Terms of Use
Last updated: August 3, 2021
Welcome to Diwima®, a service offered by Diwima GmbH! Diwima® provides digital offerings that can be accessed via our mobile applications ("Apps"). Please read these Terms of Use (the "Terms") carefully, as they govern your use of our services.
Agreement to the Terms
By using our services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, you may not use the services.
Privacy Policy
For information on how we collect, use, and disclose information from our users, please refer to our Privacy Policy (https://diwima.de/datenschutzerklaerung/). You acknowledge and agree that your use of the services is subject to our Privacy Policy.
Changes to the Terms of Use
We may change these Terms at any time at our sole discretion. In such a case, we will inform you either by posting the modified Terms on the site or through other communications. It is important that you read the Terms again whenever we make changes. If you continue to use the services after the modified Terms are posted, you indicate your agreement to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, you may not continue to use the services. As our services evolve over time, we may modify or discontinue the services, in whole or in part, at any time without prior notice and at our sole discretion.
Notice of Arbitration
Unless you opt out of the arbitration procedure within 30 days from the date you first agreed to these Terms, as described in the "Arbitration" section below, and except for certain types of disputes outlined in the "Arbitration" section below, you agree that disputes between you and Diwima GmbH will be resolved by binding individual arbitration, and you waive your right to a jury trial or to participate as a plaintiff or class member in any class action or representative action.
Who Can Use the Services
Eligibility
You may only use the services if you are 13 years of age or older and the use of the services is not prohibited by applicable law. To make a purchase through the services (as explained in the "Purchases" section below), you must be at least 18 years old and capable of entering into a legally binding contract.
Use of the Services
Users can unlock paid features through the services to permanently access the services' functions.
Purchases
Fees
Diwima GmbH offers features, among other things, that you can acquire through a subscription ("Subscription"). A description of the features associated with the Subscriptions is available through the services. If you purchase a Subscription (each a "Transaction"), we may request additional information relevant to your Transaction, such as your credit card number, expiration date of your credit card, and your billing and shipping address(es) (these are referred to as "Payment Information"). You represent and warrant that you have the legal right to use all payment methods included in such Payment Information. The amounts you owe for a Transaction through the services will be displayed to you before you place your order. By initiating a Transaction through the services, you authorize us to share your Payment Information with third-party providers in order to complete your Transaction, and you agree to (a) pay the fees and any applicable taxes; (b) allow Diwima GmbH to charge your credit card or the payment processing account of a third party, including but not limited to your App Store account or a distribution platform (such as the Apple App Store, Google Play, or Amazon Appstore) where the app is provided (each an "App Provider"), for verification, pre-authorization, and payment purposes; and (c) cover any additional fees that your App Provider, your bank, or another financial service provider may charge you, as well as any taxes or fees that may apply to your order. You will receive a confirmation email once we have confirmed payment for your order. Your order is not binding on Diwima GmbH until it is accepted and confirmed by Diwima GmbH. Payments made are non-refundable and non-transferable unless explicitly stated otherwise in these Terms of Use.
If you have concerns or objections regarding fees, you agree to first contact us, and you agree not to cancel or dispute credit card charges or third-party payment processing fees unless you have made a reasonable attempt to resolve the issue directly with Diwima GmbH.
Diwima GmbH reserves the right to refuse or cancel your order under certain circumstances, such as if your credit card is declined, if we suspect that the request or order is fraudulent, or under other circumstances if Diwima GmbH deems it appropriate at its sole discretion. Diwima GmbH also reserves the right to take measures to verify your identity in connection with your order at its sole discretion. You may need to provide additional information to verify your identity before completing your transaction (such information is included in the definition of "Payment Information"). Diwima GmbH will not charge you for orders that we do not process or cancel, or will refund you for such orders.
Automatic Renewal of Subscriptions Until Canceled by You and How to Cancel Your Subscription
All amounts are payable as follows and will be billed as follows: for monthly or annual Subscriptions at the beginning of the Subscription, and since each such Subscription automatically renews for another period corresponding to the expired Subscription period, at the time of each renewal until canceled by you via the payment information you provided. You must cancel your monthly or annual Subscription before it renews to avoid being charged for the next subscription period. If you purchase your Subscription through an App Provider, you can cancel the renewal of your Subscription at any time through the App Provider. Once you have paid for a subscription period, you will have access to the ordered services until the end of your current subscription period.
Changes to Subscription Pricing Terms
Diwima GmbH reserves the right to change its pricing terms for Subscriptions at any time, and Diwima GmbH will inform you of such changes before they take effect. Changes to the pricing terms will not apply retroactively and will only apply to Subscription renewals after you have been informed of the updated pricing terms. If you disagree with the updated pricing terms from Diwima GmbH, you have the option to not renew your Subscription as outlined in the "Automatic Renewal of Subscriptions Until Canceled by You and How to Cancel Your Subscription" section.
