Terms and Conditions of Use for the use of the “fruits” Social Platform of fruits GmbH Registration Court: Munich Local Court, Registration Number HRB (Commercial Register, Companies' Section) No. 276411 represented by Dr. Fabian Heuschele, Director Liebigstraße 8, D-80538 Munich, VAT ID: DE353596041 E-mail: hello@fruits.de (Hereinafter referred to as “Provider”)
1.1 These terms and conditions of use lay down the use of the “fruits” social network operated by the Provider, which can be accessed at https://fruits.de/ or other domains and via the fruits app (hereinafter referred to as “fruits”). They apply to services on fruits or in connection with fruits, in so far as the latter are provided by the Provider.
1.2 fruits is a social platform where individuals who have registered with fruits and have set up a profile (hereinafter referred to as “Users”) can connect with other Users, as well as post and share content. fruits is aimed at Users who create content and wish to make it available to other Users on fruits (hereinafter referred to as “Creators”) and Users who are informed about news of the Creator and wish to consume content published by Creators (hereinafter referred to as “Fans”). Any User may be both a Creator and a Fan. It is not necessary for the User to establish the latter in advance. Users can be both consumers and entrepreneurs.
1.3 In order to use fruits, the User needs to have an Internet connection with the necessary bandwidth. The bandwidth required in particular depends upon the type of content provided. In addition, the use of fruits makes it necessary for the User to have the most up-to-date version of a frequently used browser (e.g. Google Chrome or Safari). Should the User’s equipment not fulfill these requirements, he or she may not be able to use fruits, or not in its entirety. The Provider does not owe the User uninterrupted availability of fruits.
2.1 With fruits, the Provider provides a social network for mutual exchange and posting content. Any User can create his or her own profile, and post content on it that is visible to other Users on the prerequisites laid down by the User. Users may follow profiles of other Users.
2.2 The Provider shall be entitled to continue to develop fruits, at its own discretion, in order to add new features and improve existing features. The Provider shall always make the most up-to-date version of fruits available to the User.
3.1 In order to use fruits, the User is concluding a use agreement with the Provider, which is subject to these terms and conditions of use. In order to set up a user account, the User needs to be a natural person, be at least 18 years of age, and have legal capacity. In the case of a legal person, the use agreement needs to be concluded by an individual with unlimited legal capacity, who is entitled to represent the User in legal transactions. Each User may only set up one user account. Any details which the User discloses to fruits need to be complete and correspond to the truth. Should any individual details change, the User will rectify them without delay.
3.2 The User may set up a user account on fruits under the “Register” tab. For this purpose, the User needs to specify his or her email address, establish a password (hereinafter referred to as “Log-in Details”), and fill in the remaining fields marked as “Mandatory details”, and thereafter click “Register”.
3.3 Once the User clicks “Register”, the Provider sends the User an email, to the email address specified by the User. The User is requested, in the email, to click on a registration link. By clicking on the registration link, the User confirms that he or she has access to the email address specified. By clicking on the registration link, the User states that he or she is submitting an offer to conclude a use agreement.
3.4 The Provider may accept the User’s offer, by confirming to the customer that the user account has been set up. The confirmation may be implemented as a notice on the User’s screen and/or by email. The User has no legal claim to conclude a use agreement. The Provider may turn down the User’s offer without giving reasons. The Provider may make acceptance dependent upon reviewing the details (e.g. by sending a code by SMS or by means of a postcard).
3.5 No costs are incurred to the User for registering or for creating and maintaining a profile on fruits.
3.6 German and English are available as contractual languages for concluding the contract. Prior to registering, the User will be given the opportunity to download these Terms and Conditions of Use as a .pdf document. The Provider shall, moreover, store the contractual text, and keep it to hand at https://fruits.de/tos.
3.7 The Provider’s Customer Service can be reached, using the above-mentioned contact details, from Monday to Friday, between 9 a.m. and 5 p.m. CET.
