1 Item and Range
1.2 fruits is a digital sales platform on which people who have registered with fruits and created a profile (hereinafter "users") can network with other users and publish and share content (e.g. sale of domains). fruits is aimed at users who create content (e.g. offer domains) and want to make it available to other users on “fruits” (hereinafter “seller”) and users who want to consume and/or buy the content from the sellers e.g. buy domains (hereinafter “buyer” ). Each user can be both a seller and a buyer. A prior specification by the user is not required. Users can be both seller and buyer.
1.3 In order to use fruits, the user must have an internet connection with the required bandwidth. The required bandwidth depends in particular on the type of content provided. The use of fruits also requires a standard browser (e.g. Google Chrome or Safari) in the latest version. If the user's equipment does not meet these requirements, he may not be able to use fruits or not to the full extent. The provider does not owe any uninterrupted availability of fruits.
2 Services of the Provider
2.1 With fruits, the provider provides a digital sales platform esp. for selling and buying domains.
2.2 The provider is entitled to further develop fruits at its own discretion in order to add new functions and improve existing functions. The provider always provides the user with the latest version of fruits.
3 Registration and conclusion of contract, contract language and customer service
3.2 The user can set up a user account on fruits under “Register”. To do this, the user enters his e-mail address and sets a password (hereinafter "access data"), fills in the other fields marked as mandatory and clicks on "Register".
3.3 After the user clicks on "Register", the provider sends an email to the email address provided by the user. In the e-mail, the user is asked to click on a registration link. By clicking on the registration link, the user confirms that they have access to the email address provided. By clicking on the registration link, the user submits an offer to conclude a usage contract.
3.4 The provider can accept the user's offer by confirming the creation of the user account for the customer. The confirmation can take the form of a display on the user's screen and/or by e-mail. The user has no legal claim to the conclusion of a usage contract. The provider can reject the user's offer without justification. The provider can make acceptance dependent on the verification of the information (e.g. by sending a code by SMS or postcard).
3.5 The user does not incur any costs for registering, creating and maintaining a profile with fruits.
3.7 The Provider's customer service can be reached at the above contact details from Monday to Friday, 09:00 - 17:00 CET.
4 Access Data
4.1 In order to use fruits, the user must log in with their access data.
4.2 The user is responsible for protecting the access data. They are to be kept secret and may not be made accessible to third parties without the express consent of the provider. The user is aware that third parties who know the access data can act improperly on behalf of the user at fruits. If the user finds out or suspects that his access data is being used by third parties, he either changes his access data in his user account immediately or informs the provider immediately of the suspicion.
4.3 If there is reasonable suspicion of misuse of the user's access data, in particular if this was reported by the user himself, the provider is entitled to immediately temporarily block access or - in cases of culpable action by the customer - to extraordinary termination. The provider informs the user immediately in text form about the blocking of the access data.
5.1 Posting Content
5.1.1 Each seller may make content available on fruits for buyers to access.
5.1.2 The seller and/or the Provider can determine that individual content is only available to certain users or user groups. 5.1.3 Content may only be uploaded for the purpose of publication for third parties. The seller is not permitted to use fruits as a storage medium, e.g. to save their own documents.
5.2 Paid Content / Seller Pass
5.2.1 The Provider gives a limited number of sellers permission to upload content to fruits for a fee (hereinafter “seller Pass”). Provider also allows select sellers to award seller Passes to other sellers (hereinafter “seller Pass Invites”). The number of seller Passes and whether and, if so, how many seller Pass Invites a seller can issue are at the sole discretion of the Provider. A seller Pass is only valid for the respective seller personally and cannot be transferred to third parties. The seller is not permitted to demand a fee or any other compensation for issuing a seller Pass Invite.
5.2.2 The Provider is entitled at any time, at its own discretion, to revoke existing seller Passes or to limit their scope. In particular, the Provider may revoke or limit existing seller Passes if the Provider suspects that the seller has received or paid a fee or other remuneration for the seller Pass Invite or that the seller has posted illegal content within the meaning of Section 5.4 on fruits.
5.2.3 If the seller is in possession of a valid seller Pass, he can determine that individual content (hereinafter "Individual Access") and / or access to the entire profile of the seller (hereinafter "Subscription") is only made accessible to users against payment of a fee (hereinafter “Paid Content”).
