Terms-of-use

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1. General

1.1 These terms of use (the “Terms”) apply to the use of the Winkt mobile app (the “App”) and the websites www.winkt.co, www.winkt.me, www.winktme.space, www.getwinkt.com, www.winkt-international.com, www.winktyou.com, and www.winkt-app.com (the “Websites”; App and Websites together also the “Services”) by you (the “User”, “you”, “your”). The Services are provided by the

Winkt GbR c/o Eva Balmaks, Engeldamm 50, 10179 Berlin Germany (“Winkt”, “we”, ”us”).

1.2 The App easily allows you to interact with other App users around you. In the App, you are able to share messages with other App users in your direct surroundings. In addition, you can explore posts of other App users around you and interact with them. The services provided in the App are consisting of interactive functions that give users, in particular, the ability to post text. Once you post content in the App, other users can see your content through their use of the App or on the Websites. For more information about the App please visit the Websites.

2. Creating an account

2.1 In order to use the App you must accept these Terms when you first open the App. By accepting the Terms in the App (in general by clicking on a respective button) the user submits an offer to conclude a contract for the use of the App (the “Contract”). Winkt accepts this offer of the user by providing the corresponding App services to the user. Winkt is, however, not obliged to conclude a respective Contract with a user.

2.2 Only users that are older than 16 years of age may register for and use the App. You will be asked to verify your age in the registration process in the App. If you are under 16, you are not allowed to use the App. In addition, the use of the Services is only allowed (i) for users that are consumers, and (ii) for non-commercial purposes.

2.3 The use of the Services is free of charge for you.

3. Your right to use the App; our right to use your content

3.1 Upon conclusion of the Contract (see above section 2.1), Winkt grants to you - subject to the limitations set forth in these Terms (see in particular sections 4 and 6 below) - a limited, non-exclusive, non-transferable, non-sub-licensable, right to use the App for the intended purposes of the App and for the duration of the Contract, limited, however, to an only personal and non-commercial use of the App.

3.2 You allow us to use the content that you post in the App (“User Generated Content”) (in particular content that is protected by intellectual property rights) in order for us to provide you with the respective App services in the App (in this context and for such purposes we are, in particular, allowed to host, use, distribute, modify, perform, reproduce, copy, publicly perform or display, translate and create derivative works of the User Generated Content (such types of use together with the “Use Rights”)). The license in the aforementioned sentence is granted to us cost-free and for the purpose of providing you with the App services.

3.3 If and to the extent the Websites also provide the User (in the future) with the possibility to post content on the Websites similar to User Generated Content (such content also the “Website User Generated Content”), then the aforementioned granting of rights in favor of Winkt as set forth in section 3.2 above shall apply mutatis mutandis to such Website User Generated Content.

4. Restrictions regarding the use of the Services

4.1 You may only use the Services and the services provided in the App and on the Websites for the intended purposes of the Services. Any other use of the Services that is not explicitly granted to you in these Terms is (i) not allowed, and (ii) with regard to the App not covered by the license granted to you in Section 3.1. In particular, you shall comply at all times with the restrictions of use and the obligations set forth in sections 4.2 to 4.3 and 6.

4.2 The User undertakes to not post in the App and/or on the Websites:

any illegal or unlawful content;
content that is defamatory, insulting, slanderous, morally offensive, obscene, pornographic, is of a discriminatory nature, constitutes a criminal offense and/or is glorifying/promoting the (i) use of violence, and/or (ii) terrorism, and/or (iii) racism;
content containing hate speech or content that harasses other users of the Services;
content that contains personal data of another person or otherwise makes another person identifiable (this also includes the posting of pictures of another person), unless (i) such other person has explicitly consented to such disclosure, or (ii) there is a statutory provision that allows such disclosure in the individual case also without a respective explicit consent of such other person;
advertisements for commercial products and services that perform, advertise, and promote any form of structural distribution measures (such as multi-level marketing or multi-level network marketing);
content that violates third party intellectual property rights (such as e.g. copyrights, trademarks);
content that discloses business secrets of third parties (at least if the respective disclosure of such information is not in compliance with the applicable laws);
content in which you approach other users in an offensive and/or sexually oriented way;
fake news;
chain letters.

We reserve the right to remove User Generated Content and Website User Generated Content that does not comply with any of the rules set forth in this Section 4.2.