4.1 In order to use fruits, the User needs to register with his or her Log-in Details.
4.2 The User is personally responsible for protecting his or her Log-in Details. They are to be kept secret, and, subject to the explicit consent of the Provider, may not be made accessible to third parties. The User is aware that third parties could act abusively at fruits, in the name of the User, if they are aware of the Log-in Details. Should the User establish or suspect that his or her Log-in Details are being used by third parties, he or she can either change his or her Log-in Details in his or her account without delay or inform the Provider about the suspicion without delay.
4.3 In the event of a substantiated suspicion that the User’s Log-in Details are being abused, in particular if it has been notified by the User personally, the Provider shall be entitled to block access temporarily, with immediate effect, or - in cases of culpable action on the part of the Customer - pronounce an extraordinary termination. The Provider shall inform the User about the Log-in Details being blocked immediately, in text form.
5.1 Posting content
5.1.1 Any Creator may make content available on fruits, so that it can be accessed by Fans.
5.1.2 The Creator and/or the Provider can lay down that individual items of content are only available to certain Users or user groups.
5.1.3 The uploading of content is only permitted for the purpose of publishing it for the benefit of third parties. The Creator is not permitted to use fruits as a storage medium, e.g. to back up his or her own documents.
5.2 Paid Content/Creator Pass
5.2.1 The Provider gives a limited number of Creators permission to post content to fruits that can be accessed for a fee (hereinafter referred to as a “Creator Pass”). The Provider moreover allows selected Creators to grant other Creators a Creator Pass (hereinafter referred to as “Creator Pass Invites”). The number of Creator Passes, as well as whether, and, if applicable, how many Creator Pass Invites a Creator can issue, is decided solely at the Provider’s discretion. A Creator Pass is only valid for the respective Creator personally, and cannot be transferred to third parties. The Creator is not permitted to demand a fee or other remuneration for issuing a Creator Pass Invite.
5.2.2 The Provider is at any time entitled, at its own discretion, to revoke existing Creator Passes or restrict the scope of them. The Provider may in particular revoke or restrict existing Creator Passes if the Provider suspects that the Creator has received or paid a fee or other remuneration for the Creator Pass Invite, or the Creator has posted unlawful content to fruits within the meaning of Clause 5.4.
5.2.3 Should the Creator be in possession of a valid Creator Pass, he or she can determine that individual content (hereinafter referred to as “Single Access”) and/or the access to the Creator’s entire profile (hereinafter referred to as “Subscription”) can only be provided to users in return for payment of a fee (hereinafter referred to as “Paid Content”).
5.2.4 The Creator can personally lay down the amount of the remuneration for the Paid Content. For Single Access, a one-off payment is to be made. The price for the Paid Content shall always be due for payment in advance. The Fan can choose between the payment options specified on fruits at the “Means of Payment” link.
5.2.5 In order to access the Paid Content, the Fan concludes a separate agreement on the provision of the Paid Content with the Creator (hereinafter referred to as “Content Agreement”). The posting of Paid Content on fruits is a legally binding offer on the part of the Creator to conclude a Content Agreement. The Fan may accept the Creator’s offer, by concluding the ordering process and clicking on “Order for a Fee”.
5.2.6 In the case of Individual Access, the remuneration shall always be due for payment directly after concluding the Content Agreement or, in the case of a Subscription, at the beginning of the respective payment period. The Creator shall conclude the Content Agreement in his or her own name and on his or her own account. The Provider only acts as a broker for the conclusion of the agreement between the Fan and the Creator. No direct contractual relationship exists between the Provider and the Fan in regard to the provision of content.
5.2.7 The Creator hereby irrevocably directs the Provider to accept the payments for the remuneration from the Fans for and on behalf of the Creator as discharge of debt, and is in agreement with the latter.
5.2.8 Upon a Subscription being concluded, the Fan has no claim to particular content being made publicly accessible to him or her during the Subscription period.
