General Terms and Conditions for the Use of the Online Content Platform MALOUM
1. Scope of application
The following General Terms and Conditions (GTC) apply to all contractual relationships between neolime GmbH, Kolonitzgasse 2/54, 1030 Vienna (hereinafter referred to as "Provider") and its contractual partners (hereinafter referred to as "User") regarding the use of the online content platform at www.maloum.com. The most current version of the GTC is applicable.
2. Amendments to these GTC
2.1. Changes to these GTC Deviating, conflicting, or supplementary GTC of a User will not become part of the contract, even if known to the Provider, unless their validity is expressly agreed to in writing.
2.2. The Provider reserves the right to change these GTC and will inform the User four weeks before an intended change via email to the address last provided by the User. If the User objects to the change, the contractual relationship ends with the entry into force of the amended GTC with the effects of an ordinary termination as described in point 7.5.
2.3. The Provider will publish changes to these GTC immediately on www.maloum.com.
3. Definitions of terms
3.1. The Provider (neolime GmbH) makes certain content ("Content") available to its Users on the online content platform accessible at www.maloum.com and via various subdomains of this website.
3.2. A Creator is a User who produces Content such as videos or photos and makes this Content available to the Provider so that it can be made available to other Users of the online content platform, either for a fee or free of charge. The respective Creator receives remuneration from the Provider for this. In addition to these GTC, the "Terms and Conditions for Creators" apply to Creators, which can be accessed here.
3.3. A Fan is a User who consumes Content from a Creator or follows a Creator, subscribes to Content created by the Creator, accesses it for free or for a fee.
3.4. Creators and Followers together are hereinafter referred to as Users.
3.5. The online content platform is hereinafter referred to as the web service accessible at www.maloum.com and operated by neolime GmbH as Content Provider, on which Content is available for retrieval, partly free of charge, partly for a fee.
3.6. Services are hereinafter referred to as all functions and features of the online content platform operated by the Provider intended for use by Users, whether they are available for a fee or free of charge.
4. Subject matter of the contract
4.1. The Provider operates the online content platform MALOUM on the Internet at the URL www.maloum.com.
4.2. The Provider reserves the right to modify these GTC if:
4.2.1. the modification is exclusively advantageous for the User,
4.2.2. changes in the legal framework - in particular due to legislative amendments, official or court decisions - require a modification, or
4.2.3 the change is necessary to protect the rights and freedoms of third parties or the Provider.
5. Registration and conclusion of the framework contract
5.1. Adult natural persons are entitled to create a User account. Each natural person may only create one account.
5.2. The User account and the resulting legal relationships with the Provider are not transferable. The User is prohibited from passing on their access data to the Provider's services to third parties.
5.3. Only Users who operate an independent economic activity, i.e., are entrepreneurs according to § 1 UGB, are entitled to use the User account as a Creator, i.e., to provide Content to the Provider. The functions of the online content platform intended for use by Creators are therefore exclusively directed at entrepreneurs and not consumers according to § 1 Para 1 Z 2 KSchG.
5.4. To use the services, prior registration by creating a User account is required. During the registration process, the User must provide the data requested by the Provider completely and correctly.
5.5. By registering and clicking the corresponding field in the cookie banner, the user expressly consents that the Provider may send advertising emails to the user's provided email address at any time and without limitation. The user can change these email preferences at any time through the account settings, unsubscribe from the advertising emails, or follow the unsubscribe link in the respective emails.
5.6. There is no entitlement to admission to use the services. Admission is at the sole discretion of the Provider. A rejection does not require justification.
5.7. Upon completion of the registration process, the User submits a binding offer to conclude a framework agreement for the use of MALOUM and the services; Creators additionally submit an offer to the GTC "Terms of Use for Creators". The User will be informed about the acceptance of their offer by the Provider by sending a contract confirmation via email. Due to checks conducted by the Provider, the sending of a contract confirmation may, under certain circumstances, only occur several days after the offer has been submitted.
