Last Updated: November 9, 2018
Company may change or amend these Terms of Service at any time at its sole and absolute discretion. We encourage you to review these Terms of Service carefully and to check these Terms of Service periodically for any updates or changes. If Company makes a material change or amendment to these Terms of Service, for all Users domiciled outside of Germany, it will notify such Users thereof by posting such changes or amendments on the Platform, which changes or amendments will be effective automatically upon the posting thereof. You agree that all agreements, notices, disclosures and other communications we provide to you electronically satisfy any legal requirement that such communications be in writing. For all Users domiciled in Germany, Company will notify such Users of any such material change or amendment in advance, and if a User does not object, or uses the Service after the notification, the revised Terms of Service will be deemed accepted by such User two (2) weeks after such notification. In Company’s notification to German domiciled Users, it will inform such Users of the revised Terms of Service, of the above time period, the deemed acceptance, such Users’ right to object to the revised Terms of Service, and possible consequences. Accrued rights shall not be affected by a change of the Terms of Service. The above notification procedures shall not apply to material changes of the scope of the Platform leading to a change in the overall contractual structure (“ Vertragsgefüge”), and in the case of such changes, notification to Users thereof shall be completed as stated above for Users domiciled outside of Germany.
Company may, from time to time, release new versions of the Platform, or release/introduce new tools, products, services, functionalities, and/or features for the Platform, which will be subject to these Terms of Service, and any additional terms of service as may apply to such additional versions, tools, products, services, functionalities, or features.
IF ANY OF THESE TERMS OF SERVICE OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE OR CONTINUE TO USE THE PLATFORM AND DO NOT CREATE AN ACCOUNT. YOUR CONTINUED USE OF THE PLATFORM FOLLOWING THE POSTING OF ANY NOTICE OF ANY CHANGE TO THESE TERMS OF SERVICE SHALL CONSTITUTE YOUR ACCEPTANCE AND AGREEMENT TO SUCH CHANGE.
Company hereby grants you a limited, non-exclusive, revocable, royalty-free, non-transferable, non-assignable, non-sublicensable, right and license to access and make personal use of the Platform, the Platform Content (defined below), and User Content (defined below), solely as permitted by the tools, products, services, functionalities and/or features of the Platform, subject in all respects to these Terms of Service, and not for redistribution of any kind (the “License”). This License does not include any resale or commercial use of (i) the Platform, (ii) any Registration Data (defined below), (iii) any content, materials, information, text, data, copyrights, trademarks, logos, designs, insignia, images, photos, musical compositions, sound recordings, screenshots, videos, chats, posts, graphics, identifying marks, Site/App pages, software, and other original works of authorship and/or intellectual property uploaded to, or incorporated into, the Platform by or on behalf of Company (collectively, “Platform Content”), which Platform Content is and shall remain the sole and exclusive property of Company, or (iv) any content, materials, information, text, data, copyrights, trademarks, logos, designs, insignia, images, photos, musical compositions, sound recordings, screenshots, videos, chats, posts, identifying marks, graphics, and other original works of authorship and/or intellectual property that any you or any other User submits or uploads onto the Platform (collectively, “User Content”), which User Content is and shall remain the sole and exclusive property of you or the applicable User, subject to the User Content License (defined herein) granted to Company pursuant to these Terms of Service.
As between any User and Company, Company retains all right, title and interest in and to the Platform, throughout the world, in perpetuity, including, without limitation, (i) all text, graphics, typefaces, formatting, graphs, designs, editorial content, HTML, look and feel, software, and data, (ii) all business processes, procedures, methods, and techniques used in the Platform, (iii) all other materials and content uploaded or incorporated into the Platform, including, without limitation, all Platform Content (but excluding User Content, which is owned by the applicable User subject to the User Content License granted to Company pursuant to these Terms of Service), (iv) all associated trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world; and (v) the coordination, selection, arrangement and enhancement of such Platform IP as a Collective Work under the United States Copyright Act, as amended (collectively, “Platform IP”), and nothing contained herein shall be construed as creating or granting to any User any right, title or interest in and to such Platform IP other than the express license granted therein pursuant to these Terms of Service. Platform IP is protected in all forms, media and technologies now known or hereinafter developed as well as by the domestic and international laws of copyright, trademarks, patents, and other proprietary rights and laws.
Violation of this License may result in infringement of intellectual property and contractual rights of Company, other Users of the Platform, or other third parties, which is prohibited by law and could result in substantial civil and criminal penalties.
