General Terms and Conditions of Use for Yumondo
§ 1 General – Scope
1.1 These General Terms and Conditions of Use (hereinafter “Terms of Use”) of Metaversum GmbH, Rungestrasse 20, 10179 Berlin are binding on each person visiting the www.yumondo.com web platform (hereinafter “Yumondo”). Metaversum GmbH being the operator of said web platform will hereinafter be referred to as the “Operator”, and visitors to the web platform will be referred to as “Users”.
1.2 No use of Yumondo is admissible other than on the basis of these Terms of Use. These Terms of Use may be amended, modified or replaced in individual cases by additional conditions, in particular specific terms and conditions governing the services offered on Yumondo (e.g. governing the creation of a profile page, submission of ratings, participation in blogs, and/or other services). Log-in, or, where no separate log-in is required, commencement of use shall constitute acceptance of these Terms of Use as valid from time to time. The “Yumondo Data Protection Policy” shall apply in addition.
1.3 Where registration is required to use any individual services of Yumondo, the User accepts these Terms of Use by logging on. At registration, the User will be requested to agree to the Terms of Use. The Terms of Use shall apply to any use of the services including any future contracts, offers, services or deliveries of the Operator.
1.4 The Terms of Use are be published exclusively on the website www.yumondo.com. The Terms of Use may be loaded into memory, saved to permanent data storage media, or printed. Upon the User’s written request, however, the Terms of Use may also be mailed to him.
1.5 The Operator hereby objects to the application of any terms of use of the Users, even where such terms of use have been transmitted to the Operator in a letter of confirmation or in any other manner. The same shall apply where the Operator performs any delivery or provides any services without reservation or accepts payments without reservation. Any terms of use of the Users shall apply only if they have been agreed to expressly in writing.
§ 2 Object of the Contract, Services
2.1 The Operator keeps available on Yumondo certain information and allows the Users, amongst other things, to post content and information on the Web, to create individual personal profiles that may be viewed by others, to communicate with third parties via Yumondo, to exchange media content (especially photographs and other pictures), to publish blogs and comments, to post descriptions, reviews and ratings (hereinafter the “Services”).
2.2 The User has no right to have the Services continued in the version existing at the time this contract is entered into. The Operator reserves the right to modify the type, scope and content of the Services and to offer additional Services. In particular, the Operator reserves the right to modify individual Services or to cease offering certain Services in the course of any further development and modification of the Services. For this reason, the Operator may at any time modify the content or visual or technical appearance or other features of the Services. In this context, the User is not entitled to have any specific technical framework conditions or circumstances kept available to him. The User shall merely be granted a license to use the respective Service in their then existing form. The Operator reserves the right to cease operation of the Services at any time without stating reasons therefor.
2.3 The User has no right to have an account opened or to have any content published on Yumondo.
2.4 Save where expressly agreed otherwise in the specific conditions governing the individual Services, use of the Services shall be free of charge.
§ 3 Use and Users
3.1 Only persons having completed their 14th year of age at the time of registration are entitled to use the platform. The use of Yumondo is not admissible other than for private, non-commercial purposes save where any specific conditions governing individual Services expressly permit a commercial use. Minors not having completed their 14th year of age shall only be entitled to use the platform if they have obtained the consent of their legal representative prior to using the Services. Where any Services of Yumondo are rendered against payment, the minor shall obtain the consent of his legal representative prior to using these Services.
3.2 When registering, the User expressly warrants that he is of legal age and capable of entering into legal transactions, or in the case of minors, that he is at least 14 years old and that the legal representative’s consent has been obtained (if required).
3.3 Users as defined in Sec. 1.1 above shall be passive Users only browsing Yumondo without posting, exchanging or distributing any information, contributions, comments etc., as well as active Users having registered with Yumondo and having received log-in data.
3.4 Yumondo may not be used other than by means of a web browser or tools which have been provided or authorized by the Operator (such as Widgets). The use of any programs causing an overload of the Yumondo server is not admissible. The use of any software to systematically or automatically reproduce, use or analyze any content posted on Yumondo is not permitted unless such software has been provided or approved by the Operator. In particular, robots, spiders, crawlers and similar programs may only be used for the purpose of indexing by search engines which provide links to the entire contents of Yumondo without filtering, framing, modifying or disseminating outside their context any contents available on Yumondo.
