General Terms and Conditions for Deluwak UG – effective as of 18.08.16
§1 Scope & Protective Clause
- Following terms and conditions that can be found at www.focus.fm apply for the business relationship between Deluwak UG (limited), represented by Managing Directors Daniel Bicking and Elmar Lins, Vorster Pfad 14, 41564 Kaarst (hereinafter referred to as suppliers or Deluwak) and the user (hereinafter referred to as client or user). The user can download this text, which is only available in German, and/or print it out and keep.
- Different terms and conditions of the user are rejected without prior written authorization by the provider of the application.
- The terms also apply to the use of mobile applications of Deluwak.
- Deluwak reserves the right to amend or to renew these General Terms and Conditions with future effect at any time. The user will be notified about any changes of General Terms and Conditions at least four weeks before the date of entry into effect per email address or in writing. If such changes are not objected within one month of delivery, this shall be deemed accepted. You can find the latest version of the Terms and Conditions on the website from the moment of it’s enforcement.
§ 2 Subject Matter & Conclusion of Contract
- These terms and conditions regulate the conclusion of the contract, the use of audio streaming platform, including all functions, services, content and other services and the contractual relationship of the provider to the customer or user.
- The provider operates a platform on the website www.focus.fm, on which the customer is given the opportunity to access audio files. Those audio files are music, sounds and other acoustic files.
- The customer can access the respective audio files that are provided by the provider via the Internet platform under their member account.
- The customer has the possibility to register as a member on the website and adjust their contact details and further information. Membership is subject to charges after a trial period.
- The choice of the membership also determines the size of the monthly charged cost. The user can see the offered memberships on the website of the provider.
§ 3 Registration
- The customer or user can register via the online registration form. A registration/login is required for the use of the website www.focus.fm and access to the audio files.
- The registration may only be made by persons of legal age with permanent residence in Europe or in companies domiciled in Europe. The provided registration form must be completed fully and truthfully. The registration of the user represents a legally binding offer for the conclusion of a license agreement. The contract between Deluwak and the user will be concluded by a confirmation of the user’s registration by the provider.
- If in doubt as to the legal age, Deluwak reserves the right to request a proof of age from the user.
- The admission of the potential customer or user is at the discretion of the provider. An admission is no obligation. A maximum of one account per household/address is permitted.
- Changes of personal data must immediately be updated on the account (within two weeks).
- At a reasonable suspicion that during a registration a circumvention of § 3 has occurred, the provider is entitled to refuse confirmation of the registration. If such suspicions arise after a registration, the provider is entitled to terminate the account irrevocably.
- For registration of a legal entity by the authorized representative, the provider may require the representation proof by presenting a certificate of registration. When registering a private company, the provider may require the submission of the current statute.
- For a registration in German language, the future client or user specifies a username and a password on the online form. The password must be kept secret. A claim to a specific username or a specific password does not exist.
§ 4 Costs
- The provider provides their services exclusively against prepayment. The scope and the fee can be found in the price list, which is available on the website. All prices are VAT-exempt according to §19, para. 1 of the Turnover Tax Act.
- The provider collects the contractual payment automatically, monthly or annually, in advance. The customer has the possibility to deposit their PayPal account or their credit card information as a payment method.
- In the event that the customer is more than 30 days overdue with due (partial) amounts, the user has the right to immediate termination of the contract.
§ 5 Termination/Cancellation of the User Account
- A termination can be carried out by the customer or user at any time and without explanation, through the website, by email or by post. The notice period is two weeks before the end of the month. The email address you entered upon registering at Deluwak, name, and the user account that is to be terminated must be given upon termination.
- Termination by Deluwak with notice of two weeks before the end of the month can be sent in writing or via e-mail to the addresses that the user has specified as the current contact data.
- The vendors reserve the right to cancel/terminate user accounts without prior notice.
§ 6 Obligations of the Customer and the User
- The customer or user is granted access to the website under the Terms and Conditions and the membership. The user account is not transferable.
- The customer or user is not entitled to secure contents of the website by downloading or otherwise reproducing, modifying or decompiling, except it is allowed by copyright law §§ 69 d,e.
- The customer or user is not entitled to give access, the access data or other information and documents to third parties. In particular it is not allowed to sell, lend, rent or otherwise sub-license the access, to publicly reproduce it or make available. The customer or user agrees to protect their access codes and other documents from access by unauthorized third parties. Therefore the client or user should particularly make sure that the computer system or smartphone used for accessing the account has a constantly updated protection against viruses, Trojans, phishing and similar queries. If there is evidence that a third party accessed the account of the user using a computer system of a member without authorization, or acted in any other way, the customer or user is obliged to immediately inform Deluwak and notify them about the circumstances. Upon detection of abuse, Deluwak is entitled to block the access to the contents. The customer or user is liable for any misuse and the resulting damage. The customer or user shall indemnify Deluwak of all claims by third parties.
