth or user numbers do not change the character of the contract as a whole. Only where all contractual services serve to achieve a concrete target does this constitute a works contract. Such a target agreement must be expressly stipulated in writing.
2.5. In addition, we owe you services in accordance with the type and quality that are average for the sector.
2.6. Subject to contradictory agreements concerning the nature and execution of the agreed services, we are free as regards the time and place of their execution and have the right to make use of the services of subcontractors in performing this contract.
3. Contract conclusion
3.1. The contractual relationship with us is established upon the completion of the registration procedure on Tideways. A contract can also be concluded by means of an individual agreement.
3.2. We are permitted to refuse the conclusion of a contract for objective reasons. If a registration is incomplete, we are entitled to delete the user account within one week.
4. Account, password and security
4.1. Registering and using Tideways may involve you setting up an account and giving a password.
4.2. You are fully responsible for maintaining the confidentiality of your account and the password, and all activities that occur under your account or password. You agree to immediately notify us of any unauthorized use of your account or password and any breach of security or misuse or suspected breach of security or misuse of Tideways, and ensure that you exit from your account at the end of each session if you use a shared computer. Tideways cannot and will not be liable for any loss or damage arising from your failure to comply with this clause.
5. Legal regulations and obligations to co-operate
5.1. The provisions in this section of the ToS specify the legal responsibility and obligations between us and you, insofar as these have not been explicitly agreed in an agreement.
5.2. The contracting parties co-operate in an atmosphere of mutual trust and will immediately advise each other of deviations from agreed action or if doubts arise as to the correctness of the other partyâs actions.
5.3. Should you recognize that your own information and demands are in error, incomplete, unclear or impracticable, you must advise us of this immediately together with such consequences as you can foresee.
5.4. Our services include no legal examination or consultancy (for example, of data protection, consumer information, copyrights, competition or professional association nature.) You alone are responsible for compliance with these obligations.
5.5. You shall ensure that the content you provide is free of third-party rights and that its publication does not violate applicable law in any form.
5.6. Where we suggest content, measures or services, you are obliged to examine their legal admissibility.
5.7. Insofar as we provide you with legal models, e.g. usage and data protection terms, these should be considered as templates. It is your responsibility to adapt the models to your own legal requirements.
6.1. The remuneration currently owed is based on the chosen plan at https://app.tideways.io/ and is quoted net. Statutory VAT applicable at the time of invoicing is charged in addition.
6.2. The remuneration is due to payment at the beginning of each payment interval.
6.3. The terms and conditions of involved payment services (e.g. paypal) apply additionally.
6.4. We reserve the right to change the scale of remuneration at any time. With regard to current contracts, such change shall take effect only from the beginning of the following contracting period.
6.5. You may settle the remuneration using one of the payment methods we have offered to you. You will be provided with the invoices electronically.
6.6. If we cannot provide our services due to lacking and inadequate co-operation or supplies from you or if we can provide our services only by incurring additional expenditure, we are entitled to claim such necessary additional expenditure from you.
6.7. Should it not be possible to have an invoice paid by direct debit, you shall bear all consequential costs. These include especially bank charges in connection with the return of direct debits and comparable fees to the extent that you are responsible for the event that triggers the costs. We can send you payment reminders electronically.
6.8. Should you fall into arrears with your payments, we have the right to refuse to fulfill payments due to you and to block access to Tideways until such default has been rectified. In such cases we will normally notify you of such blocking 10 working days in advance to rectify such default. Our other legal and contractual rights with regard to payment delay shall remain unaffected.
6.9. Should you fall into arrears with your payment, you must expect to be charged 8% interest for late payment (should you be an entrepreneur) or 5% respectively (should you be a consumer) above the base interest rate. Default interest will be charged, even without a written warning, if the payment is not made at the agreed date. We reserve the right to raise a claim for a higher value of compensation for such delay.
6.10. All contractual remunerations for individual offers to entrepreneurs shall be subject to the addition of the legal rate of VAT or otherwise shall include the VAT applicable at the time of invoicing.
6.11. You may offset only uncontested or legally binding debts against our claims, insofar as these are not claims for completion or the rectification of faults. You are entitled to a right of retention only for counterclaims arising from the contract that forms the basis of these ToS.
7. Tariff changes and termination
7.1. The contract term for the use of Tideways, is determined for chargeable tariffs by the selected payment interval. Where an automatic contract prolongation has been selected, the contract will be prolonged automatically upon the expiry of the contract term by the same period, insofar as it has not been previously terminated giving notice of seven days before contract termination.
7.2. A termination of the contract is possible at any time on the free-of-charge tariff.
7.3. You may change to a higher tariff and take advantage of its service immediately (described as an âupgradeâ) at any time. Insofar as you still have an unused usage quota from the previously existing contractual relationship, this will initially be credited to you or offset against the invoice for the new tariff.
7.4. A change to a lower tariff (described as a âdowngradeâ) is possible only after the expiry of the respective contractual term. You may have to delete certain data that exceed the volume of the lower tariff.
7.5. In addition, the contractual term is determined by individual agreement.
7.6. Both contracting parties reserve the right to an early extraordinary termination of the contract for important reasons. An extraordinary termination is permitted in particular where you remain in default with your payment obligations for two months. Where necessary, a written warning concerning the objectionable conduct must precede the extraordinary termination.
7.7. In case of contract termination, you are responsible for saving your data before your contract expires.
8. Changes in service and defects
8.1. The scope of the services we are offering, the user accounts and their technical design are derived from the current technical status of Tideways and the description of services at the time of contract conclusion.
8.2. We reserve the right to extend, change or limit functions where this is in the interests of technical progress, is necessary to prevent misuse or where we are legally obliged to do so. Where such change in the scope of functions impairs your contractual use of Tideways to a more than negligible degree, you have the right to a fee adjustment or the termination of your contract.
8.3. Claims for defects shall not be entertained if such defect is insignificant, i.e. does not have a significant effect on the agreed service and its target.
8.4. You must notify us in writing of obvious defects that would be immediately apparent to an average user within seven working days after their materialization and give a sufficiently detailed reason for their rectification. In case of defects that are not obvious, the grace period for notification begins upon their recognition. Otherwise, claims for such defects cannot be raised.
8.5. Necessary adjustments that we could not have foreseen in the normal course of events do not constitute defects. In particular, these include unforeseeable changes in the legal position at the time of performing our services or technical changes carried out by third parties over which we have no influence.
9.1. You hereby acknowledge that a 100% availability of Tideways cannot be technically assured. However, we shall strive to keep Tideways available as consistently as possible in accordance with the following limitations in this section.
9.2. We cannot ensure the availability of Tideways during times in which it cannot be accessed due to technical or other problems that lie outside our sphere of influence (Force Majeure, third-party culpability, necessary maintenance etc.). Where the safety of the network or the maintenance of network integrity is endangered for reasons beyond our sphere of responsibility, we can temporarily limit access to Tideways as required.
9.3. You will be notified of foreseeable downtimes due to maintenance work in good time in advance. Claims in this respect can therefore not be deduced.
10. Usage rights
10.1. We hereby transfer to you the necessary usage rights required for the respective purpose of Tideways to your usage extent appropriate to the agreement, the period of usage and the geographic application area. Insofar as nothing to the contrary has been agreed, a simple usage right will be transferred.
10.2. The usage rights to Tideways will be transferred to you for the time required in accordance with the agreement. This time period can be specifically agreed or be determined by circumstances, e.g. the contract term.
10.3. The usage rights to Tideways will be transferred to you only after the remuneration has been paid to us in full.
10.4. Insofar as Tideways contains Open Source elements, the transfer of rights will be effected only in accordance with and to the extent of the relevant Open Source license. We must point out explicitly that the Open Source elements may only be used and processed and be the objectives of official injunctions within the scope of the respective license.
