Last updated: September 08, 2017
This Trimmer User Agreement (this "Agreement") contains the terms and conditions that govern your access to and use of the Trimmer Services and is an agreement between KIDTSUNAMI UG ("we", "us", or "our") and you or the entity you represent ("you" or "your"). This Agreement takes effect when you click the "Create an account" button or, if earlier, when you use any of the Services (the "Effective Date").
1.1 Representation. You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
1.2 Service License. We or our licensors own all right, title, and interest in and to the Services, and all related technology and intellectual property rights. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to: (a) access and use the Services solely in accordance with this Agreement; and (b) copy and use Trimmer Content solely in connection with your permitted use of the Services. All rights not explicitly granted to you are reserved by us, our affiliates or our licensors. Some Trimmer Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the Trimmer Content or Third-Party Content that is the subject of such separate license.
1.3 License Restrictions. You will not use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. You will not, or will not attempt to
(a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Services (except to the extent Content included in the Services is provided to you under a separate license that expressly permits the creation of derivative works);
(b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services (except to the extent applicable law doesn’t allow this restriction);
(c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas;
(d) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services;
(e) run any form of auto-responder or "spam" on the Services;
(f) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site;
(g) harvest or scrape any Content from the Services;
(h) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure;
(i) resell, rent or sublicense the Services;
(j) use the Trimmer Trademarks;
(k) misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors) or
(l) imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.
1.4 Suggestions. If you provide any comments, suggestions and recommendations (collectively, the "Suggestions") to us or our affiliates with respect to the Services (including without limitation with respect to modifications, enhancement, improvements and other changes to the Services), we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us a world-wide, royalty free, irrevocable, perpetual license to use any Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.
1.5 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content and Suggestions necessary to grant the rights contemplated by this Agreement. Except as provided in this paragraph, we obtain no rights under this Agreement from you (or your licensors) to Your Content. You consent to our use of Your Content to provide the Services to you, which includes, but is not limited to use, modify, copy, distribute, store, transmit, analyze, transform and present Your Content to the extent necessary for delivering the Services. This expressely also includes permission to sub-license such use to our affiliates, contractors and service providers who are directly involved in operating our Services.
1.6 Your Content. You will ensure that Your Content and your use of Your Content or the Services will not violate any applicable law. You are responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.
2.1 Your Account. To access the Services, you must have a Trimmer Account associated with a valid email address, a unique username and optionally a valid form of payment. You are solely responsible for the information associated with Your Account and for all activities that occur under Your Account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors or agents). You may not license, transfer, sell, or assign Your Account without our written approval.
2.2 Log-In Credentials and Account Keys. Trimmer log-in credentials and private keys generated by the Services are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf. You will keep your log-in credentials confidential and notify us promptly when you become aware that your credentials have been compromised.
2.3 User Credentials. You may create additional sets of security credentials (the "User Credentials") under your Trimmer account such as roles and permissions, API access keys and/or security tokens that may be embedded with your own internal applications. You will ensure that all use of the Services under the User Credentials complies with the terms and conditions of this Agreement. The User Credentials are subject to change: (a) by you through the Trimmer APIs, or (b) if we determine in our reasonable discretion that a change is necessary. We will promptly notify you of any change we make to the User Credentials.
2.4 Data Protection. We require certain personal information for maintaining and billing Your Account. You consent to our use of your personal data ("Personal Data"") that you have disclosed during account registration for account maintenance and billing, to provide information regarding goods and services, to offer and where appropriate deliver goods and services, as well as for related purposes. We will store personal data only in order to fulfil the original purpose of its collection and will delete that data after fulfilment of the purpose. You may withdraw this declaration of consent at any time with future effect by written notice to us at firstname.lastname@example.org. You have the right to obtain details regarding the personal information we store about you at any time without specifying reasons, to require that we block access, delete or rectify such information.