If you want to use the Platform or any Platform Content other than expressly permitted herein, including in a commercial way, you will need permission and need to get in touch with us first via the “partner section” on our Site, located at www.dubsmash.com/partner. To use any third-party User Content in any manner not sublicensed to you by us herein, you will need permission from the applicable User. Company is not responsible for putting you in touch with any other User for purposes of obtaining such permission.
In order to utilize the full tools, products, services, functionalities and/or features of the Platform, each User will need to register for and create an Account. You agree to create only one (1) unique Account and that you shall be the sole authorized user of your Account. As part of the registration process, Users will be asked to submit certain information such as their name, email address, phone number, birthday, profile name, picture, etc., and to create an Account login password (collectively, “Registration Data”). You agree that all Registration Data you provide to Company will be and remain at all times true, accurate, current and complete. Company may from time to time modify or add to the Registration Data information fields required to create an Account, and you agree to promptly complete any such additional or modified information fields when and as requested by Company. In some cases, you will also need to update your Account and/or operating system settings allow us to access your address book/contacts and enable the geolocation and camera/microphone functions. You must make sure that your Account profile name complies with these Terms of Service. Your registration with us is subject to our confirmation and will become valid when we either confirm your registration or activate your Account.
Company will have the right to use your Registration Data in connection with servicing and operating the Platform. You agree (i) to restrict access by any other person or entity to your password or other login information, (ii) to not knowingly use the name or email of any other person without authorization, (iii) to not use an email or profile name that is profane, offensive or otherwise inappropriate, (iv) to not allow any third party to use your login information, Registration Data or Account, and (v) to notify Company of any breach of security by promptly sending Company an e-mail to email@example.com. You agree that you will be liable for all activities that occur under your Account, even if such activities were not committed by you. Company is not responsible for any loss or damage as a result of someone else using your Account, Registration Data or password with or without your knowledge. You acknowledge and agree that certain Account information (such as your Account profile name and/or picture) that you provide in connection with the registration of your Account will be publicly viewable by all Users of the Platform.
You retain all right, title and interest in and to any User Content (including all copyrights and other intellectual property rights related thereto or contained therein) that you upload onto the Platform; provided, that you hereby grant to Company and its affiliates (including, without limitation, Mobile Motion GmbH, and any other affiliate within the meaning of Sec. 15 et seq. of the German Stock Corporation Act – AktG), successors, licensees, and assigns, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid, transferrable, assignable, sublicensable (through multiple tiers) right and license to use, copy, reproduce, display, distribute, publish, modify, adapt, make derivative works of, make collective works with, translate, and otherwise exploit (i) such User Content (including all copyrights and other intellectual property rights related thereto or contained therein) and (ii) your name, image, voice, likeness, biographical material, and any other right of publicity/privacy held by you in connection with such User Content, in any and all media now known or hereafter discovered, in connection with the Platform (including, without limitation, the operation thereof and the provision of the tools, products, services, functionalities and/or features offered in connection therewith), the advertising, marketing, promotion, publicity, and merchandizing of the Platform and any products and services related thereto, and to identify you as the source of your User Content (collectively, the “User Content License”). For the avoidance of doubt, the User Content License granted to us hereunder covers our ability to permit other Users of the Platform to use your User Content in connection with all tools, products, services, functionalities and/or features made available in connection with the Platform from time to time, subject to these Terms of Service.
By submitting User Content to the Platform, you acknowledge and agree that Company may create or license from third parties Platform Content, or obtain User Content from other Users, that may be similar or identical to your User Content. You agree that you shall have no recourse against Company for any alleged or actual infringement or misappropriation of any proprietary or other right in or related to the User Content you provide to Company. You acknowledge and agree that your submission of User Content to the Platform does not create any new or alter any existing relationship between you and Company.
You hereby represent and warrant to Company that: (i) all User Content uploaded by or on your behalf onto the Platform is your original work of authorship for which you are the sole and exclusive owner, or that you have obtained all licenses, consents, releases, and other permissions from the applicable third party owner thereof as may be necessary to grant Company the User Content License in and to such User Content hereunder, and (ii) Company’s and/or any other User’s or sublicensee’s use of the User Content as permitted hereunder does not, and will not, violate any applicable laws or the rights of any third party, including, without limitation, any right of publicity, right of privacy, copyright, patent, trademark, or other intellectual property right or any proprietary right.
