General Terms and Conditions
for zoobe message entertainment GmbH, Berlin
Updated: 31 August 2011
§ 1 Scope of Application, Amendments
1. The following General Terms and Conditions apply to all business relations between zoobe message entertainment gmbh (“zoobe”) and its clients (“Users”) in the respective version in effect at the time of the closing of the contract. zoobe does not accept any conditions by the User that deviate from these terms, unless it has agreed to the applicability of these conditions in writing
2. zoobe reserves the right to amend these general term and conditions at any time.
2. zoobe reserves the right to amend these general term and conditions at any time.
§ 2 Service Description
1. zoobe operates a website (the “zoobe Website”) for commercial purposes under the domain http://zoobe.com. In addition, zoobe allows any user to download the apps (“zoobe App“) offered by zoobe for certain mobile phones and other digital devices such as tablet computers (the “Mobile Devices”) free of charge to their mobile digital devices or their computers, and to use the zoobe App offered by various social network providers online.
2. Through the zoobe website and the zoobe App, registered users are able to select pre-formulated text or record their own spoken message, which can be played back using animated 3-D characters (“Avatars”) as messengers (the “Message”). Users can send this message via mobile digital devices or computers to family, friends and acquaintances or to any other person, or disseminate messages directly via the internet.
2. Through the zoobe website and the zoobe App, registered users are able to select pre-formulated text or record their own spoken message, which can be played back using animated 3-D characters (“Avatars”) as messengers (the “Message”). Users can send this message via mobile digital devices or computers to family, friends and acquaintances or to any other person, or disseminate messages directly via the internet.
§ 3 Registration, Use
1. In part, zoobe makes the creation of a message conditional on the User’s prior registration.
2. Registration is free of charge for users. Users are obligated to provide truthful information upon registration, and to inform zoobe forthwith of any changes to the information provided. zoobe has the right to check or arrange to have checked information provided by Users for plausibility and to decline or revoke a User’s registration. zoobe also has the right to verify the User’s email address.
3. Charges apply to the use of some of zoobe’s services. Users can pay money into their user account via the zoobe website or the zoobe App using payment methods accepted by zoobe, and can acquire virtual credits (the “Virtual Credits”) in this manner. zoobe retains the right to refuse acceptance of banking or credit cards from specific issuers.
4. During first-time registration, Users select a user name and password (the “Password”), which they need for future log-ins. Users undertake to make their password secure, keep it confidential, and inform zoobe immediately if they learn that their password has become known to unauthorized third parties. If third parties use services offered by zoobe by using the password due to the User’s fault, the User is personally liable for damages suffered by zoobe. zoobe is not liable for damages incurred by the User through misuse or loss of the user name and password.
5. During first-time registration as well as during any log-in that follows amendments to the Terms and Conditions, Users shall be asked explicitly to accept zoobe’s Terms and Conditions as binding. If they decline, they may no longer be able to use zoobe’s services.
6. zoobe offers its services to adult Users and to underage Users who act with the consent of their parents or guardians.
7. Users are able to delete their zoobe user account at any time. In this case, they are not entitled to a refund of funds remaining in their user account.
2. Registration is free of charge for users. Users are obligated to provide truthful information upon registration, and to inform zoobe forthwith of any changes to the information provided. zoobe has the right to check or arrange to have checked information provided by Users for plausibility and to decline or revoke a User’s registration. zoobe also has the right to verify the User’s email address.
3. Charges apply to the use of some of zoobe’s services. Users can pay money into their user account via the zoobe website or the zoobe App using payment methods accepted by zoobe, and can acquire virtual credits (the “Virtual Credits”) in this manner. zoobe retains the right to refuse acceptance of banking or credit cards from specific issuers.
4. During first-time registration, Users select a user name and password (the “Password”), which they need for future log-ins. Users undertake to make their password secure, keep it confidential, and inform zoobe immediately if they learn that their password has become known to unauthorized third parties. If third parties use services offered by zoobe by using the password due to the User’s fault, the User is personally liable for damages suffered by zoobe. zoobe is not liable for damages incurred by the User through misuse or loss of the user name and password.
5. During first-time registration as well as during any log-in that follows amendments to the Terms and Conditions, Users shall be asked explicitly to accept zoobe’s Terms and Conditions as binding. If they decline, they may no longer be able to use zoobe’s services.
