General Terms and Conditions

Chapter 1 – General provisions

  1. Definitions
    In these General Terms and Conditions and its provisions the following terms shall have the following meaning:
    1. account: the identification granting the user access to services of the company;
    2. activity: all services provided by the company;
    3. consumer: the buyer, natural person who does not act in the exercise of profession or company;
    4. durable data carrier: any means which enables the company to personally store information addressed to it in a way that makes this information accessible for future use during a period that is adjusted to the purpose for which the information is intended, and which enables an unaltered representation of the stored information;
    5. user: the natural or legal person, who provides the assignment for the activities;
    6. company: the natural or legal person, who acts within their trade, business, craft or profession, whether or not through another person who acts for them on their behalf;
    7. unambiguous statement: the statement of the user to the company which can be interpreted in only one way. In all cases, the statement contains:
      1. name of the user;
      2. (billing) address;
      3. postal code;
      4. city;
      5. telephone number;
      6. email address ;
      7. order number;
    8. assignment to which the statement relates.
    9. assignment: the agreement between the user and the company;
    10. Distance contract: the contract conducted between the company and the user in the light of an organized system for distance services without simultaneous presence of the company and user, and where only one or more techniques for distance communication are used, up to and including the conclusion of the agreement.
  2. The company
    These general terms and conditions are applicable to all software developed by and related to Dawn Patrol Surf Tracking.
  3. Applicability
    1. These general terms and conditions apply to every offer made by the company and to every distance contract concluded between the company and the user.
    2. Prior to conclusion of the distance contract, the text of these general terms and conditions will be made available to the user. If this is not reasonably possible, before the distance contract is concluded, it will be indicated that the general conditions and terms can be viewed at the company and they will be sent as soon as possible, free of charge, upon request of the user.
    3. In the event of electronic conclusion of the distance contract, deviating from the previous paragraph and before the distance contract is concluded, the text of these general terms and conditions can be made electronically available to the user, in such a way that the user can easily store them on a durable data carrier. If this is not reasonably possible, prior to conclusion of the distance contract, it will be indicated where the general terms and conditions can be viewed electronically and they will be sent free of charge upon request of the user by electronic means or otherwise.
    4. The general terms and conditions can at all times be viewed on the websites of the company.
    5. In the event that specific service conditions apply in addition to these general terms and conditions, the second and third paragraphs of the corresponding application and the user may always rely on the applicable provision that is most favourable for him, in case of conflicting general terms and conditions.
  4. Additional or deviating provisions
    Additional or deviating provisions in these general terms and conditions may not be at a disadvantage of the user and must be documented in writing or in such a way that these can be easily stored on a durable data carrier by the user.

Chapter 2 – The agreement

  1. Position of the company
    1. The company provides a platform that enables the user to record and measure surf tracks and furthermore obtain the necessary information.
    2. No liability will be assumed by the company for interpreting information provided by the company. In particular, but far from exhaustive, the latter refers to information about the tides.
    3. The tidal predictions are based on a non-authoritative static model and they do not consider current weather conditions. The accuracy of the global model in shallow (e.g. coastal waters) is limited. Heights are referenced to Mean Sea Level (MSL) and not to the chart datum.
      NO GUARANTEES ARE MADE ABOUT THE CORRECTNESS OF THE TIDAL PREDICTIONS. You may not use it if anyone or anything could come to harm as a result of using it (e.g. for navigational purposes).
  2. Agreement
    1. The agreement is, subject to the provisions made in paragraph 4, concluded when the account is registered by the user at the company and meets the associated conditions, as determined in article 9 of these conditions.
    2. If the user accepts the offer via electronic means, the company will immediately confirm receipt of the acceptance of the offer via electronic means. The user can dissolve the agreement, as long as the company has not confirmed the receipt of this acceptance.
    3. If the agreement is established through electronic means, the company takes appropriate technical and organizational measures to secure the electronic data transfer and will ensure a secure web environment. If the user is able to make an electronic transaction, the company undertakes appropriate safety measures.
    4. In case the company, after conclusion of the agreement, comes to knowledge about circumstances which suggests good ground to suspect the user not fulfilling his obligation to pay, the company may suspend his fulfilment of the agreement, dissolve the agreement or attach special conditions to the implementation of the agreement.
    5. The company provides the user together with the service the following information, in writing or in such a manner that this can be stored in an accessible way by the user on a durable data carrier, with:
      1. the visiting address of the branch of the company where the user can address complaints;
      2. the conditions and the manner in which the user can make use of the right of withdrawal, or a clear notification regarding the exclusion of the right of withdrawal;
      3. the information about the warranty and existing services after purchase or delivery;
      4. the requirements to cancel the agreement in case the agreement has a duration of longer than one year or indefinite period.

Chapter 3 – Execution of the agreement

  1. Agreement
    1. The company takes utmost caution when assessing applications for the provided services and executing the assignment.
    2. The company ensures the correct implementation of the activity when accepting the assignment, with the acquired necessary knowledge and competence.
    3. In case that execution of the activity has to be transferred, or in case the activity can not, or can only partially be executed, the user will immediately be notified. In that case the user has the right to dissolve the agreement.
    4. If a term of delivery for the service has been agreed on between company and user, this term is not a firm date, unless explicitly agreed otherwise.
    5. If the term of delivery is exceeded, this shall not form a ground for compensation or dissolution unless it is explicitly agreed that the term is regarded as a firm date.

Chapter 4 – Specific provisions

  1. Register
    1. User is obliged to register at the company, by means of creating an account, before being able to use the services of the company.
    2. The information collected by the company when creating an account is necessary for the performance of the services.
    3. Upon registration, the user is obliged to provide the correct, by the company requested information. If data that are necessary for the performance of the services change, the user informs the company promptly.
    4. After creating the account, the user selects a unique username and password. Passwords and usernames are personal and should not be shared with others.
  2. Confidentiality
    1. Both parties are obliged to confidentiality for all the confidential information received in the framework of the agreement or from any other source. Information is considered confidential if this is communicated by the other party, or if this results from the nature of the information.
    2. If the user is obliged, pursuant to statutory provision or a legal ruling, to disclose confidential information to third-parties designated by the law or the competent court, and the supplier is unable to invoke a right to privilege recognized or permitted by statute or by the competent court, the user is not obliged to pay compensation for damages or other compensation and the counter-party is not entitled to dissolve the agreement on the ground of any losses thus caused.
  3. Intellectual Property
    1. The Company will at all times retain the rights to all intellectual properties which arise as a result of the services provided by the company, unless explicitly agreed otherwise.
    2. All rights to intellectual or industrial property, as well as similar rights to information protection, which relate to the by the company provided and by the user received products and/or services, will remain property of the company. Nothing in the agreement concluded or to be concluded with the user will lead to the transfer of such rights, unless explicitly agreed otherwise.
    3. The user incurs only, unless parties explicitly agreed otherwise, a non-exclusive and non-transferable right of use for the use of the products and results of the services of the agreed targets. With such use the user will comply to the conditions, set out in the general terms and conditions or otherwise imposed to the user.
    4. The user is not entitled to use the products and results of the services other than for the benefit of the use of the goods to which they relate.
    5. The user is not entitled to multiply and/or disclose the products and results of the services to third parties, or the information contained therein or otherwise known to him/her, unless the company explicitly authorizes this in writing.
    6. The user will not delete or alter indications of the company or her suppliers regarding copyrights, trademarks, trade names or other rights to intellectual property.
    7. The company guarantees that they are entitled to grant the right of use to the user and indemnifies the user against any claims by third parties in this respect. This provision does not apply if and insofar as the products and/or results of the services have been altered and/or if these have been delivered in conjunction with supplies of a third party, unless the user demonstrates in the latter case that the claims of third parties exclusively relate to the products delivered by the company and/or results of the services.
    8. In the event of violation of the provisions in the previous paragraphs, the user will owe the company a fine of € 4500,00 per violation, regardless of the other rights of the company to fulfilment, dissolution, compensation and such.
  4. Legal and Regulatory Compliance
    1. User shall not perform any acts that are contrary to this agreement, or that conflict with legislation or regulations.
    2. User shall only use the platform for which it is intended. The user shall refrain from any act, of which they know that the platform, or the co-user can cause damage.
  5. Force Majeure and technical malfunctions
    1. The company can, for maintenance, adjustment or improvement of its systems, temporarily take its systems offline. The company intends to only take the systems offline during periods in which the user is least affected. The company is not liable for any damage of the user as a result of taking the systems offline.
    2. If telecommunication facilities are used during the maintenance and support or other services provided by or on behalf of the company, parties are each responsible for the right decision and timely availability at their side. The company is not liable for mutilation, data interception or loss or processing results during the transfer of data with the help of telecommunication facilities.
    3. The company can make the necessary adaptations for the purpose of the functionality or errors. In case the company makes such adaptations, the user will be informed accordingly to the extent possible. The user cannot refrain from the adaptations, in case the adaptations are applicable to a group of users. The company is not liable for any damage caused by the user as a result of the adaptations to the systems.
    4. The company exerts its best efforts to minimize the period of decommissioning and the consequences of the adaptation for the user. In addition, the company intends to give an indication for the duration and nature of the decommissioning or adaptation.
    5. In case the company is not able to deliver as a result of force majeure, the agreement will be suspended. If the force majeure situation persists for more than 90 days the user is free to terminate the agreement. The company is not liable for any damages that stem from force majeure.
    6. Force majeure is in any case understood as: breakdowns or failure of the internet, the telecommunication infrastructure, Synflood, network attack, DoS- or DDos-attacks, power failures, internal civil commotion, mobilization, war, obstruction in transport, strike, lockout, business disruptions, delay in supply, fire, flood, import and export impediments, and in the event that Hostnet is not able to deliver by means of its own suppliers, irrespective of the reason.
    7. None of the parties is responsible towards another for any delay, non-performance, loss, damage or injuries resulting from natural disasters or an ‘Act of God’, strikes, disqualification, civil unrest, disturbances, fire, explosion, sabotage, death, injury, illness, invalidity or costs brought about by war, invasion, storm, flood, earthquake, fog or confiscating materials and or troops for national use.

Chapter 5 – Dissolution, indemnity and disputes

  1. Dissolution, alteration, transfer by the user
    1. After confirmation of the agreement by the company, the user can dissolve the agreement without any ground.
    2. The user exercises the right of withdrawal by immediately giving the company an unambiguous statement to that effect, stating the grounds of dissolution and the date on which the dissolution occurs.
    3. If the user makes use of the right of withdrawal, the day on which the user has terminated the agreement will be the day on which the unambiguous statement reached the company.
    4. The burden of proof lies with the user for the correct and timely exercise of the right of dissolution.
  2. Dissolution, alteration, transfer by the company
    1. The company can dissolve, alter or transfer the agreement without any ground.
    2. The company informs the user in writing, through an unambiguous statement and referring to the reason of dissolution, alteration or transfer, immediately after onset of the delay, of the date of onset of the delay.
    3. The company is not liable for any (further) damage. Only the user is liable for any further damage caused by the dissolution.
  3. Liability
    The company is liable towards the user for accountable deficiencies. Insofar compliance is not already permanently impossible, this paragraph will only be applicable in respect to the legal regulation of neglect by the debtor.
  4. Indemnity
    1. The company is, in case of accountable deficiencies, liable for compensation of direct damage.
    2. Every liability of the company is limited to the amount that will be paid in the specific situation arising from the concluded liability insurance(s), increased with the amount of the deductible excess which shall be borne by the company in accordance with the policy conditions. If, for any reason whatsoever, no sum is paid out pursuant to this insurance, any liability shall be limited to the fee which is paid for the execution of the assignment.
    3. Company cannot be held liable for indirect damages. Indirect damages include:
      1. a) consequential damage;
      2. b) loss of profit;
      3. c) immaterial damage of the user;
      4. d) missed savings;
      5. e) business interruptions;
      6. f) devaluation of products.
    4. The user is responsible for the correct delivery of his personal information, such as name, address details and other information required for the correct execution of the agreement. The company cannot be held responsible for damage resulting from incorrect information provided by the user that is required for the proper execution of the agreement.
    5. The company cannot be held liable for damage resulting from sharing or making available otherwise of the username and/or password of the user. Storing usernames and/or passwords on a durable data carrier, or in any other way by the user will be borne entirely by the user. Furthermore, the company cannot be held liable in any way for the unauthorized distribution of usernames and/or passwords of the user, in case user makes use of third party support programs to store or remember the usernames and/or passwords.
    6. The company cannot be held liable for damage of any item of property of the user, caused by information in the app, nor for damage caused by using the app in the water. In particular, reference is made to damage to ships by the seizure caused by issuing tidal information wrongly or (water)damage to phones or other devices caused by using the app in the water. 
    7. As a starting point for indemnity, the status of the legislation will always be taken at the time of the conclusion of the agreement. The company cannot be held liable for damage resulting from changed legislation or changed techniques after the conclusion of the agreement, unless the company should have known about the change at the time of the agreement.
    8. The user is obliged, unless this cannot be required of them due to circumstances, in good consultation, to give the company the opportunity, within a reasonable time of its accountable deficiencies for which the company is liable, to repair the deficiencies, or limit or eliminate the consequential damage, without prejudice to the company’s liability for damage as a result of the deficiencies.
    9. In the determination of the compensation in case of exceeding its authority of representation, in addition to the other relevant facts and circumstances, the extent to which the user benefits from the consequences of exceeding its authority is taken into account.
    10. A compensation based on the above rules does not apply insofar as this compensation is unacceptable in the circumstances, by reason of reasonableness and fairness.
  5. Complaints
    1. The company has an adequately known complaints procedure and handles the complaint in accordance with this complaints procedure.
    2. Complaints about the execution of the agreement must be submitted to the company within 14 days, fully and clearly described, after the user has noted the deficiencies. Complaints can be referred to the company by means of an unambiguous statement, with respect to the provisions in Article 1 under g of these conditions.
    3. Complaints submitted to the company are answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeable longer processing time, the company will respond within the period of 14 days with a acknowledgement of receipt, and an indication when the user can expect a more elaborate reply.
    4. If the complaint cannot be resolved by mutual agreement, a dispute arises that is susceptible to the dispute settlement.
  6. Alterations in the General Terms and Conditions
    1. The company has the authority to alter these general terms and conditions.
    2. Alterations will only be binding for the user if the company has informed the user of the alterations to the general terms and conditions, and fourteen days after such notification have passed without the user giving the company notice in writing not to agree with the alterations.
  7. Disputes
    1. The agreements between the company and the user to which these general terms and conditions apply, are exclusively governed by Dutch law.
    2. Any disputes between parties arising from this agreement shall, if not otherwise agreed between the parties, be submitted by the most diligent party to a competent Dutch Court of the place of establishment of the company.
    3. If by judicial decision one or more articles of these conditions are declared invalid, other provisions of these general terms and conditions will remain in full force, and company and user will enter into consultation in order to agree on new provisions to replace the void or nullified provisions, in which the purpose and intent of the void or voided provision are taken into account as much as possible.