DIVIAC Terms of Service
Last Updated: July 24, 2013
Welcome to the Terms of Service for the Diviac website and any associated services. This is an agreement (“Agreement”) between, Diviac AG (“Diviac"), the owner and operator of www.Diviac.com (the “Site ”), the Diviac software (“Software”) and any Diviac services ( “Service(s)”) and you (“you”, “your” or “user(s)”), a user of the Site, Software, and Service.
Throughout this Agreement, the words “Diviac,” “us,” “we,” and “our,” refer to our company, Diviac AG and our Site, Software, or any Services, as is appropriate in the context of the use of the words. Your ability to submit or transmit any information to the Site and Service, including but not limited to text, photos, pictures, comments, designs, data, or videos will be referred to as “Content” throughout this Agreement
Diviac Description of Service
Diviac is the online destination for scuba divers. Diviac acts as a scuba diver’s digital hub, including the world’s most advanced online scuba diving logbook, a dive trip planning platform as well as a community for scuba divers.
Our License Grant to You
We make our Service or any associated Software available through our Site or by download. When you access our Site or any Software, we grant you a commercial, personal, non-exclusive, revocable, limited license to use our Site and use our Software. You acknowledge that we maintain all right, title, and interest to any Software offered through our Service. This means you cannot sell our Service anywhere else, share your license to use our Service with anyone else, reverse engineer, decompile, modify or otherwise attempt to copy our Service.
Your Posting on Diviac
When submitting any information please ensure that such information is accurate. We are not required to host, display, or distribute any of your posts and we may refuse to accept or transmit any Content or delete your Content from Diviac at any time. You understand that when using the Diviac Service you may be exposed to Content from a variety of sources, and that Diviac is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such posts, and that such posts are not the responsibility of Diviac.
You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Diviac with respect thereto, and agree to indemnify and hold Diviac, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
Additionally, depending on the Content submitted by you, sensitive information such as your medical history and medical insurance information may be accessible by others depending on your account settings. You agree that you are solely responsible for this information and that we cannot guarantee the absolute safety and security of any such information.
The Public Display of Your Content on Diviac
When submitting any Content to us, you understand that this Content may be viewable by the public or other users. It is recommended that any media or Content that you store or submit to our Site and Service be tasteful and up to community standards. You agree that we at our sole discretion may remove any material that we determine is not up to community standards.
Any Content submitted by you will be owned by you. However, you agree to grant Diviac and its affiliates, representatives and assigns a non-exclusive, fully-paid, royalty-free, world-wide, universal, transferable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works and otherwise use and reuse all or part of your Content and anything we may make with your Content through Diviac or any other medium currently invented or invented in the future. We reserve the right to display advertisements and to use your Content to advertise and promote Diviac. The foregoing license granted by you terminates once you remove your Content from our Site.
By submitting any Content to our Site and Service, you hereby represent and warrant that you own all rights to your Content or, alternatively, that you have the right to give us the license described above. You also promise that you have paid and will pay in full all fees or other payments related to the use of your post. Finally, you promise that your post does not infringe on the intellectual property rights of others.
When using our Service, you are responsible for your use of Diviac, and for any use of Diviac made using your device. You also agree that your use of Diviac is for personal non-commercial use. You agree not to access, copy, or otherwise use Diviac, including our intellectual property and trademarks, except as authorized by these Terms of Service or as otherwise authorized in writing by Diviac.