§ 4 User’s Registration for the Use of Services, Creation of Personal Profiles
4.1 Users must register in order to be able to use the Yumondo Services beyond a merely passive use.
4.2 The contractual relationship shall commence upon the registration of the User for the Operator’s respective Service and upon acceptance of such registration by the Operator through the issuing of an access authorization and the activation of the personal profile (account). The relationship shall end upon termination by the User, for instance by the User deleting his account, or by the Operator blocking or deleting the account, or upon termination by the Operator. More details may be found in Sec. 11 below.
4.3 By completing the registration form, the User is making a binding offer to conclude a contract for the use of Services (also referred to as an “Account Opening Application”). For this purpose, all data fields on the registration form must be filled in completely and correctly.
4.4 The contract between the Operator and the User concerning the Services shall come into force upon acceptance, by the Operator, of the Account Opening Application. Such acceptance may be declared expressly or through the Operator’s first act of performing its obligations. Receipt of the Account Opening Application shall be confirmed by the Operator immediately in electronic form to the e-mail address specified by the User. Such confirmation of receipt shall not constitute a binding acceptance of the User’s Application. The confirmation of receipt may however be combined with the declaration of acceptance.
4.5 The User’s right to revoke is hereby expressly pointed out. The manner and scope thereof shall be as set forth in Section 5 below.
§ 5 Right to Revoke and Consequences of Revocation
5.1 The User may revoke his declaration aimed at the conclusion of the contract governing the use of the Services (i.e. Account Opening Application) within a period of two weeks without having to provide reasons for such revocation, in text form (e.g. letter, facsimile, e‑mail). The period shall commence at the earliest upon receipt of these instructions. The timely mailing of the revocation shall suffice for the revocation period to be observed.
5.2 To the extent that Services offered by the Operator are concerned, the right to revoke shall also expire where the Operator has commenced rendering the Services prior to the expiration of the revocation period with the User’s express consent or where the User has brought about such rendering of the Services himself. This will be assumed to be the case when the User has made use of the Services. Any revocation has to be sent to: Metaversum GmbH Rungestrasse 20 D-10179 Berlin Phone: +49 (0) 30 847 12 25 0 Fax: +49 (0) 30 847 12 25 29 E-Mail: info@metaversum.com
5.3 In the event of a valid revocation, the Services received by either party shall be returned, and any use that has been obtained shall be surrendered. This means that any fees already paid may not be repaid in full if the User has benefited from any use prior to declaring his revocation. 5.4 When revoking via e-mail, the User shall state his name and account name in the “Subject” line.
§ 6 User’s Obligations
6.1 The User warrants that all information stated by him at registration is correct and complete.
6.2 The User shall carefully select and create the content and information, including descriptions, reviews and ratings, he publishes on Yumondo. They must not infringe upon statutory law, other applicable legal rules, morality standards or third party rights. The User shall bear this obligation for any content or information, irrespective of the form in which it is provided.
6.3 The User undertakes especially not to disseminate within the framework of the Services or link to any form of media content, names, words or other statements which falls into one or more of the following categories: overly degrading, misleading, incorrect, political, insulting, sexist, pornographic or otherwise morally objectionable or offensive or illegal, in particular racist or right-wing or left-wing extremist content, invitations to or instructions for criminal or other illegal activities, naked persons or obscene, suggestive, violent or molesting content and copyright infringements. The user will always respect any applicable laws and other legal rules, especially with regard to youth protection, data protection, protection of personality rights, protection against insults, public decrial, copyright, trademarks.
6.4 Furthermore, the User undertakes to use any legally protected terms, names, media content (especially photos and other pictures) or other material only in a manner which does not infringe upon any third party rights.
6.5 The User must not encourage any other users to disclose any personal information for commercial purposes via Yumondo. The User must not encourage underage persons to disclose any personal information under any circumstances. The User must not use Yumondo to send “junk mails”, “chain mails” or unsolicited bulk mails, instant messages, for “spimming” or “spamming”, to promote or link to such activity.
6.6 The User must not abuse the possibility to upload descriptions, reviews and ratings. This means especially: Comments, especially descriptions, reviews and ratings have to be fair and objective. They must neither contain taunt nor be misleading. The User must not upload reviews or rating for which he has or shall directly or indirectly receive any payment or other advantages. It is especially prohibited to sell, buy or trade reviews and ratings. The User may not register under several accounts and rate content created with one account through another of his accounts. The User may not himself or through third parties rate its own offers or services.
6.7 When in doubt, the User shall remove immediately any content or information, including descriptions, reviews and ratings, to which the Operator has objected. The Operator may also remove such content itself.
6.8 The User shall comply with all and any instructions issued by the Operator or its staff, or persons employed by the Operator to discharge its obligations, or vicarious agents.
6.9 The User shall maintain strictly confidential his password for the access to the Services, and shall not make it available to any third party.
