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 the "Provider") and its contractual partners (hereinafter referred to as the "User") with regard to the use of the online content platform at www.maloum.com. The latest version of the GTC shall apply. The most current version of the GTC shall be authoritative.
2. Amendments to these GTC
2.1. Deviating, conflicting or supplementary GTC of a User - even if known to the Provider - do not become part of the contract, unless their validity is expressly agreed to in writing.
2.2. The Provider reserves the right to make changes to these GTC and will inform the User four weeks before an intended change by e-mail to the address last notified by the User. If the User objects to the change, the contractual relationship ends with the entry into force of the changed GTC with the effects of an ordinary termination described in section 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 the provider can make it available to other users of the online content platform, either for a fee or free of charge. The respective Creator receives remuneration for this from the Provider. In addition to these GTC, the "Terms and Conditions for Creators", which are available here, shall apply to Creators.
3.3. A fan is a user who consumes the content of a creator or follows a creator, subscribes to content created by the creator, or accesses it free of charge or for a fee.
3.4. Creators and followers as a whole are hereinafter jointly 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 and partly for a fee.
3.6. All functions and features of the online content platform operated by the Provider intended for use by users are hereinafter referred to as services, irrespective of whether they are provided free of charge or against payment.
4. Subject matter of the contract
4.1. The Provider operates the online content platform MALOUM on the Internet under the URL www.maloum.com. The Provider reserves the right to modify these General Terms and Conditions.
4.2. The Provider reserves the right to modify these GTC, provided that:
4.2.1. the modification is exclusively advantageous for the User,
4.2.2. changes in the legal framework - in particular due to amendments to the law, official or judicial decisions - require a modification, or
4.2.3. the modification is necessary to protect the rights and freedoms of third parties or the Provider.
5. Registration and conclusion of the framework contract
5.1. Natural persons of legal age are entitled to create a user account. Each natural person may only create one account at a time.
5.2. Only those Users who are engaged in an independent economic activity, i.e. are entrepreneurs according to § 1 of the Austrian Commercial Code (UGB), are entitled to use the User Account as Creator, i.e. to transfer content to the Provider. The functions of the online content platform intended for use by creators are therefore exclusively addressed to entrepreneurs and not consumers pursuant to § 1 para 1 no 2 KSchG.
5.3. In order to use the services, prior registration by creating a user account is required. In the course of the registration process, the user must provide the data requested by the provider completely and correctly.
5.4. There is no entitlement to admission to use the services. Admission is at the sole discretion of the Provider. A refusal does not require any justification.
5.5. By completing the registration process, the user makes a binding offer to conclude a framework agreement for the use of MALOUM and the services; Creators also make an additional offer in accordance with the General Terms and Conditions "Terms of Use for Creators". The Provider will inform the User of the acceptance of his offer by sending a contract confirmation by e-mail. Due to any necessary checks on the part of the provider, the sending of a contract confirmation may only take place a few days after the offer has been made.
6. Use of chargeable content; subscriptions
6.1. As a fan, users can conclude individual contracts with the Provider within the framework agreement specified in section 5 for the retrieval of chargeable content of a Creator on a one-time basis or on the basis of a subscription model. The sole contractual partner of the fan is always the provider to whom the content is provided by the creator for exploitation. 6.2.
6.2. The paid use of content on a one-time basis takes place on the channel of the Creator by the Fan first accepting the price of the content that can be called up on a one-time basis and the content itself by clicking on the button "Call up now for a fee" and then triggering the payment process by clicking on the button "Pay now" and entering data.
6.3. The paid use of content for subscription is also carried out on the channel of the Creator by the Fan first accepting the subscription price, the subscription content and the subscription period by clicking on the button "Subscribe now for a fee" and then triggering the payment process by clicking on the button "Pay now" and entering data.
6.4. If a fan decides on a subscription model, the billing for the subscription period selected by the fan when ordering will take 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 quoted by the Provider in the Creator Channel always refer to a specific subscription period.
6.5. After expiry of the subscription period, the subscription is automatically renewed for the period for which it was originally concluded, unless the User terminates the subscription in writing. The User has the right to prevent the renewal of the contract by giving notice no later than two weeks (14 days) before the end of the contract. The Provider undertakes to inform the User separately and in good time, i.e. before the start of this cancellation period, of the possibility of cancellation in the event of other contract extensions. An extended subscription will be billed on a pro rata basis in periods of 30 days. The subscription can be cancelled directly through the platform or by sending an email to the platform (support@maloum.com)
6.6. Subscriptions may be terminated at the end of the current subscription period, unless 6.5 applies.
6.7. All prices shown on MALOUM Fans are inclusive of 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 shall delete the Creator's content and Channel at the time of expiry of the last subscription of a Fan for the respective Channel or Creator. From the time of the extraordinary notice of termination to the Creator until the deletion of the channel, the channel will no longer be supplemented with new content. In this case, fans will not be able to take out new subscriptions for the Channel or for other content of the Creator concerned.
