Terms of Service
§ 1 – Object of the contract and general terms
- Object of these terms and conditions is the utilization of the online tool “Fanpage Karma” and its features, web pages, services and contents (hereinafter referred to as “Fanpage Karma“). These terms and conditions are valid for all domains, systems, platforms and devices (e.g. desktop or mobile) Fanpage Karma can be utilized on.
- Fanpage Karma is tended to and provided by uphill GmbH, Oranienstr. 188, 10999 Berlin, Germany, Imprint: https://www.fanpagekarma.com/contact, (hereinafter referred to as „uphill GmbH“).
- By using Fanpage Karma, the user automatically agrees to these terms.
- Individual agreements or rules for special services or areas of performance, if effectively included, become part of the contract and take priority in the event of an objection to these terms and conditions.
- Divergent general terms and conditions of the user are only valid if the uphill GmbH has explicitly agreed to them in written form. A lack of communication regarding user proposed terms and conditions does not constitute consent.
- The term "content" used below is representative of all uploaded materials, information, files and data, transmitted or otherwise posted by users, such as photographs, graphics, logos, videos, texts, information about locations and people as well as links.
- The term "user" includes both customers and free-users, as well as visitors to Fanpage Karma related websites and its online presence. Terms such as "Users" are to be understood gender-neutral.
- All legally binding declarations must be carried out in text form (e.g. email, fax) or by making use of the options and settings provided by Fanpage Karma, unless these terms and conditions or the law specifically require written form.
§ 2 – Restricted to business users
- The services offered by uphill GmbH are exclusively aimed at business users (hereinafter referred to as "entrepreneurs") and not at consumers. Consumers are prohibited from using the services provided by uphill GmbH, Fanpage Karma in particular.
- A consumer in the context of these terms and conditions is any natural person who concludes a legal transaction for a purpose that can neither be predominantly classified as part of their commercial nor independent professional activity. An entrepreneur is a natural or legal person or a legal partnership that, in the course of entering into a legal transaction, is acting in accordance of its commercial or independent professional activity.
- By utilizing the services provided by uphill GmbH, the users declare that they are entrepreneurs and not consumers. uphill GmbH reserves the right to investigate whether or not the user is a consumer (e.g. checking address data, business registration or VAT identification number).
§ 3 – Subject of the contract and basics of using Fanpage Karma
- Fanpage Karma is an online service designed to help users in their attempts to properly analyze and understand Social Media developments, while also providing a platform that enables users to communicate more easily with their own community. To best serve this goal, Fanpage Karma provides various tools for social media analysis, community management and editorial planning.
- Applications and features are designed to grant users new ways to evaluate and analyze social media networks (e.g. Facebook, Twitter, YouTube, Instagram, etc.), socialize, promote information sharing and distribute important information.
- The analytics, community management and editorial planning tools are Fanpage Karma's core features. Fanpage Karma grants registered users two non-exclusive usage options: a) a free, non-exclusive use of the Facebook Fanpages analysis platform (hereinafter referred to as "Fanpage Karma Free") and b) a subscription based alternative that provides additional features ("Fanpage Karma Paid ").
§ 4 – Development and performance changes
- The steady development and refinement of Fanpage Karma is an essential part of the service. Said development process includes the adaptation to technical and legal progress as well as refinements to match user demands more accurately.
- uphill GmbH may change Fanpage Karma as well as sub-functions of Fanpage Karma, without this being a defect, as long as said changes have a reasonable impact on the user experience and do not endanger the purpose of the contract. This holds particularly true,
- if changes are implemented to benefit the user;
- if a change serves to match Fanpage Karma’s service with the applicable law, in particular when the current legal situation changes;
- if the change serves to comply with mandatory judicial or administrative decisions;
- if the respective change is necessary to close existing security gaps;
- if a change is of a purely technical or procedural nature without having a significant impact on the user experience. Changes with insignificant influence on already existing features and applications do not constitute as performance changes in this sense. This holds particularly true for changes of a purely visual nature, such as changes to the layout and visual presentation and arrangement of functions as well as features.
- if platform providers restrict or abolish their services or APIs.
§ 5 – Registration and closing of contract
- A contract is closed as part of the registration process on the Fanpage Karma platforms. By completing the registration process, the user makes an offer to close a contract for the purpose of utilizing Fanpage Karma. uphill GmbH accepts this offer by activating the user for the services subject to registration, for which the explicit confirmation via email may be a prerequisite.