Future Features
You agree that your purchases are not dependent on the delivery of future features or functionalities or on oral or written public statements made by Diwima GmbH regarding future features or functionalities.
Feedback
We welcome feedback, comments, and suggestions for improving the services or products ("Feedback"). You can send us your Feedback via email to info@diwima.de. You grant us a non-exclusive, worldwide, perpetual, irrevocable, fully paid, royalty-free, sublicensable, and transferable license to use, reproduce, modify, create derivative works based on, or otherwise use the Feedback for any purpose within all intellectual property rights you own or control.
Content and Content Rights
For the purposes of these Terms, (i) "Content" refers to text, graphics, images, music, software, audio, video, copyrighted works of any kind, as well as information or other materials posted, generated, provided, or otherwise made available through the services; and (ii) "User Content" refers to all content that users (including you) provide to be made available through the services. Content includes User Content without restriction.
Content Rights
Diwima GmbH does not claim rights to User Content, and nothing in these Terms is intended to restrict any rights you may have regarding the use and exploitation of your User Content. Subject to the foregoing, Diwima GmbH and its licensors are the exclusive owners of all rights, title, and interest in the services and Content, including all related intellectual property rights. You acknowledge that the services and Content are protected by copyright, trademark, and other laws of the U.S. and other countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary notices that appear in the services or Content or accompany them.
Rights Granted by You to User Content
By providing User Content through the services, you grant Diwima GmbH a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use your User Content in connection with the operation and provision of the services and Content for you and other users to use, reproduce, modify, create derivative works based on, distribute, publicly display, publicly perform, and distribute.
Rights Granted by Diwima GmbH to Content
Subject to your compliance with these Terms, Diwima GmbH grants you a limited, non-exclusive, non-transferable, non-sublicensable right to download, view, reproduce, and display the Content solely in connection with your authorized use of the services and solely for your personal, non-commercial purposes.
Rights and Terms for Apps
Rights Granted by Diwima GmbH to Apps
Subject to your compliance with these Terms, Diwima GmbH grants you a limited, non-exclusive, non-transferable, non-sublicensable right to download and install a copy of the app on a mobile device or computer that you own or control, and to execute such copy of the app solely for your personal, non-commercial purposes. Diwima GmbH retains all rights to the app that are not explicitly granted to you under these Terms. You may only copy the app to make a reasonable number of copies for backup or archival purposes. Except as expressly permitted under these Terms, you may not: (i) copy, modify, or create derivative works based on the app; (ii) distribute, transmit, sublicense, lease, lend, or rent the app to third parties; (iii) reverse-engineer, decompile, or disassemble the app; or (iv) make the functionality of the app available to multiple users in any manner.
Additional Terms for Apps from App Stores
If you obtained or downloaded the app from the Apple Store, you agree to use the app only: (i) on an Apple-branded product or device with iOS (Apple's proprietary operating system); and (ii) in accordance with the "Usage Rules" in the terms of service of the Apple Store.
If you obtained the app from an App Provider, you acknowledge and agree that:
These Terms are between you and Diwima GmbH, and not with the App Provider, and that, between Diwima GmbH and the App Provider, Diwima GmbH is solely responsible for the app.
The App Provider is not obligated to provide maintenance or support services in connection with the app.
In case of a defect in the app under an applicable warranty, you may inform the App Provider, who will refund the purchase price for the app (if applicable), and the App Provider will have no further warranty obligations concerning the app under applicable law. Any other claims, losses, liabilities, damages, costs, or expenses attributed to a defect in the app under an applicable warranty are the sole responsibility of Diwima GmbH.
The App Provider is not responsible for any claims you or third parties may have in connection with the app or your possession and use of the app, particularly: (i) product liability claims; (ii) claims that the app does not comply with applicable legal or regulatory requirements; and (iii) claims arising from consumer protection or similar laws.
In case a third-party claim arises that the app or your possession and use of the app infringes on third-party intellectual property rights, Diwima GmbH will be solely responsible for investigating, defending, settling, and fulfilling such intellectual property infringement claims as required under these Terms.
The App Provider and its subsidiaries are third-party beneficiaries of these Terms in relation to your usage rights for the app, and upon your acceptance of these Terms, the App Provider has the right (assuming they have accepted the right) to enforce these Terms in relation to your rights regarding the app as a third-party beneficiary against you.
You must also comply with all applicable third-party usage terms when using the app.