6. Use of chargeable content; subscriptions
6.1. Users can, as a Fan, within the framework contract mentioned in point 5. with the Provider, conclude individual contracts for accessing paid content of a Creator on a one-time basis or on a subscription model basis. The sole contractual partner of the Fan is always the Provider, to whom this content is provided by the Creator for exploitation.
6.2. The paid use of content on a one-time basis takes place on the Creator's channel, where the Fan first accepts the price of the one-time accessible content listed next to the button as well as the content itself by clicking on the button "access paid content now" and then initiates the payment process by clicking on the button "Pay now" and entering data.
6.3. The paid use of content for subscription also takes place on the Creator's channel, where the Fan first accepts the subscription price listed next to the button, the subscription content, and the subscription duration by clicking on the button "subscribe" and then initiates the payment process by clicking on the button "Pay now" and entering data.
6.4. If a Fan opts for a subscription model, billing for the subscription period chosen by the Fan at the time of ordering takes place at the beginning of the respective period. The available subscription periods can be pre-selected by the Creator and are generally 30 days, three, six, twelve and/or twenty-four months. The subscription prices listed by the Provider in the Creator's channel always refer to a specific subscription duration.
6.5. After the subscription period expires, the subscription automatically renews for the period for which it was originally concluded, unless the User cancels the subscription in writing. The right to prevent the contract extension by cancellation exists until at least two weeks (14 days) before the end of the contract. The Provider undertakes to separately inform the User of the possibility of cancellation in case of contract extension in a timely manner, i.e., before the start of this cancellation period. An extended subscription is billed pro-rata in periods of 30 days.
6.6. Canceling subscriptions, if not a case of 6.5., is possible at the end of the current subscription period.
6.7. All prices visible to Fans on MALOUM are to be understood excluding VAT.
6.8. Should the Provider extraordinarily terminate the contractual relationship with a Creator with immediate effect (or vice versa, if the termination is justified), the Provider will delete the content and the channel of the Creator at the time of expiration of the last subscription of a Fan for the corresponding channel or Creator. From the pronouncement of the extraordinary termination to the Creator until the deletion of the channel, the channel will no longer be supplemented with new content. Fans can no longer conclude new subscriptions for the channel or other content of the respective Creator in this case.
6.9. Should the Provider extraordinarily terminate the contractual relationship with a Fan with immediate effect, in the case of a still ongoing subscription of the Fan, the paid subscription price for future periods will not be refunded.
7. Transaction fee
7.1. The Provider charges a service fee of 10% of the net price for all transactions at checkout. This fee is levied to cover the costs of payment processing and associated expenses necessary for maintaining and improving the online content platform.
7.2. This service fee is calculated based on the net price of transactions after deducting any discounts and before tax deductions.
8. Age verification
For accessing pornographic or otherwise youth-endangering Content, an age verification of the User by the Provider is required. For this purpose, the Provider will verify the User's age by querying the date of birth to ensure that they are of legal age. The User is obligated to provide their date of birth truthfully.
9. Termination of the Framework Agreement
9.1. The Provider and User can terminate the framework agreement for the use of the services concluded for an indefinite period at any time in writing without giving reasons. The User can also terminate the framework agreement on www.maloum.com/subscriptions by providing the required data and clicking on the button "Cancel now".
9.2. Creators can terminate the framework agreement with a notice period of four weeks to the end of each month. Deviating from this, the termination according to point 3.3. of the Terms of Use for Creators and according to point 6.5. of these GTC will only become effective on the earliest possible end date of the last remaining subscription that a Fan has concluded in relation to content of the Creator. With the effectiveness of the termination of the framework agreement, the usage agreement as a Creator also ends.
9.3. In the case of an ordinary termination of the framework agreement by the Fan, the contractual relationship between the Provider and the Fan only ends at the point in time at which the Fan's subscription with the longest term can end at the earliest according to point 6.5. of these GTC. With the end of the framework agreement, access to content previously subscribed to by the Fan becomes impossible, unless the Fan has previously also acquired and downloaded this content through a paid individual retrieval.