- The customer selects the desired Fanpage Karma modules, number of licenses and subscription period. The customer enters all information required for the process of closing the contract and selects the desired payment method. In case of payment method "Electronic direct debiting scheme" the customer further enters its bank account details and confirms that they are authorized to allow direct debits from account in question. Upon clicking "Proceed with next step" the customer will reach an overview of his order. Changes to entered information or selected payment methods can be made at any point in time by making use of the browsers “Go back one page”-button. The process can also be terminated by closing the browser window. By clicking the button "Confirm binding order" the customer submits a binding offer to conclude a contract. Terms and conditions and Order Overview can be saved and/or printed during the order process.
- The user assures uphill GmbH that all data provided during the registration process is accurate and complete. The user may not use pseudonyms or aliases to register on Fanpage Karma.
- Each user is limited to a single user account.
- A contractual relationship with uphill GmbH is not transferable to other people or companies.
- The user assures that at the time of their registration they are of legal age or unlimited legal capacity.
- The opportunity to use the subscription-based services of Fanpage Karma is not an offer, but an invitation to submit a bid (invitatio ad offerendum). A valid contract does not exist until Fanpage Karma accepted the terms. Fanpage Karma is not obligated to accept a contract and can reject offers for whatever reason we see fit. The use of Fanpage Karma may, if appropriate and reasonable, be subject to certain conditions, e.g. verification of data submitted during registration or contact and address information
- A Registration using the registration functions of the online platforms used within Fanpage Karma may be a prerequisite for using the services of Fanpage Karma. This particularly applies to a registration via Facebook.
§ 6 – User account, maintenance of access and contact data
- A user can not exclusively register for individual Fanpage Karma services. To gain access to all of Fanpage Karma’s gratuitous services, a user requires a user account.
- The user profile, that is created as part of the account creation process, is the user's identity on all websites and services provided by Fanpage Karma. Fanpage Karma has no way to verify the identity of the user currently using or registering an account. Therefore Fanpage Karma neither can nor does ensure that the person’s real identity matches their account.
- In the event of subsequent changes, the user assures Fanpage Karma that personal data, in particular address and contact details and other information that is required to conclude the registration process will always be kept up to date. If incorrect or outdated data results in uphill GmbH’s inability to reach a user and the unavailability lies within their area of responsibility or that of the third party (outdated address or phone number, PO Box is being ignored), the consequent disadvantages will be at their expense.
- A user is responsible for the protection of their account and assures uphill GmbH to do anything in their power to prevent abuse. They are obligated to keep account data (e.g. password) secret and protect it from third parties. In case of abuse the user will be held accountable unless they are able to provide evidence to prove the absence of fault.
- Users are obligated to immediately inform uphill GmbH if there is reason to suspect that a third party has knowledge of access data and / or misuses a user account.
§ 7 – Privacy and rights to data
- The user is obligated to close contracts and make arrangements that are provided for by statutes. In particular, contracts related to order processing according to Art. 28 Abs. 3 S. 1 GDPR, in the case of the processing of data by uphill GmbH on behalf of the customer. In this case uphill GmbH provides the customer with the corresponding contract template. The customer's own contract templates can only be taken into account against an appropriate auditing fee for the customer template.
- uphill GmbH is entitled to store data that uphill GmbH has collected from generally accessible sources (this data is also commonly used by other customers of uphill GmbH) or data that is anonymised, therefore not assignable to an individual (e.g. aggregated data) and use said data for internal processes, even if the data was collected as part of the service provision. This explicitly does not apply to personal data uphill GmbH has received directly from the customer or uphill GmbH has collected and processed only on the basis of an authorization granted by the customer, except in the case of aggregated data or data being declared as confidential.
§ 8 – Accountability for content
- uphill GmbH is not responsible for user submitted contents and does not adopt said contents as its own.
- uphill GmbH does not take responsibility for content published by users, particularly not regarding accuracy, thoroughness, reliability, topicality or usefulness of posts or pictures published.
- uphill GmbH reserves the right to edit, delete or reject posts as long as long as the possibility of them breaking the law exists, putting a strong emphasis on existing personal rights and privacy laws. This also applies to content that is likely an event of good cause. uphill GmbH is not obligated to moderate or monitor.