5.2.9 Consumers can not present themselves as Creators who provide Paid Content.
5.2.10 When making use of Paid Content, in so far as he or she acts as a consumer the Fan has a right of revocation vis-à-vis the Creator. Should the Fan inform the Provider of his or her decision to revoke the agreement, the Provider shall act as the Creator’s receiving agent, and shall pass on the revocation to the Creator within a reasonable period of time. Details on the right of revocation and the exercising of it can be found in the information on revocation in Appendix 1. The User may only make use of free content if he or she agrees in advance that the Provider already begins to execute the agreement on the provision of free content prior to the expiry of the revocation period and confirms that he or she is aware that, by giving his or her consent, he or she loses his or her right of revocation upon the Provider beginning to execute the agreement.
5.3.1 Should a Fan conclude a Content Agreement with the Creator, the Provider will pay out to the Creator the net price less a commission of 5.0 per cent of the gross price that the Fan pays for the Paid Content (hereinafter referred to as the “fruits Fee”). However, the fruits-Fee is at least 1 € (in case of US-Dollar as currency this part of the commission is fixed at $ 1.00). The Provider’s claim to the fruits Fee arises upon the Content Agreement being concluded. The claim to the fruits Fee shall also continue to exist, to the full extent, if the Fan makes use of his or her right of revocation, withdraws from the agreement, or the agreement is terminated prematurely for other reasons, that do not fall within the Provider’s sphere of responsibility. The net price is the amount paid by the Fan less VAT (if VAT is applicable), the fruits Fee, any commission which the Provider owes to third parties for the Creator’s Paid Content, in particular affiliate commission, and also any costs incurred to the Provider for handling the payment.
5.3.2 The Provider shall provide the Creator with an invoice, in text form, for each month in which the Provider has concluded a Content Agreement on Paid Content of the Creator. The Provider shall always send the invoice at the beginning of the calendar month following the conclusion of the Content Agreement. The Provider declares that it is explicitly in agreement with the invoice being transmitted electronically.
5.3.3 Credit is always paid out to the bank account specified by the Creator as at the 15th day of a given calendar month. The Provider reserves the right to only pay out credit to the Creator once it has reached the amount of at least € 100.00. The Creator may only offset the Provider’s claim to commission against any claims that are undisputed or have been established with legal finality.
5.3.4 The Provider may make the payment of credit dependent upon first clearly and without any doubt being able to identify the Creator.
5.3.5 In so far as paid services are subject to VAT in Europe, the Provider shall pass on the VAT to the respective competent Internal Revenue Service in the name of and on behalf of the Creator. The Creator shall, moreover, be personally responsible for adhering to the fiscal requirements which apply to him or her.
4.1 Users may not post any content which is in conflict with applicable legal requirements or these terms and conditions of use, or which infringe any rights of third parties (hereinafter referred to as “Illegitimate Content”) on fruits. The User shall be personally responsible for seeing to it that no Illegitimate Content is posted on fruits.
4.2 Illegitimate Content is in particular any content which
4.3 fruits shall be authorized to delete Illegitimate Content at any time, without issuing a prior warning. In cases of doubt, fruits may request the User who has posted content to respond, and block the content concerned until the User has dispelled all suspicion that the content may concern Illegitimate Content.
4.4 The Provider does not undertake a review of the content, in regard to whether the content may concern Illegitimate Content. Should the User notice any Illegitimate Content on fruits, he or she may contact the Provider, using the contact details specified in the legal notice.
4.5 The User shall, upon first being requested to do so, indemnify the Provider against any claims that may arise to the Provider based on the posting of Illegitimate Content. Said indemnity shall include any costs which may be incurred to the Provider as a result of the review, as well as any costs which may be necessary to defend the claims. The User shall inform the Provider without delay if, in consequence of the posting or any other use of Illegitimate Content that he or she has posted on fruits, a claim has been filed against him or her.
6.1 Granting fans rights of use
6.1.1 The content on fruits is subject to copyright protection. The Fan shall be obliged to preserve any applicable intellectual property rights, in particular copyright and any other intellectual property rights.
6.1.2 The Provider hereby grants the Fans the non-exclusive, revocable, not-transferable and non-sublicensable right to access the content that the Fan can access on fruits, for personal, non-commercial purposes, in particular to save it, should this be technically possible. The Fan is not permitted to remove any copyright endorsements or make any other changes to the content.
