TERMS AND CONDITIONS
Terms and Conditions of Use
1. Acceptance of Terms and Conditions of Use
1.1 The services (“Services”) provided by Top Now GmbH, owner of the website www.dayafternow.com (“Website”) and of the application (“Day After Now App”) are subject to the below Terms and Conditions of Use that will apply:
- each time that you (“you or User”) would access and/or use our Website or any connected sub-domains;
- when User download, access or use our Day After Now App;
- when Services are provided to the User.
1.2 By clicking on “Accept Terms and Conditions”, you confirm your full and unconditional acceptance of the same. We wish to underline that you will have to comply with the same without the possibility to make any modifications, deletions or additions. If you do not want to accept the Terms and Conditions of Use you should not use our Services or access and use our Website or Day After Now App.
1.3 Top Now GmbH will be authorized to change any aspect related to the Services provided, Website and Day After Now App including, but not limited to, Services, content, availability, etc. If Top Now GmbH decides to modify, suspend, discontinue any part of or all of the Services, Website, Day After Now App, the same will not be liable towards User or any third party. We evidence that some Services could have restricted access and allow to be purchased just by registered Users.
1.4 By downloading Day After Now App, you expressly agree that our logo will be installed and will appear on your browser or your mobile operative system and you are aware that the same application may offer changes to your Internet browser settings.
1.5 All provisions of the Terms and Conditions of Use which by their nature should survive expiration or termination of use of the Services, the Day After Now App or access to the Website shall survive the expiration or termination of use of the Services, the Day After Now App or access to the Website, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Website and the Day After Now App shall not relieve User of any obligations arising or accruing prior to such expiration or termination or limit any liability, which you otherwise may have to.
1.6 Unless terminated earlier, the Services will be provided for the subscription term chosen by the User. If the User opted for a lifetime subscription, if possible and available this last one, the same subscription is good until the “end of life” of the product. For eventual free of charge provided Services, the same Services will be effective for as long as Top Now GmbH makes this available for the user.
2. Modification of the Terms and Conditions of Use
2.1 Top Now GmbH can modify, at its sole discretion, without obligation to make any preventive communication or notification, totally or even only partially, the Terms and Conditions of Use even though we will use our best effort to send to all Users modified Terms and Conditions of Use by email or we will publish the new version on the Website and/or Day After Now App. Therefore, you are invited to periodically review the same. In case that you do not agree with the modified Terms and Conditions of Use or you cannot comply with the same, you cannot continue to use our Services, Website, Day After Now App. If you continue to use our Services, Website, Day After Now App, you will be deemed to have accepted the same after any amendment.
3. Services provided
3.1 Top Now GmbH will provide, to the Users, Services better described on the dedicated spaces on the Website and on the Day After Now App and in particular:
(i) Users will be able to create message/s to be sent to one or more recipients on deadlines determined by the same User;
(ii) Users will be allowed, on the basis of the Service chosen, to upload, within eventual space limits, personal content and attachments, in different forms (documents, photos, videos), to the created messages;
(iii) User can request to be notified and in that case we will send to the same, on deadlines determined by the same User, notification messages;
(iv) on deadlines determined by the User and as per instructions received by the same, we will send message/s to the recipients indicated by the same User;
(v) User will be able, for Services where this is provided, to change, modify, revoke or delete the message/s, content, attachments or recipients at any time by logging into his/her account.
3.2 In relation to the previous point 3.1 (v), it is underlined that for the messages “You already know when is your Day After” note that once inserted the messages, the same, its contents, eventual attachments and scheduled date for the same to be sent, will not be able to be modified or to be deleted. Top Now GmbH will not be responsible for Users error or change of mind once that the message, with eventual attachments and scheduled sending time has been definitively saved and disclaims any liability or responsibility in respect to the eventual necessity of the User to modify or delete the complete message
3.3 Top Now GmbH will preserve and archive for a period of 1 (one year), all messages and related contents and attachments, in case that the same have been sent on deadlines determined by the User, from the date in which they were sent to the beneficiaries determined by the User or in case that the Service expired and the User did not renew the subscription a year after the date the same expired. After these periods, Top Now GmbH will delete the message/s and its contents, including the eventual attachments, and disclaims any liability or responsibility in respect to the described.
3.4 User shall be responsible for obtaining and maintaining all telephone, computer hardware, software and other necessary equipment needed to purchase, access and use the Services, Website and Day After Now App.
