Service terms

SERVICE TERMS FOR USE OF SMARTRUNNER SITE AND MOBILE APPLICATION


Last updated on 2010 May 20th

PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICES. BY ACCESSING THIS SITE OR USING ANY PART OF THE SITE OR ANY CONTENT OR SERVICES ON THE SITE OR THE MOBILE APPLICATION, YOU AGREE TO BECOME BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS THE SITE OR USE THE CONTENT OR ANY SERVICES IN THE SITE OR THE MOBILE APPLICATION.

1. APPLICABILITY

The webpages available at www.smartrunner.com, www.smartrunner.net , www.smartrunner.de, www.smartrunner.es, www.smartrunner.it, www.smartrunner.org are owned and operated by APPSfactory GmbH, and is accessed by you under these Terms of Service ("Terms of Service"). Please note that you are not allowed to use the Service, if you do not agree to these Service Terms.

2. DESCRIPTION OF THE SERVICE

The service enables you to record, store and share your trails and tracks. You need to download a SmartRunner application to a compatible GPS-enabled cellphone. Most smartphones produced in 2009 have a GPS module preinstalled . A list of compatible phone types is constantly updated on our website. If you upload the tracks to our website you agree to allow others to view those uploaded data.
You understand that the Service is licensed and/or made available "as is". APPSfactory GmbH makes no, and hereby expressly disclaims all, warranties, express, implied, statutory, or otherwise with respect to the applications, including non-infringement and the implied warranties of merchantability and fitness for a particular purpose.
You also understand that SmartRunner may at any time at its sole discretion modify, suspend or discontinue the availability of the Service, or certain features of it and may add new features with or without notice at any time and without any liability to you.
You also understand that SmartRunner may at any time at its sole discretion modify, suspend or discontinue the availability of the Service, or certain features of it and may add new features with or without notice at any time and without any liability to you.

3. RIGHT TO USE THE SITE AND THE CONTENTS THEREOF

No person under the age of 12 is eligible to use the Service. In the event that you are of the age of 12 or older but a minor in your country, you will need to obtain consent from your parent(s) or other legal guardian(s) for using the Service. You are only entitled to use the service if you register with a valid e-mail address.
The Service and the applications are Copyright © APPSfactory GmbH 2009.
Any rights not expressly granted herein are reserved. Reproduction, transfer, distribution or stor-age of part or all of the contents in any form without the prior written permission of SmartRunner is prohibited except in accordance with the following terms.
SmartRunner consents to you using the Service on your computer or mobile terminal or other similar devices, as applicable, downloading the outcomes of the Service and printing copies of extracts from these pages for your personal use only and not for redistribution unless consented to in writing by SmartRunner.
The Service and the content thereof may be used solely for private, non-commercial purposes, subject to these Service Terms and any applicable laws. The use of press releases and other documents classified as "public" is permitted in public communications, provided that the source for the information is stated in such public communications.
Please note that individual applications, documents and/or Services provided on the Site may be subject to additional terms, such as end-user software agreements indicated in connection with the applications, documents and/or Services.
The Service is provided currently only in English and German Language. SmartRunner may add add or remove language versions at its sole discretion.

4. FEES RELATED TO THE SERVICES

SmartRunner offers a basic version of its service that is free to download and use. Some very advanced features and functionalities of the Site(s) and/or Services are subject to a premium subscription. To subscribe the premium functionalities you need to pay a subscription via nay of the payment methods offered on our site. In case of failure of payment or insufficient funds in recurring subscriptions SmartRunner may close your account without prior notification.
You may incur additional fees from the use of mobile and/or Internet services of your internet access provider. SmartRunner assumes no responsibility for the payment of such fees. Your operator/carrier is in every respect solely responsible for the services it provides to you. Please inform yourself and read your cellphone contract carefully prior to using the Service.

5. RETURN POLICY

Please note that most of the problems you may have been faced with are known and already have resolutions. You may visit FAQ section on our website or contact our Support Team with any of your concern. SmartRunner offers a basic version of its service that is free to download and use. No refund requests related to the free version use will be processed. The user is responsible to bear any third party charges such as, but not limited to, wireless data charges from your network operator, internet service provider access charges.

SmartRunner provides refund if all of the following applies:
- You purchased the software directly from www.smartrunner.com, www.smartrunner.net, www.smartrunner.de;
- You sent us detailed description of the issue;
- The irresolvable problem is acknowledged by the Support Team;
- You request the refund within 30 days after purchase.