You acknowledge and agree that Company may establish general practices and limits concerning use of the Platform, including without limitation the maximum number of days that User Content posted to the Platform will be retained by, or made available through, the Platform, and the maximum storage space that will be allotted on Company’s servers on your behalf. You agree that Company has no responsibility or liability for the blocking, deletion or failure to store any User Content maintained or transmitted by the Platform. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.
You acknowledge and agree that Company is merely a passive conduit and hosting service for User Content and that it plays no active role in the distribution or presentation of User Content on the Platform, nor is it under any obligation to monitor User Content posted on the Service (subject to the DMCA policy set forth below) and cannot and does not take any responsibility for such User Content. Further, Company does not endorse, support or guarantee the completeness, accuracy or reliability of any User Content or communications posted via the Platform or opinions expressed therein. Use of or reliance on any User Content or materials posted via the Platform or obtained by you through the Platform is at your own risk.
The Platform enables Users to communicate and interact with other Users, including, without limitation, by liking, viewing, sharing, commenting on, and/or creating memes for, other Users’ User Content, and may in the future enable additional User interaction features such as direct messaging between Users. You are solely responsible for all of your interactions with the Platform and other Users/User Content on or through the Platform. In your interactions with other Users/User Content, you agree to conduct yourself professionally, civilly and respectfully at all times. You acknowledge and agree that in using the Platform, Company will not be responsible for the actions of any Users with respect to any other User or User Content, and that Company does not actively monitor or police the specific interactions between Users of the Platform and other Users or User Content (and has no obligation to do so). You hereby release, disclaim and hold Company harmless from and against any and all liability resulting from a User’s interaction with, or conduct towards, any other User or User Content (whether online or offline). Notwithstanding the foregoing, Company reserves the right to determine, in its sole discretion, what constitutes harassment, mischief, or unacceptable conduct with or towards other Users or User Content, and where that has occurred, and may in its sole discretion, partially or completely deny, suspend or terminate access to the Platform to any User that it determines has engaged in such behavior.
The Platform, Platform Content and any User Content belonging to another User may not be used, modified, reproduced, duplicated, copied, published, distributed, downloaded, sold, resold, transformed, redesigned, reconfigured, retransmitted, or otherwise exploited by you for any purpose except as facilitated by the tools, products, services, functionalities and/or features of the Platform, or without the express prior written consent of Company or, in the case of another User’s User Content, the applicable User, in each instance.
With limiting the foregoing, while using the Platform, you may not:
The License granted to you in these Terms of Service terminates automatically upon any unauthorized use of the Platform and Company will take appropriate investigative and legal action for any illegal or unauthorized use of the Platform.
You represent and warrant that that you have the right, authority and capacity to enter into, and to be bound by, these Terms of Service and to abide by the terms and conditions of these Terms of Service, and that you will so abide.
You represent and warrant that: (i) (1) all Registration Data and (2) all User Content and other information that you submit onto the Platform, is true, accurate, current and complete; (ii) that you are the sole owner of all right, title and interest in, or have obtained all necessary rights and licenses from the applicable owner of, any User Content or other information you submit or upload onto the Platform to grant Company the rights set forth herein; and (iii) that such User Content and other information, when used for the purposes in which it is submitted onto the Platform, does not infringe upon the rights of any third party, including, without limitation, intellectual property rights, propriety rights and rights of publicity/privacy. You acknowledge and agree that you shall be solely responsible for all Registration Data, User Content and other information that you post, upload, link to, publish, exchange, or display onto the Platform and that Company reserves the right to reject, refuse to post, edit, modify, remove all or a portion of any such Registration Data, User Content or other information from the Platform that Company determines, in its sole discretion, does not comply with these Terms of Service, or for any other reason, without notice or liability to you.
You represent and warrant that any User Content and other information that you upload to the Platform: (i) will not be fraudulent or involve the sale of counterfeit or stolen items; (ii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (iii) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (iv) will not be obscene or contain child pornography or be harmful to minors; (v) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) will not create liability for Company or cause Company to lose (in whole or in part) the services of its Internet service providers (ISPs) or other partners or suppliers; (vii) will not features any person that has not given you express permission to include such person in such User Content and who has not granted you all rights necessary or required for you to grant Company the User License in and to such User Content, including, without limitation, such person’s name, image, voice, likeness, biographical material, and any other right of publicity/privacy held by such person in connection with such User Content; and (viii) will not feature any person under the age of eighteen (18) (or any greater age required to be deemed to have reached the age of majority under the applicable law of the state or jurisdiction of such person’s primary residence) without first obtaining express written permission from such person’s parent or legal guardian, and which written permission shall grant you all rights necessary or required for you to grant Company the User License in and to such User Content, including, without limitation, such person’s name, image, voice, likeness, biographical material, and any other right of publicity/privacy held by such person in connection with such User Content.
We reserve the right to investigate complaints or reported violations of the Terms of Service and to take any action we deem appropriate, including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to Users’ Account, profile name, e-mail addresses, usage history, uploaded User Content, IP addresses, and traffic information.
We further reserve the right, in our sole discretion and without notice or liability to you, to disable your Account or suspend or terminate your use of, or access to, the Platform (either in whole or in part) at any time for any reason with any conditions, including, but not limited to, if we believe that you have violated or acted inconsistently with these Terms of Service or any applicable law or that you have engaged in conduct that we determine to be inappropriate or unacceptable in our sole discretion. We may also disable your Account or suspend or terminate your access to the Platform if you file any claim against Company or file any claim that involves the Platform. We also reserve the right, in our sole discretion, to seek and obtain any other remedies available to us pursuant to any applicable laws and regulations or at equity as a result of your breach of these Terms of Service or any other act or omission by you that gives rise to a claim by Company, and our disabling of your Account or suspension or termination of your use of, or access to, the Platform shall be without prejudice to, and shall not be deemed a waiver of, the foregoing. If we terminate, limit, or suspend your right to use the Platform, you are prohibited, without Company’s prior written consent, from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In the event your right to use the Platform terminated, limited, or suspended, these Terms of Service will remain in effect and enforceable against you.
You may terminate these Terms of Service at any time by deleting your Account and ceasing all use of the Platform. Please note that, deleting the Platform from your computer or mobile device will not delete your Account, and any User Content that you have previously uploaded will remain on the Platform. If you wish to delete your Account, please login to your Account on the Site or click the Account profile icon in the App, and once inside your Account profile, select "Delete Account". Please note that if you delete your Account, all User Content will automatically be deleted.
Notwithstanding the foregoing, all sections of these Terms of Service which by their nature should survive the expiration or termination shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of these Terms of Service.
Company has registered an agent with the United States Copyright Office in accordance with the Digital Millennium Copyright Act (the “DMCA”) and avails itself of the protections under the DMCA. Company reserves the right to remove any Platform Content or User Content that allegedly infringes another party’s copyright. Company will terminate, in appropriate circumstances, Users who are repeat infringers of another party’s copyright. Notices to Company regarding any alleged copyright infringement should be directed to Company via email at: firstname.lastname@example.org. This email address is only for reporting suspected copyright infringement. Contact information for other matters is provided elsewhere in these Terms of Service.
Notification of Alleged Copyright Infringement: Company respects the intellectual property rights of others and expects all Users to do the same. If you believe in good faith that your work is being used on the Platform in a way that constitutes copyright infringement under applicable law, you may provide us with a written notice containing the following:
United States law imposes substantial penalties for falsely submitting a notice of copyright infringement.
In addition to the above, and in relation to a sound recording available on the Platform, you may also click on the relevant sound recording’s “Report” link available directly on the Platform, which will trigger a notice to us to institute a review and potential takedown. You understand that we may forward your notification to the author of the allegedly infringing content for a counter statement. We also reserve the right to transmit a User’s contact data to a rights owner who has substantiated an infringement by such User for the purposes of enforcing its statutory rights.
Counternotice to Restore User Content Removed for Alleged Copyright Infringement: If you believe that your User Content has been removed by mistake or misidentification, you may provide us with a written counter-notification containing the following information:
You agree not to display or use in any manner any (i) trademark, service mark, logo, design, insignia, trade dress, slogan, or other brand features, either registered under the laws of the United States or any other country or jurisdiction, or unregistered and existing at common law, belonging to Company or any third party, or (ii) any text, image, video, or other item of content, that violates any other intellectual property right of any third party, including, without limitation, any right of privacy or publicity, unless you obtain Company’s or such third party’s prior written permission.
Company reserves the right to remove any Platform Content or User Content that allegedly infringes another party’s trademark, service mark or other intellectual property right. Company will terminate, in appropriate circumstances, Users who are repeat infringers of another party’s trademark or service mark. Notices to Company regarding any such alleged infringement should be directed to Company via email at: email@example.com and shall include all the same information required to be included in any copyright infringement notice as set forth in Section 9 above. This email address is only for reporting suspected trademark infringement. Contact information for other matters is provided elsewhere in these Terms of Service.
If we remove your User Content because of an infringement report provided to us pursuant to this Section 10, you will receive a notification from us that includes the name and email address of the rights holder who made the report and/or the details of the report. If you believe such User Content should not have been removed, you can follow up with the rights holder directly to try to resolve the issue. Company does not provide a counter-notice or appeal mechanisms for claims of trademark infringement and disclaims any liability for claims you might make regarding mistaken or misidentified trademark infringement notice and takedown requests.
If you discover any User Content on the Platform featuring any minor person for whom you are the parent or legal guardian, and such User Content was uploaded to the Platform without your consent, you can send us a takedown request at firstname.lastname@example.org, or you can click on the relevant User Content’s “Report” link available directly on the Platform, which will trigger a notice to us to institute a review and takedown of such User Content. You understand that we may forward your takedown request or notification to the author of the allegedly unauthorized content for a counter statement.
The Platform may contain advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the Platform is accurate and complies with applicable laws. Company will not be responsible for the illegality of or any error or inaccuracy in advertisers’ or sponsors’ materials or for the acts or omissions of advertisers and sponsors.
Company may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Company, and can be activated, modified or removed at any time by Company without advance notification and the liability of any of Company’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to these Terms of Service.
Company disclaims all liability for any communications directed to you from any third party directly or indirectly in connection with the Platform (“Third-Party Communications”) that you may receive and any actions you may take or refrain from taking as a result of any Third-Party Communications. You are solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any Third-Party Communications. Company assumes no responsibility for verifying, and makes no representations or warranties regarding, the identity or trustworthiness of the source or content of any Third-Party Communications.
The Platform may include third-party content or links (such as hyperlinks) to third party websites or services (including external websites that are framed by the Platform as well as any advertisements displayed in connection therewith) that are not owned or controlled by Company (collectively, “Third-Party Content”). They are provided as an information service, for reference and convenience only. Company does not control any such Third-Party Content and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, or products or services. Inclusion of any Third-Party Content on the Platform does not constitute or indicate Company’s endorsement thereof and Company shall not be liable or responsible for any Third-Party Content transmitted through the Platform. You shall be subject to any additional terms and conditions of use, guidelines or rules applicable to any Third-Party Content that you access through the Platform (“Third-Party Terms”). All such Third-Party Terms are hereby incorporated by reference into these Terms of Service. You acknowledge and agree that Company will not and cannot censor or edit any Third-Party Content and that you shall assume the sole responsibility for and risk associated with your use of Third Party Content, including compliance with the terms and conditions of use, privacy policies, or practices associated therewith. Accordingly, Company encourages you to be aware when you leave the Platform and to read the terms and conditions of use and privacy policies associated with any Third-Party Content.
By using the Platform, you expressly relieve and hold Company harmless from any and all liability arising from your use of any Third-Party Communications and Third-Party Content, including any loss or damage incurred as a result of any dealings between you and any third parties, or as the result of the presence of such Third-Party Content on the Platform or the failure of such Third-Party Content to function as intended. It is your responsibility to evaluate the content and usefulness of the information obtained from Third Party Content.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
YOUR USE OF THE PLATFORM IS ENTIRELY AT YOUR OWN RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, CURRENTESS, COMPLETENESS OR RELIABILITY OF ANY PLATFORM CONTENT OR USER CONTENT PROVIDED THROUGH THE PLATFORM OR THIRD PARTY CONTENT LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR THAT THE PLATFORM WILL BE ERROR-FREE, or that defects will be corrected or that it will always be accessible; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE PLATFORM. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).
YOU AND COMPANY AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR COMPANY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR COMPANY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND COMPANY FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, COMPANY, AND ALL PARTIES TO ANY SUCH PROCEEDING.
If your habitual residence is Germany, the following shall additionally apply:
Notwithstanding the foregoing or anything else to the contrary contained in these Terms, our liability shall not be limited or excluded for: (i) Damages (a) caused by intent or gross negligence, also by our statutory representatives and vicarious agents (“Erfüllungsgehilfen”), (b) resulting from an injury to life, body or health, (c) damages resulting from a violation of a guarantee as to quality (“Beschaffenheitsgarantie”) or (d) caused by fraudulent misrepresentation (“arglistig verschwiegene Mängel”); (ii) Damages to property and financial damages (“Sach- und Vermögensschäden”) caused by slight negligence of us, our statutory representatives or vicarious agents, in the event of a violation of a contractual core duty (“wesentliche Vertragspflicht”), however limited to the amount of the damage which was foreseeable at the time of conclusion of the contract and typical, taking into account the nature of the contract (“ vorhersehbarer und vertragstypischer Schaden”). Contractual core duties are such duties whose accomplishment enables proper fulfilment of an agreement and whose observance the contracting parties may regularly rely on; or (iii) liability based on the German Product Liability Act.
