(a) Zwitch allows a user to benefit from services in the licensed application that includes starting and tracking a trip to obtain trip information such as distance and duration and collect incentive points.
(b) Zwitch may be used via apps through users' mobile phones, or for organisations that set up schemes via the Zwitch website.
(c) The following sets out the terms and conditions between each registered Zwitch user (you), and Pocketweb GmbH (us, or we). By becoming a registered user of Zwitch, you accept and agree to be bound by these terms and conditions.
(d) A user has the powers as an individual to complete and comply with registration and access in order to follow the Zwitch terms and conditions.
(e) Safety must always be in focus. Never use Zwitch in a traffic situation with risk for danger!
(a) Zwitch is available for mobile phone handset models set out as described on www.zwitch.eu
(b) Zwitch may work on the following mobile phone handset models set out at www.zwitch.eu; however, functionality may be limited on specific models depending on operator and country specific conditions.
(c) Zwitch may be used only by users aged 16 or over.
(a) Zwitch is available through online application access after the app has been downloaded.
(b) You warrant that the information you provide to Zwitch upon registration is true, accurate, current and complete, and will ensure that all your information on Zwitch is and will remain at all times true, accurate, current and complete.
(c) When you register, you will be asked to provide a password. You are responsible for all activities that occur under your password. You must keep your password strictly confidential at all times and notify us immediately of any unauthorised use of your password or if you believe that your password is no longer confidential. We may suspend your account and/or require you to alter your password if we believe for any reason that your password is no longer secure.
(a) To enhance your individual user experience you can, depending on your mobile phone, use tracking functions which use location based services. Locations and tracking features can be determined by GPS (Global Positioning System), AGPS (Assisted Global Positioning System), WLAN or triangulation. The accuracy of location of information will vary, and can depend on factors such as handset capability, density, weather and geographical location. Generally, accuracy can vary between 8 to 5000m. Zwitch cannot guarantee the accuracy or completeness of location information.
(b) Finding the approximate location can in rare cases take around 30 seconds, up to a minute or more.
5. Privacy and security
(b) By registering on Zwitch, you agree to allow us to collect your personal information submitted by you, including data relating to, time stamps, duration, locations and distances.
(c) Consent to Use of Data: You agree that we may collect and use technical data and related information, including but not limited to, technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Licensed Application. We may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You. You allow us to register, process and transfer, between our countries of operation, any information about you deemed necessary in order for us to run Zwitch services.
6. Your obligations
(a) You must not:
• endanger safety and use Zwitch in any traffic situation where your attention is needed to manage the traffic situation.
• use Zwitch for any illegal purpose, or in breach of any law including (without limitation) laws in relation to intellectual property and other proprietary rights, and data protection and privacy.
• use Zwitch, including any location related information obtained through Zwitch to stalk, harass, abuse, defame, threaten or defraud other users.
• include or upload offensive or pornographic materials on your personal profile.
• make unsolicited offers, advertisements, proposals, or send junk/spam mail, to other users.
• intentionally interfere with or damage the operation of Zwitch or any user's enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code.
• post, store, send, transmit, or disseminate any information or material which is misleading or deceptive or likely to mislead or deceive, or which a reasonable person could regard as harassing, objectionable, offensive, embarrassing, indecent, pornographic, vulgar, distressing, threatening, libellous, hateful, racially or ethnically offensive, or otherwise inappropriate.
• post, store, send, transmit, or disseminate any information or material which infringes any intellectual property rights, including patents, trade marks, trade secrets, or copyright.
• use Zwitch with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications; or
• use Zwitch in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application could lead to death, personal injury, or severe physical or property damage.
• attempt to gain unauthorized access to Zwitch, or any part of it, other accounts, computer systems or networks connected to Zwitch, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of Zwitch or any activities conducted on Zwitch.
• use any robot, spider, scraper or other automated means to access Zwitch for any purpose without our express written permission.
• bypass measures we may use to prevent or restrict access to Zwitch or modify Zwitch in any manner or form
• use modified versions of Zwitch, including (without limitation) for the purpose of obtaining unauthorized access to Zwitch; or
• sell or transfer or allow another person to access your account password, profile, or Zwitch account (including, without limitation, by allowing the person access to your handset or computer while you are logged into Zwitch).
(b) If your employer or any other organisation is paying the license fee or any other charges on your behalf, you are hereby informed about that your employer or the organisation is fully liable for its processing of any data you supply to them.
7. License and intellectual property
(a) We grant you the right to use the Zwitch application for personal usage in accordance with Zwitch services (1a). Charges, Licence fees and term for this license are described in 11.
(b) You may not:
• modify, disassemble, decompile or reverse engineer the Zwitch software.
• rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Zwitch software to any third party or use the Zwitch software to provide time sharing or similar services for any third party.
• use Zwitch for any non-personal and/or commercial purposes.
• make any copies of the Zwitch software or assemble infinging software.
• remove, circumvent, disable, damage or otherwise interfere with security-related features of the Zwitch Software, features that prevent or restrict use or copying of any content accessible through the Zwitch software, or features that enforce limitations on use of the Zwitch software.
• delete the copyright and other proprietary rights notices on the Zwitch software.
• use Zwitch beyond your approved times, terms and conditions of usage.
(c) To use Zwitch you may have to:
• download and install new releases of the Zwitch software onto your handset, and agree to the then-current Terms and Conditions (which may require payment of fees); or
• accept alterations to Terms and Conditions (which may require payment of fees or unless accepting these termination of services) to use Zwitch on the Zwitch web site.