6.1.3 Should a regular fee need to be paid for the use of Paid Content, the right of use shall always be limited, in time, to the period for which the Fan has paid the regular fee in advance.
6.1.4 The Fan shall, at no time, be entitled to use the content for any purposes other than personal purposes. The Fan shall in particular not be permitted to make the content available to third parties or publish it.
6.2 Granting of rights of use by the Creator
6.2.1 By posting content on fruits, a Creator warrants that he or she is entitled to grant the Provider rights of use in the scope described below.
6.2.2 The Creator grants the Provider the non-exclusive, sub-licensable and transferable right, limited neither geographically nor content-wise, to use the Content, is so far as is necessary in order to grant the Fans rights of use in accordance with Clause 6.1 and/or provide it on fruits in any other way. The right of use in particular includes the right to make content publicly accessible, at its own discretion, either for a fee or gratuitously, and to duplicate it, edit it, store it, disseminate it or reproduce it. The editing right in particular includes the right to subject content to safeguards, in order to protect the content from being used by third parties without being entitled to do so and/or to clarify such violations. The above-mentioned rights also include commissioning third parties to exercise the aforementioned rights of use in the name of the Provider. The right of use in particular also includes the Provider’s right to advertise with the Creator’s profile and content.
7.1 It is incumbent upon the User to back up his or her details, documents and content stored on fruits on his or her own storage media at regular intervals.
7.2 fruits enables the User to send messages that only the recipient can see (hereinafter referred to as “Private Messages”) to the Provider and other Users. The User shall bear sole responsibility for the Private Messages sent by him or her. No legitimacy check is carried out by the Provider.
7.3 The User is prohibited from disseminating Private Messages that are racist, offensive, pornographic or otherwise illegitimate, or which constitute Illegitimate Content within the meaning of Clause 5.4. The User is prohibited from sending unwanted advertising emails (spam) as Private Messages. He or she is required to cease and desist from engaging in any manipulation of the fruits web system or deploying malware (viruses, worms, Trojans, etc.). The User is, moreover, prohibited from accessing fruits and/or content on fruits in an automated manner or on a mass scale, and/or storing said content somewhere else.
7.4 Should the User violate any of the obligations mentioned in Clauses 7.2 to 7.3, and should a claim be filed against the Provider by third parties for this reason, the User shall indemnify the Provider against any claims by third parties and associated costs (including any attorneys’ fees necessary) upon first being requested to do so. The Provider shall inform the User without delay about any claim filed by a third party, and give him or her the opportunity to comment on the claims. The User undertakes to provide any documents and information required to defend against the third-party claims, without delay. The Provider reserves the right to file any further or more extensive claims for compensation for damage against the User.
8.1 The Provider and the User shall, when implementing the Use Agreement, observe the requirements of the applicable data privacy law, in particular the EU General Data Protection Regulation and Federal Data Protection Act (BDSG).
8.2 In the course of providing fruits and fulfilling the Use Agreement, fruits will process personal data of the User in the scope described in the data privacy statement.
9.1 The User may terminate the Use Agreement at any time, with immediate effect, and without giving reasons, by deleting his or her user account.
9.2 fruits may terminate the Use Agreement at any time by giving 14 days’ notice, without giving reasons, in text form (e.g. by email).
9.3 Either party may terminate the Use Agreement with immediate effect for a significant reason. A significant reason shall in particular exist if the User seriously or repeatedly violates the provisions of these terms and conditions of use.
9.4 Upon the Use Agreement being terminated, the Provider shall delete the User’s user account permanently. The User will, in the process, lose his or her entitlement to access fruits content, upon the user account being deleted. This only applies if the content is the subject of Paid Services. Should the Provider terminate the User in accordance with Clause 9.3, the Provider shall, upon request, grant the User the opportunity to back up the content posted by him or her, as well as the services which the User has acquired through payment, within a period of 14 days of the User Agreement being terminated.
