General Terms and Conditions of GOFRESH GmbH ("Provider") for the use of the "itsmy.com" mobile Internet Platform ("General Terms and Conditions") as of April 21st 2008
itsmy.com stands also for other domain names under the trademark "itsmy", including but not limited to "itsmy.com", "itsmy.mobi" and "itsmy.tv".
1. Scope
1.1 By registering to use the "itsmy.com" Community Website ("Platform"), the User consents to the following General Terms and Conditions. The provisions of these General Terms and Conditions govern the entire legal relationship between the User and the Provider and are applicable to all services provided to the User or offered on the Platform ("Services") and also to all the User's actions relating to the Platform. No conflicting terms of use or conditions of the User shall be applicable and are hereby rejected. The complete and valid General Terms and Conditions are available in a storable and printable form on the www.itsmy.com/terms/ -website.
1.2 In so far as these General Terms and Conditions also mention other users of the Platform, these General Terms and Conditions shall also govern the relationships between users, whereby the independent active claiming of rights under this Agreement against other users shall require the Provider's consent.
1.3 The Provider reserves the right to make changes to these General Terms and Conditions in so far as these are reasonable for the User. The Provider shall inform the User about changes by placing a message in the itsmy.com- personal inbox or via the User's email address entered during registration and include the change in the current version of these General Terms and Conditions posted on the www.itsmy.com Website. The change shall take effect from that point in time.
2. Services
2.1 itsmy.com is a mobile communication, content and application platform for Users to access via Internet-enabled (mobile) end devices. The Services which can be used or are made available via the Platform include the saving of user-generated contents with both upload and download options, the creation of personalized home pages and also other message, chat and entertainment services and also services for personalizing mobile phones with logos and ring tones. The Services are described in detail on the www.itsmy.com website.
2.2 The Services and the Platform can be reached and used via Internet-enabled mobile or land-line end devices (such as cell phones, PDAs, computers, mobile game consoles and any other suitable digital communications device) via the Internet or the mobile Internet. The availability may vary from region to region.
3. Registration for itsmy.com
3.1 Before starting to use the Platform and the Services, the User has to register with itsmy.com. The User thereby confirms that he or she has fully and truthfully submitted the information required by the Provider for registration. The User promises to keep data in his or her profile up to date, in particular any changes of mobile telephone number and e-mail address.
Certain services that are marked as such require verification of the mobile telephone number by the Provider before the service is available for the User.
3.2 The User hereby confirms that he or she is over the minimum age of 14. Use is not permitted for persons under the age of 14. The User is responsible and liable for ensuring that no persons under 14 use the Services and the Platform. Upon request by the Provider, the User shall prove that he or she has reached the minimum age of 14. If the User is under the age of 18, he/she needs the permission of a parent or legal guardian to use and register to itsmy.com.
3.3 The Provider shall be entitled to terminate this Agreement with immediate effect, to block the User's account and to prevent further use of the Services and the Platform by the User, in so far as the User is in breach of the duties agreed in this Clause 3. In the case of Clause 3.2 the Provider shall have these rights if the Provider has a justified suspicion that the User has not attained the minimum age of 14 years and the User cannot prove the opposite within a period of 5 working days.
4. The Users duties
4.1 The User has to select a password for accessing his or her account under which his or her personalized website ("Nickpage") runs and via which he or she can use the Services and the Platform. The User is responsible for keeping his or her password secret and preventing other persons from accessing his or her account via this password. The User promises to immediately inform the Provider by a private message or e-mail to abuse@itsmy.com if there is any indication that the password is being used by third parties.
4.2 The use of the itsmy.com Platform for commercial purposes is strictly forbidden if this has not been expressly permitted by the Provider in writing! Unpermitted commercial use may be seen as advertising and charged accordingly. The minimum amount will be the current minimum package price of advertising campaigns on itsmy.com.
