AGB/ Terms of Use

Terms of Use for the "by the ways" Travel App

§ 1 General Regulations

1. The operator of the travel plattform "by the ways" is EXIST Projekt by the ways with its registered office at Luisenstraße 53 in 10117 Berlin (hereinafter referred to as "by the ways"), E-Mail: info@bytheways.io, website: www.bytheways.io

2. The By the ways mobile App (hereinafter also referred to as "App") is intended exclusively for persons who make use of the services offered by by the ways GmbH as consumers and have reached the age of 18 (hereinafter referred to as "User"). A consumer is any natural person who concludes a legal transaction for purposes which can predominantly neither be attributed to his commercial nor his self-employed professional activity (§ 13 BGB). Persons under the age of 18 are not permitted to use by the ways.

3. The following Terms of Use shall apply exclusively to the contract between by the ways and the user for the use of the services of the App. Regulations deviating from these Terms of Use shall not be recognised unless by the ways agrees to their validity in writing.

4. The app is offered in German. Thus, the contractual language is German. by the ways stores the text of the contract after conclusion of the contract under data protection. These terms of use are accessible at any time on the website www.bytheways.io in printable version. They can also be viewed within the app under "Settings > Legal > General Terms and Conditions".

§ 2 Changes to the Terms of Use

by the ways reserves the right to amend these Terms of Use if the amendment is only beneficial to the user, if there is a need for amendment due to certain legal requirements or supreme court rulings, a court ruling or an official decision against by the ways as well as in the case of technical revisions of the app or product enhancements that require an amendment to the Terms of Use and are reasonable for the user. The user will be notified in text form (e.g. by E-mail) at least six weeks before the planned modification date of any change to these Terms of Use intended by by the ways. The user's consent shall be deemed to have been granted if he or she has not objected to their validity towards by the ways by the planned date of amendment. Users who do not agree with the changes may terminate the contract with by the ways at any time - not only before the planned date of change, but also thereafter. The user will be separately informed again by by the ways within the notification of the intended changes that his silence is seen as agreement to the changes and that he can terminate the contract of use at any time. by the ways will also inform about changes to the terms of use on the website and in the app.

§ 3 Subject Matter and Functionalities of the "by the ways" app

1. General Functionalities

The app offers registered users the possibility to plan a road trip conducted by a vehicle e.g. Car, Recreational Vehicle, Van, Bus or Motorbike, and get informative recommendations on places along the route.

The registration of the user is required for the full use of the app. The following functionalities are then available to the user via the app:

• Creation of a trip for him- or herself and other travel participants,
• Marking of Stops along the way (e.g. restaurants, museums, etc.),
• Determination of a travel route via different waypoints
• Receiving Information in real-time on places along a predefined route

• Make bookings to acquire services of partner companies
• Share experiences with other travelers in a community

§ 4 Conclusion of Contract: User Accounts, Basic and Premium Membership

1. Registration with Full Usage

Full use of the app is only possible for registered users with a personal user account. For this purpose, the user must register either at the first start of the app or during the test phase via the "Register" tab and by entering a user name of his or her choice, first and last name, e-mail address and a password of his or her choice.

In addition, the user must agree to these terms of use.

The user has the opportunity to correct his or her details at any time during the registration process before clicking on the "Register" button. The user hereby submits an offer for the conclusion of the user contract with full usage of the app. by the ways accepts the offer only by providing the user account.

After receiving the user's offer, by the ways will send a link to the e-mail address provided by the user requesting confirmation of the user's e-mail address. The registration process and the contract are only concluded with the confirmation of the user.

The user name and password serve as access data. The registration and full access to the app takes place after entering the access data.

In addition to registration with user name and password, registration can also take place using the access data stored by the user on Facebook or Google, provided the user has a Facebook account or a Google account.

§ 3. Premium Features

The use of the app is provided by by the ways free of charge. Additional functions of the app can be unlocked by becoming a premium member and entering a monthly subscription aggreement.