§ 9 – General user obligations
- The user assures uphill GmbH that all data provided during the process of using Fanpage Karma is truthful and does not in any way affect the rights of third parties.
- The registered account is to be used exclusively by the user who created it. The user is responsible for its protection and to do anything in their power to prevent abuse. The user is prohibited from sharing their account with other people.
- We reserve the right to prevent simultaneous logins from multiple devices.
- The user is obligated to make sure that he holds the rights on all resources uploaded. If this does not hold true, the user is obligated to at least hold a license that allows them to use the content and resources of third parties;
- Assuming the availability of means to contact a user directly, users are not allowed to harass other users using the features provided by the Fanpage Karma platform. (e.g. repeated requests in the absence of response or expressed desire not to be contacted).
- Companies that stand in direct competition to Fanpage Karma (e.g. by selling social media analytics tools) are prohibited from advertising or mentioning their product without our written approval.
- The user is not permitted to publish content or graphics of Fanpage Karma without redirecting to the contents source ("Fanpage Karma") and providing a link to the corresponding Fanpage Karma websites (e.g. https://www.fanpagekarma.com/facebook/fanpagekarma). It’s forbidden to sell, reproduce or publish the contents provided by Fanpage Karma without the written consent of uphill GmbH.
- The users are obligated to comply with the legal obligations that concern them. This includes adherence to information obligations on websites and within social media profiles for which Fanpage Karma is being used or which are covered by the data processing done by Fanpage Karma.
- For United States users: Under the Federal Communications Decency Act of 1996, uphill GmbH is not legally responsible, nor can it be held liable for damages of any kind, arising out of or in connection to any defamatory or otherwise legally actionable remarks, information, feedback or other content made available on Fanpage Karma.
§ 10 – Sanctions
- Since the integrity and functionality of Fanpage Karma are essential to its users, sanctions will be imposed on users if, and to the extent that, there are concrete indications of them violating applicable law, third party rights, morality and / or these terms.
- When choosing the sanction to be imposed, uphill GmbH will take the factual circumstances and legitimate interests of the user concerned into consideration and, among other things, also take into account whether or not the user was accountable for their actions. The following graded sanctions are available to uphill GmbH:
- to issue a warning;
- to limit the use of Fanpage Karma;
- temporarily disable a user’s account;
- permanently disable a user’s account / terminate contract, if necessary to ban the user from Fanpage Karma websites.
§ 11 – Indemnification
- Users are obligated to release uphill GmbH from all claims that third parties could allege as a result of their rights being damaged.
- If a third party raises a claim against Fanpage Karma as a result of content that has been published by a user, said user is obligated to release Fanpage Karma from all duties and compensate us for the financial damages caused by their actions.
§ 12 – Usage rights granted by users
- The users grant uphill GmbH rights of use to their legally protected contents that are necessary for the contractual provision of the Fanpage Karma services (e.g. the right to duplicate user contents in order to store them on the servers or to create backups). uphill GmbH will only make use of this authorization in compliance with the contractual and statutory confidentiality and data protection requirements.
- The authorization lasts indefinitely or until revocation or the termination of a contract and the end of post contractual relations.
§ 13 – Reference
- uphill GmbH is entitled to refer to the works designed and produced for the user as well as the services provided, excluding contents covered by individual confidentiality agreements, for the purpose of self-promotion. The user is not entitled to a claim any compensation.
- uphill GmbH is entitled, subject to any written revocation of the user, to reference existing and / or former business relationships (e.g. in form of listing company name and logo) on its own advertising media and its online presence.
§ 14 – Authorization
- Users authorize uphill GmbH to act on their behalf, provided that it is necessary to assure the provision of the services commissioned by the users.
- If users provide uphill GmbH with access data for third party services, the granted authorization extends as part of the provision of services. Users ensure that uphill GmbH is authorized to use the access data in the respective context.
§ 15 – Usage rights, Prohibition of Scraping, and Misuse
- Users are obligated to only use Fanpage Karma for the individually specified contractual purposes.
- Additionally, users are permitted front renting, lending, leasing, selling, modifying or otherwise granting access to third parties to the aforementioned services without explicit, written consent of uphill GmbH. The listed prohibitions serve as provisories to mandatory legal provisions. Sub-licenses may not be granted.