4.3 The User shall not upload any contents via his or her Account or to his or her Account, or provide/make available any contents or have other make the same available on the Platform, or send other users messages with contents that violate laws and statutes in any manner and/or breach the Provider's Content Policy can be viewed in "publishing guidelines" in itsmy.com. This clause prohibits in particular the following contents ("Illegal contents"):
- Contents breaching third party rights – e.g. copyright, performance and commercial property rights such as brands, patents, registered designs, design rights and also other rights, for example name and personality rights;
- Contents and actions violating criminal law, promoting anti-constitutional organizations or insignia of such organizations; contents glorifying violence; racist, pornographic, sexist contents; contents harmful to young persons; contents trafficking in narcotics, inciting or downplaying the consumption of narcotics, inciting criminal offenses, gambling, insult or slander, defamation etc.
- Contents intended to disrupt or impair services on the Platform, in particular through robots, spiders, spamming, DOS attacks, chain mail, junk mail, scripts etc.
4.4. (previously 6) Blocking of content and the account, termination: If the Provider is informed by third parties, including other users of the Platform, about illegal contents or it is asserted that the User has offered illegal contents, the Provider shall have the right to immediately remove the said illegal contents and and/or block the User's Account without further notification to or setting of deadlines for the User. In so far as the suspicion of illegal contents is not rebutted by the User through suitable proof within 5 working days, the Provider shall have the right to terminate this Agreement with immediate effect.
4.5 The User hereby agrees that the Provider may place advertising on the User's personalized website (Nickpage). The Provider is also entitled to combine contents sent to the User's mobile phone with advertising. The User also agrees that the Provider can send him or her service-relevant emails, SMS, MMS or Inbox entries (Opt-In).
5. Granting of use rights
5.1 The User grants the Provider the non exclusive right, unlimited in time and location, to store all uploaded or keyed-in contents (in particular images, videos, texts etc.) during the use of the Platform in an electronic form on the Platform, to make the same available to other users and to disseminate the same to other users upon demand by way of download, and also to permit other users to make virtual or physical copies of these contents for their private or other own use.
In addition, the User grants the Provider the non exclusive right to use, in particular to reproduce, disseminate, make generally available and broadcast, all uploaded contents in all community platforms and services operated by the Provider and also in services and media offered on itsmy.com (in particular TV, advertising, print media, radio, Internet, mobile Internet).
The Provider shall have the right to process the contents in a user-friendly form, make the same amenable for research and process the same such that other users can access the same at any time. This includes converting the contents into other data formats. The Provider is also granted the right to process the contents with respect to visual appearance, font, layout, scaling etc.
The Provider shall have the right to combine the contents or parts thereof with its own or third-party contents, in particular to add links to the contents or make the same available to third parties via links. The Provider shall also be entitled to permit third parties to process the contents on a scale rendered technically possible via the Platform.
5.2 The Provider provides the User with the opportunity on the Platform to combine the Provider's contents ("Tools") with other content presented by the Provider or the User so as to produce new individual content. If such editing or creation of new contents gives rise to copyrights for the User, he or she hereby grants the Provider the exclusive rights of use, unlimited in time and location, for such contents on a scale as described in Clause 5.1.
5.3 With respect to all contents described above, the User hereby waives the exercising of all moral rights as far as legally possible, in particular with respect to infringements through changes to his or her contents made by the Provider or third parties.
5.4 The User hereby warrants that with respect to the entire contents furnished by the User he or she is the holder of the corresponding property rights or is entitled to use and transfer rights of use (in particular for publication, reproduction and dissemination) to the extent necessary and required under this Agreement and during the course of the contents being used on the Platform without the infringement of third-party rights. In so far as contents depict persons and/or private rooms/places, the User hereby warrants that he or she has obtained the consent of the persons in question for public presentation under the Services offered by the Provider. Any breach of these duties shall be governed in particular by Clause 7.4.