No refunds will be provided by SmartRunner in any of the following cases
- your reported problem is not replicable by our support team and there is no failure of the service provided
- the 30 days refund period has passed;
- You changed the mobile device. Your license can be replaced for free if SmartRunner offers a compatible version for your new device;
- Subscription payments. Every subscription can be cancelled by a customer’s up to 30 days prior to the expiration date of the subscription period. If the customer does not cancel his subscription at least 30 days prior to expiration of the subscription, then the subscription is automatically renewed.
- Your handheld device was lost or damaged. Please contact our support team we will provide you with a new download of our application for free for any compatible device. It is your responsibility to make sure you get a compatible device for SmartRunner. A list of compatile devices may obtained from our website.

How to request a refund:
Please send an email to our Customer Care Team (info[replacewith@character]smartrunner.com) that includes:
- Software title for which you are requesting the refund.
- Date of order and order confirmation email.
- Reason why you are requesting a refund.

In case of refund, it will be credited directly back to the bank account in case of direct debit, the card used for credt card purchase or to the PayPal account in case you purchased using PayPal With the above said, we will consider any refund requests and make our best to assist you.

6. LINKS TO THIRD PARTY SITES

For your information SmartRunner may include links to sites or blogs on the Internet that are owned or operated by third parties. Upon following a link to such third-party site, you shall review and agree to that site's rules of use before using such site. SmartRunner assumes no responsibility for contents published on third-party sites. Furthermore, a link to a non-SmartRunner site does not imply that SmartRunner endorses the site or the products or services referenced in such third party site.

7. FEEDBACK AND OTHER SUBMISSIONS BY YOU

Our forum provides you with the possibility to actively participate in further improving the service by posting messages. By submitting any content or feedback ("Material") to any of SmartRunner’s servers, for example, by e-mail or via the Site forum, you agree that:

7.1 the Material will not contain any item that is unlawful, invasive of another person's right of privacy or right of publicity or otherwise inappropriate due to, without limitation, its libelous, slanderous or defamatory nature and recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Materials;

7.2 you will use reasonable efforts to scan and remove any viruses or other contaminating or destructive features before submitting any Material; and

7.3 you own the Material or have the unlimited right to provide it to SmartRunner and you will grant SmartRunner worldwide, irrevocable, perpetual, non-exclusive, royalty-free and assignable license to publish, use, reproduce and have reproduced, modify and have modified, such Material and distribute reproduced and modified copies thereof. SmartRunner may incorporate the Material or any concepts described in it in its products without any accountability or liability;

7.4 your use of the site or the application will not compromise the security or integrity of SmartRunner’s computer systems, networks or web site(s) or servers, whether by allowing intruders into the same, introducing viruses or other threats, imposing a disproportionate or unreasonably large load on this site or its infrastructure, or using any computer programming routine, file or device to damage or interfere with the operation of the site;

7.5 you agree not to take any action against SmartRunner in relation to the Material that you submit and you agree to indemnify SmartRunner if any third party takes action against SmartRunner in relation to the Material you submit including Material published onto Social Networking sites such as, but not limited to, facebook, Studi VZ, XING, LinkedIn, Twitter, into which SmartRunner may provide uploads of your Material vie automatic interfaces.

SmartRunner does not and cannot review the Material posted by users on its site and is not responsible for such Material. SmartRunner may at any time at its exclusive discretion remove any Material submitted by you or other users.

8. BREACH OF THE SERVICE TERMS

In the event SamrtRunner deems, at its exclusive discretion, that you are in whatsoever manner in breach of the Service Terms, SmartRunner shall take action, as it may deem at its exclusive discretion appropriate, to address your breach, including without limitation denial of access and any legal action in any competent authority or court. Specifically, APPSfactory GmbH has the right to terminate your right to use the Service without notice at any time for any reason at SmartRunner’s sole discretion and in particular, if you breach these Service Terms or use the Service unlawfully or in a way that SmartRunner deems inappropriate, for example for commercial purposes or in case SmartRunner notices exceptionally high traffic to the site from a particular IP address(es). Any unlawful breach of Service will result in a waiver of rights for refund of premium charges for unused months of subscription.

9. PRIVACY

9.1 Use of this Service does require registration. Please note that the privacy policy shall apply to your use of the Service in addition to these Service Terms. SmartRunner will not supply your personal data to third parties unless you specify so, or is legally required to do so. Please familiarize yourself with the privacy policy prior to using the Service.

9.2 SmartRunner does use cookies to store information about visitors preferences, record user-specific information on which pages the user access or visit, customize Web page content based on visitors browser type or other information that the visitor sends via their browser.