5.2.4 The seller determines the amount of the fee for paid content himself. For individual requests, the price is to be paid once. The price for the paid content is due for payment in advance. As a means of payment, the buyer can choose between the payment options listed on fruits under the link “Means of payment”.
5.2.5 In order to access the paid content, the buyer concludes a separate contract with the seller for the provision of the paid content (hereinafter “content contract”). The posting of paid content on fruits is a legally binding offer by the seller to conclude a content contract. The buyer can accept the seller's offer by completing the ordering process and clicking on "Order for a fee".
5.2.6 In the case of individual calls, payment is due immediately after conclusion of the content contract or, in the case of a subscription, at the beginning of the respective payment period. The seller concludes the content contract in his own name and for his own account. The provider only mediates the conclusion of the contract between buyer and seller. There is no direct contractual relationship between the provider and the buyer regarding the provision of content.
5.2.7 The seller irrevocably instructs the Provider and agrees that the Provider accepts payments for the compensation from the buyers for and on behalf of the seller in a debt-discharging manner.
5.2.8 By taking out a subscription, the buyer is not entitled to certain content being made publicly accessible to them during the subscription.
5.2.9 Consumers cannot act as sellers who provide paid content.
5.2.10 When using paid content, the buyer has a right of withdrawal from the seller, provided that he is acting as a consumer. If the buyer notifies the provider of his decision to withdraw from the contract, the provider acts as the seller's receiving agent and forwards the cancellation to the seller within a reasonable period of time. Details on the right of cancellation and its exercise can be found in the cancellation policy in Annex 1. The user can only make use of paid content if he agrees in advance that the provider starts executing the contract for the provision of the paid content before the end of the cancellation period and confirms that he is aware that he loses his right of withdrawal through his consent at the beginning of the execution of the contract.
5.3 Seller Fees
5.3.1 If a buyer concludes a content contract with the seller, the provider returns the net price minus a commission of 9.9% percent of the gross price that the buyer pays for the paid content (hereinafter “fruits fee”) to the seller. However, the fruits fee is at least €1 (if the currency is US dollars, this part of the commission is $1.00). The provider's claim to the fruits fee arises with the conclusion of the content contract. The entitlement to the fruits fee also remains in full if the buyer makes use of his right of withdrawal, withdraws from the contract or terminates the contract prematurely for other reasons that are not the responsibility of the provider. 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 will provide the seller with a statement in text form for each month in which the provider has concluded a content contract for paid content from the seller. The provider sends the statement at the beginning of the calendar month following the conclusion of the content contract. The provider agrees to the electronic transmission of the statement.
5.3.3 Credit is always paid out on the 15th of a calendar month to the bank account specified by the seller. The provider reserves the right to only pay out credit to the seller if this amounts to at least EUR 100.00. The seller can only offset the Provider's commission claim with claims that are undisputed or have been legally established.
5.3.4 The provider can make the payment of credit dependent on the previous clear and unequivocal identification of the seller.
5.3.5 Insofar as paid services in Europe are subject to sales tax, the provider pays the sales tax in the name of and on behalf of the seller to the responsible tax office. In addition, the seller is responsible for compliance with the tax regulations applicable to him.
5.4 Illegal Content
5.4.2 Illegal content is in particular content that
- disparage, slander or insult other users or other third parties,
- violate youth protection laws, data protection regulations and/or other laws,
- are likely to disrupt the smooth running of fruits or to impair the operation of fruits, in particular by overloading the provider's systems,
- are protected by law or are encumbered with the rights of third parties (e.g. copyright and trademark rights) and the user is not expressly authorized to publish them,
- Spread or distribute malicious software, in particular viruses, Trojans or other harmful files, as well as unwanted messages, in particular spam e-mails
- Harasses other users, is lewd, sexual or obscene, contains racist or bigoted language, or promotes or supports physical violence and hatred. This does not apply to content that is not suitable for impairing children and young people aged 16 and over in their development into responsible and socially competent personalities (hereinafter “FSK 16 content”). When uploading FSK 16 content, the seller is obliged to indicate that this is FSK 16 content.