5.5 The User shall not receive any remuneration whatsoever for contents he or she makes available or creates on the Platform. In so far as the User has a statutory right to reasonable remuneration by dint of granting use rights under this Agreement, the User hereby states that the opportunity to use the Platform free of charge shall be deemed reasonable remuneration.
5.6 The Provider is the holder of all property rights to his own contents he offers on the Platform and also to the tools for producing contents. The User shall be granted use rights thereto only in so far as this is absolutely necessary for achieving the purpose of the Agreement and for effecting the offering on the Platform, namely the non exclusive, non transferable and revocable right to reproduce and play contents offered by the Provider (not including software source code) by download to a mobile phone. These rights shall be granted only for personal and private use. No commercial exploitation shall be permitted.
6. Blocking of contents and the Account termination
moved to 4.4.
7. Liability and restriction of liability
7.1 The Provider provides no warranty for the correct playing, completeness, existence, security or legality of the contents of the User and other users and accepts no liability for losses or damage incurred by using any contents stored on the Platform, published, sent by email, SMS or MMS or otherwise transmitted during the course of the Service. The above also applies for links to external Internet pages.
The Provider cannot accept any responsibility for communication between users nor can the Provider be made liable for indirect and consequential damages to the User. The Provider cannot accept any responsibility for possible viruses, worms, trojans etc. possibly transmitted throughout the service.
7.2 The Provider accepts no liability for the availability of the Account, Services and the Platform nor is the Provider liable for indirect and consequential damages. The User shall not acquire any rights or claims from any faults, down time due to maintenance work or discontinuation of services.
7.3 Without prejudice to the above, in the case of contractual liability, in particular also in the event of arrears and impossibility, tort and also under any other legal grounds, the Provider, its management board, staff, statutory representatives and agents shall be liable for damage not constituting physical harm or injury only in the case of intention and gross negligence. In the event of slightly negligent violation of contractual obligations, the liability of the aforementioned persons shall be limited in amount to typical, foreseeable losses.
7.4 The User shall hold the Provider, his officers, agents, employees and other partners free and harmless for claims for breach of third-party rights for which the User is answerable. The User shall in particular hold the Provider free and harmless for claims by third parties resulting from an unlawful act by the User, in particular with respect to contents infringing third-party rights that the User has made available or has edited or created during the course of the Services on the Platform. The same shall apply for all claims by third parties owing to illegal contents provided or made available by the User (see Clause 4.3).
7.5 In so far as such infringement of rights result in court proceedings, the User shall also bear the costs incurred by the Provider as a result, in particular court and attorney costs.
8. Termination of use
8.1 This Agreement shall remain valid and binding as long as the User uses the Services on the Provider's Platform. The User may terminate this Agreement at any time without stating reasons by either sending a written notice to terminate@itsmy.com (for identification purposes the email has to be send from either the email address OR the mobile phone number saved on the respective account) or by applying the de-registration procedure provided at itsmy.com or by submitting his or her written notice of termination to the following address:
GOFRESH GmbH, Lilienstrasse 7, 81669 Munich, Germany
The Provider has reasonable time to comply with the request. Data protection laws cannot be evaded by the termination of the accounts; German and European data protection rights are not affected by the termination.
The Provider shall also have the right to terminate this Agreement at any time.
8.2 Despite any termination, the Agreement shall remain valid after its termination with respect to the Clauses 5 and 7.
9. Privacy
(excluded from terms and conditions, click here for the privacy policy)
10. General provisions
10.1 In so far as it may be so agreed, Munich shall be the exclusive legal forum.
10.2 Only the law of the Federal Republic of Germany shall apply, to the exclusion of UN Law on Sales (Convention on the International Sale of Goods – CISG).
10.3 The invalidity of individual provisions of this Agreement shall not void the other provisions in this Agreement. The void provision shall be amicably replaced by the contractual parties with new, valid provisions or, if no agreement on a new provision can be reached by a corresponding statutory provision. The same shall apply correspondingly if a provision in this Agreement becomes void at a later date.