9.4. In the case of parallel existence of an account as a Fan and as a Creator, the termination of the account as a Creator requires an express declaration, otherwise it is only considered as a termination of the Fan account.
9.5. Notwithstanding the right to ordinary termination, each contractual party has the right to extraordinary termination for good cause. An important reason for termination by the Provider exists in particular in a serious violation of the provisions of these GTC or the "Terms of Use for Creators".
9.6. Termination by the Users, if not done online at www.maloum.com/subscriptions, is to be directed by email to support@maloum.com or in writing to neolime GmbH, Kolonitzgasse 2/54, 1030 Vienna.
9.7. Termination by the Provider always occurs via email to the email address last stored in the User account by the User.
10. Rights and duties of the user; rights of third parties; restrictions of use
10.1. The User must provide truthful, complete, and current information about their identity during registration as well as transmit contact data, and immediately update this data in their User profile if changes occur. For a User who is a Creator, the obligation to update applies in particular if they lose their small business status and receive a VAT identification number. The Creator further commits to ensure that only this identified person is visible in their content and no persons are visible who differ from the one registered in the user profile. This is with the exception of persons described in point 10.4. In case of suspected identity misuse or unauthorized representation of another person in violation of the obligation according to point 10.4, the Provider reserves the right to request proof of identity from the user or proof in the sense of point 10.4, otherwise the user account will be blocked or deleted.
10.2. If a User decides to transfer rights - especially exploitation rights - to their Content to the Provider free of charge, they must register as a Creator. In this case, in conjunction with these GTC, the "Terms of Use for Creators" apply additionally.
10.3. The User must ensure that they possess all necessary rights to the Content uploaded to the online content platform and other data uploaded by them (e.g., comments, profile pictures). The use and exploitation of this Content and the uploaded other data by the User as well as by the Provider authorized by the User must not be opposed by any rights of third parties (e.g., copyrights, exploitation rights, the right to one's own image or the right to one's name). The User is - subject to the obligation to indemnify and hold the Provider harmless - responsible for ensuring that the Content uploaded by them and provided to the Provider for use and exploitation and other data uploaded by the User do not violate regulations of these GTC or legal provisions and do not violate any rights of third parties.
10.4. The User must obtain in writing the necessary consents and rights grants from all persons who are visible or audible on the Content uploaded by them or who otherwise possess rights to the Content or other uploaded data. This includes in particular the consent to depiction and the granting of the right to distribute, publish and make available the Content on the Provider's website. The User must ensure that all persons depicted on the uploaded Content and other uploaded data are of legal age. They must document and prove to the Provider the age as well as the possession of the necessary rights to the Content and other data uploaded by them. The Provider will keep these proofs. The Provider reserves the right not to allow or to delete Content if these proofs are not provided or if there are doubts about their correctness.
10.5. The User must indemnify and hold harmless the Provider and the companies associated with it in corporate law as well as the organs, employees, legal representatives, shareholders or assistants of the Provider and the companies associated with it from all claims of third parties due to legal violations by the Content uploaded by the User to the online content platform, and to stand by them as a joint litigant in any court proceedings. The same applies if claims are raised by third parties against the Provider (as well as against the companies associated with it in corporate law and the organs, employees, legal representatives, shareholders or assistants of the Provider and the companies associated with it in corporate law) in connection with the other use of the Provider's services by the User. The obligation to indemnify and hold harmless includes all costs of appropriate legal defense, court costs as well as any damages and penalty payments.
11. Granting of rights to the provider by the user
11.1. By uploading and/or publishing their Content on the online content platform, the User grants the Provider a spatially and by type of use unlimited, temporally limited to the duration of the framework or usage contract with the Provider, but non-exclusive right of use and exploitation to use this Content throughout the entire contract duration, in particular to offer the Content to other Users for a fee or free of charge, to make it publicly accessible and to distribute it.