9.3 Google, as a third party vendor, uses cookies to serve ads on SmartRunner. Google's use of the DART cookie enables it to serve ads to your users based on their visit to SmartRunner and other sites on the Internet. Users may opt out of the use of the DART cookie by visiting the Google ad and content network privacy policy at the following URL - http://www.google.com/privacy_ads.html

10. NO WARRANTIES

YOU UNDERSTAND AND AGREE THAT THE SERVICE AND OTHER CONTENTS AT THIS SITE ARE EXPERIMENTAL AND NOT RELEASED FOR COMMERCIAL PURPOSES. THE SERVICE IS PROVIDED AS A CONVENIENCE TO YOU. THE SERVICES OF THE SITE ARE PROVIDED ON "AS IS" AND "AS AVAILABLE" BASIS. SMARTRUNNER DOES NOT WARRANT THAT THE USE AND/OR APPLICATIONS OF THE SITE WILL BE AVAILABLE FOR UNINTERRUPTED OR ARE ERROR-FREE. SMARTRUNNER RESERVES THE RIGHT TO REVISE THE SERVICE AND THE CONTENTS OR WITHDRAW ACCESS TO THE SAME AT ANY TIME. NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE IN RELATION TO THE AVAILABILITY, ACCURACY, RELIABILITY OR CONTENT OF THE SITE OR THIRD-PARTY SITES, IF ANY.

11. LIMITATION OF LIABILITY

SMARTRUNNER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR FOR BUSINESS INTERRUPTION ARISING OUT OF THE USE OF OR INABILITY TO USE THIS SERVICE, EVEN IF SMARTRUNNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES OR LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE LIABILITY OF SMARTRUNNER IS IN SUCH CASE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. SMARTRUNNER IS NOT RESPONSIBLE FOR ANY INJURIES; DEATH OR OTHER HARMFUL ACTS THAT ARISE FROM USAGE OF THE SERVICE DURING SPORTS. YOU AS A USER GUARANTEE THAT THE USAGE OF THE SMARTRUNNER APPLICATION DURING PERFORMING SPORTS OR ACTIVITIES IN GENERAL DOES AT ANY TIME NOT INTERFERE WITH YOUR EXERCISE OF YOUR SPORT OR PRESENT A DANGER TO ROAD OR AIR TRAFFIC.

12. TRADEMARKS

The SmartRunner Logo and graphics are a registered trademark of APPSfactory GmbH. Other product and company names mentioned at the site may be trademarks or trade names of their respective owners. Your access to this site should not be construed as granting, by implicationnor otherwise, any license or right to use any marks appearing on the site without the prior written consent of APPSfactory GmbH or the third party owner thereof.

13. JURISDICTION AND DISPUTE RESOLUTION

The invalidity of a provision of these Service Terms in part shall not affect the validity of the remaining provisions. The invalid provision shall be replaced with a valid provision which comes closest to the result and purpose of these Service Terms or any other applicable terms and notices. These Service Terms shall neither exclude nor limit any of your mandatory rights in your country of residence. You agree to abide by applicable export control laws in the USA and other countries and not to transfer or make available, by electronic transmission or otherwise any content, software or materials subject to restrictions under such laws to a destination prohibited by such laws. Except where prohibited by applicable law, these Service Terms and any other applicable terms and notices shall be governed by the laws of Germany with the Exclusion of UN commercial law. In case you are a US resident the following paragraph shall apply: All matters relating to arbitration shall be governed by the Federal Arbitration Act (9 U.S.C. §1 et. seq.). Any and all claims, except claims for monies due to SmartRunner, arising out of or relating to the purchase of products, content or services by you shall be barred unless an action or legal proceeding is commenced within eighteen (18) months after the date you or SmartRunner knew or should have known of the facts giving rise to such claim. Any dispute relating in any way to your visit to this Site, or your content, product or service order from this Site, shall be submitted (together with any counterclaims and disputes under or in connection with other transactions and/or agreements between you and SmartRunner) to final and binding, confidential arbitration to the Dallas, Texas office of the American Arbitration Association (the "AAA"), with such arbitration to be held in Dallas County, Texas, except that, to the extent you have in any manner violated or threatened to violate any SmartRunner or other licensors' intellectual property rights, SmartRunner may seek injunctive or other appropriate relief in any state or federal court in the state of Texas or, at SmartRunner’s option, any other appropriate state or country, and you consent to exclusive jurisdiction and venue of such court. Arbitration under these Service Terms shall be conducted under the then prevailing Wireless Arbitration Rules of the AAA (except as such rules may be modified by the terms of these Service Terms), unless otherwise agreed in writing by the parties, and shall be heard by a single arbitrator. The Parties further agree that, in connection with any such arbitration proceeding, each Party shall submit or file any claim which would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same proceeding as the claim to which it relates. Any such claim which is not submitted or filed in such proceeding shall be barred. Subject to any terms contained in these Service Terms limiting or excluding damages, the arbitrator may award any relief that the arbitrator deems proper, including without limitation equitable relief, provided that no award of exemplary, special, consequential or punitive damages shall be permitted. The prevailing party, as determined by the arbitrator, shall pay the AAA arbitration fees and the arbitrator's fees and expenses, as applicable. The arbitrator's award shall be binding and may be entered as a judgment and enforceable in any court of competent jurisdiction. To the fullest extent permitted by applicable law, the arbitration shall be conducted on an individual, not a classwide basis, and no arbitration under these Service Terms shall be consolidated with or joined to an arbitration involving any other person or entity, whether through class arbitration proceedings or otherwise, without the prior written consent of you and SmartRunner.