4.3 With regard to the Services the User undertakes to not:

post, implement in the Services or otherwise attack the Services and/or other App users with (i) data containing viruses, worms, Trojans or other malware, and/or (ii) spam messages;
perform any actions which may impair the operability and/or security of Winkt’s technical infrastructure regarding the Services (in particular actions which may overload said infrastructure) and/or impair the appearance of the Services;
create, build and/or, operate without Winkt’s explicit written consent third party websites (e.g. (social media) fan pages), apps and platforms that entirely or for the most part consist of compilations of content posted in the App and/or on the Websites by other users (the content posted in the App and/or on the Websites by other users also the “Third Party Content”; such third party websites, apps and platforms also the “Third Party Platforms”; in case you are interested in operating a Third Party Platform please contact us for approval before you go live with such a Third Party Platform as the operation of such a Third Party Platform might result in you being subject to (in particular) cease-and-desist claims and/or damage claims of third party users of the Services and/or Winkt due to a violation of e.g. the applicable (i) Copyright Law and/or (ii) Unfair Competition Law);
help facilitate third parties to operate, build and/or create Third Party Platforms without Winkt’s explicit written consent (by inter alia providing Third Party Content to the operators of respective Third Party Platforms);
modify, alter, translate, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the App or create derivative works based on the App (except to the extent the applicable mandatory law allows such actions);
interrupt the peace of other App users or try harming other App users;
molest, intimidate, stalk or threaten other App users in any way;
use automated systems and/or software to extract data from the Services (including Third Party Content and Services Contents (see definition below in section 6.1), in particular, if such data shall be used for commercial purposes and/or be published on Third Party Platforms;
help facilitate third parties to extract data from the Services (including Third Party Content and Services Contents (see definition below in section 6.1), in particular, if such data shall be used for commercial purposes and/or be published on Third Party Platforms;
get access to other users’ App accounts without the respective App users’ permission;
sell, rent, lease, and/or offer products/goods and/or services in any way in the App and/or on the Websites;

5. Further obligations of the User

5.1 You are responsible for the posts that are created by you or via your device. We cannot guarantee that all Third Party Content is true and accurate. We, in general, do not (proactively) check whether the content posted by a user is (i) true and accurate, and/or (ii) in violation of the applicable laws.

5.2 In order to prevent that your device and/or your App account is compromised by third parties (e.g. through malware) you shall take all reasonable safety measures, in particular, you shall install without undue delay the most recent updates regarding (i) your device (in particular updates of the devices’ operating system), and (ii) the App.

5.3 If you become aware of any security gaps regarding the Services or material violations of these Terms by other users we are very thankful and happy if you notify our support team (using the in-app form or the form on the Websites).

6. Intellectual Property regarding the Services

6.1 The “Services Contents” are our property or the property of the respective licensor and are protected under copyright law, trademark law and/or other statutes protecting intellectual property (“Services Contents” in the meaning of these terms shall include all elements of the Services, i.e. data and material including images, graphics, illustrations, designs, symbols, photos, texts and other depictions with the exclusion of User Generated Content, Website User Generated Content and Third Party Content).

6.2 Any kind of use and/or reproduction of the Services Contents without our explicit prior consent is a violation of the applicable law and prohibited under these Terms.

7. Availability/system failure

7.1. Insofar as technically possible and economically reasonable, we strive to make the Services available at all times. However, we assume no guarantee of availability. Use can be temporarily limited if necessary due to capacity constraints, for reasons of security or system integrity or to perform technical maintenance and in order to provide proper and/or better services. In such cases, Winkt will take the Customers’ legitimate interests into account, e.g. by informing them ahead of time (if possible).

8. Limitation of liability

8.1. Winkt shall be liable to User pursuant to the provisions of the applicable product liability laws, in cases of intent and gross negligence, for injury to life, limb, or health, if Winkt assumes a guarantee, if any, as well as in all other cases of mandatory statutory liability, in each case in accordance with the statutory provisions.

8.2 In the event of a breach of material contractual duties (so-called “Cardinal Obligations”), Winkt shall be liable towards User for the reimbursement of damages. Cardinal Obligations are all obligations whose breach would jeopardize the achievement of the contractual purpose, as well as all obligations whose fulfillment enables the proper performance of the contract in the first place and on compliance with which you can generally rely on. However, where a breach of a Cardinal Obligation is due only to slight negligence and does not result in injury to life, limb, or health, the User’s claims will be limited to damages in the amount of the typically foreseeable damage.

8.3 In all other cases, claims for damages against Winkt – regardless of their legal basis, in particular, due to a breach of a pre-contractual duty or of obligations under the contractual relationship between User and Winkt by Winkt, its legal representatives, employees, or vicarious agents or based on tort − are disclaimed.