11.2. The User grants the Provider the right to provide the Content published by them on the online content platform with the logo and/or URL of the Provider or to edit it otherwise to ensure identifiability with the Provider. The Provider is entitled to use the Content published by the User for its own advertising and marketing actions.
11.3. The User assures that they are entitled to grant the Provider all rights of use and exploitation of the uploaded works, subject to the obligation to indemnify and hold the Provider harmless against claims of third parties.
12. Prohibited conduct and content
12.1. The use of the services, including the messenger function and the posted content itself, to refer to or advertise platform-external content and offers of commercial or non-commercial nature of any third parties, as well as any activities that are not compatible with the terms of use, is strictly prohibited.
12.2. All illegal and ethically reprehensible content is prohibited, whether it is written or acoustic expressions, animated, drawn or real representations. This includes, among others, but not conclusively:
12.2.1. Inciting, discriminatory, racist, xenophobic, anti-state or violence-glorifying Content
12.2.2. Child pornographic Content
12.2.3. Content that shows, encourages or approves sexual acts that are not consensual, violence, brutality, atrocities, incest, extreme BDSM or human trafficking
12.2.4. Advertising for sects, violence-glorifying or other questionable or under increased official observation standing associations
12.2.5. Any type of automated access to the online content platform through external programs
12.2.6. Advertising for competing platforms
12.2.7. Poaching fans or creators for competing platforms
12.3. The Provider continuously checks the content posted on the online content platform and reserves the right not to allow prohibited content to be uploaded or published or to delete it.
12.4. If the User violates points 12.1. and 12.2., the Provider reserves the right to:
12.4.1. warn the User,
12.4.2. delete affected content of the User,
12.4.3. temporarily block or permanently delete the User's account,
12.4.4. terminate the User without notice,
12.4.5. submit factual representations to law enforcement authorities in case of serious violations.
12.4.6. Furthermore, the Provider reserves the right to delete the User's account if the User commits a serious breach of contract. In addition to the behaviors described in points 12.1 and 12.2, this includes, in particular, repeated violations of these Terms and Conditions, spamming, harassment, the circumstance that Creators who switch to another platform induce Fans to also switch platforms, or any activities that pose a danger to the safety or well-being of other users or the online content platform.
12.4.7. All revenues earned by Creators in the course of serious contract violations will be reversed. In the event that such revenues have not yet been paid out, the Provider reserves the right to withhold these revenues.
13. Contractual Penalty and Other Financial Claims
13.1. The User is liable to the Provider for all damages arising from non-compliance with these Terms and Conditions and expressly agrees to pay a lump-sum contractual penalty of EUR 50 in case of a serious breach of contract.
13.2. The Provider reserves the right to first satisfy any financial claims against the User from their unpaid credit balance.
13.3. The Provider reserves the right to withhold earnings of the Creator that were generated in the course of actions violating the contract.
13.4. Furthermore, the Creator agrees to reimburse any costs incurred by the Provider due to the Creator's misconduct.
14. Purchase of physical products in the webshop
14.1. The Provider offers physical products of the Creator for purchase in its webshop.
14.2. The shipping costs are added to the product price and, together with the delivery conditions, can be found in Annex B:/.
14.3. To purchase a product, the User must click on the button "Order now". The User then reaches the checkout to complete the purchase process. Before this, the User is shown the purchase price plus shipping costs to the address provided by them. The payment must then be made by selecting one of the available payment methods.
14.4. The offers and product presentations in the webshop do not constitute a binding offer. Only the User's order is a binding offer, which the Provider can accept at its own discretion. After sending the order, the Provider first sends the User an order receipt confirmation by email. If the Provider accepts the order, the User will receive an order confirmation from the Provider by email within three working days after receipt of the order, with which the contract is concluded.
14.5. The purchase price is to be charged with 4% p.a. interest during the delay in the event of default of payment.
14.6. In the event of questions, complaints or claims regarding physical products, customer service staff are available to the User by e-mail at support@maloum.com from Monday to Friday between [08:00] and [17:00].