Members may access the app in two ways:

(1) Free "Basics" Membership: a free program that provides unlimited access to basic functionallities. This function is included when you register as a member; no other contract is required.

(2) Paid Subscription "Premium" Membership: A subscription that provides users with access to all functions, including the free "Basics" functionalities, upon payment of a fee ("Paid Subscription Program"). Users will have access to the premium features only while their subscription is active. Users may be offered a free trial period for the Paid Subscription Program as part of certain promotional offers. The Products give users access to all Subscription Services.

§ 4. Modification of the Profile Data

If the user is logged in, he or she can view and change the data specified under paragraph 2 under "Settings" - "Edit profile". In addition, the user can deposit a profile picture, name his or her gender and give further details concerning his travel preferences

§ 5 User Service

If you have any questions about the app, by the ways can be reached at the contact details listed under § 1 (1) and at the e-mail address info@bytheways.io from Monday to Friday from 9:00 to 17:00 (excluding national holidays and public holidays in Berlin). General questions will also be answered in the app under "Help & FAQ".

§ 6 Subscription payment

The timing of your payment and automatic renewal of your individual subscription will depend on the duration of your individual subscription and will be subject to the cancellation rights set forth in these Terms. For lifetime individual subscriptions, all amounts are payable and billed at the time of your order. For monthly or annual individual subscriptions that automatically renew for an additional subscription period equal to the length of the expiring subscription period until you cancel, all amounts are payable: (a) at the beginning of the subscription period; and (b) at each renewal until you cancel using the payment information you provide. You must cancel your single monthly or annual subscription before it is renewed to avoid being charged for the next single subscription period. If you purchase your single subscription through the Website, you may cancel your single subscription renewal at any time by contacting us by email at info@bytheways.io. If you purchase your single subscription through an app provider, you may cancel your single subscription renewal at any time by contacting that app provider. If you purchase through an app provider, the terms of that app provider will apply. However, your use of the Services will still be subject to these Terms. If you used a promotional code, coupon code, or other discount to sign up for a subscription, your subscription will automatically renew at the end of the discounted period at the then-current price, unless you are subject to another promotional offer. Except as expressly provided in these Terms, you will not receive a refund for any payments you have already made for your current individual subscription period, and you will continue to receive the Services until the end of your then-current individual subscription period. Apple will handle all billing for in-app purchases made through iOS devices. Customers who have subscribed to by the ways through iTunes must contact Apple directly with refund requests. Apple is generally able to honor refund requests within 30 days of the purchase date (though this is within their purview). Please contact Apple directly for details

§ 7 Liability of by the ways

1. Claims of the user for damages are excluded. Excluded from this are claims for damages by the user arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by by the ways, its legal representatives or vicarious agents. Material contractual obligations are those whose fulfilment is essential for the proper performance of the contract and on whose observance the contractual partner regularly relies and may rely.

2. In the event of a breach of essential contractual obligations, by the ways shall only be liable for the foreseeable damage typical of the contract if this was caused negligently, unless the user's claims for damages are based on injury to life, body or health or on other damage caused by an intentional or grossly negligent breach of duty by by the ways, its legal representatives or vicarious agents.

3. The restrictions of paragraphs 1 and 2 shall also apply in favour of the legal representatives and vicarious agents of by the ways if claims are asserted directly against them.

4. The provisions of the Product Liability Act shall remain unaffected. The same applies in the event of fraudulent intent on the part of by the ways or in the absence of a quality of service guaranteed by by the ways.

§ 8 Duties of Conduct of the User

1. The user is obligated to keep his or her provided information for the registration up to date during the term of the contract and to update any changes immediately.

2. The user is obligated to treat his access data confidentially. If the user enables third parties to access his or her user account intentionally or negligently, he or she is liable for the conduct of these third parties and thus also for any claims arising from this use, in particular compensation for damages and expenses.

