TABLE OF CONTENTS
§ 1 General
(1) Provider identification
(2) Terms and definitions
(5) Priority of the individual agreement
(6) Independent legal relationships between users
(7) References to the applicability of statutory provisions
§ 2 Subject matter of the contract, availability
§ 3 General conditions of use
§ 4 Registration, Conclusion of Contract, User Account, Contract Language
§ 5 Assurances and obligations of the user during registration
§ 6 Provision of our services, granting of rights of use
§ 7 Granting of rights of use to Own Content
§ 8 Duties and Assurances of the User, Indemnification
§ 9 Responsibility of klaep
§ 10 Liability in other respects; infringement of property rights and indemnification
§ 11 Temporary blocking of the User Account
§ 12 Duration of the User Relationship and Termination
§ 13 Right of revocation
§ 15 Data security and data protection, exemption
§ 16 Use of subcontractors
§ 17 Assignment and transfer of rights and obligations
§ 18 Applicable Law
§ 19 Place of Performance
§ 20 Place of Jurisdiction
§ 21 Invalidity of individual clauses
Appendix 1: Supplementary information on dispute resolution
Appendix 2: Consumer Right of Withdrawal / Cancellation Policy / Sample Cancellation Form
§ 1 GENERAL
(1) Provider identification
We, Bobbele Ideas GmbH, legally represented by the managing directors Philip Haberstroh and Tobias Lygren, Paul-Ehrlich-Straße 7, 79106 Freiburg, Germany (for further information, see the imprint at https://www.klaep.com/imprint; hereinafter "Bobbele Ideas" or "we") are a company in the social media sector and offer you access to our social network "klaep" including all associated services via our app offered for mobile devices.
(2) Terms and definitions
"Services" means all services provided by us through access via our App by means of an internet connection from our server as part of our social network "klaep", in particular and all related software, applications, plugins, functions and features, data and content.
"Own Content" means content generated by you and posted to our social network "klaep" by you, including, without limitation, text, images, sound or video recordings or other data.
"User Content" means content generated by other users and posted to our social network "klaep" by them, in particular texts, images, sound or video recordings or other data.
"User Relationship" means the contract between us as the provider of the Services and you as the person who wishes to use the Services. We assign the user relationship with you to your user account.
"Access Data" means the data whose entry is necessary to be able to identify you as a user and thus to give you access to your user account and to our Services. The access data usually consists of a user name or your email address chosen by you and a password chosen by you.
(d) Terms and conditions of users do not apply, even if we do not separately object to their validity. Any deviating or contradictory terms and conditions shall therefore only apply if they have been acknowledged by us in writing. Even if we refer to a letter that contains or refers to the terms and conditions of a user or a third party, this does not constitute an agreement to the validity of those terms and conditions.
(5) Priority of the individual agreement
(6) Independent legal relationships between users
(7) References to the applicability of statutory provisions
§ 2 SUBJECT MATTER OF THE CONTRACT, AVAILABILITY
(1) The subject matter of the contract is the provision of access to our social network "klaep" via our mobile app.
(2) Our social network "klaep" with its services offers you the opportunity to,
present yourself in the social network "klaep" with your own user profile visible to other registered users in the network,
post, present and share your own content there, in particular picture, sound or video recordings (so-called "Jams") made by you,
search for other users, search terms, instruments and thus discover new content,
communicate and interact with other users in real time, in particular to view, comment, rate Jams of other users, as well as to share them outside the social network "klaep"; also via third-party apps,
cooperate with these users, i.e. to supplement Jams of other users with one's own Jams (so-called "ReJams").
(3) Our services as operators of the social network "klaep" consist of:
(a) Provision of the usage options of the social network "klaep" with the associated services offered by us via the Internet by means of access through our app;
(b) Creation of technical and organizational conditions to enable the usage options outlined in paragraph 2.
(4) We will provide you with user documentation in electronic form, namely in the form of online help that can be viewed at any time while using our App via the Internet.