You agree not to use Diviac to:
- You may not violate any laws, rules or procedures of Switzerland while using our Software;
- You will not copy, distribute or disclose any part of the Site or the Service in any medium, including without limitation by any automated or non-automated “scraping”;
- You will not use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Site or the Service in a manner that sends more request messages to Diviac servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Diviac grants the operators of public search engines revocable permission to use spiders to copy materials from the publicly available searchable indices of the materials, not caches or archives of such materials);
- You may not sell, lease, loan, distribute, transfer, or sublicense the Software or access to it or derive income from the use or provision of the Software unless enabled through the functionality of our Software;
- You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to the Software or any portion of it;
- You may not violate or infringe other people's intellectual property, privacy, or other rights while using our Software;
- You will not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site, Software, or Service;
- You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- You will not upload invalid data, viruses, worms or other software agents through the Service or Software;
- You will not collect or harvest any personally identifiable information, including account names, from the Service or Software;
- You will not access the Site or Service through any technology or means other than those provided or authorized by the Service or Software;
- You agree not to stalk, harass, bully or harm another individual;
- You agree not to impersonate any person or entity or misrepresent your affiliation with a person or entity;
- You agree to use our Software only in a safe manner and in compliance with all laws, you explicitly agree that you will not use Diviac for any criminal communications or for transmitting any child pornography;
- You agree that you will not hold Diviac responsible for your use of our Site or Software;
- You agree not to violate any requirements, procedures, policies or regulations of networks connected to Diviac;
- You agree not to interfere with or disrupt the Site, Software, or Service;
- You agree not to hack, spam or phish us or other users;
- You agree to provide truthful and accurate Content;
- You agree to not violate any law or regulation and you are responsible for such violations;
- You will not use our Site or Software to post any false, misleading, unlawful, defamatory, obscene, invasive, threatening, harassing, inflammatory, fraudulent Content;
- You agree not to cause, or aid in, the destruction, manipulation, removal, disabling, or impairment of any portion of our Site, including the de-indexing or de-caching of any portion of our Site from a thirty party’s website, such as by requesting its removal from a search engine;
- You will not upload any Content to our Site or Software that includes any third party intellectual property unless you have permission from the owner to use it in the specific manner that you used it;
- If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Service may at our discretion be terminated or suspended. Generally, we will provide an explanation for any suspension or termination of your use of any of our Services, but Diviac reserves the right to suspend or terminate any account at any time without notice or explanation.
Modification of Service
We reserve the right to alter, update, or remove our Service or your access from it at any time, or demand that you do so. We may conduct such modifications to our Service for security reasons, intellectual property or other legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Software for security, legal or other purposes.
Service and Site Availability
We do not guarantee that the Service or Site will always be available, work, or be accessible at any particular time. Only users who are eligible to use our Service may do so. We reserve the right to terminate access for anyone. We cannot guarantee that the Software will work as advertised, or that it will give you the desired results.
Although we aim to provide you accurate data and content through our Software and Service, please be aware that our Service and any information found within it are offered “as-is.” You agree that any information may be inaccurate, unsubstantiated or possibly even incorrect. We cannot guarantee that anything found within our Site or Service will assist you in scuba diving or travelling. You agree to release us from any liability that we may have to in relation to your use of our Software and Service.
Compliance With All Laws and Regulations
Diviac is not responsible for your violation of any laws while using our Site and Service. Users must comply with all local, state, or federal laws regarding your use of our Site and Service. Our Software and Service is void where prohibited.
Intellectual Property Rights
The design of the Diviac Service along with Diviac created text, templates, scripts, graphics, interactive features and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Diviac, subject to copyright and other intellectual property rights under Swiss and foreign laws and international conventions. Diviac reserves all rights not expressly granted in and to the Service and the Site. You agree to not engage in the use, copying, or distribution anything contained within the Site or Service unless we have given express written permission.
Payments and Billing
In order to begin using our standard or premium Service, payment will be required. We may allow you to pay for our Service and Software using your credit card. Billing for our Service and Software occurs yearly or every three years. By using our Service and Software you agree that your credit card will be charged yearly or every three years. If you have any issue with any payments or problems with billing please contact us at [email protected]. Your payment information will be shared with Saasy and PayPal our third party payment processors.
Cancellation and Refunds
You may cancel the Service at any time. To cancel the Service please contact us at [email protected]. Please be aware that once service cancellation occurs, your account information stored on our Site, Service, and Software may be deleted or inaccessible after the current billing cycle has ended. After you have cancelled the Service, you will continue to have access to the service until the current billing cycle has ended. Please be aware that as we offer a Service, no refunds can be given at this time.
You agree that you are solely responsible for paying any taxes, levies, or fees associated with using our Site and Service. Although, we may charge you GST when using our Service, you agree that if we do not, you will pay any associated taxes, levies, or fees.