2.6 Data Storage Location. For non-paid Services you consent to the storage of Your Content in, and transfer of Your Content into, any Trimmer region. When using Paid Services you may specify the Trimmer regions in which Your Content will be stored and processed. You consent to the storage of Your Content in, and transfer of Your Content into, the Trimmer regions you select. We will not move Your Content from the Trimmer regions selected by you; except in each case as necessary to comply with the law or a binding order of a governmental body.
2.7 Monitoring. We reserve the right to monitor your use of our Services to provide you with support services initiated by you, investigate fraud, abuse or violations of this Agreement, to attribute usage for payment purposes or to improve our Services. However, we do not guarantee we will monitor all aspects of your Service use. We process monitoring data at geographic locations where we maintain our support and investigation personnel which may be outside the Trimmer regions you have selected, including the United States.
2.8 Payment and Fees. All fees for Paid Services are recurring flat-rate fees that are charged monthly or annually. We may charge you a one-time fee on signup to cover for an initial period, followed by recurring period charges according to the Paid Service you have subscribed to. You will pay us the applicable fees for use of the Services you are subscribed to using one of the payment methods we support in advance and without any deduction or withholding. You accept responsibility for all recurring charges up until you cancel your Services subscription. We may change the fees, availability or features of Paid Service Accounts at any time by giving you at least 30 days’ prior notice. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
2.9 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you.
2.10 Billing. We use a third-party payment processor (the "Payment Processor") to bill you through a payment account linked to Your Account on the Services (your "Billing Account"). The processing of payments is subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. By selecting Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms. You authorize us to charge your chosen payment provider (your "Payment Method") through the Payment Processor on a recurring monthly or annual basis. We are not responsible for error by the Payment Processor and we reserve the right to correct any errors or mistakes that happen even if a payment has already been requested or received. You will provide current, complete and accurate information for Your Billing Account and promptly update Your Billing Account to keep all information current, complete and accurate. You will promptly update your Billing Account or inform us when your Payment Method has been cancelled or compromised (including, but not limited to loss or theft).
2.11 Organization Accounts. Organizations enable consolidated billing for your team or entity across an unlimited number of private project workspaces, storage volumes, workflows and team members. When you create an Organization Account, your Trimmer User Account automatically becomes an organization owner and your billing account is used for billing the organizations' subscription in addition to all your existing subscriptions. You may at any time change the Paid Services an Organization Account is subscribed to, invite more members into the organization, assign new owners and assign billing to the Billing Account of a different organization owner. By inviting other Trimmer users as organization members you agree to disclose Your Content, the organization's activity and account information to these users.
2.12 Temporary Suspension. We may suspend your right to access or use any portion or all of the Services immediately upon notice to you if we determine:
(a) your use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact our systems, the Services or the systems or Content of any other Trimmer customer;
(b) you are in breach of this Agreement;
(c) you are in breach of your payment obligations under Section 3; or
(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
If we suspend your right to access or use any portion or all of the Services you remain responsible for all fees you incur during the period of suspension.
3.1 Closing Your Account. You may close Your Account following the instructions on the Site and terminate this Agreement for any reason at any time, including when Your Account is suspended under section 2.11 provided (a) Your Account has no pending unpaid invoices (b) Your Account does not directly own any project workspaces or storage volumes, and (c) Your Account is not the Billing Account for any Organization Account. Closing Your Account takes immediate effect, the Termination Date will be the time when you requested to close Your Account. We will remove all your personal information from our systems in a reasonable timeframe. Any fees paid hereunder are non-refundable. After closing your account you may reuse your email to create a new account, but you may not reuse any previous user names.
3.2 Termination for cause. Either party may terminate this Agreement with immediate effect for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party.
3.3 Termination by us. We may also terminate this Agreement with immediate effect upon notice to you (a) for cause if we have the right to suspend under Section 2.11, (b) if our relationship with a third-party partner who provides software or other technology we use to provide the Services expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, or (c) in order to comply with the law or requests of governmental entities.