(5) Our above services are free of charge for you. In return, you have no claim against us for compensation for the provision and use of your own content and data that you provide to us for posting on our social network "klaep" or that you maintain there.
(6) We would like to point out that data communication via the Internet cannot be guaranteed to be error-free and/or available at all times according to the current state of technology. We strive to keep our social network "klaep" with the associated services offered by us as constantly available as possible. In this respect, we owe an availability of our social network "klaep" with the associated services offered by us of 98% on a monthly average at the router exit of our server (hereinafter referred to as "transfer point"). Availability in this context means the technical usability of our social network "klaep" with the associated services offered by us at the handover point. The predefined availability includes necessary maintenance work. An interruption may not persist for more than 48 hours. Excluded from this are times when the server is down due to technical or other problems, as long as these problems are beyond our control, such as force majeure, natural disasters, war, power outages, fault of third parties.
(7) We reserve the right to offer additional services against payment in the future, which require a separate agreement between you and us.
§ 3 GENERAL CONDITIONS OF USE
(1) You can access our social network "klaep" with the associated services offered by us via your mobile device and by installing our app. Details on the system requirements of your mobile device (in particular the operating system, its version, storage space, etc.) can be found on the product page of our app in the respective app store, there in the description or system requirements sections.
(2) Access to our social network "klaep" with the associated services offered by us then requires - after installation and start of the app - the creation of a user account in accordance with § 4. An Internet connection is required for this.
(3) An Internet connection is required to use our social network "klaep" with the associated services offered by us. Both our social network "klaep" and all services cannot be used offline.
§ 4 REGISTRATION, CONCLUSION OF CONTRACT, USER ACCOUNT, CONTRACT LANGUAGE
(1) The installation of the app, its start and also the option to register provided there do not constitute an application for the conclusion of a user relationship with us within the meaning of § 145 of the German Civil Code ("BGB"), but only an invitation to submit such an application.
(4) You can change and view the data you have entered at any time before clicking on the aforementioned button. You can correct your entries using the usual touch and/or keyboard functions of your mobile device before completing the registration process. You can identify any input errors by carefully reading and checking the data you have entered, if necessary also using the input assistance functions of your mobile end device (e.g. screen magnifier, read aloud functions, etc.). You can also cancel the registration process at any time by closing our app.
(5) We will immediately confirm receipt of your submitted application by email. This is an automatic confirmation of receipt. In this email, you will be asked to confirm your registration within 24 hours by clicking on the link contained in this email (hereinafter: "activation link") (so-called "double opt-in procedure"). This automatic confirmation of receipt merely documents that we have received your application; it does not constitute acceptance of your application.
(7) We are not obligated to conclude the contract. We may refuse to accept your offer if
(a) you already have a user account or your access data is already available in our database; in this case we will inform you;
(9) The text of the contract will not be stored by us. Apart from the aforementioned sending, the contract text is not accessible to you.
(10) The contract is concluded in German.
(11) Translations into other languages are for your information only. In case of contradictions between the German text and the translation, the German text shall prevail.
§ 5 ASSURANCES AND OBLIGATIONS OF THE USER DURING REGISTRATION
(1) You warrant to us that the information you provide is accurate and true, current and complete.
(2) You warrant to us that you will keep all of the data you provide accurate and true, current and complete throughout the term of the contract. The updating of your data is your sole responsibility.
(3) You assure us that you are of age in the sense of § 2 BGB.
(4) You assure us that the email address you have provided exists and that we can reach you at this email address to clarify details in case of doubts or discrepancies in connection with the user relationship. It is your responsibility to configure and monitor automatic SPAM filters accordingly.
(5) For technical reasons, among others, we cannot determine with certainty and therefore cannot guarantee whether or not a registered user is actually the person the respective user claims to be. You therefore undertake to provide us with proof of all the above-mentioned information at any time upon our request.
(6) You assure us that you only register once with us, in particular that you do not have another user account with us.