- Users may only use Fanpage Karma by operating the provided input screens and interfaces. All actions that are appropriate to interfere with the functionality of Fanpage Karma, software and infrastructure (e.g., scripts, robots, crawlers) are prohibited. In particular, users are prohibited from causing excessive loads, which are higher than the regular, with normal use of Fanpage Karma expected intensity of use and frequency.
- Users commit to not engaging in scraping, i.e., the automated reading, collecting, or extracting of information, data, or content, on the software or websites provided within the scope of Fanpage Karma or having it carried out by others.
- Company names, logos and / or product names listed on Fanpage Karma’s online presence are the registered trademarks or brands of their respective owners. Copyright and otherwise legally protected graphics, images and texts may not be used without the consent of the respective rights holders or the existence of a framework that legally permits third party use.
- uphill GmbH reserves the right to take appropriate technical and legal measures to enforce the provisions of this section and prevent the abuse of Fanpage Karma.
- Violations of the aforementioned provisions may lead to the immediate termination of the contract, the blocking of the user's access to Fanpage Karma, or claims for damages against the user.
§ 16 – Fees, use of the paid version, billing, payment terms
- Same as the method of payment, both the payment period as well as the price of the subscription and / or service depend on the prices communicated prior to the conclusion of the contract.
- All prices declared, unless specifically indicated otherwise, exclude VAT.
- Fees are to be paid in advance to cover the respective billing period. Unless indicated otherwise, invoices are due within two weeks' time.
- uphill GmbH reserves the right to transmit invoices and reminders through electronic means (e.g. emails).
- The user can settle invoices using the payment methods offered by uphill GmbH. Currently available options are: debit and credit card payment as well as bank transfer.
- Fee adjustments are only possible upon expiration of a subscription (e.g. at the end of the payment period). Changes take effect within two weeks' time, provided that the customer does not explicitly cancel the subscription in written form. As part of the initial notification, uphill GmbH will inform the customer of the consequences of a failure to object.
- If the user defaults on payments, uphill GmbH reserves the right to refuse fulfillment of due services and to restrict the user’s access to their user account and the Fanpage Karma services until all bills have been settled. In such cases, uphill GmbH will notify the user seven working days in advance to provide enough time to cure the default. Other legal and contractual rights of uphill GmbH remain unaffected. Such restriction of a user account may not take place if it is inappropriate and / or unreasonable. uphill GmbH’s compensation claim remains unaffected by a user account restriction. Upon settlement of due payments, access to Fanpage Karma will be re-enabled in a reasonable amount of time. We reserve the right to restrict a user’s access as a milder remedy, provided uphill GmbH has the right to immediately terminate the contract based on these terms and conditions.
- Expenses incurred by chargeback of a transaction (e.g. due to lack of coverage), due to incorrectly transmitted user data and / or reminders of due claims will be charged to the user’s account. uphill GmbH will only make claims for directly incurred or statutory granted costs (e.g. material costs and fees paid for third party services, such as postage or chargebacks). The user reserves the right to prove no or lower costs.
- A set-off is exclusively possible with claims already recognized by the other contracting party or determined by a court of law, unless they are primary service claims and claims for defects. Right of retention can only be alleged for claims that are part the respective contract.
§ 17 – Contractual relationship, termination of contract
- The user as well as Fanpage Karma has the right to terminate the free membership at any point. To protect the user from his or her account being deleted without his knowledge, Fanpage Karma reserves the right to verify the user's identity by email inquiry.
- The duration of the fee-based membership is determined by the minimum term. At the end of a cycle the subscription is automatically renewed for the same duration, unless terminated at least one day prior to the end of period by either the user or uphill GmbH. The subscription can be cancelled on the designated websites (https://www.fanpagekarma.com/settings). Upon terminating the subscription, the user can still use all fee-based features until the end of the payment period. If Fanpage Karma has been terminated, the user is entitled to retain free usage of the website.
- Users can deactivate their account on the designated websites (https://www.fanpagekarma.com/settings). Upon deactivation, all contractual agreements and duties automatically expire. If an account is deactivated, uphill GmbH reserves the right to store said account’s information on Fanpage Karma to give users the opportunity to reactivate their account at any given point in time. Given an individual request, the deletion of user data is possible, provided that uphill GmbH has no legal storage obligations or legitimate contractual or legal reasons that would justify retaining the data.
- The provisions of this section shall not affect the right of both parties to terminate the agreement in the case of a compelling reason. A compelling reason includes any of the following events:
- the user fails to comply with any applicable legal provisions,
- the user breaches a contractual obligation, in particular these terms and conditions,
- Insolvency proceedings are applied for or opened against the assets of the user or the opening is rejected for lack of assets or the uphill GmbH ceases its activity.
- A termination in the case of a compelling reason has to be preceded by a warning. Said warning can be waived, if it fails to be appropriate and / or reasonable for the other party. This is especially the case if the behavior of the contracting party gives reason to expect further misconduct in spite of a warning.
- If Fanpage Karma has terminated the contract in the case of a compelling reason, pursuant to this section, the user is not entitled to claim reimbursement.
- Upon contract termination, users are free to save and / or export data associated with their accounts. uphill GmbH reserves the right to irrevocably delete any data that saved or stored on the Fanpage Karma platform during the contract period.
- Payment claims are not affected by the contract termination.
§ 18 – Service availability
- Users who are entrepreneurs are obligated to immediately check the services of uphill GmbH and, assuming for it to be practicable in the ordinary course of business, notify uphill GmbH immediately upon discovering a defect. Defects are to be reported in form of a comprehensive description, as far as possible in form of written records, screenshots or other documents illustrating the deficiencies (email is sufficient). Legal examination and complaint obligations of users remain unaffected.
- Claims for damages are subject to the restrictions of § 21 of these terms and conditions ("Liability and damages").
- The user is not entitled to have uninterrupted access to Fanpage Karma and acknowledges that it is technically impossible to achieve 100% availability. uphill GmbH endeavours to keep the platforms up and running without any interruptions. However, maintenance, security and capacity works, as well as events that are outside of uphill GmbH's circle of influence (e.g. electricity failures, blackouts, overstressed hubs) can lead to temporary issues and the unavailability of the services.
- Claims for defect are not applicable in case of insignificant deviation from the agreed or assumed quality of the service or in case of the insignificant impairment of the usability of the services in accordance with the purpose of the contract. In particular, uphill GmbH expressly declines all warranties and liability for:
- incorrect user data submitted by the user upon registration or any other data posted, uploaded or otherwise provided by the user on the Fanpage Karma platform;
- uninterrupted availability of Fanpage Karma or possible system or network related outages, interruptions or malfunctions of the installations or services of Fanpage Karma, provided for them to be outside of uphill GmbH's circle of influence; in particular not for errors due to force majeure events or outages of communication networks and / or gateways
- minor malfunctions and disturbances of Fanpage Karma services that do not prevent the purpose of the contract;
- submitted contents and the creditworthiness of users;
- The statutory period of limitation for claims for defects is 6 months.
§ 19 – APIs and Third-Party Software
- Insofar as uphill GmbH provides Application Programming or other Interfaces (“APIs”) through which the user can access the software of uphill GmbH using their own or third-party software (hereinafter referred to as "third-party software"), uphill GmbH guarantees the functionality of the APIs within the scope of the availability regulations of these Terms and Conditions, only with respect to the APIs provided by uphill GmbH and insofar as their functionality lies within the sphere of influence of uphill GmbH.
- uphill GmbH assumes no warranty or liability for the user's decision to use third-party software, the functionality of the third-party software, changes in the scope of services, or subsequent restrictions that lead to incompatibilities with the APIs or restrict their accessibility. Furthermore, uphill GmbH assumes no liability for the contents or information processed using the third-party software, in particular data created, transmitted, or obtained, and for the actions of third parties related to the software.
- The limitations in this section apply without prejudice to the liability and damages provisions in § 21 of these Terms and Conditions and, if concluded, the agreements reached with the user in a data processing agreement.
§ 20 – Liability and damages for Non-US-Users
- Liability of uphill GmbH is excluded unless agreed otherwise in the following. The aforementioned liability provisions shall also apply to our assistants and vicarious agents.
- uphill GmbH is liable without limitation for intentional or grossly negligent damages caused by uphill GmbH, its legal representatives or executives, as well as for intentionally caused damages of other vicarious agents. For gross negligence on the part of other vicarious agents, the liability shall be determined in accordance with the provisions for minor negligence listed under point 5 of this section of the general terms and conditions "Liability and Damages".