6.9. Should the Provider extraordinarily terminate the contractual relationship with a Fan with immediate effect, the subscription price paid for future periods will not be refunded if the Fan's subscription is still running.
7. Age verification
For the retrieval of pornographic content or content otherwise harmful to minors, an age age verification of the user by the provider is required. For this purpose, the provider will the age of the user by means of a request for the date of birth, in order to ensure that the user is is of age. The user is obliged to state his/her date of birth truthfully.
8. Termination of the Framework Agreement
8.1. Provider and User may terminate the framework agreement on the use of the Services concluded for an indefinite period of time in writing at any time without giving reasons. The User may also terminate the framework agreement at www.app.maloum.com/subscriptions by entering the required data and clicking on the button "Terminate now".
8.2. Creators may terminate the framework agreement within a notice period of four weeks to the end of each month. In deviation from this, the termination in accordance with item 3.3. of the Terms of Use for Creators and in accordance with item 6.5. of these GTC only becomes effective with the earliest possible end date of the last remaining subscription that a Fan has concluded with regard to Creator content. When the termination of the Framework Agreement takes effect, the user agreement as Creator also ends.
8.3. In the event of an ordinary termination of the Framework Agreement by the Fan, the contractual relationship between Provider and the Fan shall only end at the earliest point in time at which the Fan's subscription with the longest term can end in accordance with section 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 by means of a paid individual download.
8.4. In the event 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 shall only be deemed to be a termination of the Fan Account.
8.5. Notwithstanding the right to ordinary termination, each contracting party has the right to extraordinary termination for good cause. An important reason for termination by the Provider is in particular a serious violation of the provisions of these GTC or the "Terms of Use for Creators".
8.6. The termination by the user is to be sent by e-mail to support@maloum.com or in writing to neolime GmbH, Kolonitzgasse 2/54, 1030 Vienna.
8.7. Cancellation by the Provider shall always be made by e-mail to the last e-mail address stored by the e-mail address stored by the User in the User Account.
9. Rights and duties of the user; rights of third parties; restrictions of use
9.1. When registering, the User must provide truthful, complete and up-to-date information about his identity and contact data, and update this data immediately in his user profile in the event of changes. For a User who is a Creator, the obligation to update shall apply in particular if he loses his small business status and receives a VAT number. In the event of suspected misuse of identity, the Provider reserves the right to demand proof of identity from the User, failing which the User's account will be blocked.
9.2. If a User decides to transfer rights - in particular exploitation rights - to his Content to the Provider free of charge, he must register as a Creator for this purpose. In this case, the "Terms of Use for Creators" shall apply in conjunction with these GTC.
9.3. The user must ensure that he/she owns all the necessary rights to the content uploaded by him/her to the online content platform and the other data uploaded by him/her (e.g. comments, profile pictures). The use and exploitation of this content and the use and exploitation of this content and other uploaded data by the user or by the provider authorised by the user must not conflict with any third-party rights whatsoever (e.g. copyrights, exploitation rights, the right to one's own image or the right to a name). The User is responsible - with the other obligation to indemnify and hold the Provider harmless - for ensuring that the content uploaded by the User and the content provided to the Provider for use and exploitation and the other data uploaded by the User do not violate the provisions of these GTC or legal provisions and do not infringe any third-party rights whatsoever.
9.4. The User must obtain the necessary consent and granting of rights in writing from all persons who can be seen or heard on the content uploaded by him or who otherwise possess rights to the content or other uploaded data. This includes in particular the consent to the reproduction 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. The User must document the age and the possession of the necessary rights to the content and other data uploaded by him/her and prove this to the Provider. The Provider shall retain this evidence. The Provider reserves the right not to accept or to delete Content if this evidence is not provided or if there is doubt as to the correctness of the Content.
9.5. The User must indemnify the Provider and the companies associated with it under company law, as well as the organs, employees, legal representatives, shareholders or assistants of the Provider and the companies associated with it, against all claims by third parties due to infringements of rights by the content uploaded by the User to the online content platform, thus indemnifying and holding them harmless and assisting them in any legal proceedings in this regard as a joint litigant. The same applies in the event of third party claims against the Provider (as well as against the companies associated with it under company law and the organs, employees, legal representatives, shareholders or assistants of the Provider and the companies associated with it under company 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 defence, court costs and any damages and penalties.
10. Granting of rights to the provider by the user
10.1. By uploading and/or publishing his Content on the online content platform, the User grants the Provider a right of use and exploitation, unlimited in terms of space and type of use and limited in time to the term of the framework or usage agreement with the Provider, but not exclusive, to use this Content for the entire term of the agreement, in particular to offer the Content to other Users against payment or free of charge, to make it publicly accessible and to distribute it.