5.4.3 fruits is entitled to delete illegal content from fruits at any time and without warning. In cases of doubt, fruits can ask the user who posted the content to comment and block the content in question until the user has dispelled all doubts that the content is illegal content.
5.4.4 The provider does not check whether the content could be illegal content. If the user becomes aware of illegal content on fruits, he can contact the provider using the contact details given in the imprint.
5.4.5 The user indemnifies the provider on first request from all claims that arise for the provider due to the publication of illegal content. The exemption includes all costs incurred by the provider as a result of the examination and, if necessary, defense of the claims, including the costs of appropriate legal action. The user will inform the provider immediately if claims are made against him as a result of the publication or other use of illegal content that he has posted on fruits.
6 Use Rights
6.1 Granting of Rights of Use to Buyers
6.1.1 The content on fruits is subject to copyright protection. The buyer is obliged to protect all applicable property rights, in particular copyright and other commercial property rights.
6.1.2 The provider grants the buyers the simple, revocable, non-transferrable and non-sublicensable right to use the content that the buyer can access on fruits for personal, non-commercial purposes, in particular to save it, insofar as this is technically possible. The buyer is not permitted to remove any author designations or to make any other changes to the content.
6.1.3 Insofar as regular remuneration is to be paid for the use of paid content, the right of use is limited in time to the duration for which the buyer has paid the regular remuneration in advance.
6.1.4 The buyer is not entitled at any time to use the content for purposes other than personal. In particular, the buyer is not permitted to make the content available to third parties or to publish it.
6.2 Grant of Use Rights by Seller
6.2.1 By posting content on fruits, a seller warrants that he is entitled to grant the provider rights of use to the extent described below.
6.2.2 The seller grants the Provider the non-exclusive, sub-licensable and transferable right, unrestricted in terms of space and content, to use the content to the extent necessary to grant the buyers rights of use in accordance with Section 6.1 and/or in any other way to fruits To make available. The right of use includes, in particular, the right to make the content publicly accessible, to duplicate, edit, save, distribute or reproduce the content at your own discretion, whether for a fee or free of charge. The right to edit includes in particular the right to provide the content with security measures to protect the content from unauthorized use by third parties and/or to clarify such violations. The aforementioned rights also include To commission third parties to exercise the aforementioned rights of use on behalf of the provider. In particular, the right of use also includes the provider's right to advertise with the seller's profile and its content.
7 Obligations and Obligations of the User
7.1 It is the user's responsibility to back up the information, documents and content stored on fruits at regular intervals on their own storage media.
7.2 fruits enables the user to send messages that only the recipient can see to the provider and other users (hereinafter: "private messages"). The user is solely responsible for the private messages he sends. There is no legality check by the provider. The user is prohibited from spreading private messages that are racist, insulting, pornographic or otherwise illegal or that are against illegal content within the meaning of Section 5.4.
7.3 The user is prohibited from sending unsolicited advertising e-mails (spam) as private messages. He must refrain from any manipulation of fruits or the use of malware (viruses, worms, Trojans, etc.). The user is also prohibited from retrieving fruits and/or content on fruits automatically and/or in bulk and/or storing them elsewhere.
7.4 If the user culpably violates one of the obligations specified in clauses 7.2 to 7.3 and the provider is claimed by third parties for this reason, the user shall indemnify the provider at first request from all third-party claims and costs (including necessary legal fees). The provider will inform the user immediately of claims by third parties and give him the opportunity to comment on the claims. The user undertakes to immediately provide all documents and information required to defend against third-party claims. The provider reserves the right to make further or further claims for damages against the user.
8.1 When executing the contract of use, the provider and the user observe the requirements of the applicable data protection law, in particular the General Data Protection Regulation and the Federal Data Protection Act.
8.2 In the course of providing fruits and fulfilling the contract of use, fruits processes the user's personal data to the extent described in the data protection declaration.
9 Termination of Membership
9.1 The user can terminate the user contract at any time with immediate effect and without giving reasons by deleting his user account.
9.2 fruits can terminate the contract of use at any time with a notice period of 14 days in text form (e.g. by e-mail) without giving reasons.
9.4 Upon termination of the contract of use, the provider irrevocably deletes the user's user account. With the deletion of the user account, the user loses the right to access content at fruits. This also applies if the content is the subject of paid services. If the provider terminates the user according to Section 9.3, the provider grants the user the opportunity to secure the content posted by him and the services that the user has purchased for a fee within a period of 14 days after the end of the user contract.