14. MODIFICATION OF THE SERVICE TERMS

SmartRunner reserves the right to change or modify at any time without prior notice these Service Terms and any terms and notices applicable to individual documents and/or services provided on the site. SmartRunner will notify you of such change or modification by posting an updated version of these Service Terms and/or other applicable terms and notices to the site. You are responsible for regularly re-viewing these Service Terms and other applicable terms and notices. Continued use of the Service for more than 15 days shall constitute your consent to such changes.

15. CLAIMS ON CONTENTS AND COPYRIGHT INFRINGEMENT


Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. sec. 512, SmartRunner has designated an agent to receive notices of claimed copyright infringement. If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please SmartRunner’s Copyright Agent the following information:

1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
2. A description of the copyrighted work that you claim has been infringed;
3. A description of where the material that you claim is infringing is located on the Site;
4. Your address, telephone number, and e-mail address;
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

SmartRunner’s Copyright Agent for Notice of claims of copyright infringement can be reached as follows: by e-mail at info[replacewith@character]smartrunner.com or by mail at:

APPSfactory GmbH
Nikolaistraße 28-32
DE-04109 Leipzig,
Germany

The Service and the applications are Copyright © of APPSfactory GmbH 2010. The service enables you to record, store and share your trails and tracks. If you upload the tracks to our website you agree to allow others to view those uploaded data and allow SmartRunner to commercially exploit the tracks through advertising on the website and in the application. The use of all functionalities of this Service does require registration on our website www.smartrunner.com. SmartRunner will not supply your personal data to third parties unless you specify so, or is legally required to do so. Please familiarize yourself with the terms on our website. You understand that the Service is licensed and/or made available "as is". APPSfactory GmbH makes no, and hereby expressly disclaims all, warranties, express, implied, statutory, or otherwise with respect to the applications, including non-infringement and the implied warranties of merchantability and fitness for a particular purpose. You also understand that SmartRunner may at any time at its sole discretion modify, suspend or discontinue the availability of the Service, or certain features of it and may add new features with or without notice at any time and without any liability to you. You may incur additional fees from the use of mobile internet services. Please inform yourself in your cellphone contract. You agree not to take any action against SmartRunner in relation to the material that you submit and you agree to indemnify SmartRunner if any third party takes action against SmartRunner in relation to the material you submit including material published onto Social Networking sites such as, but not limited to, facebook, Studi VZ, XING, LinkedIn, Twitter, into which SmartRunner may provide uploads of your Material via interfaces. Specifically, APPSfactory GmbH has the right to terminate your right to use the Service without notice at any time for any reason at SmartRunner’s sole discretion in particular, if you breach these Service Terms.

Contact: info@smartrunner.com

SMARTRUNNER IS NOT RESPONSIBLE FOR ANY INJURIES; DEATH OR OTHER HARMFUL ACTS THAT ARISE FROM USAGE OF THE SERVICE DURING SPORTS. YOU AS A USER GUARANTEE THAT THE USAGE OF THE SMARTRUNNER APPLICATION DURING PERFORMING SPORTS OR ACTIVITIES IN GENERAL DOES AT ANY TIME NOT INTERFERE WITH YOUR EXERCISE OF YOUR SPORT OR PRESENT A DANGER TO ROAD OR AIR TRAFFIC.

16. SMARTRUNNER CONTACT

APPSfactory GmbH
Nikolaistraße 28-32
DE-04109 Leipzig
Germany
Mail: info[replacewith@character]smartrunner.com