You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the app nor any associated technical data or direct products are exported or re-exported in violation of such laws and regulations, or used for purposes prohibited under such laws and regulations. By using the app, you represent and warrant that: (i) you are not located in a country subject to a U.S. government embargo or designated by the U.S. government as a "terrorist-supporting" country, and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
Prohibited Actions
You agree not to engage in any of the following activities:
Posting, uploading, publishing, sending, or transmitting content that: (i) infringes or misappropriates patents, copyrights, trademarks, trade secrets, personal rights, privacy rights, or other intellectual property or personal rights of third parties; (ii) violates applicable laws or regulations, or promotes behavior that violates applicable laws or regulations or would lead to civil liability; (iii) is fraudulent, false, misleading, or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm to individuals or groups; (vi) is violent or threatening or promotes violence or acts that appear threatening to natural or legal persons; or (vii) promotes illegal or harmful activities or substances;
Using, displaying, mirroring, or framing the services or any element within the services, Diwima GmbH's name, trademark, logo, or other proprietary information of Diwima GmbH, or the layout or design of a page or form that is part of a page, without Diwima GmbH's express written consent;
Accessing, manipulating, or using non-public areas of the services, Diwima GmbH's computer systems, or the technical delivery systems of Diwima GmbH's service providers;
Attempting to probe, scan, or test the vulnerabilities of Diwima GmbH's systems or networks, or to breach security or authentication measures;
Avoiding, circumventing, removing, disabling, impairing, decrypting, or otherwise undermining technical measures implemented by Diwima GmbH, a Diwima GmbH provider, or any third party (including other users) to protect the services;
Attempting to access or search the services or download content from the services using engines, software, tools, agents, devices, or mechanisms (including spiders, robots, crawlers, data-mining tools, or similar) that are not provided by Diwima GmbH or other publicly available third-party web browsers;
Sending unsolicited or unauthorized advertising, marketing materials, emails, junk mail, spam, chain letters, or any other form of solicitation;
Using metatags or other hidden text or metadata that uses Diwima GmbH's trademark, logo URL, or product name, without Diwima GmbH's express written consent;
Using the services for commercial purposes or for the benefit of a third party or in any unauthorized manner not approved by these Terms;
Falsifying TCP/IP packet header information or any part of the header information in an email or newsgroup posting or using the services to alter or mislead source-identifying information;
Attempting to decrypt, decompile, disassemble, or reverse engineer software used to provide the services;
Disrupting or attempting to disrupt a user's, host's, or network's access, including but not limited to sending viruses, overloading, flooding, spamming, or mail-bombing the services;
Collecting or storing personal data from other users of the services without their explicit consent;
Impersonating or falsely representing your connection to any natural or legal person;
Violating applicable laws or regulations; or
Encouraging or enabling another person to perform any of the foregoing actions.
While we are not obligated to monitor access to or use of the services or content, or to review or edit content, we have the right to do so for the purpose of providing the services, ensuring compliance with these Terms, and complying with applicable laws or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to content at any time without notice, particularly if we conclude at our sole discretion that the content is offensive or violates these Terms. We have the right to investigate violations of these Terms or conduct related to the services. We may also consult with law enforcement authorities and work with you to prosecute users who violate laws.
Links to Third-Party Websites or Resources
The services and the app may contain links to websites or resources of third parties. We provide these links solely for convenience and are not responsible for the content, products, or services on these websites or resources, or for the content, products, or services available from these websites or resources, nor for links listed on these websites. You acknowledge that you are solely responsible for your use of third-party websites or resources and bear all risks associated with such use.
Termination
We may terminate your access to the services and your use of the services at any time and without notice at our sole discretion. You may cancel your account at any time by sending an email to info@diwima.de. If you purchase a subscription through an app provider, you should also cancel your subscription directly with the app provider. After termination, suspension, or cancellation of the services or your account, all provisions of these Terms that by their nature should survive will remain in effect, including but not limited to, ownership provisions, disclaimers of warranties, limitations of liability, and dispute resolution provisions.
Disclaimers of Warranties
The services, products, and content are provided "as is" without any warranties of any kind. Without limiting the foregoing, we expressly disclaim all warranties of merchantability, fitness for a particular purpose, uninterrupted use, or non-infringement, as well as any warranties arising from the course of dealings or usage.
We do not warrant that the services or products will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranties about the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any content.
Indemnification
You will indemnify and hold Diwima GmbH and its officers, directors, employees, and agents harmless from all claims, disputes, demands, liabilities, damages, losses, and costs, including reasonable legal and accounting fees, in connection with (i) your access to or use of the services or content or (ii) a breach of these Terms by you.
Limitation of Liability
Neither Diwima GmbH nor any other party involved in the creation, production, or delivery of the services, products, or content will be liable for incidental, special, exemplary, or consequential damages, including but not limited to lost profits, data loss, loss of business value, service interruptions, computer damage or system failure, or the costs of replacing services or products arising from or in connection with these Terms or your use or inability to use the services, products, or content, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and regardless of whether Diwima GmbH was informed of the possibility of such damages, even if it is determined that a limited remedy set forth herein fails to achieve its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or indirect damages, so the above limitation may not apply to you.
In no event will Diwima GmbH's total liability in connection with these Terms or the use or inability to use the services, products, or content exceed the amounts you paid to Diwima GmbH for the use of the services, products, or content, or fifty euros (50 €), if you had no payment obligations to Diwima GmbH. The exclusion and limitations of the compensation amounts mentioned above are essential components of the agreement between Diwima GmbH and you.
Dispute Resolution
Applicable Law
These Terms and all related actions are governed by the laws of the Federal Republic of Germany, excluding its conflict of laws provisions.
Agreement to Arbitration
Except for disputes related to: (1) your or Diwima GmbH’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), (2) violations of the API Terms, or (3) violations of provisions 13 or 15 of the General Terms above (“Excluded Disputes”); You agree that all disputes between you and Diwima GmbH (whether or not involving a third party) regarding your relationship with Diwima GmbH, including but not limited to disputes related to these Terms, your use of the service, and/or privacy or public rights, will be resolved by binding individual arbitration — you and Diwima GmbH hereby waive your right to a jury trial or participation as a plaintiff or class member in any class or representative action.
You may opt-out of the arbitration procedure by notifying Diwima GmbH in writing within 30 days from the date you first agreed to these Terms. To opt-out, use this address:
Diwima GmbH, Ludgeriplatz 2, 48151 Münster, Germany
You must include your name, business address, and the email address you used to access the services, and include a statement that you wish to opt-out of the arbitration agreement.
Should the above ban on class actions or claims made on behalf of third parties be unenforceable, the entire preceding section on arbitration will be void. This arbitration agreement remains effective even after the termination of your relationship with Diwima GmbH.
Time Limits for Claims
You agree that any claims you may have in connection with your relationship with Diwima GmbH must be filed within one year of the occurrence of such a claim. Otherwise, your claim is permanently barred.
Applicable Law and Jurisdiction
These Terms are governed by the laws of Germany without regard to conflict of laws principles. For any legal claims or claims in equity regarding the arbitration provision in these Terms, the excluded disputes, or if you opt-out of the arbitration agreement, you agree to resolve any disputes with Diwima GmbH exclusively before a court in Bonn, Germany, and submit to the personal jurisdiction of the courts in Germany for any such disputes.
Should any provision of these Terms be found to be unlawful, invalid, or unenforceable during arbitration or by a competent court, the corresponding provision will be deemed severed from these Terms, and the validity and enforceability of the remaining provisions will not be affected. Diwima GmbH’s failure to enforce any provision of these Terms is not considered a waiver of such provision or right. No waiver of any provision will be deemed a further or continuing waiver of that provision or any other provision. Diwima GmbH reserves the right to modify the dispute resolution provisions, but such changes will not apply to disputes that arose before the effective date of the modification. These dispute resolution provisions will remain effective beyond the end of your relationship with Diwima GmbH.
Changes
Notwithstanding the provisions of the above section "Changes to the Terms of Use," you may reject any changes made by Diwima GmbH to this "Dispute Resolution" section after the date you first agreed to these Terms (or later agreed to changes in these Terms) by sending written notice (including by email to info@diwima.de) within 30 days after the change becomes effective, as indicated above in the section "Last Updated" or in the date of the email from Diwima GmbH to you notifying you of the change. By rejecting the changes, you agree that all disputes between you and Diwima GmbH will be resolved in accordance with the provisions of this "Dispute Resolution" section, as they were when you first agreed to these Terms (or later agreed to changes in these Terms) by arbitration.
General Terms
These Terms represent the entire and exclusive agreement between Diwima GmbH and you with respect to the services, products, and content, and supersede all prior oral or written agreements between Diwima GmbH and you regarding the services, products, and content. If any provision of these Terms is found to be invalid or unenforceable (either by an arbitrator as per the conditions of the "Arbitration" section above or by a competent court, but only if you have timely objected to arbitration by sending the notice to opt out in accordance with the provisions outlined above), that provision will be enforced to the maximum extent permissible, and the remaining provisions of these Terms will remain fully effective.
You may not assign or transfer these Terms by operation of law or otherwise without the prior written consent of Diwima GmbH. Any attempt by you to assign these Terms without such consent will be void and of no effect. Diwima GmbH may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms are binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
All notices or other communications from Diwima GmbH under these Terms, including those regarding changes to these Terms, will be provided: (i) by Diwima GmbH via email, or (ii) by posting within the services. For notices sent via email, the date of delivery is the date the notice was sent.
Failure by Diwima GmbH to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. A waiver of any right or provision will be effective only if in writing and signed by an authorized representative of Diwima GmbH. Unless explicitly stated otherwise in these Terms, any exercise of a party’s rights under these Terms will be in addition to all other rights the party may have under these Terms or otherwise.
Contact Information
If you have any questions about these Terms or the services or products, please contact Diwima GmbH at info@diwima.de.