10 Warranty and Liability
10.1 The provider guarantees that fruits is free from defects. In the event that purchased content is defective, the provider intends to mediate between the buyer and the seller regarding free subsequent performance. The choice of whether the supplementary performance takes the form of repair or subsequent delivery is at the sole discretion of the seller. Otherwise, the provider's warranty is based on the statutory provisions of the German Civil Code. Insofar as the provider provides the services free of charge, he is only responsible for intent and gross negligence (cf. § 521 BGB).
10.2 In the case of damage caused by the loss of data, the provider is not liable if and to the extent that the damage could have been avoided by regular and complete backup of the content by the user.
10.3 Claims for damages due to breach of duty and tort as well as claims for reimbursement of futile expenses are excluded against the provider and his vicarious agents subject to the following exceptions.
10.4 The above limitations of liability do not apply if the damage was caused intentionally or through gross negligence and in cases of breach of essential contractual obligations. Essential to the contract are contractual obligations, the fulfillment of which enables the proper execution of the contract in the first place, compliance with which the user can regularly rely on, and the breach of which endangers the achievement of the purpose of the contract on the other side. Furthermore, it does not apply to damage resulting from injury to life, limb or health if the provider is responsible for the breach of duty. The limitation also does not apply to damage that is based on the lack of a guaranteed property or for which liability is provided for under the Product Liability Act.
11 Link to OS platform
Link to the OS platform in accordance with Article 14 Paragraph 1 of Regulation EU No. 524/2013: http://ec.europa.eu/consumers/odr/ The provider is neither legally obliged nor willing to do so on a voluntary basis Participate in dispute settlement proceedings before a consumer arbitration board. In the event of a conflict, the provider will endeavor to find a mutually acceptable solution with the user. Since arbitration boards are subject to a fee, the provider will not take part in a dispute settlement procedure before a consumer arbitration board, even in the well-understood cost interest of the user.
12 Final Provisions
12.1 In the event that individual provisions of these conditions are or become wholly or partially invalid or unenforceable, or in the event that these conditions contain gaps, the validity of the remaining provisions of these conditions shall not be affected. In place of the invalid, unenforceable or missing provision, such valid and enforceable provision shall be deemed to have been agreed between the parties, as the parties would have agreed, taking into account the purpose of these Terms, if they had been aware of the invalidity, unenforceable or missing provision of the relevant provision.
12.2 These conditions are subject to the law of the Federal Republic of Germany with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and German international private law.
12.3 The exclusive place of jurisdiction for all disputes arising from or in connection with this agreement is Munich.
Appendix 1: Information on the right of withdrawal
Right of withdrawal
Right of withdrawal You have the right to withdraw from this contract within fourteen days without giving any reason. The cancellation period is fourteen days from the day the contract was concluded. In order to exercise your right of withdrawal, you must inform us, fruits GmbH, Liebigstraße 8, D-80538 Munich; E-mail: firstname.lastname@example.org, by means of a clear statement (e.g. a letter sent by post or e-mail) of your decision to withdraw from this contract. You can use the attached sample revocation form for this, but this is not mandatory. To meet the cancellation deadline, it is sufficient for you to send the communication regarding your exercise of the right of cancellation before the cancellation period has expired.
Consequences of the revocation If you revoke this contract, we have all payments that we have received from you, including the delivery costs (with the exception of the additional costs resulting from the fact that you use a different type of delivery than the one offered by us, have chosen the cheapest standard delivery) immediately and at the latest within fourteen days from the day on which we received the notification of your cancellation of this contract. For this repayment, we use the same means of payment that you used in the original transaction, unless something else was expressly agreed with you; under no circumstances will you be charged fees for this repayment.
Expiration of the right of withdrawal The right of withdrawal expires in the case of a contract for the delivery of digital content that is not on a physical data carrier in accordance with Section 356 (5) BGB if fruits has started to execute the contract after the user: has expressly agreed that fruits with of the execution of the contract before the end of the cancellation period of fourteen days and has confirmed his knowledge that he loses his right of cancellation through his consent at the beginning of the execution of the contract.