Representations and Warranties
OUR SITE, SOFTWARE AND SERVICE ARE OFFERED “AS-IS”, INCLUDING ANY ERRORS, BUGS OR OTHER TECHNICAL ISSUES. YOU AGREE THAT WHILE USING OUR SOFTWARE OR SERVICE, YOUR RESULTS MAY VARY AND YOU MAY NOT ACHIEVE ANY DESIRED RESULTS. WE EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED. OUR SITE, SOFTWARE, OR SERVICE MAY NOT BE FIT FOR A PARTICULAR PURPOSE AND MAY NOT WORK OR BE APPLICABLE WHERE YOU RESIDE. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE REASONABLE SKILL AND CARE INVESTED IN OUR SERVICE, SATISFACTORY QUALITY OF OUR SERVICE, MERCHANTABILITY OF OUR SERVICE OR THAT OUR SERVICE IS NON-INFRINGING. FURTHERMORE, WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR SERVICE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, THAT THE SITE OR SERVICE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION, THAT ANY DEFECTS OR ERRORS IN THE SITE OR SERVICE WILL BE CORRECTED, OR THAT THE SITE OR SERVICE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. DIVIAC IS NOT OBLIGATED TO PROVIDE YOU ACCESS TO OUR SITE AND SERVICE. IN THE EVENT OF ANY PROBLEM WITH THE SITE OR SERVICE, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SITE OR SERVICE. IN THE EVENT OF ANY PROBLEM WITH ANY PRODUCTS PURCHASED THROUGH OUR SITE AND SERVICE, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS THROUGH THIS AGREEMENT.
Limitation of Liability
IN NO EVENT SHALL Diviac ag, ltd, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM (I) YOUR USE OR INABILITY TO USE THE SOFTWARE, SOFTWARE, WEBSITE OR OUR SERVICES ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SITE OR SERVICE, (III) ANY INTERRUPTION,MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR SOFTWARE TO YOU, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY, (V) ANY FAILURE OF ANY THIRD PARTY INFORMATION LISTED ON OUR SITE AND SERVICE, INCLUDING ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL OR (VI) ANY ERRORS OR OMISSIONS IN OUR SITE OR SERVICE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF OUR SITE OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION
For Jurisdictions that do not allow us to limit our liability:
Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE. YOUR ABILITY TO USE OUR SOFTWARE IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. YOU AGREE OUR TOTAL LIABILITY TO YOU IS NOT MORE THAN 100 SWISS FRANCS OR THE TOTAL AMOUNT YOU SPENT WHILE USING OUR SITE, SOFTWARE, AND SERVICE WITHIN THE LAST SIX MONTHS, WHICHEVER IS GREATER.
You agree to defend, indemnify and hold harmless Diviac EG its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
- your use of and access to the Diviac Site and Service;
- your violation of any term of these Terms of Service;
- your violation of any third party right, including without limitation any copyright, property, or privacy right; or
- any claim that any of your Content or actions through Diviac caused damage to a third party.
This defense and indemnification obligation will survive this Agreement and your use of the Diviac Service. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
Diviac and its Services may only be used by persons 18 years and older. If you are under 18 please stop using our Site and Software and please do not submit any information to us.
Choice of Law
This Agreement shall be governed by the laws in force in Switzerland. The offer and acceptance of this contract is deemed to have occurred in Switzerland.
Forum of Dispute
You agree that any dispute arising from or relating to this Agreement will be heard solely by a court or tribunal of competent jurisdiction in or nearest to Zumikon, Switzerland.
If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Diviac shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
We may terminate or suspend service, your account, or the Software without notice, though we will strive to provide a timely explanation in most cases. If you wish to terminate this Agreement, you are solely responsible for following proper termination procedures. Although, your information may not be accessible we may keep such information for a reasonably commercial time for legal and internal purposes. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified and we may email you if we believe it is necessary. For these reasons, we recommend that you look through this Agreement from time to time. You may refuse to agree to any amendments, but if you do, you must immediately cease using our website and our Service.
The communications between you and Diviac use electronic means, whether you visit the Software, Site, or Service or send Diviac e-mails, or whether Diviac posts notices on the Software, Site, or Service or communications with you via 3-mail. For contractual purposes, you (1) consent to receive communications from Diviac in an electronic form; (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Diviac provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.