6.10 The User undertakes not to use under any circumstances the account, the log-in name or password of another User.
6.11 Where the User reasonably suspects that his account has been used or his password been accessed without authorization, he shall inform the Operator thereof immediately. For reasons concerning the preservation of evidence, the User is recommended to do so in writing (for instance via e-mail). The Operator shall endeavor to investigate the situation and to prevent such unauthorized use. In the worst case, this may be achieved by deleting the account.
6.12 The User is solely responsible for the utilization of his account.
6.13 The User undertakes not to apply for and use more than five accounts per Service. Where any User has several accounts, such may not interact with each other. In particular, no transactions may be performed using one account that impact other accounts of the same User (for example, evaluations, comments etc. referring to other accounts maintained by the same user). Nor may different accounts maintained by one and the same User be used for coordinated transactions. Thus, a User is prohibited, for example, from writing comments or evaluations on the same subject using several accounts in order to add weight to his position.
6.14 The User is not authorized to use the Services offered on Yumondo for any illegal or unauthorized purposes. In particular, the User is not entitled to use user names and/or e-mail addresses of other Users without their prior consent for mailing any unsolicited e-mails, advertising or other business or commercial purposes.
6.15 The User undertakes not to frame Yumondo without Operator’s approval.
6.16 Should the User obtain knowledge of any abuse of the Services by any third party or by other Users (e.g. dissemination and mailing of incorrect, offensive content or information, such as data, pictures, videos, music or other media content of illegal or offensive character), he shall inform the Operator thereof. In order to enable the Operator to act most efficiently, the User is requested to do so in writing (e.g. via e-mail) or by using the link “Send Feedback” and choose the relevant category from the Category drop-down list.
6.17 Any negligent infringement of the above obligations shall entitle the Operator to ban the User from further participating in the respective Services and to block or delete the User’s respective account, provided that the infringement remains uncured upon written notice. This does not exclude any other rights of the Operator, such as damages, which may be claimed additionally. The User may be banned and his account may be deleted without prior notice for severe infringement of the aforementioned obligations, in which it would be unreasonably to have the Operator continue the contractual relationship. This is especially deemed to be the case if the User has disseminated illegal content.
§ 7 Responsibility for Content Published on Yumondo, Copyright
7.1 The User is responsible for any content and information of any form, including descriptions, reviews and ratings, which he posts or publishes on Yumondo (hereinafter “Content”). The Operator neither adopts nor agrees to such Content.
7.2 The Operator is not obliged to review such Content prior to publication. Nor will any such review take place on a regular basis. However, where the Operator has or obtains knowledge of any inadmissible Content, the Operator shall delete such Content immediately. This applies especially for Content prohibited under § 6 of these Terms of Use.
7.3 The liability of the Operator for any Content, especially for the accuracy, completeness or reliability of any Content, is excluded.
7.4 All rights in the Content made available or published by the User shall remain with the User. By posting Content on Yumondo and within its Services, the User grants the Operator a non-exclusive, royalty-free [perpetual] license, that may be revoked at any time, to publicly present, publicly display, reproduce and disseminate such Content on Yumondo. The User acknowledges that the Operator may offer third parties the possibility to display Content from Yumondo on their websites for non-commercial purposes. Contant made available by the User may therefore be accessed through these third party websites as well. The Operator is entitled to include the Content posted on Yumondo subject to the same conditions in any future offers which are a further development of Yumondo. The Operator shall notify the User of such inclusion in advance, and the User may object thereto within 2 weeks. When notifying the User, the Operator shall point out to the User his right to object, the period of time therefore and the legal consequences, in particular the consequences of any failure to object. The Operator is entitled to analyze the Content for statistical purposes. The Operator shall have no right to use any Content made available by the User other than the rights of use as set out in these Terms of Use. The User is aware that Content may be viewed by Users worldwide through Yumondo or any further development thereof. The User declares his consent thereto by making the Content available.
7.5 This license shall cease to be valid when the User deletes Content from Yumondo and its Services. Also upon deletion of Content, the Operator shall be entitled to use the statistical analysis of the Content. For example, any ratings may be taken into account for the calculation of an average rating even after deletion of the User’s account.
7.6 The Operator may make available to third parties in anonymized form the results of its statistical analysis of the Content.
§ 8 Deletion of Profiles and Content Posted on Yumondo
8.1 The Operator may delete all or any part of any Content that in its fair judgment violates these Terms of Use or the specific conditions governing the respective Services or that are offensive or unlawful in any other way.