3.4 Process. We will not take action to remove any of Your Content from our systems as a result of the termination under sections 3.2 and 3.3. We will allow you to retrieve Your Content from the Services only if you have paid all amounts due under this Agreement. You agree to remove all Your Content and close Your Account no later than the "Termination Date", which will be 30 days after notice of account termination. For any use of the Services after the Termination Date, the terms of this Agreement will apply and you will remain responsible for the applicable fees. Any pre-paid fees for the unused portion of a subscription following the Termination Date will be refunded within 30 days after Your Account has been closed.
3.5 Survival. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
4.1 To the Services. We may change or discontinue any or all of the Services or change or remove functionality of any or all of the Services from time to time. We will notify you of any material change to or discontinuation of the Services within a reasonable timeframe ahead.
4.2 To the APIs. We may change or discontinue any APIs for the Services from time to time. For any discontinuation of or material change to an API for a Service, we will use commercially reasonable efforts to continue supporting the previous version of such API for 12 months after the change or discontinuation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would cause us to violate the law or requests of governmental entities).
5.1 We retain the right to remove Content on Trimmer that we deem to be infringing third-party copyright.
5.2 If you become aware of Content on Trimmer that infringes your copyright, you may submit a properly formatted takedown request to our Copyright Agent. Misrepresentations of infringement can result in liability for monetary damages. Any request should be sent to this contact information:
Copyright Agent KIDTSUNAMI UG (haftungsbeschränkt) Kluckstr 36 10785 Berlin Germany email@example.com
5.3 Any claim must be supported by the following information:
6.1 General. You agree to defend, indemnify and hold us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives harmless from and against any Losses arising out of or relating to any third-party claim concerning: (a) your use of the Services (including any activities under Your Account and use by your employees and personnel); or (b) breach of this Agreement or violation of applicable law by you or Your Content. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) and (b) above at our then-current hourly rates.
6.2 Intellectual Property.
(a) Subject to the limitations in this Section, we will defend you and your employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(b) Subject to the limitations in this Section, you will defend us, our affiliates, and either respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(c) For any claim covered by Section 6.2(a), we will, at our sole discretion, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.
TRIMMER SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR AFFILIATES AND THIRD PARTY SERVICE PROVIDERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, (D) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
WE STRONGLY ENCOURAGE AND RECOMMEND THAT YOU MAINTAIN APPROPRIATE SECURITY, PROTECTION AND BACKUP COPIES OF YOUR CONTENT, WHICH MAY INCLUDE YOUR USE OF ADDITIONAL ENCRYPTION TECHNOLOGY TO PROTECT YOUR CONTENT FROM UNAUTHORIZED ACCESS.
WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGE (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA) EVEN IF A PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING FROM: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, OR (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES. (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE OR ENCRYPT ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU PAYED US FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE LAST 12 MONTHS BEFORE THE LIABILITY AROSE.
9.1 Changes to the Agreement. This User Agreement is the entire agreement between you and us concerning Trimmer Services. We may modify this Agreement at any time by posting a revised version on the Site or by notifying you by email. If we make changes to this agreement that materially affect your rights, we will provide at least 90 days’ advance notice. Modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Site regularly for modifications to this Agreement. This User Agreement may only be amended or supplemented in writing. Oral agreements, including an oral agreement to waive the requirement of written form, are invalid.
9.2 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this section will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
9.3 Governing Law. This Agreement is governed exclusively by the law of the Federal Republic of Germany to the exclusion of private international law and the UN Convention on Contracts for the International Sale of Goods. The district court of Berlin Tiergarten will have exclusive jurisdiction over all disputes resulting from this User Agreement.
9.4 Severability and Enforcement. If any provision of this User Agreement breaches a statutory prohibition or be unenforceable on any other grounds or lead to financially intolerable results, this will not affect the remaining terms of this User Agreement. Such provision will be modified to the extent necessary to render it enforceable without losing its intent. Any gaps in this Agreement are to be closed in a similar manner.
9.5 No waiver. If we do not enforce any right or provision in this user agreement, that is not to be deemed a waiver of our right to do so in the future.