§ 6 PROVISION OF OUR SERVICES, GRANTING OF RIGHTS OF USE
(3) We grant you a simple, non-exclusive, non-transferable, non-sublicensable, revocable right to use our services, limited to your person and limited in time to the duration of the user relationship, to access the services offered and provided by us via the Internet using our app. This right of use is subject to the following restrictions:
(a) You are not entitled to sublicense or transfer any granted rights of use;
(b) You are not authorized to grant access to or use of our services to any third party, whether in return for payment or free of charge; in particular, you are not authorized to sublet the services;
(c) You are not allowed to modify, decompile, reverse engineer or make any other changes to our services;
(d) You may not reproduce the services except as permitted by the intended use of the services. Necessary duplication includes loading into the RAM on our server, but not the even temporary installation or storage on data carriers (such as hard disks, memory chips, etc.) of the hardware used by you.
(a) to reproduce, distribute, rent, lend, sell, license, transfer in any other way the App beyond the cases mentioned above;
(b) to reverse engineer, analyze, examine, decompile or disassemble the App. § Section 69e UrhG remains unaffected. In a case under Section 69e UrhG, features of the App that serve to identify the program, in particular copyright notices, serial numbers or trademarks, may not be removed, modified or made unrecognizable;
(c) remove or circumvent existing protective mechanisms of the App against unauthorized use, unless this is necessary to achieve trouble-free use of the App;
(d) to modify and edit the App, unless the modification or editing is a remedy of a defect required for the contractual use of the App, with which we are in default.
(5) With regard to the rights of use of third-party software, i.e. software, software components or other components or content that are produced and licensed by third parties (in particular open source software) and that are integrated into our app or into our social network "klaep" with the associated services offered by us, the respective license terms of the third party shall apply exclusively. We will point this out to you separately.
(a) to reproduce User Content beyond the cases mentioned above, in particular to download, distribute, rent, lend, sell, license or transfer it in any other way;
(b) to modify and edit User Content beyond the cases mentioned above. In particular, copyright notices and watermarks may not be removed.
(7) You are not granted any other rights of use.
§ 7 GRANTING OF RIGHTS OF USE TO OWN CONTENT
(1) Insofar as you provide us with Own Content for posting on our social network "klaep", there may be intellectual property rights to this Own Content, such as design, registered design, trademark or other trademark rights, copyrights (rights of use and exploitation), as well as name rights or personal rights, and/or this Own Content may be protected under data protection law.
(3) Insofar as the Own Content or its components are protected beyond copyright by other intellectual property rights such as design, registered design, trademark or other trademark rights, name or personality rights and/or this Own Content is protected under data protection law, the above right of use also extends to these rights.
§ 8 DUTIES AND ASSURANCES OF THE USER, INDEMNIFICATION
(1) You are not entitled to pass on the access data to your user account to third parties or to allow them to use the user account in any other way. If third parties gain unauthorized access to your user account or if you have evidence of misuse of your user account, you will inform us immediately and change your access data.
(2) You will refrain from all measures and actions that endanger or disrupt the functioning of our app or our social network "klaep" with the associated services offered by us.
(3) The following actions are expressly prohibited within the meaning of paragraph 2:
(a) Use of software or scripts that impair, endanger or disrupt the IT infrastructure of klaep, the functionality, performance or quality of our app or our social network "klaep" with the associated services offered by us, e.g. infiltration of data that are afflicted with viruses, worms, Trojans, etc;
(b) Actions that are likely to place an excessive burden on klaep's IT infrastructure, the functionality, performance or quality of our app or our social network "klaep" with the associated services offered by us, such as SPAM, DDoS attacks, etc.
(4) You are solely responsible for ensuring that your posted data is not infected with viruses, worms or Trojan horses.
(5) You will not access data that you are not authorized to access.
(6) All actions you take under your user account must be in accordance with applicable law. Therefore, they must not violate the applicable legal system, i.e. legal regulations, official orders, morality or the rights of third parties. This applies not only to your own content that you provide, but also to all other actions and information using your user account, such as
names, descriptions, profile pictures, descriptions used by you,
statements made by you, comments, ratings,
content and data posted by you, Jams, ReJams,
products advertised by you,
contents linked by you.