3. The user is initially responsible for any information and content published by the user about him- or herself or his or her fellow travellers. The user is aware that the contents posted by him or her give conclusions about his or her circumstances of life, such as, in particular, his or her travel and place of residence.

4. When using the app and, in particular, when providing content by the user, compliance with applicable law is the user's essential duty. Therefore the following applies to the use:

a. It is explicitly forbidden for the user and the user is obligated to refrain from a use which

• is in violation of the law
• infringes the rights of third parties, in particular industrial property rights (trademarks, designs, etc.), copyrights, ancillary copyrights or personal rights. This applies in particular to rights to content of any kind posted by the user and racist content of any kind.

c. The user is obligated to refrain from the following activities on or by means of the App:

• Any use for his or her own commercial or professional purposes,
• Any advertising approach to users, in particular the mass sending of messages,
• Objectively harassing private messages or contributions,
• Measures which may restrict or interrupt the operation of the App or cause a disproportionate load on the infrastructure,
• Exchange or disclosure of passwords or other confidential information and links to content of any kind that is manifestly unlawful,

• Automated or manual collection of data (data scraping, data mining),
• Bypassing security measures, suppressing, modifying or intercepting foreign data,
• Spreading malicious software (e.g. viruses).

§ 9 Rights of by the ways in the Event of Infringements by the User

1. The user undertakes to indemnify by the ways against any claims by third parties based on an infringing use of the travel planning app by the user. This includes any damages as well as reasonable costs and expenses, in particular the necessary costs of legal defence. The user undertakes to inform by the ways immediately of any claims by third parties based on illegal use of the app or his user account.

2. Without prejudice to any further rights (in particular the immediate extraordinary termination without notice and the assertion of claims for damages), by the ways may also sanction the user's breach of these Terms of Use by taking appropriate measures such as the temporary or complete deletion of content, a warning, blocking or other restrictions on the use of the App. by the ways shall select the measure with consideration of all relevant issues, in particular the severity of the infringement and the degree of fault, liability risks, etc., and shall not be liable for any loss or damage arising from the use of the App. The user him- or herself shall immediately remove any content for which there is a justified suspicion of an infringement, but shall also be obligated to do so if by the ways requests him or her to do so. In addition, the user shall inform by the ways of any content that could violate the law and cooperate in the clarification of attacks by third parties on the App, to the extent that such cooperation by the user is recognisable and necessary.

§ 10 Permission of Use and Granting of Rights by the User and exemption

1. The app offers users the possibility to upload their own information and content, especially photos and travel documents. The user agrees to the use of such content within the framework of the App and the functionalities offered therein in accordance with § 3, in particular with regard to the access of other participants of a trip to the content posted by him.

2. The user grants by the ways the right to reproduce, publish and make publicly accessible within the App, in physical and non-physical form only in connection with the functionalities offered by the Travel Planning App, including the right to edit as far as this is technically necessary, and to license this information and content to third parties in the form of other users in the same form, free of charge, limited in time and space for the duration of the contract of use.

3. With regard to any claims by by the ways in connection with claims asserted by third parties, § 9 (1) and § 9 (2) shall apply mutatis mutandis.

§ 11 Availability and Authorisation to modify the Technical System

1. by the ways strives for a high average availability of the app. However, the user acknowledges that uninterrupted availability is not technically feasible. Interruptions of the Internet that cannot be influenced by by the ways or other circumstances for which by the ways is not responsible, in particular those based on force majeure, as well as regular and unscheduled maintenance work on the database system to eliminate malfunctions, can lead to a temporary interruption or malfunction of the app.

2. In addition, by the ways endeavors to continuously adapt the App to the current technical requirements. by the ways therefore reserves the right to make changes to adapt the system to the state of the art, to optimize the system, in particular to improve user-friendliness and to change content, if the latter is necessary to correct errors, to update and complete the app or to optimize the program. If this results in necessary changes to the terms of use, § 2 shall apply.