- The uphill GmbH is liable without limitation for intentional or negligent damage caused by injury to life, body or health by the uphill GmbH, as well as their legal representatives or vicarious agents. The uphill GmbH is liable for damages due to lack of warranted characteristics up to the amount that was covered by the purpose of the warranty and was recognizable for the uphill GmbH at the point of filing the warranty.
- uphill GmbH is liable for damages caused by product liability in accordance to the regulations and mandatory product liability laws.
- uphill GmbH is liable for damages resulting from the violation of cardinal duties by uphill GmbH, its legal representatives or vicarious agents. Cardinal duties are the essential obligations that form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the user may rely. If uphill GmbH has slightly negligently violated these cardinal duties, its liability is limited to the compensation of the foreseeable, typically occurring damage (hereinafter referred to as "typical damage"). The typical damage is generally limited to the amount stipulated and otherwise to the amount of the contractual payment of the user for the period in which the breach of duty occurred. In this case, the typical damage is limited to 1,000.00 Euro. This does not apply if the restriction in individual cases would be inappropriate in terms of equity. The typical damage does not exceed five times the agreed payment.
- The uphill GmbH is not liable for the loss of data, if the damage could have been avoided by the user fulfilling his duty to backup the stored data. In any case, the user must acknowledge comparative negligence. In case of a contract termination, the user is responsible for the backup of his data.
§ 21 – Liability and damages for US-Users
- For United States users: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO (A) THESE TERMS, (B) CONTENT AND/OR YOUR USER CONTENT, (C) THE APPLICATION, AND/OR (E) ANY ASPECT OF THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall our total liability to you for all damages exceed an amount greater than $125 USD. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
- For United States users: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT, YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, AND DISCHARGE ALL CLAIMS, ACTIONS, DEMANDS, SUITS, OR PROCEEDINGS (“CLAIMS”) AGAINST US AND OUR AFFILIATES, INCLUDING ANY AND ALL LIABILITY FOR ACTUAL AND/OR CONSEQUENTIAL DAMAGES, COSTS, AND EXPENSES (INCLUDING LITIGATION COSTS AND ATTORNEYS’ FEES) OF EVERY KIND AND NATURE ARISING FROM OR IN ANY WAY RELATED TO (A) THE APPLICATION, (B) CONTENT, AND/OR YOUR USER CONTENT, AND/OR (C) ANY INACCURACY, UNTIMELINESS, OR INCOMPLETENESS OF ANY AND ALL CONTENT OBTAINED OR ACCESSED BY OR THROUGH THE APPLICATION. FURTHER, IF YOU ARE A RESIDENT OF THE STATE OF CALIFORNIA, YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “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.” YOU UNDERSTAND THAT ANY FACT RELATING TO ANY MATTER COVERED BY THESE TERMS MAY BE FOUND TO BE OTHER THAN NOW BELIEVED TO BE TRUE, AND ACCEPT AND ASSUME THE RISK OF SUCH POSSIBLE DIFFERENCES IN FACT. IN ADDITION, YOU EXPRESSLY WAIVE AND RELINQUISH ANY AND ALL RIGHTS WHICH YOU MAY HAVE HAD UNDER ANY OTHER STATE OR FEDERAL STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT, TO THE FULLEST EXTENT PERMITTED BY LAW.
§ 22 – Compliance for US-Users
- You represent and warrant that you shall comply with all applicable laws, statutes, ordinances, and regulations regarding use of the application, regardless of your geographic location. We will cooperate with law enforcement agencies in any investigation of alleged unlawful activity of which we are made aware of regarding the use of our application and may contact law enforcement if we are made aware of any use of our application which potentially violates any applicable laws, statutes, ordinances, or regulations. We make no representation that the application is operated in accordance with the laws or regulations of, or governed by nations other than the Federal Republic of Germany. By accessing the application you certify that you meet your country’s and our express age and other eligibility requirements for use of the application. Those who access or use the application do so of their own volition and are entirely responsible for compliance with applicable law.
§ 23 – For United States users: Trademarks and Intellectual Property
- Trademarks: Fanpage Karma, uphill GmbH and all other graphics, logos, page headers, button icons, scripts, service names and other content that we use, manage or control are trademarks, registered trademarks or trade dress of ours or our subsidiaries, officers, employees, independent contractors, suppliers, representatives, licensors, licensees, successors, assigns, agents, partners, or other affiliates (collectively “Affiliates”) in the United States or other countries or both. No one may use these trademarks or trade dress in connection with any product or service that is not our product or service without our express written permission. All other trademarks that appear on the application are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us or any of our Affiliates.
- Copyright: Except for content under license to us, we claim copyright and all copyright protection afforded, under international law and United States law relating to all text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, software (ours or our software suppliers), and all other content on the application. The compilation of all content on the application is our exclusive property, and it is similarly protected. We also claim a copyright, and all copyright protection afforded, under international law and United States law to all material described in the trademarks section above. Your access to all information and content located on the application is strictly permitted through the license granted to you under these Terms. Except for the license granted to you and for the licenses granted to us in these Terms, all rights, title, and interest in content, in all languages, formats, and media throughout the world, including all copyrights, are and will continue to be the exclusive property of ourselves and other parties. Except as permitted by these Terms, you are prohibited from modifying, copying, distributing, displaying, publishing, selling, licensing, creating derivative works, or otherwise exploiting any content available on or through the application without our prior written permission, or in the case of content owned by a third party, without first receiving permission from the owner of that content. You may not alter or remove any trademark, copyright or other notice from copies of the content.
- Infringement Claims. We respect the intellectual property of others and ask that users do the same. In connection with the application, we have adopted and implemented a Digital Millennium Copyright Act (“DMCA”) policy respecting intellectual property that provides for the removal of any infringing or unauthorized materials and for the termination of a user’s ability to use our application, in appropriate circumstances, if we determine that a user is infringing on the intellectual property rights of others. If you believe that a user is, through the use of the application, unlawfully infringing by submitting unauthorized content, and wish to have the allegedly infringing or unauthorized material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512) must be provided to our designated copyright agent (“Designated Agent”): your physical or electronic signature; identification of the works or rights that you claim to have been infringed; identification of the content on the application that you claim is infringing and that you request us to remove; sufficient information to permit us to locate such content; your address, telephone number, and e-mail address; a statement that you have a good faith belief that use of the objectionable content is not authorized by the copyright or other rights owner, its agent, or the law; and a statement that the information in the notification is accurate, and that, under penalty of perjury, you are either the owner of the copyright or other right that has allegedly been infringed or violated or that you are authorized to act on behalf of the copyright or other rights owner. Note that, pursuant to 17 U.S.C. § 512, any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs, and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
- Our Designated Agent is:
Name: Nicolas Graf von Kanitz
Address: uphill GmbH, Oranienstr. 188, 10999 Berlin, Germany
§ 24 – Changes to these terms and conditions
- uphill GmbH reserves the right to change these terms and conditions at any point in time, provided said changes do not impair user rights. In particular, changes to these terms and conditions are justified:
- if uphill GmbH is obligated to make sure that the Terms of Service comply with the legislation;
- if the changes serve to comply with mandatory judicial or administrative decision and / or legal precedent;
- if completely new features or services that require a description in these Terms of Service are being introduced, unless it has an unreasonable impact on the user's experience;
- if the modifications are exclusively beneficial for the user.
- In such cases, uphill GmbH will inform users no less than two weeks prior to the altered terms and conditions taking legal effect. uphill GmbH will use the user provided email address as a means of contact.
- Users have two weeks' time to object to the new terms of conditions. If they fail to do so, the altered terms and condition are the be considered accepted. As part of the initial notification, uphill GmbH will inform users of the consequences of a failure to object.
- If the user objects to the new terms of conditions in time, uphill GmbH remains authorized to terminate the contractual relationship with a notice period of one week.
- Additionally, users can agree to the changed terms and conditions by submitting an explicitly worded letter of consent.
§ 25 – Applicable law, place of jurisdiction and miscellaneous
- uphill GmbH reserves the right to grant third parties rights to Fanpage Karma (particularly for financing purposes), provided that the confidentiality and legal requirements are being met, in particular data and consumer protection laws. The user may only redirect claims against uphill GmbH to third parties upon receiving a written consent of uphill GmbH.
- These terms and conditions and the contractual relationship shall be governed by German law.
- For entrepreneurs, the place of fulfillment is Berlin. Place of jurisdiction is Berlin, provided that the user is a businessman, legal entity under public law or special fund under public law or the user lacks a general jurisdiction in Germany. uphill GmbH reserves the right to choose another permissible place of jurisdiction.
As of: May 2018