3.5 User hereby grants to each recipient of your messages a right to view, use, reproduce, distribute, display and perform the contents of his/her messages as well as of eventual attachments (documents, photos, videos etc). Top Now GmbH will not be responsible for content of User’s messages and disclaims any liability or responsibility in respect of you sharing the same contents, including the attachments in whatever form.
3.6 Services provided by Top Now GmbH trough Website and Day After Now App is not a legal substitute for a will, trust or power of attorney nor it is legally binding.
4. Use of Services
4.1 User agrees to use Services, Website and Day After Now App only for their scope. By way of example, and not limited to, User agrees that when using the Services, Website and Day After Now App, User will not:
(i) use the Services, Website and Day After Now App in connection with pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages, advertise or offer to sell or buy any goods or services for any business purpose, etc;
(ii) distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information;
(iii) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;
(iv) upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another;
(v) use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party;
(vi) harvest or otherwise collect information about others, including email addresses, create a false identity for the purpose of misleading others;
(vii) violate any applicable laws or regulations;
(viii) use Services, Website and Day After Now App, just as provided by the present Terms and Conditions of Use
4.2 Furthermore, by way of example, and not limited to, User agrees that when using the Services, Website and Day After Now App, User will:
(i) use Services, Website and Day After Now App for lawful purposes only. User shall not store, post, or transmit through Services, Website and Day After Now App any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
(ii) Top Now GmbH is the owner of copyrighted material, trademarks and other proprietary information, including, text, software, photos, video, graphics, and the entire contents of Services, Website and Day After Now App. User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. User may download copyrighted material for User's personal use only;
(iii) maintain the confidentiality of User’s password and account. User is entirely responsible for any and all activities that occur under User’s account. Top Now GmbH will not be liable for any loss that User may incur as a result of someone else using User’s password or account, either with or without User’s knowledge. However, User could be held liable for losses incurred by Top Now GmbH or another party due to someone else using User’s account or password.
4.3 Top Now GmbH will not monitor and has no obligation to monitor the content, including eventual attachments in whatever form, of User’s account/spaces when using Services, Website and Day After Now App. However, Top Now GmbH, without any liability towards the User:
(i) reserves the right to terminate User’s access to any or all of the Services at any time, without notice, for any lack of respect of the present Terms and Conditions of Use;
(ii) reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to refuse to post or to remove any information or materials.
5. Service provision
5.1 Top Now GmbH will use all possible and reasonable efforts to make Services on line, Website and Day After Now App available and functional 24 hours a day and 7 days a week. Top Now GmbH will use all its efforts to ensure the continuity of the Services, Website and Day After Now App but these may be temporally interrupted due to maintenance, back-ups and system availability. It is always provided that meeting system requirements is your responsibility. Top Now GmbH will have no liability for any damage or losses or any other consequences that Users may incur as a result of any Service interruption.
5.2 Top Now GmbH will be authorized to suspend or interrupt the access or provision of the Services as well as the access or functioning of the Website and Day After Now App in any case, including as a result of power outages, system failures or other interruptions also due to maintenance. However, Top Now GmbH is expressly authorized to suspend access to any portion or all of the Website, Day After Now App and /or Services, without necessity of notice and at any time in the following cases: (i) for determined period of time to permit Top Now GmbH to conduct maintenance on Website and /or Day After Now App or make modifications to any Service; (ii) in the event of a denial of Service attack or other attack on the Website and/or the Day After Now App or in case of any other event that Top Now GmbH determine, in its sole discretion, would constitute a risk to the applicable Service, the Website or the Day After Now App, to any of the Users; or (c) in the event Top Now GmbH determines that any Service is to be suspended for legal or regulatory reasons.
5.3 It is provided that Top Now GmbH will do its best to inform the Users as regards the suspensions or interruptions as indicated above by posting updates on the Website; however, Top Now GmbH shall have no liability in any case if the same did not inform the Users for objective reasons.
5.4 Top Now GmbH may decide to cease Service(s) and/or modify the functionality of Day After Now App. The decision to cease distribution and support of the Services may be based upon a number of factors, including changes in technology, licensing and support considerations, declining consumer demand, and/or the availability of a newer Services with more advanced features. Top Now GmbH will provide all Users with advance notice by emailing users at the email address associated with their account and/or posting such notice on the Website.
6. User’s account
6.1 The User is solely responsible for maintaining the confidentiality of his/her account information (including passwords). It is User’s responsibility to maintain and keep confidential the same. Top Now GmbH endeavor to use reasonable security measures to protect against unauthorized access to User account. User will immediately notify Top Now GmbH any unauthorized use of his/her account, or any other breach of security at support@topnow.ch and you accept all risks of unauthorized access to the Website, the Day After Now App, your account information and any other information you provide to and hereby unconditionally relieve Top Now GmbH of any liability in that respect.
6.2 Top Now GmbH will not be responsible for any losses arising out of the unauthorized use of User’s account and User agrees to indemnify and hold harmless Top Now GmbH, its shareholders, officers, directors, agents, employees, partners and/or licensors, as applicable, for any improper, unauthorized or illegal use of your account.
6.3 User can cancel his/her account at any time by contacting support@topnow.ch. In case that the User decides to cancel the account note that this could request the cancelation of all emails and eventual attachments, in any form. In this case, Top Now GmbH will not be liable and User agrees and accepts this.
6.4 Top Now GmbH may terminate your account immediately (i) in the event of breach or violation of the present Terms and Conditions of Use by the User or (ii) in the events set forth in the sections of the present Term and Conditions of Use.
7. Intellectual Property
7.1 Top Now GmbH grants to a User a non-exclusive, non-transferable, worldwide, revocable license to access and use the Website, Day After Now App and the Services in accordance with the terms set forth in the Terms and Conditions of Use. The Website, the Day After Now App and the Services are made available to you for your personal, non-commercial use only. Users are not allowed to sell, distribute, license or in any other way exploit, in whole or in part, the Services, the use of the Website or the Day After Now App or any information or software associated with them or (ii) to modify or create derivative works from the Website and/or the Day After Now App, in whole or in part.
7.2 Top Now GmbH reserves all rights, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. User may not sublicense, assign, or transfer the license granted under the Terms and Conditions of Use.
7.3 “Top Now GmbH”, “Day After Now App”, “Dayafternow.com” are trademarks (registered or not) of Top Now GmbH. All content displayed on the Website and through the Day After Now App as well as all the software (including any source code) used in connection with the Services is the exclusive property of Top Now GmbH.
7.4 Nothing appearing on the Website will be construed as granting to User any license, right, title or interest relating to the trademarks or other intellectual property used in connection with the Website, Day After Now App and/or the Services and the intellectual property remains the exclusive property of Top Now GmbH. Except as stated herein, User agrees not to display, copy, reproduce, use or distribute any intellectual property and may not mirror any material contained on the Website or made available through the Day After Now App.
8. Disclaimer of Warranty and Limitation of Liability
8.1 The Website, the Day After Now App and the Services (including all their contents) are provided to User "as is." The download of the Day After Now App and/or any use of the Website, Day After Now App and the Services are at Users own discretion and risk and he/she will be solely responsible for any damages to your hardware device, loss of data or any other loss that results from the download of the Day After Now App and/or use of the Website, the Day After Now App and the Services. To the maximum extent permitted by applicable law, Top Now GmbH disclaims all representations, warranties or conditions, either express or implied, including, but not limited to, implied warranties or conditions of merchantability, merchantable quality, durability, fitness for a particular purpose, title and non infringement. Top Now GmbH makes no representations, warranties or guarantees that the Website, the Day After Now App and the Services will be free from loss, destruction, damage, corruption, attack, viruses, interference, hacking, or other security intrusion, and Top Now GmbH disclaims any liability relating thereto.
8.2 User expressly agrees that use of the Website, Day After Now App and Services is at User's sole risk. Neither Top Now GmbH, its affiliates nor any of their respective employees, agents, third party content providers or licensors warrant that Website, Day After Now App and Services will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from use of Website, Day After Now App and Services, or as to the accuracy, reliability or content of any information, service, or merchandise provided through Website, Day After Now App and Services.
8.3 The present disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence, or under any other cause of action. User specifically acknowledges that Top Now GmbH is not liable for the defamatory, offensive or illegal conduct of other Users or third-parties and that the risk of injury from the foregoing rests entirely with user.
8.4 In no event will Top Now GmbH, or any person or entity involved be liable for any damages, including, without limitation, direct, indirect, incidental, special, consequential or punitive damages arising out of the use of or inability to use Website, Day After Now App and Services. User hereby acknowledges that the provisions of this section shall apply to all contents on the Website, Services and Day After Now App.
8.5 In addition to the terms set forth above neither, Top Now GmbH, nor its affiliates, information providers or partners shall be liable regardless of the cause or duration, for any errors, inaccuracies, omissions, or other defects in, or untimeliness or unauthenticity of, the information contained within Website, Day After Now App and Services, or for any delay or interruption in the transmission thereof to the user, or for any claims or losses arising therefrom or occasioned thereby. None of the foregoing parties shall be liable for any third-party claims or losses of any nature, including, but not limited to, lost profits, punitive or consequential damages.
8.6 Force Majeure – neither party will be responsible for any failure or delay in performance due to circumstances beyond its reasonable control, including, without limitation, acts of god, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, service outages resulting from equipment and/or software failure and/or telecommunications failures, power failures, network failures, failures of third party service providers (including providers of internet services and telecommunications). The party affected by any such event shall notify the other party within a maximum of fifteen (15) days from its occurrence. The performance of this agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this agreement.
8.7 User acknowledge that his/her submission of any information or attachment in any form on the Website, Day After Now App or during the use of the Services is at user’s own risk. Top Now GmbH does not assume any liability to User with regard to any loss or liability relating to such information in any way.
8.8 In case that the User displays on the Website or through the Day After Now App materials that belong to or are provided by third parties the same acknowledges that Top Now GmbH assumes no responsibility for such content, products and/or services.
8.9 Under no circumstances are Top Now GmbH, our affiliates, our employees or suppliers liable towards the User for any: (i) indirect, special, incidental, or consequential damages; (ii) theft of personally identifiable information; (iii) damages for loss of profits, loss of goodwill, loss of personnel salaries, work stoppage, computer failure or malfunction, loss of data, or negligence of any kind, or for any other non direct damage or loss. In no event will our aggregate liability to User for direct damages exceed the price the User paid for the Services.
8.10 Top Now GmbH will use its best effort to deliver the messages that are supposed to be sent, as per indication of the User and following the parameters set by the same, to the third parties. However, Top Now GmbH shall NOT be liable for any errors, inaccuracies, omissions, lack or erroneous transmission or other defects of the mentioned messages if it is not the fault of Top Now GmbH or this is due to the spam filters of the email system used by the User.
9. Indemnification
9.1 User agrees to defend, indemnify and hold harmless Top Now GmbH, its officers, directors, affiliates, shareholders, agents, licensors and employees with respect to any suits, claims or demands or damages arising out of the use by the User of the Website, Day After Now App and Services or User’s breach of the present Terms and Conditions of Use.
10. Payments and taxes
10.1 All prices quoted for the Services that Top Now GmbH provide are payable in American Dollars. Top Now GmbH reserves the right to correct any errors in pricing or Service information and to modify the prices of the Services, at any time and without prior notice. Payment for Services and applicable taxes shall be made in advance by credit card. Any payments made by credit card are subject to the approval of the financial institution that has issued the credit card.
10.2 All prices indicated for the Services include, if applicable, VAT. Other eventual applicable taxes are not included in the prices of the Services.
11. Termination
11.1 Either Top Now GmbH or user may terminate this agreement at any time. Without limiting the foregoing, Top Now GmbH shall have the right to immediately terminate User's account in the event of any conduct by user which Top Now GmbH, in its sole discretion, considers to be unacceptable, or in the event of any breach by user of the present Terms and Conditions of Use.
12. Language
12.1 The parties hereto acknowledge that these Terms and Conditions of Use and the Privacy Policy are to be drawn up in the English language.
13. General Final clauses
13.1 The present Terms and Conditions of Use and any operating rules eventually issued and communicated to the User by Top Now GmbH constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter.
13.2 No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
13.3 The section headings used herein are for convenience only and shall not be given any legal importance to the same.
13.4 No agency, partnership, joint venture, or employment is created between User and Top Now GmbH as a result of the Terms and Conditions of Use and Users do not have any authority of any kind to bind Top Now GmbH in any respect whatsoever.
13.5 If any of the provisions of the Terms and Conditions of Use or their application is found to be invalid under any applicable statute or rule or law, they are, to that extent, deemed omitted and the validity of the other provisions of the Terms and Conditions of Use will not be affected.
14. Governing Law
14.1 To the present Terms and Conditions of Use will apply Swiss Law.
14.2 Subject to the mandatory provisions provided by the law, the Court of Zurich will have the exclusive jurisdiction to decide whatever dispute regarding the execution and / or interpretation and/or effectiveness of the present Terms and Conditions of Use.
15. Privacy Policy
15.1 Your use of the Website, Day After Now App and Services is also subject to the Privacy Policy (the "Privacy Policy"), which is incorporated by reference and made a part of the present Terms and Conditions of Use. It is important that you read and understand the terms of our Privacy Policy that are evidenced here below.