8.1.1 In particular, the Operator is entitled to delete Content which falls in one or more of the categories listed in Sect. 6.2 through 6.6 of these Terms of Use by way of example.
8.2 The Operator may delete any Content when there are specific grounds to suppose that these Terms of Use, any specific conditions governing the Services or applicable law have been infringed upon. There is no right to have deleted Content restored.
§ 9 Claims Based on Defects
9.1 The Operator shall make available to the User access to the Services in the version existing from time to time. The User has no right to have any particular state/scope of functions of the Services or of additional services maintained or brought about.
9.2 The User is aware that Yumondo and the Services cannot be totally error-free, as is the case with any software. Consequently, the Services shall only be deemed defective when their use is seriously and persistently impaired.
9.3 The User shall always provide documentation of any defects of the Services or of any other services or of deliveries of the Operator that may have occurred, and shall report such defects including in particular records of any error messages displayed.
9.4 Prior to reporting any such defect, the User shall consult the help features made available by the Operator for the resolution of problems (in particular lists of frequently asked questions, discussion forums for problems). The User shall use his best efforts to support the Operator in the remedying of any defects.
9.5 The User shall notify the Operator of any defects immediately after discovering them. In the case of obvious defects of goods, defects shall be notified to the Operator within two weeks from receipt of the goods. The timely making or mailing the notification of the defect shall suffice to comply with such period. In all other cases, defects shall be notified immediately after they have been discovered. Once the period has expired and no defect has been notified, the assertion of any claims for defects is excluded.
9.6 For purposes of the User’s own protection and in particular for reasons concerning the preservation of evidence, the User is recommended to address any such notifications to the Operator in writing (via facsimile, letter or e-mail).
9.7 Any faults caused by external factors (force majeure etc.) for which the Operator is not responsible, or caused by operating errors for which the User is responsible, or caused by modifications or any other manipulations not performed by the Operator or for which the Operator is not responsible shall in all cases be excluded from any claims for defects.
9.8 The Operator is not giving any guarantees save where expressly agreed otherwise in writing.
§ 10 Liability
10.1 In no event shall the Operator be liable for any damage other than damage caused by gross negligence or willful intent.
10.2 The above exclusion of liability shall however not apply to the liability in cases of injury to life, body or health. Said exclusion of liability does furthermore not apply where the damage is due to the breach of a cardinal duty or material contractual duty or on a breach of guarantee. The Operator’s liability under the Product Liability Act (Produkthaftungsgesetz) and within the scope of Sec. 7 sub-section 2 of the Telecommunications Customer Protection Ordinance (Telekommunikations-Kundenschutzverordnung, TKV) shall remain unaffected.
10.3 In the case of a breach of a cardinal duty or material contractual duty, the liability to compensate shall be restricted to the foreseeable damage.
10.4 The foreseeable damage shall be restricted to a maximum amount or € 50.00 per account.
10.5 The above exclusions and limitations of liability shall also apply with regard to the liability of the Operator’s employees, workers, staff, representatives and vicarious agents, in particular with regard to the personal liability of its shareholders, staff, representatives, executive bodies and their members.
10.6 The Operator expressly distances itself from the contents of any sites to which direct or indirect links are provided on Yumondo and the Services. The Operator accepts no liability for such contents and sites. The persons offering the respective sites are responsible for the contents of such sites. The Operator performs no review of any information to which links are provided. The Operator is not aware of any infringements by such third-party contents of applicable law. Upon notification to this effect, the links will of course be deleted promptly.
10.7 The User shall be liable to the Operator for any damage for which he is responsible. Specifically, the User warrants and represents that (i) he is the lawful holder of all and any rights in any Content published by him on Yumondo or that he is otherwise entitled to grant to the Operator a license to make available such Content on Yumondo and to grant to other Users the rights to which they are entitled under these General Terms of Use and (ii) that the publication of such Content does not infringe any data protection rights, exploitation rights, copyrights, contractual rights or other rights of any third party.
§ 11 Term and Termination
11.1 The contract governing the individual Services is concluded for an indefinite period of time save where expressly agreed otherwise in writing.
11.2 The User is entitled to terminate or cease his participation in any or all Services at any time without giving reasons therefor and without observing any notice period.
11.3 The Operator is entitled to terminate any or all Services at any time without observing any notice period if such Service or Services is/are being discontinued.
11.4 If a particular term is agreed for the contract on the use of the Services, then the contract shall be concluded for such term.
11.5 The right of either party to terminate the contract governing the use of the Services for cause (aus wichtigem Grund) at any time shall remain unaffected by the above provisions.
