Social Media Wave GmbH, Apostelnstraße 15–17, 50667 Cologne, Germany, represented by the CEO Marc Seick (hereinafter „SMW“), sells the app, Sparkd.
- Conditions of Provision/Services of Sparkd
2.1. SMW provides the Sparkd app, which enables users to interact with other users. Each Spark consists of a title and/or image, video, location and text elements as well as at least one button. Each Spark allows you to send things such as votes, surprises and moments, either privately to individual or multiple friends in the chat area, or to share it with an entire community via the Inspire area. You can also view and share Sparks from other users in the Inspire feed.
2.2. SMW strives to ensure proper operation of the publishing and messenger service, but is not liable for the messenger service’s continuous usability and accessibility. This applies, in particular, to technical delay during maintenance or further development, and interruptions or failures of services, the Internet or access to the Internet. Access is only granted to the current version of the app Sparkd. Sparkd is not obliged to keep and save old versions of the Sparkd app.
2.3. SMW reserves the right to entirely or partially change parts of the offers, individual offers or all offers without any further notice, or to cease publication on a temporary or permanent basis.
- Registration of Users
3.1. The use of the app Sparkd is only possible after the user has successfully registered. Only persons, who are over the age of 12, may register.
3.2. Registration takes place exclusively via the app Sparkd. When the user starts the Sparkd app for the first time after installing it, s/he can create a user account by providing his/her username, age, gender, profile image and phone number.
3.3. The user is obliged to provide truthful information during the registration process and to update such information as necessary. In particular, the rights of third parties may not be infringed upon registering.
3.4. No right to registration exists.
- Rights to the Content
4.1. Sparkd usually contains content that has been created and uploaded by the users. All material published within Sparkd, in particular texts, photographs, graphics and video, are subject to the applicable statutory provisions, in particular trademark law, copyright law, ancillary copyright law and competition law. The reproduction, public display or other use or exploitation of such protected content is usually prohibited without the consent of the respective copyright holder.
4.2. Uploading texts, pictures or other copyrighted content on the server provided by Sparkd grants the user SMW a royalty-free and transferable, sub-licensable, non-exclusive right of use without any restriction on location and time, in particular to reproduce or make this content publicly available. This encompasses the right to edit and translate any works provided.
4.3. SMW reserves the right not to keep content available or to only keep it available for retrieval for a limited time, as well as to modify or delete such content, without providing a reason.
4.4. The user shall only publish such content via the app Sparkd to those who have the necessary rights. In general, the user only have the necessary rights if s/he created the content himself/herself and/or obtained the consent of the copyright holder. This applies in particular to images and videos uploaded by users. If a person is shown in the video and/or film, it must be ensured that the consent of the person depicted has been obtained or that statutory authorization for use is applicable.
4.5. Upon SMW’s first request, the user shall indemnify SMW from any liability made in connection with claims of third parties, including, in particular, claims regarding the violation of copyright law, competition law, trademark law and personality rights, which may arise against SMW in relation to uploaded material. This indemnification also includes the reimbursement of costs, which SMW incurs/has incurred in the course of asserting/defending its legal rights. SMW shall immediately inform the user about the measures to be taken in the assertion/defense of legal rights.
4.6. The user is entitled to take appropriate measures in order to defend against claims of third parties or to pursue his/her rights. Any actions taken by the user on his/her own must be coordinated in advance with SMW.
4.7. If the user becomes aware of a violation of third-party rights, s/he must inform Sparkd immediately thereof by way of email at firstname.lastname@example.org.
- Prohibited Content
5.1. Content that infringes upon valid laws or which otherwise contains any illegal content, is prohibited. Likewise, content that is harmful, threatening, abusive, harassing, defamatory, discriminatory, slanderous, sexist, pornographic, which glorifies violence or belittles, which is racist, which is extremist, which promotes terrorist or extremist political organizations, which calls for unlawful action, or which is otherwise harmful to minors, is prohibited. Penal laws and regulations for the protection of minors are to be respected.
5.2. Content which disseminates information about illegal activities (e.g. presentation of illegal programs, cracks, illegal downloads, emulators as topics of discussion) are also prohibited.
5.3. Content that violates rights of third parties, in particular patent law, trademark law, copyright or ancillary copyright law, trade secrets, personal rights or property rights, may not be uploaded and kept for retrieval.
5.4. The publication of personal data of third parties (e.g. name, address, telephone number) without express written consent of the person(s) concerned is not allowed.
5.5. Content that offers goods or services and/or serves other promotional or commercial purposes is not permitted. This prohibition also includes content such as a “Snowball system”.
5.6. Links that lead directly to a download or a file that have no connection with the online platform are prohibited.
Users are responseble for maintaining a friendly and respectful tone. Personal attacks against other users, insults and discrimination are therefore expressly not permitted and will not be tolerated. Cynical and ironic remarks should be avoided.
- Liability and Limitation of Liability
7.1. SMW is a service provider within the terms of § 7 para. 1 of the Telemedia Act (TMG) and is responsible for its own content, which is available on the online platform, in accordance with general laws. SMW does not guarantee the results that can be obtained by using services, or with respect to the correctness and reliability of information and applications obtained in the context of using the services.
7.2. SMW is not required and is also not in the position to comprehensively review the legality of content uploaded or published by users, and/or to investigate circumstances that indicate illegal activity. The same shall apply if and insofar that third-party websites are linked to or referenced on the online platform. SMW does not appropriate any content uploaded and/or published by users as well as any interlinked content located on third-party websites. SMW does not guarantee that this content is legal, accurate, current and/or complete. SMW is not liable for damages arising from the use of this content.
7.3. When SMW receives tips about possible violations of the law or violations of rights by third-party or linked content, SMW will check the content and/or accounts and, if necessary, block and delete such content, to the extent that it is the duty of SMW.
7.4. SMW assumes unlimited liability for damages or for the refund of futile expenditures arising out intent or gross negligence, for injury to life, body or health, in accordance with the provisions of the law on product liability and within the scope of any guarantee furnished by SMW.
7.5. In the event of a minor negligent breach of an obligation that is essential for the purpose of the contract (cardinal obligation), SMW’s liability shall be limited in its amount to the damage that is predictable and typical according to the type of transaction in question.
7.6. The above-mentioned limitation of liability from Para. 7.4 to 7.5 also applies to the personal liability of SMW’s employees, representatives and members of its executive body.
7.7. SMW shall only be liable for the loss of data up the amount that would have been incurred for its recovery if the data had been secured properly and backed up on a regular basis.
7.8. No liability exists beyond this.
- Term and Termination
8.1. The contract shall be concluded for an indefinite term. The user and SMW is entitled to terminate the contract within a period of two weeks prior to the end of a calendar month.
8.2. The right to extraordinary termination for good cause shall remain unaffected. Good cause shall apply, in particular if
- the user misuses personal data of third parties.
8.3. The user must be given an opportunity to respond before extraordinary termination for good cause.
8.4. If there is good cause, SMW is entitled to deactivate the user’s account with immediate effect.
- Data Privacy
- Applicable Law, Place of Jurisdiction
10.1. The law of the Federal Republic of Germany shall apply, excluding the conflict of law provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).
10.2. To the extent permitted by law, the headquarters of SMW is the sole place of jurisdiction for all disputes arising.
- Severability Clause
- Right of Modification