(7) Prohibited in the sense of paragraph 6 are expressly actions,
(a) which violate criminal laws, e.g. fraudulent, defamatory, insulting, credit endangering actions;
(b) that constitute an attempt to commit or participation in criminal acts;
(c) which violate competition law, e.g. unreasonably harassing (cf. Section 7 of the German Unfair Competition Act, "UWG" for short), misleading (cf. Sections 5, 5a UWG) actions;
(d) violating the rights of third parties, in particular copyrights or related rights, industrial property rights (e.g. trademark and other identification rights, patent rights, utility model rights, design rights), rights to a name, personal rights, property rights, legal positions protected under data protection law or trade secrets protected under the German Act on the Protection of Trade Secrets ("GeschGehG");
(e) that contain references to pornography, content that is harmful to minors or glorifies violence, weapons, drugs or other products that pose a risk to consumer safety;
(f) which have references to propaganda material of anti-constitutional organizations and parties;
(8) In addition, the following actions are prohibited, even if they should not violate any laws:
(a) Sending chain letters or other forms of SPAM;
(b) Actions that are lewd or sexual in nature;
(c) Actions that significantly damage the reputation of klaep and/or the products and services of Bobbele Ideas;
(9) With regard to Own Content or other data provided by you, you warrant that
(a) you own all rights to the Own Content or other data provided by you and that you are not subject to any restrictions on disposal in this respect. In particular, you warrant that you are the owner and holder of all rights to use the Own Content or the other data provided by you and/or that you are authorized and empowered to dispose of it;
(c) in the event that you provide a piece of music that is not played by the original performer as Own Content (so-called "Cover"), you truthfully and completely state the name of the author and rights holder as well as the song title in the upload process, so that we are enabled to make a report to GEMA and to pay fees accordingly.
(11) You agree to compensate us for all damages, including any fines imposed by competent authorities, resulting from your failure to comply with these obligations and, in addition, to indemnify us against all claims of third parties, including court costs and lawyers' fees incurred for the defense, the latter to the extent necessary, which they assert against us due to your failure to comply with these obligations. Further rights to which we are entitled by law shall remain unaffected.
(12) We are not obliged to make your Own Content or other data provided by you available to other users if they violate the above provisions.
(14) In addition, we ask you to cooperate to a reasonable extent in the clarification of attacks by third parties on our app or our social network "klaep" with the associated services offered by us, insofar as this cooperation by you is necessary.
§ 9 RESPONSIBILITY OF KLAEP
(1) We assume no responsibility for user content, other content, data and/or information provided by users or for external websites linked by users. In particular, we do not assume any responsibility
for their correctness, truth, up-to-dateness or completeness;
for their suitability for a particular purpose expected by you.
(2) We do not participate in the interaction and/or communication between users.
(3) If you conclude contracts with other users among themselves, we are not involved in these. The establishment, handling, execution and fulfillment of such contracts and the exercise of related rights is solely your responsibility and/or that of your contractual partner.
§ 10 LIABILITY IN OTHERS RESPECTS; INFRINGEMENT OF PROPERTY RIGHTS AND INDEMNIFICATION
(1) We shall be liable without limitation
(a) in the event of malice, intent or gross negligence;
(b) within the scope of a guarantee expressly assumed by us;
(c) for damages resulting from injury to life, body or health;
(d) for the breach of an essential contractual obligation, the fulfillment of which makes the proper execution of this contract possible in the first place and on the observance of which you regularly trust and may trust (hereinafter: "cardinal obligation"), but limited to the damage reasonably to be expected at the time of the conclusion of the contract;
(e) according to the provisions of the Product Liability Act;
(f) in accordance with the provisions of the GDPR vis-à-vis the data subject.
(2) In all other respects, our liability is excluded. In particular, we shall not be liable for defects already existing at the time of conclusion of the contract, unless a case of paragraph 1 is given.
(3) The above liability rules shall apply accordingly to the conduct of and in the event of claims against our employees, legal representatives and vicarious agents.
(4) The objection of contributory negligence remains open to us.
(a) In particular, you have the obligation to back up data and to defend against malware, in each case according to the current state of the art. We shall therefore only be liable for the loss of data in accordance with the above paragraphs if such loss could not have been prevented by you by taking appropriate data security measures.
(b) The liability according to the preceding paragraphs does not extend to impairments of the contractual use of our app or our services that have been caused by improper or incorrect use on your part. You alone are responsible for ensuring that you have the technically necessary requirements (e.g. hardware and software of your mobile device, internet connection) that are technically necessary for the use of our app and our services.
(5) We owe the due diligence customary in the industry. When determining whether we are at fault, it must be taken into account that software cannot be technically created without errors.
(6) We assume no liability for disruptions within the network for which we are not responsible.
§ 11 TEMPORARY BLOCKING OF THE USER ACCOUNT
(1) We shall be entitled to block your user account and thus your access to our services if
(c) you take actions using your user account that violate applicable law, in particular violate legal provisions, court or official orders or infringe the rights of third parties or that constitute a tortious or criminal act or an attempt to commit such an act (e.g. fraud);
(e) there is reasonable suspicion with regard to a case of the above letter (c). A reasonable suspicion for an illegality and/or an infringement of rights exists in particular if courts, authorities and/or other third parties inform us thereof.
(2) In this case, we will inform you of the reason(s) for the blocking on a permanent data medium (by email) before or at the same time as the blocking takes effect.
(3) The blocking according to paragraph 1 letter (e) above will be lifted as soon as the suspicion is invalidated.
§ 12 DURATION OF THE USER RELATIONSHIP AND TERMINATION
(1) The user relationship between you and us is concluded for an indefinite period.
(2) You can terminate the user relationship with us at any time by deleting your user account without giving a reason. In this case, we will immediately deactivate your user account and keep your data for one year, should you decide to reactivate your user account. All Jams/ReJams will remain stored, otherwise they will be missing from collaborations in which these Jams/ReJams are included. Works created in this way with your collaboration with other users would then no longer be complete and distorted. After one year, only your user name and the profile picture last used, if any, will remain as further information in connection with the Jams. Your right to extraordinary termination without notice for cause at any time remains unaffected.
(3) Notwithstanding any separate or individually agreed regulations, we are entitled to terminate the user relationship at any time without notice for good cause. Good cause in the aforementioned sense exists if facts exist which, taking into account all circumstances and weighing the interests of both parties, make it unreasonable for us to continue the usage relationship with you. An important reason exists in particular if
(a) you take actions by means of your user account that violate applicable law, in particular violate statutory provisions, court or official orders or infringe the rights of third parties or that constitute a tortious or criminal act or an attempt to commit such an act (e.g. fraud);
§ 13 RIGHT OF REVOCATION
(3) If you do not object to an amendment within six (6) weeks after receipt of the notification pursuant to paragraph 1, the amendment shall be deemed accepted by you. We will inform you separately about the right to object and the legal consequences of silence.
(4) Your rights regarding the termination of the user relationship with us remain unaffected.
§ 15 DATA SECURITY AND DATA PROTECTION, EXEMPTION
(2) Our servers are secured according to the state of the art, in particular by firewalls; however, we would like to point out that there is a risk that transmitted data can be intercepted during transmission. This applies not only to the exchange of information via email leaving the system, but also to all other transmissions of data. The confidentiality of data transmitted in the context of the use of our social network "klaep" with the associated services offered by us can therefore not be guaranteed.
(4) By providing us with your data, you warrant to us and all other users of our services that you will comply with the requirements of data protection law, in particular those of the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (Bundesdatenschutzgesetz), with regard to the data you transmit. In this respect, we are not the responsible party within the meaning of Art. 4 No. 7 GDPR.
(5) In the event of violations of the obligations regulated in paragraph 4, you shall indemnify us against any claims by third parties, including claims under public law, as well as against any costs incurred for the defense of these claims, in particular court costs and attorney's fees.
§ 16 USER OF SUBCONTRACTORS
We are permitted to involve subcontractors in the performance of our services. The use of subcontractors does not release us from our contractual obligations towards you.
§ 17 ASSIGNMENT AND TRANSFER OF RIGHTS AND OBLIGATIONS
(1) Any assignment of your rights and obligations arising from the usage relationship to third parties requires our written consent. § 354a of the German Commercial Code (HGB) remains unaffected.
(2) We are entitled to transfer our rights and obligations from the user relationship in whole or in part to a third party with a notice period of four weeks. In this case, you are entitled to withdraw from the existing user relationship with us.
§ 18 APPLICABLE LAW
With regard to all legal relationships arising from this usage relationship, the law of the Federal Republic of Germany shall apply, excluding its conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention). The mandatory consumer protection law of the state in which you have your habitual residence remains unaffected.
§ 19 PLACE OF PERFORMANCE
The place of performance for our services is our registered office in Freiburg, Germany.
§ 20 PLACE OF JURISDICTION
(1) If you are a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch) and if you are domiciled in Germany at the time the contract is concluded, the exclusive place of jurisdiction shall be our registered office in Freiburg, Germany.
(2) However, in the case of paragraph 1, we shall also be entitled to assert claims in court at your place of business.
(3) In all other respects, the applicable statutory provisions shall apply to local and international jurisdiction.
§ 21 INVALIDITY OF INDIVIDUAL CLAUSES
October 27, 2022
APPENDIX 1: SUPPLEMENTARY INFORMATION ON DISPUTE RESOLUTION
The EU Commission has set up an Internet platform for the online settlement of disputes (ODR platform) between entrepreneurs and consumers. The OS platform can be reached at https://ec.europa.eu/consumers/odr/.
We are not willing and not obliged to participate in a dispute resolution procedure before a consumer arbitration board.
APPENDIX 2: CONSUMER RIGHT OF WITHDRAWAL / CANCELLATION POLICY / SAMPLE CANCELLATION FORM
(1) When concluding a distance selling transaction, consumers generally have a statutory right of withdrawal, about which we inform you in accordance with the statutory model below:
Right of Withdrawal
You have the right to cancel this contract within fourteen days without giving any reason. The revocation period is fourteen days from the day of the conclusion of the contract. In order to exercise your right of withdrawal, you must inform us (Company Bobbele Ideas GmbH, Paul-Ehrlich-Straße 7, 79106 Freiburg, Germany, email address: firstname.lastname@example.org) by means of a clear declaration (e.g. a letter sent by post, fax or email) of your decision to withdraw from this contract. You can use the attached sample withdrawal form for this purpose, which is, however, not mandatory. In order to comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.
Consequences of the Revocation
If you revoke this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and no later than within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees because of this repayment. If you have requested that the services begin during the withdrawal period, you shall pay us a reasonable amount corresponding to the proportion of the services already provided up to the point in time at which you notify us of the exercise of the right of withdrawal with regard to this contract compared to the total scope of the services provided for in the contract.
(2) We inform you about the exclusion or an early expiration of the right of withdrawal as follows:
(a) The right of revocation does not exist if you act in the predominant exercise of your commercial or independent professional activity at the time of conclusion of the legal transaction and you are therefore to be regarded as an entrepreneur (§ 14 BGB).
(b) If you expressly agree, we will begin with the execution of the service before the end of the withdrawal period. We point out to you that you lose your right of withdrawal when the service has been fully performed by us.
(3) We inform about the model withdrawal form according to the legal regulation as follows:
MODEL WITHDRAWAL FORM
(If you want to revoke the contract, please fill out this form and send it back).
Bobbele Ideas GmbH
Email address: email@example.com
I/we (*) hereby revoke the contract concluded by me/us (*) for the provision of the following services
Ordered on (*)/received on (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s)
(only in case of paper communication)
(*) Delete where inapplicable.