(d) Pocketweb GmbH owns or is licensed to use the intellectual property in and to the Zwitch application, including all content, visual interfaces, information, graphics, design, compilation, computer code, products, and software. Nothing in these terms and conditions affects the ownership rights in this intellectual property.
(e) All trademarks displayed on Zwitch are owned by Pocketweb GmbH, its related bodies corporate or third-party licensors.
(f) Except as expressly permitted by us, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make use of Zwitch or any part of Zwitch except as permitted in these terms and conditions.
(g) Zwitch welcome interaction, dialogue and collaboration that contributes to gain sharing and deliver positive climate change. Take contact via: firstname.lastname@example.org.
(a) The speed at which information can be exchanged (including location information) through Zwitch is subject to network availability and handset capabilities.
(b) Zwitch should not be relied on in emergency situations, and is not a substitute for proper adult supervision of children or other vulnerable people such as sick or elderly people.
(c) Zwitch gives no representation, warranty or guarantees as to the accuracy of the data and, without limitation of any other provision herein, we will not be liable in the event data has not been uploaded and stored due to any human or technical failure. This includes, but is not limited to: improper use or possible defects in or of the application, you neglecting to keep passwords and user information secure, failures by third party service providers (such as: GSM data operator or a monitoring service provider for which Zwitch can not make any warranty or representation in respect thereof).
(d) This version of Zwitch provide you with a software without making any warranties or representations, including, to the extent permitted by law, any implied warranty or representation in relation to the merchantability or fitness for purpose. Support services are offered by us for this on a reasonable-effort basis.
(f) WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ("SERVICES") ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. WE TRY TO KEEP ZWITCH, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. WE DO NOT GUARANTEE THAT ZWITCH WILL BE SAFE OR SECURE.
(f) Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR ZWITCH EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE REMEDY FAILS ITS ESSENTIAL PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, APPLICATION PROVIDER'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW
(g) You may not use or otherwise export or re-export the Licensed Application except as authorized by German law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by German law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
(h) Special admonitions for international use include recognising the global nature of the internet. Consequently, you agree to comply with local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the country in which you reside.
(i) Force Majeure. Zwitch can not be made liable for any failure to comply with its obligations under these Terms and Conditions, to the extent that such failure is due to any circumstances beyond its reasonable control including but not limited to industrial action, strike, walkout, inability to obtain supplies, accident, war, rebellion, civil commotion, fire, explosion, earthquake, act of god or any other cause or contingency whatsoever beyond its reasonable control.
9. User-generated content
(a) Zwitch enables you to upload content and materials on facebook or the Zwitch web site, including (without limitation) photographs, location and other information (User Content). You are responsible for your own User Content and the consequences of posting or publishing them.
(b) You warrant and represent that you own, or have the necessary licenses, rights, consents, and permissions to use, and authorise us to use, all intellectual property rights in and to all your User Content.
(c) You have premission to control data related to your account with Zwitch services, such as modes of transports and social community interactions. You grant us a worldwide, non-exclusive, royalty-free, irrevocable, perpetual, and transferable license (with a right to sublicense) to use, reproduce, modify, adapt, publish, and otherwise exploit, for the purpose of developing Zwitch! or any other services provided by us, all User Content. We will not give your personal entered data to other 3rd party service providers and your personal privacy shall remain protected.
(d) You acknowledge that we are not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to User Content from other users. We assume no responsibility whatsoever in connection with or arising from any User Content, and will not be liable for any User Content that is inaccurate, offensive, indecent or objectionable.
(e) We reserve the right to edit your User Content if we in our discretion consider it to be in breach of these Terms and Conditions.
(f) You understand that by using any of the Services, You may encounter content 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 at Your sole risk and that we shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
10. Third party web sites and materials
(b) If your settings permit, Zwitch may collect and present on your Zwitch interface information and content uploaded by you on other web sites (including social networking web sites). You are responsible for all such information and content, and must ensure that all such information and content complies with these terms and conditions.
(c) Your correspondence or business dealings with, or participation in promotions of, any advertiser found on or through Zwitch are solely between you and the advertiser. You agree that we will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on Zwitch.
11. Charges and usage fees
Zwitch has the objective to be free for private usage and strive to enable sustainable development. Pocketweb GmbH or authorised parties (such as App store for iPhone) are, however, allowed to charge you if would become needed for using Zwitch. In case of this you would be informed in advance and then decide if you want to continue to use the service.
If your employer or any other organisation is paying the license fee or any other charges on your behalf the term of this license is decided by them.
Your network provider or Internet Service Provider may charge you for the data downloaded or uploaded.
(a) You can cancel your Zwitch registration by emailing email@example.com. If you cancel your Zwitch registration, we will delete your list of Contacts and cancel your account. Note: the timing of deletion and cancellation can depend on a number of technical factors.
(b) Pocketweb GmbH may temporarily suspend your service, or terminate your registration to Zwitch, if it considers (in its discretion):
• you to be in breach these terms and conditions
• you are abusing the services, including (without limitation), where you excessively use of any of the Zwitch services and such use affects or is likely to affect performance of the Zwitch services, or where you seek location information on one or more individuals unreasonably frequently.
(c) The license is effective until terminated by You or Zwitch. Your rights under this license will terminate automatically without notice from Zwitch if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
13. Amendments to Terms and Conditions
14. Governing law
The formation, existence, construction, performance, validity and all aspects whatsoever of the Terms and Conditions or of any term of the Terms and Conditions will be governed by German law. You and we irrevocably and unconditionally submit to the non exclusive jurisdiction of the courts exercising jurisdiction in Berlin, Germany and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.