- The User guarantees that they will not use the services and their membership in a way that harms the server of the provider or the connected networks, or disable, overburden, or impair them in any way. The user agrees to access only to those services, accounts, computer systems and associated networks which are the subject of this contract. The customer may not use the services for illegal or criminal acts. In particular, they are solely responsible for registering with third parties (GEMA, GVL), which is necessary for the operation of the internet radio.
- If the customer or user violates any right granted here, their right to use shall cease to exist immediately and will be automatically reverted to Deluwak. In this case, Deluwak is entitled to block online access immediately and to terminate the contract with immediate effect.
- The provision of technical conditions for a correct and error-free reception/usage is up to the user. This primarily relates to the hardware and operating system software used by them. It is hereby expressly noted that the user must check their technical requirements before registering/ordering.
- The user is required to take the necessary measures to secure their system, in particular, to use the standard browser security settings, perform regular backups and use a protection software to protect against computer viruses.
§ 7 Specifications and Changes to the Offer
- The provider reserves the right to make changes from technical reasons – such as the need for updating or further – provided that the essential nature of the offered services is not changed.
- The provider has the authorization to adjust their services with a notice period of 2 weeks. In the event that the company ends their service, they are entitled, but not obliged to delete the user-generated content.
- In case of changes, the provider will make the necessary efforts to inform the user about the changes in time.
§ 8 Disclaimer
- The provider is not liable for any damage caused by the user of the advertising platform www.focus.fm or their applications.
- The provider does not guarantee their performance or the performance of the mediated partners.
- There are exceptions for grossly negligent breach of duty by a legal representative or agent of the party.
§ 9 Right of Withdrawal
Right of withdrawal
If the customer is a consumer, they have the right to withdraw this contract within fourteen days without giving a reason.
The withdrawal period is fourteen days from the date of registration on the website www.focus.fm or an application.
To exercise your right of withdrawal, you have to inform Deluwak UG (limited), represented by the Managing Directors Daniel Bicking and Elmar Lins, Vorster Pfad 14, 41564 Kaarst, email: firstname.lastname@example.org, with an unambiguous declaration (e.g. by a letter sent by post, or email) of your decision to withdraw from this contract. You may use the withdrawal form template here, but this is not compulsory.
In order to comply with the cancellation period, it is sufficient for you to send us notice that you are exercising your right of cancellation before the cancellation period has expired.
Consequences of withdrawal
If you revoke this contract/membership, the license agreement will terminate immediately. Your user account will be blocked. Any tax credit balance will be paid out on request.
If you have already asked for service to begin during the period prior to your revocation, you will have to pay an appropriate amount corresponding to the service already provided up to the date on which you notified us that you were exercising your right to revoke this agreement, prorated to the total scope of services provided for in the contract.
Sample cancellation form
(In order to cancel the contract, this form must be filled out and returned.)
At Deluwak UG (limited), represented by the Managing Directors Daniel Bicking and Elmar Lins, Vorster Pfad 14, 41564 Kaarst, email: email@example.com
I/we (*) hereby give notice of withdrawal from my/our (*) contact concluded for the provision of the following service: ________________________________
– Ordered on (*) / received on (*): ________________________________________
– Name of the consumer(s): __________________________________________
– Address of the consumer(s): ________________________________________
– Signature of the customer(s) (only for written notification) ______________
– Date: _________________________________
(*) Delete where inapplicable
End of Withdrawal Policy
The foregoing right of withdrawal does not apply if the legal transaction is performed for purposes that are outside of your trade, business or profession, or if the service is created exclusively for the client.
§ 10 Assignment and Pledging Ban
Claims or rights of the customer or user against the supplier may not be assigned or pledged without their consent, unless the customer has demonstrated a legitimate interest in the assignment or pledge.
§ 11 Warranty / Liability for Defects
- Customer claims for damages are excluded, unless for reasons stated below. This also applies to the representatives and agents of the provider, if the customer asserts such claims for damages.
- This does not apply to claims for damages asserted by the customer due to injury to life, limb, health or breaches of essential contractual obligations, which must be met for the contract’s purpose to be fulfilled. Likewise, this does not apply to claims for damages based on the gross negligence or intentional breach of duty by the provider, its legal representatives or agents.
- In case of breach of contract, in particular malfunctioning of unrestricted access to the user account, the provider is liable only for the typical, foreseeable damage that was caused by simple negligence, unless the seller fraudulently concealed the defect or guaranteed for the quality of the service or there are claims by the customer or user regarding injury to life, limb or health.
- Statements and explanations of the benefits of Deluwak act solely as a description of the nature and not as a guarantee or assurance of a property. Statements about warranty and guarantee only constitute guarantees or warranties in the legal sense if made in writing and are expressly and literally marked as “guarantee” or “warranty”.
- A defect exists if the performance of Deluwak does not have the contractual quality and thus the efficiency of the contractual use is canceled or reduced. A minor limitation of suitability is not considered. The user shall immediately notify Deluwak of any faults, defects or damages.