6. zoobe offers its services to adult Users and to underage Users who act with the consent of their parents or guardians.
7. Users are able to delete their zoobe user account at any time. In this case, they are not entitled to a refund of funds remaining in their user account.
§ 4 Selection and Personalization of the Avatar
1. In order to create a message, Users must first select an Avatar to deliver their message. In selecting his Avatar, the User can select a standard avatar or add further features of his choice to one of the avatars offered, thereby personalizing the avatar (the “Personalized Avatars”), and can also select further fee-based functions. Making the avatars, the attributes (the “Design Options”) as well as the additional fee-based functions available online represents a non-binding invitation to the User to acquire these options or functions for a fee.
2.In order to create a message, the User must indicate which options and functions he has chosen by selecting them, and must indicate that he agrees to zoobe’s General Terms and Conditions and the company’s privacy provisions by checking them.
3.During the order process, the user is shown the details of his order. Subsequently, the User can submit his finalized and binding offer.
4.zoobe accepts the contract making the Avatar equipped with the chosen design features and functions available (the “Avatar Features“). The User waives his right to an additional acceptance declaration pursuant to § 151 p. 1 [German Civil Code].
5.The purchase price is due immediately upon design of the Avatar. As payment, zoobe only accepts virtual credits which the User must have acquired beforehand. The User has the option of purchasing virtual credits. At the company’s own discretion and under certain circumstances, zoobe may also make virtual credits available to the User free of charge.
2.In order to create a message, the User must indicate which options and functions he has chosen by selecting them, and must indicate that he agrees to zoobe’s General Terms and Conditions and the company’s privacy provisions by checking them.
3.During the order process, the user is shown the details of his order. Subsequently, the User can submit his finalized and binding offer.
4.zoobe accepts the contract making the Avatar equipped with the chosen design features and functions available (the “Avatar Features“). The User waives his right to an additional acceptance declaration pursuant to § 151 p. 1 [German Civil Code].
5.The purchase price is due immediately upon design of the Avatar. As payment, zoobe only accepts virtual credits which the User must have acquired beforehand. The User has the option of purchasing virtual credits. At the company’s own discretion and under certain circumstances, zoobe may also make virtual credits available to the User free of charge.
§ 5 Recording of Messages and Legitimacy of Contents
1.After selecting the Avatar, zoobe allows the User to select a message text or record his own message text.
2.The User is solely responsible for the content of the message (the “Content“) consisting of the message text created by the User. The User is obligated to ensure that the content does not violate any legal provisions, is not offensive or in violation of third party rights (name, trademark, personal, copyright, data protection rights etc.). In particular, the User undertakes not to present any content that is counter to the German Criminal Code, the Interstate treaty governing the protection of minors in the media [Jugendmedienschutz-Staatsvertrag (JMStV)] or firearms laws. The user, therefore, shall agree not to upload any content containing pornographic material or content that glorifies violence or incites violence and hatred, not to incite criminal acts, not to provide instructions on how to commit criminal acts and shall refrain from providing, or causing to be provided, services that involve pornographic and/or erotic content.
3. The User shall not upload content or comments that insult, defame, harass or otherwise damage other persons.
4. If the recorded message includes music, the User must use only music not subject to GEMA fees and the use of which does not violate third party rights.
5.The user shall agree not to transmit data or store data on a zoobe data carrier that, given their type or nature (e.g., viruses), size or reproduction (e.g., spamming), could jeopardise the functioning or operation of zoobe’s services and data network. The user shall be liable to zoobe for any damages resulting from the transmission of such prohibited data.
6.zoobe may, if the user is in breach of any of the aforementioned prohibitions and guidelines of these Terms and Conditions, reject the User''s content, delete content immediately and/or terminate the User’s registration effective immediately.
2.The User is solely responsible for the content of the message (the “Content“) consisting of the message text created by the User. The User is obligated to ensure that the content does not violate any legal provisions, is not offensive or in violation of third party rights (name, trademark, personal, copyright, data protection rights etc.). In particular, the User undertakes not to present any content that is counter to the German Criminal Code, the Interstate treaty governing the protection of minors in the media [Jugendmedienschutz-Staatsvertrag (JMStV)] or firearms laws. The user, therefore, shall agree not to upload any content containing pornographic material or content that glorifies violence or incites violence and hatred, not to incite criminal acts, not to provide instructions on how to commit criminal acts and shall refrain from providing, or causing to be provided, services that involve pornographic and/or erotic content.
3. The User shall not upload content or comments that insult, defame, harass or otherwise damage other persons.
4. If the recorded message includes music, the User must use only music not subject to GEMA fees and the use of which does not violate third party rights.
5.The user shall agree not to transmit data or store data on a zoobe data carrier that, given their type or nature (e.g., viruses), size or reproduction (e.g., spamming), could jeopardise the functioning or operation of zoobe’s services and data network. The user shall be liable to zoobe for any damages resulting from the transmission of such prohibited data.
6.zoobe may, if the user is in breach of any of the aforementioned prohibitions and guidelines of these Terms and Conditions, reject the User''s content, delete content immediately and/or terminate the User’s registration effective immediately.
§ 6 Usage Rights of Users to Messages, End User License Agreement
1.Upon recording the message, the User is granted the limited and non-transferrable right to use the message for his exclusive personal use in accordance with the Copyright Act and in the form offered. In this context, he is allowed to let zoobe send the user-created message (the “private message“) to the personal email addresses or telephone numbers entered by the User. For the transmission, the User will be charged the fees shown after the recipient data have been input. The license is issued subject to the complete payment of all claims against the User resulting from the order.
2.The User also has the option of uploading the message he created to YouTube, Facebook or Twitter, thereby making it publicly available to a larger audience (the “public message“). By uploading the public message, the User gives zoobe the right to post the message in anonymous form on the zoobe website as well as on zoobe’s You Tube Channel or zoobe’s Facebook site.
3.zoobe retains the copyright and trademark rights to the standard and personalized Avatars unless these rights belong to zoobe’s licensors. The user agrees to respect and observe all copyrights. The User does not have the right to modify the avatars beyond the modifications made possible by zoobe, or to use modified version, make copies for third parties, make the avatars publicly available or transfer them to third parties, to upload them to the internet or other networks, or to imitate, resell or use them for commercial purposes. No copyright, usage right or other rights shall be transferred to the User unless specified otherwise in these General Terms and Conditions.
2.The User also has the option of uploading the message he created to YouTube, Facebook or Twitter, thereby making it publicly available to a larger audience (the “public message“). By uploading the public message, the User gives zoobe the right to post the message in anonymous form on the zoobe website as well as on zoobe’s You Tube Channel or zoobe’s Facebook site.
3.zoobe retains the copyright and trademark rights to the standard and personalized Avatars unless these rights belong to zoobe’s licensors. The user agrees to respect and observe all copyrights. The User does not have the right to modify the avatars beyond the modifications made possible by zoobe, or to use modified version, make copies for third parties, make the avatars publicly available or transfer them to third parties, to upload them to the internet or other networks, or to imitate, resell or use them for commercial purposes. No copyright, usage right or other rights shall be transferred to the User unless specified otherwise in these General Terms and Conditions.
§ 7 zoobe’s Usage Rights with Respect to the Messages
1.The right to use the private message resides solely with the User.
2.The User offers zoobe, free of charge, the non-exclusive, revocable usage right, unrestricted in terms of quantity and territory to the public messages (the “Usage Right“). zoobe’s usage right shall comprise, in particular, the right to make the contents available to the public on the zoobe website, the zoobe’s you tube site and zoobe’s facebook site. The User waives his right to receive an acceptance declaration. The user may revoke zoobe’s usage right at any time by deleting the contents from the platform and by duly notifying zoobe.
2.The User offers zoobe, free of charge, the non-exclusive, revocable usage right, unrestricted in terms of quantity and territory to the public messages (the “Usage Right“). zoobe’s usage right shall comprise, in particular, the right to make the contents available to the public on the zoobe website, the zoobe’s you tube site and zoobe’s facebook site. The User waives his right to receive an acceptance declaration. The user may revoke zoobe’s usage right at any time by deleting the contents from the platform and by duly notifying zoobe.
§ 8 Availability and Liability
1.With the current state of technology, data communication via the internet or mobile telephone numbers cannot be guaranteed to be error-free and always accessible. zoobe does not provide any guarantee or warranty with respect to the availability of its services or the transmission of messages to the correct recipient. Neither does zoobe assume liability for the storage of messages once they have been created. This is the responsibility of the individual user, who is asked explicitly to save the messages he has created.
2.zoobe may limit access to its services inasmuch as such limitation is required for the purposes of ensuring the reliability of network operations, the maintenance of network integrity, particularly the prevention of serious disruptions of the network, the software or stored data.
3.zoobe shall be held liable for wilful violation and gross negligence. zoobe shall not be held liable for minor negligence inasmuch as no substantial contractual duties (“cardinal duties”) were breached, inasmuch as no guarantees were provided regarding the nature of a product, inasmuch as there are no wilfully hidden defects or defaults or impossibility of performance. In the event of minor negligence of substantial contractual duties, zoobe shall be liable only to such extent as such damage was typically foreseeable. The aforementioned exclusions do not apply in the event of loss of life, physical injury and damage to health.
4.Liability for subsequent damages such as e.g. lost revenue, savings that did not materialize and other indirect damages as well as compensation for futile expenses is excluded. Inasmuch as zoobe’s liability is excluded or limited, this also applies to the personal liability of employees, representatives and agents.
5.zoobe assumes no liability for the contents of the messages. The User who created the message is solely responsible for the contents of such message.
2.zoobe may limit access to its services inasmuch as such limitation is required for the purposes of ensuring the reliability of network operations, the maintenance of network integrity, particularly the prevention of serious disruptions of the network, the software or stored data.
3.zoobe shall be held liable for wilful violation and gross negligence. zoobe shall not be held liable for minor negligence inasmuch as no substantial contractual duties (“cardinal duties”) were breached, inasmuch as no guarantees were provided regarding the nature of a product, inasmuch as there are no wilfully hidden defects or defaults or impossibility of performance. In the event of minor negligence of substantial contractual duties, zoobe shall be liable only to such extent as such damage was typically foreseeable. The aforementioned exclusions do not apply in the event of loss of life, physical injury and damage to health.
4.Liability for subsequent damages such as e.g. lost revenue, savings that did not materialize and other indirect damages as well as compensation for futile expenses is excluded. Inasmuch as zoobe’s liability is excluded or limited, this also applies to the personal liability of employees, representatives and agents.
5.zoobe assumes no liability for the contents of the messages. The User who created the message is solely responsible for the contents of such message.
§ 9 Data Privacy Protection
1.zoobe undertakes to keep the User’s personal data in strict confidence in accordance with privacy and data protection laws. During the term of the agreement, the data will only be collected, processed and used for the purposes of executing the agreement, unless the User expressly consents to other uses. Data are collected, used and processed electronically. For details please consult the data protection and privacy declaration.
2.The User explicitly consents to the collection, processing and use of his personal data.
3.By subscribing to the newsletter, the user explicitly grants zoobe the right to use his email address from time to time to provide information and updates about the contents/services provided by zoobe as well as new services offered by zoobe. This consent may be revoked at any time by informal notification.
2.The User explicitly consents to the collection, processing and use of his personal data.
3.By subscribing to the newsletter, the user explicitly grants zoobe the right to use his email address from time to time to provide information and updates about the contents/services provided by zoobe as well as new services offered by zoobe. This consent may be revoked at any time by informal notification.
§ 10 Final Provisions
1.These terms and conditions of use and all the legal relations between the user and zoobe shall be subject to the laws of the Federal Republic of Germany to the exclusion of German conflict-of-laws provisions and the UN Convention on the International Sale of Goods.
2.Jurisdiction over any disputes arising in connection with zoobe shall lie with the courts in Berlin, Germany, to such extent as is permitted under law.
3.Should individual provisions hereof be or become void or incomplete, the validity of the remaining provisions hereof shall in no way be affected. Such void or incomplete provision shall be replaced or amended by a relative provision that most closely reflects the original economic purpose and spirit of such void or incomplete provision. The same applies in the event of a gap in the agreement.
2.Jurisdiction over any disputes arising in connection with zoobe shall lie with the courts in Berlin, Germany, to such extent as is permitted under law.
3.Should individual provisions hereof be or become void or incomplete, the validity of the remaining provisions hereof shall in no way be affected. Such void or incomplete provision shall be replaced or amended by a relative provision that most closely reflects the original economic purpose and spirit of such void or incomplete provision. The same applies in the event of a gap in the agreement.