15. Payments and Billing
15.1. Subscriptions of Content from a Creator are billed and due for payment at the beginning of the subscription period, after transitioning to an indefinite subscription in intervals of 30 days. The User must store valid payment data in their account. The following payment options are available.
15.2. If the User selects the payment option "SEPA Direct Debit" and provides their bank details, they authorize the Provider for the duration of their membership to withdraw fees immediately (for individual purchases) or at the beginning of the respective applicable billing period (for subscriptions) from the User's account.
15.3. If the User selects the payment option "Credit Card" and provides their credit card details, the User grants the Provider the right to withdraw fees immediately (for individual purchases) or at the beginning of the respective applicable billing period (for subscriptions) from the User's account.
15.4. In case of failure of a SEPA Direct Debit or a debit from a credit card, the Provider is entitled to pass on the resulting additional costs to the User. If the direct debit fails due to insufficient funds, is not executed due to the provision of incorrect payment data, or if the User disputes the direct debit without being entitled to do so, the Provider is entitled to pass on the additional costs of EUR 50 to the User if the User is responsible for this. However, the User is free, without prejudice to statutory claims of the Provider, to prove that no damage or lesser damage has occurred.15.5. In case of refunds to fans caused by a service provided by the Creator that is deficient or deviates from the agreed-upon service, the Provider expressly reserves the right to have these costs borne entirely by the Creator.
15.6. The Provider allows payments to be made to third parties, such as agencies or managers of the Creators, provided that the Creator has given their express consent. This consent is subject to an additional agreement (see Appendix "Auszahlungsvereinbarung"). The Creator undertakes to ensure that such third parties comply with the Terms and Conditions of the online content platform. The Provider is not liable for any disputes between the Creator and the third party regarding the payment modalities. The Creator agrees to indemnify and hold the Provider harmless from any claims or legal violations arising from this.
16. Restrictions on the availability of the online content platform
The Provider will make all reasonable efforts to keep the online content platform with all functions available and up to date, in particular free of viruses and malware. Nevertheless, due to force majeure, fault of third parties, or other events beyond the Provider's control, the online content platform may fail and/or maintenance and repair work may occur that impairs use.
17. Creator Ranking (Top 100 Creators)
17.1. The online content platform offers a creator ranking system, based on which creators are ranked in a list that can be viewed on the online content platform, with this list ranking the 100 most successful creators. The ranking is formed based on a series of engagement criteria, as well as on the revenue generated and the quality of the content.
17.2. The Provider reserves the right to change and optimize or abolish the criteria and the ranking system as a whole at any time and without prior notification to the users.
17.3. The Provider reserves the option to inform creators about any significant changes to the ranking system that could substantially influence their position within the ranking.
18. Limitation of liability
18.1. No liability is assumed for damages to Users from limitations of the availability of the online content platform, except in cases of gross negligence or intent of the Provider.
18.2. The above limitation of liability does not apply to personal injuries or liability under the Product Liability Act (PHG).
18.3. The Provider acts exclusively as an intermediary between Creator and Fan. The Provider does not guarantee any direct or personal contact between Creator and Fan via the online content platform.
18.4. The Provider assumes no liability, in particular, for false information provided by the Creator, deception about identity, or similar issues. Therefore, the Provider assumes no liability for damages that may arise from interactions between users.
19. Reporting and Prevention of Legal Violations
19.1. The Provider is committed to protecting the rights of third parties and therefore to preventing unlawful practices and content from Users.
19.2. If you believe that your rights have been violated by content on the online content platform or if you believe that the content violates the rights of third parties, violates legal prohibitions, or is otherwise prohibited under these Terms and Conditions, please inform office@MALOUM.io immediately. The Provider will promptly investigate all notifications and, in the case of an obviously justified notification, delete the complained content within 24 hours, otherwise within seven days after conducting necessary further investigations in the case of actual prohibited content.
20. Applicable law and place of jurisdiction
20.1. For all disputes arising from the contractual relationship between Creator and Provider, the court with subject-matter and local jurisdiction at the Provider's registered office in Vienna, Austria, is agreed as the exclusive place of jurisdiction. Austrian law applies to all legal relationships between the Provider and the Creator, excluding conflict of laws provisions.