- Deluwak fixes defects after receiving a written comprehensible fault description by the user within a reasonable period.
- The right of termination by the customer or user for failure to grant use exists only when the removal of the defect is not submitted within a reasonable time or is deemed to have failed.
- The provider excludes, without limitation, all liability for damages of any kind, whether direct or indirect, as well as consequential damages that result from the use of or access to the website or from links to third party websites. In addition, any liability for manipulations on the computer system of the Internet user by third parties is excluded.
§ 12 Availability
The provider can not guarantee for the permanent availability of the website www.focus.fm .
§ 13 Links to Other Websites
If we refer to or link to the websites of third parties through our Internet, we can not assume any responsibility or liability for the accuracy or completeness of the contents and the data security of these sites. Since we have no influence on the compliance of third parties with data protection regulations, you should check the privacy policies of each site separately.
§ 14 Indemnification
The customer or user indemnifies the provider from any third party claims asserted against Deluwak because of a legal breach or breach of duty of the customer or user, unless the client or user is not responsible for the breach of duty. This includes in particular the illegal or non-contractual setting of articles, reviews or forum posts. Reasonable costs of legal defense are also to be reported (esp. attorney’s fees), which are caused by the behavior of a customer or user.
§ 15 Copyright
- Deluwak is owner of all intellectual property rights on their website, especially trademarks, copyrights and related rights, and of the documents sent under the contract. These works, including all of its parts, are protected by copyright. Any use beyond the limits of copyright law is inadmissible and punishable without explicit prior approval by Deluwak. This applies in particular to copies, translations and storage on any electronic media and related disclosure to third parties.
- Any reproduction and dissemination of documents as a whole or in parts requires written permission of Deluwak.
- The linking to one of the websites of Deluwak requires express written consent.
- No element of the website grants any license or right to use images, trademarks, logos or other rights. Downloading or copying the website or its parts shall not transfer or justify any rights with regard to the items on the website.
§ 16 Cookies
- Deluwak points out that the activities of customers and users of this website are registered and analyzed for security, marketing and system monitoring purposes.
§ 17 Amendments to the Offer
The offer of Deluwak is continuously adapted, optimized and modified. The same applies to the contents of the web pages. For this reason it is recommended to regularly check for the currently valid conditions, notes and prices.
§ 18 Language, Jurisdiction and Applicable Law
The contract will be drafted in German. All correspondence related to the fulfillment of the contract will also be in German. For consumers, this only applies insofar as it is not restricted by legal provisions in the state where they have their domicile or habitual residence. Jurisdiction for disputes with customers who are not consumers, legal entities under public law, or legal entities shall take place at the provider’s headquarters.
§ 19 Data Protection
- In connection with the development, conclusion, execution and termination of a contract based on these terms and conditions, data will be collected, stored and processed by the supplier. This is done in accordance with legal provisions.
- The provider will not share personal data of customers to third parties, unless legally obliged to do so, or unless the customer has given prior express consent to this. Should a third party be appointed for services used in connection with the handling processing procedures, so shall this be in compliance with provisions of the Federal Data Protection Act. The information provided by the user through the order confirmation data are processed exclusively for contacts within the scope of the contract and only for the purpose for which the user has made the data available. The payment data is forwarded to the entity responsible for receiving payment. Should the seller be subject to commercial or fiscal retention periods, certain data may be stored for up to ten years. During the visit on the website, anonymized data that doesn’t allow or intend any conclusions on personal data, in particular IP address, date, time, browser type, operating system and pages visited, is being recorded. The personal data will be deleted, corrected or blocked on user’s request in accordance with statutory provisions.
Duration of retention
Personal data provided to us through our website is only stored until the purpose for which it was provided has been met. As far as commercial and tax law periods are concerned, the duration of the storage of certain data may be for up to 10 years.
§ 20 Google
The website www.focus.fm uses Google Analytics, a web analytics service provided by Google Inc. (“Google”). Google Analytics uses so-called “cookies”, text files which are stored on user’s computer and which allow an analysis of their use of the website. The information generated by the cookie regarding your use of the website (including your IP address) is transmitted to a Google server in the USA and stored there. Google will use this information to evaluate the use of the website, to compile reports on website activities for website operators and to provide others with website and internet related services. Google may also transfer this information to third parties if this is legally required, or if such third parties process the information on Google’s behalf. The installation of cookies can be prevented by changing the settings on the browser software. This may mean that not all functions of the website www.focus.fm will be available. By using this website you agree to the processing of information collected by Google.
The collection of data by Google Analytics can be contradicted by installing a deactivation add-on.
§ 21 Severability Clause
If any provision of this contract is invalid or unenforceable or becomes invalid or unenforceable after the conclusion of the contract, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that approximates as closely as possible the objective sought by the contractual parties through the invalid or unenforceable provision.