8.4 To the extent Winkt’s liability is limited or disclaimed according to this section 8, this shall also apply to the personal liability of Winkt’s legal representatives, employees, and vicarious agents.

8.5 Any statutory liability privileges, e.g. pursuant to sections 8 - 11 of the German Telemedia Act (TMG) or to section 598 of the German Civil Code (BGB), shall remain unaffected.

8.6 The aforementioned provisions of this section 8 shall not entail any change in the burden of proof to the detriment of User.

8.7 User’s claims for damages shall become statute-barred upon expiry of the statutory limitation periods, as of the statutory onset of these periods.

9. Indemnification

The User agrees to indemnify, defend, and hold harmless Winkt from and against any loss, expense, liability, damage, claim (including reasonable attorney fees) that arises out of User’s culpable violation of the User’s obligations under these Terms.

10. References to other websites/content

Insofar as the Services contain links and references to third parties, especially third party websites, we have no influence on the current and future design and contents of the linked websites and can therefore assume no liability. The use of these contents provided by third parties is at your own risk. Should you find that we have linked or otherwise referred to sites with illegal or questionable content, please notify us so that we can delete the link as quickly as possible.

11. Data Protection

We collect, process and use personal data insofar as is necessary in accordance with our Privacy Policy.

12. Blocking of the User’s use of the Services

Winkt may (temporarily) block the User’s use of the Services, in particular:

in the event of the User’s misuse or fraudulent use of the Services or if there is reasonable suspicion of the User’s misuse or fraudulent use of the Services;
if the User does not comply with the material provisions of these Terms (in particular the provisions in sections 4 and 6 above);
if the App is used on a smartphone on which usage restrictions or security functions provided by the manufacturer have been overridden or otherwise blocked functions have been activated; and/or
if Winkt would be entitled to terminate the Contract according to section 13. below.

For the duration of a respective blocking of the User’s use of the App the license granted to the User in section 3.1 ceases.

13. Termination of the Contract

13.1 The Contract is concluded for an indefinite period. The Contract may be terminated by either party at any time with a two-week notice period. The Contract is terminated automatically if the User uninstalls the App from its mobile device.

13.2 In addition, the right of both parties to terminate the Contract without notice for cause remains unaffected. Winkt shall be entitled to terminate the Contract for cause without notice, in particular:

in the event of the User’s misuse or fraudulent use of the Services or if there is reasonable suspicion of the User’s misuse or fraudulent use of the Services,
if the User does not comply with the material provisions of these Terms (in particular the provisions in sections 4 and 6 above); and/or
if the App is used on a smartphone on which usage restrictions or security functions provided by the manufacturer have been overridden or otherwise blocked functions have been activated.

14. Contact

For complaints, feedback, or questions regarding the Services, please contact our support team (see contact info on the Websites or in the App).

15. Miscellaneous

15.1 The current version of the Terms can be viewed, printed and/or downloaded as a pdf document on/from the Websites.

15.2 Under certain circumstances, Winkt may need to change and/or amend these Terms (e.g. in the case of changes in legislation relevant to the App). In such a case, Winkt shall notify the User of the corresponding amended terms in a suitable form. With regard to the use of the App, in general, this will happen when the App is (re)opened by the User. The User will then be asked to agree to the amended terms. In the event that the User refuses or rejects the acceptance of the amended Terms (i) the User shall be entitled to termination without notice for cause pursuant to section 13. above, and (ii) Winkt shall be entitled to (a) a termination without notice for cause pursuant to section 13. above, provided that a corresponding termination appears to be necessary for Winkt and does not put the User at a disadvantage contrary to good faith, and (b) a right to block the User’s use of the App in accordance with section 12. above, provided that a corresponding blocking appears to be necessary for Winkt and does not put the User at a disadvantage contrary to good faith. Winkt shall again notify the User of the aforementioned possible consequences of a refusal of acceptance of the amended Terms by the User when announcing to the User the respective amended Terms.

15.3 Winkt is not willing and not obliged to participate in a dispute settlement procedure (Streitbeilegungsverfahren) in front of a consumer arbitration board (Verbraucherschlichtungsstelle).

15.4 The laws of the Federal Republic of Germany shall apply to these Terms.

15.5 Should individual provisions in these Terms be or become wholly or partially invalid, the validity of the remaining provisions will remain unaffected. The invalid provision shall be deemed to be replaced by a feasible provision that economically most closely reflects the purpose of the invalid provision. The same applies in the event that the Terms contain any omissions.