20.2. For all disputes arising from the contractual relationship between Fan and Provider, one of those courts in whose district the Fan (consumer) has their residence, habitual abode, or place of employment shall have jurisdiction. Austrian law applies to all legal relationships between Provider and consumer, excluding conflict of laws provisions, insofar as this does not deprive the consumer of the protection afforded to them by the consumer protection provisions of the state of their habitual residence, which cannot be derogated from by agreement.
21. Severability clause
Should individual provisions of these Terms and Conditions be or become invalid in whole or in part due to a change in law or supreme court jurisprudence, the contractual relationship shall remain effective in other respects. In such a case, the contracting parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the meaning and purpose of the invalid provision.
22. Alternative Dispute Resolution
The EU Commission has set up an internet page for online dispute resolution between entrepreneurs and consumers (OS platform). You can reach this at http://ec.europa.eu/consumers/odr/. The Provider is generally willing, but not obliged, to participate in dispute resolution before a competent consumer arbitration board.
23. RIGHT OF WITHDRAWAL
23.1. Right of Withdrawal for ConsumersConsumers have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period begins 14 days from the day of the conclusion of the contract. To exercise your right of withdrawal, you must inform us: neolime GmbH Kolonitzgasse 2/54 1030 Vienna Email: support@maloum.com by means of a clear statement (e.g. a letter sent by post, email) about your decision to withdraw from this contract. You can use the attached sample withdrawal form for this purpose, which is not mandatory. To meet the withdrawal deadline, it is sufficient for you to send the notification of exercising your right of withdrawal before the withdrawal period expires.
23.2. Consequences of WithdrawalIf you withdraw from this contract, we must reimburse you for all payments we have received from you, including delivery costs (with the exception of additional costs resulting from your choosing a type of delivery other than the least expensive type of standard delivery offered by us), immediately and at the latest within 14 days from the day on which we received notification of your withdrawal from this contract. For this refund, we will use the same means of payment that you used in the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees for this refund. If you have requested that the service should begin during the withdrawal period, you must pay us a reasonable amount corresponding to the proportion of services already provided up to the point at which you inform us of the exercise of the right of withdrawal with regard to this contract, in comparison with the full scope of the services provided for in the contract.
23.3. Exclusion of the Right of WithdrawalThe right of withdrawal does not exist if you act as an entrepreneur within the meaning of § 1 UGB at the time of conclusion of the contract. The right of withdrawal also does not exist, among other things, if you express an explicit request for contract fulfillment before the expiry of the withdrawal period in the sense of the following point 20.4. of these Terms and Conditions, or if you order goods that are manufactured according to customer specifications or are clearly tailored to personal needs.
23.4. Express Request for Contract Fulfillment Before Expiry of the Withdrawal PeriodWhen concluding a subscription or a paid individual retrieval, you must expressly agree by clicking a checkbox that we may begin with the execution of our services before the end of the withdrawal period (§ 18 Abs 1 Z 11 Fern- und Auswärtsgeschäftegesetz). Furthermore, by clicking the mentioned checkbox, you must confirm your knowledge that you lose your right of withdrawal through the early start of contract fulfillment. Without this consent and your confirmation, we can only provide services from our paid individual offers and subscriptions after the expiry of the fourteen-day withdrawal period.
ANNEX B:/Shipping costs and delivery conditions for physical products in the web shop
- Deliveries are only possible to delivery addresses within Germany and Austria.
- The shipping costs within Germany and Austria amount to € 5.00. This value must be regarded as a guideline, as the final price depends on the nature of the product.
- The shipping costs from Germany to Austria and vice versa are 10,00 €. This value must be considered as a guideline, as the final price depends on the nature of the product.
- The delivery of the order is only carried out via the shipping method.
In the event of a reshipment due to a wrongly deposited address by the buyer, we reserve the right to charge the flat rate for shipping afterwards.