§ 12 Duration of Contract and Termination

1. The contract on which these terms of use are based with the registration of the user is concluded for an indefinite period of time. The contract for the trial version ends 14 days after the download of the app without any notice.

2. The contract can be terminated by the user at any time by sending a corresponding message to info@bytheways.io or by sending an informal message to one of our by the ways contact details listed under § 1.

3. by the ways may terminate the contract with two weeks' notice to the user.

4. The right to extraordinary termination remains unaffected for both parties.

5. Notices of termination require text form (e.g. by E-mail) to be effective.

6. by the ways reserves the right to terminate the user account after 5 years of continuous inactivity with a notice period of one month to the end of the month.

7. by the ways points out that the user him- or herself is responsible for securing the content and data entered in the app (in particular the photos, travel documents and details of travel expenses incurred), as these are irretrievably deleted by by the ways upon termination of the user contract - subject to the data required to fulfil statutory storage obligations.

§13 Standard End-User License Agreement

The App is available at the Apple AppStore, and hereby falls under the standard End-User License Agreement, as described in https://www.apple.com/legal/internet-services/itunes/dev/stdeula/

Apps made available through the App Store are licensed, not sold, to you. Your license to each App is subject to your prior acceptance of either this Licensed Application End User License Agreement (“Standard EULA”), or a custom end user license agreement between you and the Application Provider (“Custom EULA”), if one is provided. Your license to any Apple App under this Standard EULA or Custom EULA is granted by Apple, and your license to any Third Party App under this Standard EULA or Custom EULA is granted by the Application Provider of that Third Party App. Any App that is subject to this Standard EULA is referred to herein as the “Licensed Application.” The Application Provider or Apple as applicable (“Licensor”) reserves all rights in and to the Licensed Application not expressly granted to you under this Standard EULA.

1. Scope of License: Licensor grants to you a nontransferable license to use the Licensed Application on any Apple-branded products that you own or control and as permitted by the Usage Rules. The terms of this Standard EULA will govern any content, materials, or services accessible from or purchased within the Licensed Application as well as upgrades provided by Licensor that replace or supplement the original Licensed Application, unless such upgrade is accompanied by a Custom EULA. Except as provided in the Usage Rules, you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not transfer, redistribute or sublicense the Licensed Application and, if you sell your Apple Device to a third party, you must remove the Licensed Application from the Apple Device before doing so. You may not copy (except as permitted by this license and the Usage Rules), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application).

2. Consent to Use of Data: You agree that Licensor may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Licensed Application. Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.

3. Termination. This Standard EULA is effective until terminated by you or Licensor. Your rights under this Standard EULA will terminate automatically if you fail to comply with any of its terms. 

4. External Services. The Licensed Application may enable access to Licensor’s and/or third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Licensed Application or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this Standard EULA or that infringes the intellectual property rights of Licensor or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Licensor is not responsible for any such use. External Services may not be available in all languages or in your Home Country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Licensor reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you. 

5. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

6. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

7. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.

8. The Licensed Application and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

9. Except to the extent expressly provided in the following paragraph, this Agreement and the relationship between you and Apple shall be governed by the laws of the State of California, excluding its conflicts of law provisions. You and Apple agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California, to resolve any dispute or claim arising from this Agreement. If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:

If you are a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence.

Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.

§ 14 Notes on Dispute Resolution

The European online dispute settlement platform can be accessed at the URL http://ec.europa.eu/consumers/odr. by the ways is not prepared or obliged to participate in dispute resolution proceedings before an arbitration body under the Consumer Dispute Resolution Act (VSBG). However, by the ways will use its best endeavours to resolve a possible dispute with the user and thus avoid legal action.

§ 15 Applicable Law

1. The law of the Federal Republic of Germany shall apply.

2. If the user in his capacity as a consumer has his habitual residence in a state other than the Federal Republic of Germany at the time of the conclusion of the contract, German law shall also be applied, whereby the mandatory provisions of the state in which he or she has his or her habitual residence shall remain unaffected.

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