10.1 The Provider warrants that fruits is free of defects. In the event of content that has been purchased being defective, the Provider intends to act as a mediator between the Fan and the Creator in regard to subsequent fulfillment free of charge. The choice in regard to whether the subsequent fulfillment is to be carried out in the form of subsequent improvement or a subsequent delivery shall be at the sole discretion of the Creator. In addition, the Provider’s guarantee shall be in line with the statutory provisions of the German Civil Code (BGB). Should the Provider provide the services free of charge, it shall only be answerable for willful intent and gross negligence (cf. Sec. 521 German Civil Code (BGB)).
10.2 In the event of any losses which may arise through the loss of data, the Provider shall not be liable if, and to the extent that, said losses could have been avoided by the User regularly making a full backup of the content.
10.3 Any claims for compensation for damage due to breach of duty or based on tort, as well as any claims for compensation of futile expenditure, against the Provider and its vicarious agents and assistants shall be excluded, subject to the following exceptions.
10.4 The aforementioned limitation of liability shall not apply if the damage has been caused through willful intent or gross negligence, as well as in cases of infringement of cardinal obligations. Cardinal obligations are contractual obligations, the fulfillment of which is at all only made possible through the proper execution of the agreement, adherence to which the User may normally trust, and the infringement of which, in turn, jeopardizes the achievement of the contractual purpose. It shall, moreover, not apply to any losses arising from injury to life, the body or the health, if the breach of duty is the fault of the Provider. The limitation shall, furthermore, not apply to any losses which are based on the lack of an assured property or for which liability under the Product Liability Act is stipulated. In cases of slightly negligent liability for compensation for damage in regard to the infringement of a cardinal obligation, said liability shall be limited to typical and foreseeable losses.
Link to the OS platform pursuant to Art.14(1) of Regulation EU No. 524/2013: http://ec.europa.eu/consumers/odr/ The Provider is neither statutorily obliged nor prepared, on a voluntary basis, to take part in dispute resolution proceedings before a consumer arbitration board. The Provider shall, in the event of any conflict, make every effort to reach a solution with the User that is acceptable to both parties. Since arbitration bodies are subject to a fee, the Provider will also, in the well-understood cost interest of the User, not participate in dispute resolution proceedings before a consumer arbitration board.
12.1 Should any individual provisions of these terms and conditions be or become invalid or impracticable, in whole or in part, or should these terms and conditions contain loopholes, the validity of the remaining provisions of these terms and conditions shall not be affected thereby. In lieu of the invalid, impracticable or missing provision, such a valid and practicable provision shall be deemed to have been agreed between the parties as they would have reasonably agreed upon, taking into account the purpose of these terms and conditions, if they had been aware of the invalidity, impracticability or lack of the relevant provision when concluding these terms and conditions.
12.2 These terms and conditions are subject to the law of the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG) and German international private law (IPRG).
12.3 The exclusive place of jurisdiction for any disputes arising from or in connection with this agreement shall be Munich.
Information on revocation
Right of revocation You are entitled to revoke this agreement within fourteen days without giving reasons. The revocation period is fourteen days as from the day of concluding the agreement. In order to exercise your right of revocation, you will need to notify us, fruits GmbH, Liebigstraße 8, D-80538 München; email: hello@fruits.de, of your decision to revoke this agreement by means of an unambiguous declaration of intent (e.g. by letter sent through the regular mail or by email). You may use the attached sample revocation form for that purpose. It is not, however, mandatory to do so. The revocation deadline shall be deemed to have been met if you dispatch the notification on exercising your right of revocation prior to expiry of the revocation deadline.
Consequences of revocation Should you revoke this agreement, we are obliged to refund you any payments that we have received from you, including the delivery charges (with the exception of any additional costs arising from your having selected an alternative type of delivery to the most cost-effective standard delivery offered by us), without delay and at the latest within fourteen days as from the day on which we receive the notification about your revocation of this agreement. We will use the same method of payment for said refund that you used for the original sales transaction, unless anything to the contrary has expressly been agreed with you. We will never charge you any fees for making such a refund.
Lapse of the right of revocation The right of revocation shall, pursuant to Sec. 356(5) German Civil Code (BGB), lapse, in the case of an agreement on the delivery of digital content that is not to be found on a physical data carrier, once fruits has begun to execute the agreement after the User has: