Terms of use

Terms of use

Unless special provisions have been agreed in writing (e.g. in the form of a cooperation agreement), the following terms of use apply.

1 Definitions

A customer (hereinafter referred to as the customer) is regarded either as a user or as an organiser. Unlike a user, an organiser also manages their own infrastructure (control point equipment, courses etc.). Both users and organisers can create a user profile.

2 Scope

These terms of use apply to the online services of Fixcontrol, in particular MyFixcontrol, the FixFinder app, FixAPI and FixAnalysis, and all associated applications. All these applications and services (hereinafter referred to as the applications) are provided by Fixcontrol GmbH (hereinafter referred to as Fixcontrol).
Fixcontrol reserves the right to amend these terms at any time. The amended terms take effect upon their publication on the website. If the customer does not wish to continue the contract under the amended terms, they are entitled to extraordinary termination with 14 days' notice to the date of the change.

CONCLUSION OF CONTRACT AND USER PROFILE

3 Contract

Subject matter of the contract
Fixcontrol provides services to its customers via the internet. The subject matter of the contract is

• the provision of Fixcontrol applications for use via the internet and

• the storage of the customer's data.

Conclusion of contract
A contract with Fixcontrol is concluded

• either by using the FixFinder app (without creating a user profile),

• or by completing the online registration process and creating a user profile,

• or by purchasing any control point equipment, followed by the required creation of a user profile by Fixcontrol.

Language of the contract
The language of the contract is exclusively German.

Relationships between customers
In any communication between the customer and other customers, any contractual relationships arise exclusively between the customers involved. Fixcontrol is neither a representative nor does it itself become a contracting party.

4 User profile

Setting up an account requires the creation of a user profile. This consists of a username and a password. A user profile can only be created by providing a current email address of the customer. This email address is used to send an activation link and also serves for communication with Fixcontrol. The customer warrants that the data used when creating their profile is accurate and complete. The customer can change their username and password at any time afterwards.

SCOPE OF SERVICES

Fixcontrol offers the customer a comprehensive system of coordinated applications. Fixcontrol continuously develops the applications and will improve them through ongoing updates and upgrades.

5 Use of the profile

Only customers who have full legal capacity or who act with the consent of their legal representatives are eligible to participate. The customer acquires the simple, non-exclusive right, limited in time to the availability of the applications, to use the applications and the third-party content – insofar as necessary for using the applications.

User
As a customer, a user uses the applications free of charge and can only edit, comment on and make visible their own data.

Organiser
An organiser purchases control point equipment (including individual QR codes) and uses various functions (such as creating projects, courses and control point content). These functions are available in different subscriptions. The current range of functions is set out in the service description on the Fixcontrol website (www.fixcontrol.ch). The basic «Free» subscription costs nothing and is assigned automatically and free of charge when a contractual relationship is entered into in accordance with chapter 3 of these terms of use or when an additional project is created.
Subscriptions apply to projects. When an organiser creates a new project within their existing user profile, they also take out a subscription. When a new location is opened, a project is automatically assigned to it. If the same customer purchases further control point equipment for another location, a new project must be opened where the locations are clearly separate – for example by municipality, by geographical position (distance between locations, geographical features such as mountain ranges, lakes, town and country etc.) or by the size of the area used. One subscription covers a maximum of 100 control points.

6 Right of use

The customer has no entitlement to the continuation of individual functionalities of the applications.
The operator is free to restrict access to the applications, in whole or in part, temporarily or permanently, due to maintenance work, capacity issues or other events beyond its control.
The customer may not use the applications in any way that is liable to interrupt, damage or otherwise impair the services or access to the applications.
In particular, use for any activity intended to promote one's own or a third party's business purpose (whether commercial or not) requires a separate contract. When using the «Free» subscription, it is prohibited

• to charge admission fees,

• to set up control point locations that can only be reached by paying a fee,

• to publicly advertise a course as an attraction (e.g. on a commercial website of a tourism region, museum etc.),

• to place advertising or brand names in a course,

• or to use the applications for profit in any other way.

7 Rights granted by the user

Fixcontrol needs the customer's permission to store and process their entries and content so that the applications can function at all.

• By setting up projects with courses or creating content for QR codes, the customer grants Fixcontrol the non-exclusive right to use, reproduce, display and perform the content in connection with providing the applications, including but not limited to advertising in any media format and via any distribution channel.

• The right granted to content expires as soon as the customer removes the content.

• Uploaded and created content is only made available to other customers in the applications once the customer makes a final decision to do so.

• Please note that other customers who use a course created by the customer appear in the applications anonymously, under a pseudonym or by name.

8 Use of the API

Fixcontrol provides the customer (in this context, the API user) with an interface (API) for communicating with third-party software. If third-party software accesses the database via FixAPI and a user is thereby permitted to manage and edit data, Fixcontrol's general terms and conditions, terms of use and privacy policy apply. The API user must include a corresponding reference in their own terms.
Notwithstanding any assurances to the contrary, Fixcontrol has the right in all cases to restrict access to this interface, in part or in full, at any time for good cause (e.g. slowing of the interface due to wilfully excessive requests, use outside the intended scope etc.). If access credentials are provided for using the API, the API user is obliged to keep them safe and to prevent their use by third parties. Furthermore, the API user is not entitled

• to enable third parties to use the API (a third party within the meaning of this provision is any company and any natural person to whom Fixcontrol has not contractually granted use of the API).

• to use technologies that are suitable or designed for obtaining data and/or other content via the API or otherwise that is not intended for them, or for damaging the platform and/or the data or impairing their use.

• to transfer faulty or harmful data and/or other content to Fixcontrol's applications or IT systems using the API.

• to make changes to the substance of data and other content retrieved using the API. If data and/or other content is published for the contractual purposes of using the API, the published content must be the same as it would be directly in Fixcontrol's applications.

• to place such a heavy load on the IT infrastructure through API requests that reasonable operation of the IT infrastructure is no longer possible.

9 App derivative

Fixcontrol offers the organiser the option of publishing the FixFinder app developed by Fixcontrol in a corporate design (as requested by the organiser). The organiser pays an annual fee for this option. The app can be given a name of the organiser's choice. The design elements of the FixFinder app (e.g. logo, splash screen, desktop icon, background colours etc.) that can be changed by the organiser are listed on the Fixcontrol website.
Fixcontrol undertakes to update the derivative as well whenever there are new versions of the FixFinder app and to publish it again under the name chosen above.
Furthermore, the organiser is responsible for designing the design elements to be customised and ensures that they are delivered on time and in the correct format. Changes are only possible when a new version of the FixFinder app is published. Fixcontrol informs the organiser accordingly with one month's notice.

PAYMENTS, CONTRACT TERM AND TERMINATION

10 Fees

To gain access to certain functions of the applications, an organiser may be asked to pay fees for the subscriptions. The «Free» subscription is excluded. For organisers who switch from monthly to annual payment, the prices take effect at the start of the next billing date. If the organiser updates their subscriptions or adds new subscriptions to their user profile, these changes may result in a new billing date.

11 Payments

Invoicing
The organiser undertakes to pay on time the fees incurred in connection with their user profile. Fixcontrol will send the organiser an invoice for the remuneration owed under the contract. Invoices are sent by email.

Changes to fees
Fixcontrol reserves the right, with reasonable advance notice, to increase the fees and any associated taxes or to introduce new fees at any time. Reasons for such a change in service include, in particular, technical progress and the further development of the applications. If the organiser does not wish to continue the contract at the changed rates, they are entitled to extraordinary termination with 14 days' notice to the date of the change.

12 Term and upgrade / downgrade

Subscription fees, including the applicable taxes, are paid annually. All subscription fees are payable in advance.
An upgrade to a higher subscription with more functions is possible. The same term as the previous subscription is assumed. Billing is then made pro rata, so that a new invoice for the new amount can be issued at the end of the term of the original subscription.
A downgrade to a lower subscription with fewer functions is only possible at the end of the term of the current subscription.

13 Termination

Notice period
The notice period is 30 days. If the organiser does not give notice in time, the subscription is automatically renewed for one year each time. Invoices are issued in advance.

Form of termination
Termination must be sent to Fixcontrol as a notice (point 21). After written confirmation, the subscription is switched at the end of the notice period to the newly chosen subscription, or at least to the «Free» subscription.

Termination of the contract
The parties remain free to terminate the contract with immediate effect for good cause. Good cause for the immediate termination of this contract exists in particular

• if a party becomes bankrupt or bankruptcy proceedings have been suspended for lack of assets.

• if the organiser is in arrears with payment obligations under this contractual relationship amounting to at least one month's fee, and has been reminded without success, with a grace period of two weeks and the threat of termination of the contract.

• if the organiser, when using the services covered by the contract, culpably violates legal provisions or infringes the copyrights, industrial property rights or name rights of third parties.

• if the organiser uses the services provided for the purpose of promoting criminal, unlawful and ethically questionable acts (e.g. racist content, defamation, pornography etc.) (see also point 15).

DATA PROTECTION AND CONTENT

14 Data protection and general terms and conditions

By accepting these terms of use, the customer also agrees to the general terms and conditions and the privacy policy, each in the currently valid version. These are permanently available on the Fixcontrol website: https://www.fixcontrol.ch/kontakt/downloads

15 Duty to cooperate / content

Compliance with applicable law
The customer undertakes towards the operator that any content posted in the applications neither violates applicable law (e.g. criminal, competition and youth protection law) or common decency through its content or form, nor infringes any rights of third parties (e.g. name, trademark, copyright and data protection rights). The same applies to setting external links. In particular, it is not permitted to distribute content that depicts, concerns or contains the following:

• racism, glorification of violence and extremism of any kind

• calls for and incitement to criminal offences and breaches of the law, threats against life, limb or property

• agitation against persons or companies

• statements violating personality rights, defamation, insult and slander of users and third parties, as well as breaches of fair trading law

• content infringing copyright or other infringements of intellectual property rights

• sexual harassment of users and third parties

• pornography

• offensive, sexist, obscene, vulgar, abhorrent or disgusting material and language

Copyright
Without the consent of the respective rights holder, copyright-protected content (text, images, sound and film) may only be included verbatim in contributions within the limits of the applicable right of quotation.
The copyright and all other rights to content, images, photos or other files created by Fixcontrol on websites, products and printed matter belong exclusively to Fixcontrol or to the specifically named rights holders. It is permitted to use the data to fulfil the intended purpose of the application (as per the product description). The prior written consent of the copyright holders must be obtained for the reproduction of any elements.

LIABILITY/WARRANTY

16 Liability

The customer agrees that Fixcontrol can in no event be held liable towards the customer or any third party for direct or indirect damage, incidental, specific or consequential damage arising in any form

• from proper use by the customer,

• from misuse by the customer,

• from content created by customers,

• or from any delay in or impossibility of using the applications.

Infrastructure
Where user-generated content is hosted on the infrastructure of the provider used by Fixcontrol, Fixcontrol is not liable for damage resulting from access to the server being prevented, in particular for disruptions and irregularities caused by third-party providers. Fixcontrol is liable neither for damage arising from the use of or the inability to use the applications, nor for damage caused by loss of data.

Control point locations
The customer undertakes towards Fixcontrol to take into account local hazards known to them – for example busy roads or features of the landscape – when defining their control point locations.

Coverage
The user is responsible for ensuring that sufficient network coverage is available at the place of use.

Content
In particular, Fixcontrol is not liable or responsible towards natural or legal persons for losses, damage – regardless of whether this is specific, resulting, indirect, incidental or other damage –, infringements of rights, claims, liabilities or other grounds in connection with the content of the applications.
Should the customer be exposed to content that is indecent or otherwise perceived as disturbing while using the website and the programme, we give the customer the opportunity to report such content to Fixcontrol at kontakt@fixcontrol.ch. Such a report and moderation by Fixcontrol take precedence over legal remedies, insofar as such an exclusion is legally possible.
User-generated content, the applications or the website may contain hyperlinks to other websites that are neither owned nor controlled by Fixcontrol. Fixcontrol cannot accept any liability for the content there.

Time limit
In all cases, regardless of the legal basis for liability, the mutual liability of the contracting parties is limited to the amount of the monthly access fees in the last twelve months before the damage occurred.

(Sports) activities
The customer expressly agrees that their sports activities entail certain risks of damage to property or personal injury. The customer hereby agrees to assume all known and unknown risks associated with these activities, even if they are caused in whole or in part by the act, omission or negligence of Fixcontrol.

Negligence
The above limitations (point 16) do not apply to damage resulting from grossly negligent or intentional conduct on the part of Fixcontrol, its agents or legal representatives. These terms of use do not affect any statutory rights to which every customer is entitled and which can neither be changed nor waived by contract.

17 Blocking of data

Fixcontrol is entitled to block the storage space immediately if there is a well-founded suspicion that the stored data is unlawful and/or infringes the rights of third parties. A well-founded suspicion of unlawfulness and/or an infringement of rights exists in particular if courts, authorities and/or other third parties inform Fixcontrol of this. Fixcontrol must notify the customer of the removal and the reason for it without delay. The block is to be lifted as soon as the suspicion has been fully dispelled.

18 Warranty

Fixcontrol warrants the functionality and operational readiness of the applications in accordance with the provisions of these terms of use. Fixcontrol makes every effort to ensure that the applications always work. However, it may happen that the services need to be repaired or brought up to date, for example.
The applications are provided «as is». Fixcontrol gives no warranty or guarantee with regard to how they function. In particular, Fixcontrol does not warrant or guarantee that the use of the applications will meet the customer's expectations, that the use of the applications will be uninterrupted, timely, secure and error-free, or that errors in the operation or functionality of any software will be corrected.

19 Organisation of competitions or events

The customer expressly agrees that Fixcontrol bears no responsibility for the checking, supervision, preparation or running of competitions, events, races, contests or group activities in which the applications are used, even if these were organised by an organiser or administrator.

FINAL PROVISIONS

20 Support & customer service

Fixcontrol will answer the customer's enquiries (as a notice, see chapter 21) about the applications by telephone or in writing as quickly as possible after receipt of the question, within the business hours published on the website www.fixcontrol.ch.

21 Notices / communication

Unless a stricter form is mandatorily prescribed in this contract or by law, all notices must be sent in writing by email or by post to the addresses given on the Fixcontrol website. Notices from Fixcontrol are sent by email to the email address provided by the customer on registration.
The contracting parties are obliged to notify the other contracting party of any change of address (including email address) without delay; otherwise, notices sent to the address last notified in writing are deemed to have been validly received.

22 Severability clause

Should individual clauses of these terms of use be wholly or partially invalid, any invalid provisions are to be reinterpreted, supplemented or replaced in such a way that the economic purpose pursued by the invalid provision is achieved. The same applies in the event that this agreement contains any gaps.

23 Place of jurisdiction

All legal relationships between Fixcontrol and the customer are governed by Swiss law. Should the contract contain invalid provisions, the validity of the remainder of the contract remains unaffected. The place of jurisdiction for both parties is Teufen AR.

Teufen, June 2023