You hereby agree to indemnify, defend and hold harmless, Company and its parents, subsidiaries, and affiliates (including, without limitation, Mobile Motion GmbH, and any other affiliate within the meaning of Sec. 15 et seq. of the German Stock Corporation Act – AktG) and their respective directors, officers, employees, affiliates, content partners, vendors, third party licensors, distributors, advertisers, and other contracting parties, together with their respective director, officers, employees, successors, assigns, consultants and other agents, from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim, action, or proceeding brought by a third party based on: (i) your use of, or inability to use, the Platform; (ii) any breach of any representation, warranty, covenant or obligation of yours under these Terms of Service; (iii) any Registration Data or User Content posted by you onto the Platform; (iv) your violation of any applicable law or regulation; or (v) your violation of any third-party right, including, but not limited to, any intellectual property right. Company shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon Company’s request. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.
Access to and use of the Platform requires a compatible mobile device/web browser and internet connection. Although we are working to ensure that the Platform is compatible across various devices, we cannot guarantee that the Platform will work with all devices.
It is your responsibility to ensure that your computer or mobile device complies with the requirements for accessibility. Your use of the Platform may vary in functionality, availability and quality depending on the type of the device and the operating system that you use and Company accepts no responsibility for any lack of functionality that is due to your equipment (including your device, internet connection, operating system or settings and software).
It is your responsibility to pay for all costs and expenses that you may incur while using the Platform (including, but not limited to, all telephone call or line charges or Internet data service access charges).
Your access to the Platform may be interfered with by numerous factors outside of Company’s control including, but not limited to, telecommunications and/or wireless network service disruptions, computer or mobile device viruses and bugs, tampering, unauthorized intervention, fraud, technical failures, and server, equipment or software defects. Company is not responsible and will have no liability for any failures of the Internet or any data or telecommunications equipment, system or network used in connection with the Platform. In addition, perfect security does not exist on the Internet; Company cannot and does not guarantee that any Registration Data or other personally identifiable information submitted to the Platform will not become public under any circumstances.
Company may in the future update the Platform for repair or maintenance purposes or to change any tools, products, services, functionalities, or features thereof (an “Update”). Company shall not be liable to any User in any way as a result of any temporary or permanent suspension of the Platform or any tools, products, services, functionalities, or features thereof arising from or in connection with an Update. Furthermore, Company is under no obligation to undergo an Update of the Platform to the extent any Platform Content, User Content and/or other tool, product, service, functionality, or feature thereof is out of date. The terms of the License granted to you hereunder shall apply in full to any Update. Following an Update, you may not be able to use the Platform until you have downloaded the latest version and accepted any new terms.
The Terms of Service are governed as follows: (i) for Users domiciled in any country other than the United States, these Terms of Service are governed by and construed in accordance with the internal laws of Germany, and to the extent applicable, the European Union, without reference to principles of conflicts of laws, and any action arising out of or relating to these Terms of Service shall be filed only in the courts located in Berlin, Germany and you hereby consent and submit to the exclusive personal jurisdiction and venue of such courts for the purpose of litigating any such action; and (ii) for Users domiciled in the United States, these Terms of Service are governed by and construed in accordance with the internal laws of the State of New York, without reference to principles of conflicts of laws, and any action arising out of or relating to these Terms of Service shall be filed only in the state or federal courts located in New York County, New York and you hereby consent and submit to the exclusive personal jurisdiction and venue of such courts for the purpose of litigating any such action.
You agree that regardless of where domiciled and/or any applicable statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Platform or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever and fully barred.
Company may freely assign, sub-contract and/or otherwise transfer any or all of its rights and/or obligations under these Terms of Service to any company, firm or person. You may not transfer your rights or obligations under these Terms of Service to anyone else.
General questions or comments about the Platform or these Terms of Service should be sent either by mail to Dubsmash, Inc., 85 Delancey St, New York, NY 10002, or email to email@example.com.