10.5. Beyond the rights granted above we do not grant you any right, title, or interest in any of our Properties or any content other than your data and your user's content. These ToS do not grant you any rights to use our trademarks, logos, domain names, or other brand features.
11. Interfaces an Third Party Technology
11.1. We offer software interfaces (also called âAPIâ) for Tideways which you can use to transfer your data and execute functions provided by Tideways using your technology or technology of third party software suppliers. We can only ensure the functionality of the interfaces in accordance with the availability provisions of these ToS insofar as such functionality lies within our scope of influence. In particular, no liability can be accepted for the interfaces' possible lack of compatibility or access capability where the defects lie in the third party supplierâs software.
11.2. The same limitations apply where you combine third party software via its interfaces to Tideways.
11.3. Tideways may contain links to or incorporate third party technology. We do not endorse and are not responsible or liable for responsible for the operation or functionality of third party technology.
12.1. You agree to indemnify, defend, and hold us, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives (hereinafter referred to as "Tideways Entities") of each of harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) user's access to or use of Tideways, (ii) your violation of the ToS, (iii) any products or services purchased or obtained by users in connection with Tideways, or (iv) the infringement by users, or any third party using user's account, of any intellectual property or other right of any person or entity.
12.2. We reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
13. Diclaimers and Limitation of Liability (except German and Austrian Users)
13.1. PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE TIDEWAYS ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. GERMAN AND AUSTRIAN USERS ARE REFERRED TO THE PARTICULAR LIABILITY LIMITATION CLAUSE FOR THESE JURISDICTIONS. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING TIDEWAYS. BY ACCESSING OR USING TIDEWAYS, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
13.2. TIDEWAYS IS MADE AVAILABLE TO YOU ON AN "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE TIDEWAYS ENTITIES MAY NOT MONITOR, CONTROL, OR VET USER CONTENT. AS SUCH, YOUR USE OF TIDEWAYS IS AT YOUR OWN DISCRETION AND RISK. THE TIDEWAYS ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF TIDEWAYS, ITS SAFETY OR SECURITY, OR TIDEWAYSS CONTENT. ACCORDINGLY, THE TIDEWAYS ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SITE'S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE BUSINESS LISTINGS, RATINGS, REVIEWS, METRICS OR REVIEW FILTER FOUND ON, USED ON, OR MADE AVAILABLE THROUGH TIDEWAYS.
13.3. TIDEWAYS ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON TIDEWAYS'S WEBSITE OR TIDEWAYS'S USERS. ACCORDINGLY, THE TIDEWAYS ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER OR BUSINESS MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES OR ADVERTISERS LISTED OR FEATURED ON TIDEWAYS'S WEBSITE OR WITHIN TIDEWAYS. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH TIDEWAYS'S WEBSITE OR TIDEWAYS IS AT YOUR OWN DISCRETION AND RISK.
13.4. TIDEWAYS ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON TIDEWAYS'S WEBSITE OR WITHIN TIDEWAYS, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF ONE OF THE TIDEWAYS ENTITIES SHALL CREATE A REPRESENTATION OR WARRANTY.
13.5. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH TIDEWAYS'S WEBSITE OR TIDEWAYS, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF TIDEWAYS'S WEBSITE OR TIDEWAYS.
13.6. THE TIDEWAYS ENTITIES' MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH TIDEWAYS'S WEBSITE OR TIDEWAYS OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE TIDEWAYS ENTITIES IN CONNECTION WITH TIDEWAYS IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) 100 â¬.
13.7. THE TIDEWAYS ENTITIES DISCLAIM LIABILITY FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, OR (v) LOSS OF INFORMATION OR DATA.
14. Diclaimers and Limitation of Liability (German, Austrian Users and Exceptions)
14.1. The following exclusions and limitations of liability apply with regard to OUR liability for damage compensation, notwithstanding the other legal claim requirements. They apply to German and Austrian Users or if the Disclaimers and limitation of liability in section 13 of this ToS is not applicable or invalid.