11.6 The Operator is entitled to terminate the contract for cause including without limitation in cases where the User has not used his account for three consecutive months and despite having received a warning notice; execution has been levied against the User; the User dies and in any cases listed in Sect. 6.17.
11.7 Where the Services platform does not provide the option of terminating by using a special termination function, any termination must be given in writing, with e-mail being sufficient to comply with the written form. An extraordinary termination must always be given in writing, with reasons therefor being stated.
11.8 For technical reasons, the User’s data and account will be finally deleted with a delay of a few days.
11.9 In the event of the deletion of an account or the termination of the contract, the User shall have no right to receive any refund or compensation for the Services affected by the termination.
§ 12 Advertising
12.1 Yumondo is partly financed by advertising revenues. Advertising messages may therefore appear on Yumondo. Any advertising shall be clearly evident as such (as far as the Operator is aware of it).
12.2 Where the User has granted his prior consent, the Operator reserves the right to send advertising to the User’s e-mail address respectively to his profile created on Yumondo, if any.
§ 13 Disputes between Users
13.1 Any disputes between Users shall be settled between these in their own responsibility.
13.2 The Operator reserves the right to intervene in any disputes between Users. The Operator shall, however, be under no obligation to do so.
§ 14 Miscellaneous, Place of Jurisdiction, Changes to These Terms of Use
14.1 Any collateral agreements to these General Terms of Use as well as any collateral changes, modifications or cancellations of these Terms of Use shall require the written form to be valid. This also applies to any modification of the written form requirement.
14.2 Should one or more of the provisions agreed herein be inadmissible or void, this shall not affect the validity of the remaining provisions. The parties undertake to replace the inadmissible provisions by mutual consent by an admissible provision coming closest to the economic objective and the intent and purpose of the provision that had been agreed.
14.3 These Terms of Use and any contracts concluded on the basis thereof shall be governed by the law of the Federal Republic of Germany. The application of the UN Sales Convention governing contracts for the sale of movable goods and the application of the conflict of law rules of German private international law shall be excluded.
14.4 The place of jurisdiction for all and any disputes arising under these contracts shall be the Operator’s registered seat to the extent this is admissible. Where the User shall transfer his place of residence or habitual place of abode outside of the Federal Republic of Germany after the conclusion of the contract, the Operator’s registered seat shall be the place of jurisdiction. This also applies if the consumer’s place of residence or habitual place of abode is unknown at the time the action is brought.
14.5 The Operator reserves the right to modify or amend these Terms of Use at any time with future effect where this seems necessary (for instance, adjustments to keep up with changes in the law, modification of the Operator’s scope of services etc.) and where the User is not thereby put at a disadvantage contrary to good faith. The User shall be informed of any changes to these Terms of Use through notification in a suitable manner. Such notification shall either be given on the website for the Services, where a separate window will open upon log-in to the Service platform, or by sending an e-mail message to the e‑mail address specified by the User. In any event, the User will upon his next log-in be informed of the change by means of a highlighted message.
14.6 The User may object to such changes to the Terms of Use after notification and the opportunity to take knowledge within one (1) month. The User is recommended to address such objection to the Operator in writing respectively via e-mail for reasons concerning the preservation of evidence.
14.7 Where the User fails to raise objections to the Operator regarding the modified Terms of Use within the period of one (1) month following notification and the opportunity to take knowledge, or where he continues to use the Services, the modified or amended Terms of Use shall take effect in the relationship with him. Where the User objects within the specified time limit, either party is entitled to terminate the contract, observing a notice period of one month, save where a right to terminate at any time already exists in accordance with Sec. 11 hereof. Until the actual termination of the contract, the original Terms of Use shall continue to apply.
14.8 Any compensation for services rendered paid in advance beyond the period where the contract ends shall be refunded to the User on a pro rata basis. Any further claims of the User are excluded.
14.9 When notifying the User of any changes, the Operator shall specifically point out the possibility to object thereto and the possibility to terminate, the periods required therefor, and the consequences, in particular the consequences of any failure to object.
14.10 The User is recommended to keep himself informed at all times of the current version of the Terms of Use and the description of services and description of use relating to the Services.
Status: March 27, 2007
Metaversum GmbH
Rungestrasse 20
D-10179 Berlin
Germany
Phone: +49 (0) 30 847 12 25 0
Fax: +49 (0) 30 847 12 25 29
E-mail: info@metaversum.com
HR-No. and Commercial Register: Berlin – AG Charlottenburg B99412
Managing Director (Geschäftsführer): Dr. Mirko Caspar, Dietrich Charisius, Jochen Hummel
VAT ID No: DE814742326