14.2. WE assume unlimited liability if the cause of the damage is the result of intent or gross negligence.
14.3. Furthermore, WE assume liability for the slightly negligent breach of significant duties, whose breach places the achievement of the purpose of the Agreement at risk, or for the breach of duties whose fulfillment generally enables the execution of the Agreement and on whose compliance they regularly rely. However, in this case, WE shall only be liable for the foreseeable damage that might typically occur under the Agreement. We are not liable for the slightly negligent breach of duties other than those stated in the above-mentioned sentences.
14.4. The above-mentioned limitations of liability do not apply for loss of life, bodily injury or damages to health for a defect after assumption of a guarantee for the nature of the product and for fraudulent concealment of defects. Liability pursuant to the Product Liability Act remains unaffected.
14.5. If OUR liability is excluded or limited, this also applies for personal liability of employees, representatives, agents or assistants.
15. Load Tests
15.1. Tideways comes with optional functions that allow you to subject your website to load tests in order to check its performance under extraordinary and stressful circumstances.
15.2. Please keep in mind that you are solely responsible for performing these tests and should take into account that the availability of your website might be impaired by those tests. We are not liable for any consequences of load tests.
16.1. You must not misuse Tideways by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorized access to Tideways, the server on which Tideways is stored or any server, computer or database connected to Tideways. You must not attack Tideways via a denial-of-service attack or a distributed denial-of service attack.
16.2. Should your usage of Tideways create an overload and reach beyond reasonable use, we have the right to block access to Tideways until such default has been rectified. In such cases we will normally notify you of such blocking. Our other legal and contractual rights shall remain unaffected.
17. Change in ToS
17.1. We reserve the right to change the ToS at any time with effect from a future date. A change in essential provisions which influence your contractual claims shall be made only for valid and objective reasons, especially of a legal, technical and economic nature.
17.2. We shall advise you of the amended ToS, at least in text form, so that you will have at least two weeks time to object to the change. In case of an objection, we can determine whether the previous ToS in our contractual relationship with you shall remain valid or whether you shall receive the right to termination. Should you not object to the amended ToS within the objection period, they shall be considered to have been accepted.
18.1. The contracting parties undertake to treat all information they gain knowledge of during the fulfillment of this contract as confidential and to use it only for contractually agreed purposes.
18.2. The rights and obligations in accordance with this section concerning confidentiality shall remain unaffected by a termination of this contract.
19. Data Protection
19.1. We processes your personal data only for a specific purpose and pursuant to the statutory provisions.
19.2. You shall ensure and warrant that the data you provide to Tideways or us is free of third-party rights and that by processing it, we do not violate any applicable law in any form. In particular your are obliged to care for the data protection rights of your customers and are not supposed to transmit any personally identifiable data to us. By default Tideways will not transfer any personal data.
19.3. You may use the encryption techniques provided by Tideways. However the according setup of the encryption lies within your responsibility.
19.4. The personal data stated for the purpose of our services (such as name, email address, payment details) shall be used for the fulfillment and execution of the agreement. This data shall be treated as confidential and not forwarded to third parties that are not involved in the order, delivery and payment processes.
19.5. The Customer has the right to receive information on the personal data that has been saved by us about him, free of charge. In addition, the Customer has the right to amend incorrect data, block and delete his personal data provided this does not contradict any legal storage obligation.
20. Place of Jurisdiction, Applicable Law and Final Provisions
20.1. Place of jurisdiction shall be our registered office, if you are businessperson, enterprise, a legal entity of public law or public special fund. The German law applies exclusively, unless expressly agreed otherwise or pursuant to consumer protection legislation.
20.2. Any failure on our part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
20.3. The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with our prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these ToS and be void.
20.4. If one of the above-mentioned provisions is partially or completely ineffective, this does not affect the effectiveness of the remaining provisions.