10.2. The User grants the Provider the right to add the Provider's logo and/or URL to the content published by the User on the online content platform or to edit it in any other way in order to ensure that it is identifiable with the Provider. The Provider is entitled to use the content published by the User for its own advertising and marketing campaigns.
10.3. The User warrants that he/she is entitled to grant the Provider all rights of use and exploitation of the uploaded works, subject to any other obligation to indemnify and hold the Provider harmless from and against any claims of third parties.
11. Prohibited conduct and content
11.1. The use of the Services, including the messenger function and the uploaded content itself, to refer to or advertise content and offers of a commercial or non-commercial nature of any third party that are not part of the platform is strictly prohibited.
11.2. All unlawful and ethically objectionable content, whether written or audio, animated, drawn or real, is prohibited. This includes, but is not limited to:
11.2.1. inflammatory, discriminatory, racist, xenophobic, anti-state or violent content.
11.2.2. child pornographic content
11.2.3. content that depicts, encourages or condones non-consensual sexual acts, violence, brutality, atrocities, incest, extreme BDSM or human trafficking
11.2.4. advertising cults, violence or other associations that are questionable or under increased scrutiny by the authorities.
11.3 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.
11.4. If the User violates points 11.1 and 11.2, the Provider reserves the right:
11.4.1. issue a warning to the User,
11.4.2. delete the contents of the User concerned,
11.4.3. temporarily block or permanently delete the User's Account,
11.4.4. terminate the user without notice,
11.4.5. in the case of serious misconduct, to forward statements of facts to criminal prosecution authorities.
12. Purchase of physical products in the webshop
12.1. The Provider offers physical products of the Creators for purchase in its web shop.
12.2. The shipping costs shall be added to the product price and can be found, together with the delivery conditions, in Annex B:/. 12.3.
12.3. To purchase a product, the User must click on the button "Order now with costs". The User then enters the checkout to complete the purchase process. Before this, the User is shown the purchase price plus the shipping costs to the address specified by him. Payment must then be made by selecting one of the available payment methods (credit card or SEPA payment).
12.4. The offers and product presentations in the web shop do not constitute a binding offer. Only the User's order is a binding offer, which the Provider may accept at its own discretion. After the order has been sent, the Provider shall first send the Userthe User a confirmation of receipt of the order by e-mail. If the Provider accepts the order, the User will receive an order confirmation from the Provider by e-mail within three working days of receipt of the order, with which the contract is concluded. 12.5.
12.5. The purchase price is subject to interest of 4% p.a. upon the occurrence of default during the period of default.
12.6. 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].
13. Payments and Billing
13.1. Subscriptions to a Creator's Content are billed and due for payment at the beginning of the subscription period, and at 30-day intervals after the transition to an unlimited subscription. The User must enter valid payment data in his account. The following payment options are available: Credit cards (Visa and MasterCard) and SEPA payment.
13.2. If the User selects the payment option "SEPA direct debit" and provides his/her bank details, he/she authorises the Provider for the duration of his/her membership to collect fees from the User's account immediately (in the case of individual purchases) or at the beginning of the applicable billing period (in the case of subscriptions).
13.3. If the User chooses the payment option "credit card" and provides his/her credit card details, the User grants the Provider the right to collect fees from the User's account immediately (in the case of individual purchases) or at the beginning of the applicable billing period (in the case of Subscriptions).
13.4. In the event that a SEPA direct debit or a debit from a credit card fails, the Provider is entitled to pass on the resulting additional costs to the User. If the direct debit fails due to a lack of funds in the account, if it is not executed due to the deposit of incorrect payment data or if the User complains about the direct debit without being entitled to do so, the Provider is entitled to pass on the additional costs of EUR 25.00 to the User if the User is responsible for this. However, the User is free, without prejudice to the Provider's legal claims, to prove that no damage or a lesser damage has occurred.
14. Restrictions on the availability of the online content platform
The Provider shall make every reasonable effort to keep the online content platform and all its functions available and state of the art, in particular free of viruses and malware. Nevertheless, due to force majeure, due to the fault of third parties or due to other events beyond the Provider's control, the online content platform may fail and/or care and maintenance work may be carried out which impairs the use of the online content platform.
15. Limitation of liability
15.1. Except in cases of gross negligence or intent on the part of the Provider, the Provider shall not be liable for any damages suffered by Users due to restrictions on the availability of the online content platform.
15.2. The above limitation of liability does not apply to personal injury or to liability under the German Product Liability Act (PHG).
16. Notification and prevention of legal infringements
16.1 It is important to the Provider to protect the rights of third parties and therefore to prevent infringing practices and content by Users.
16.2 If you are of the opinion that your rights have been infringed by content on the online content platform or if you are of the opinion that the content infringes the rights of third parties, violates legal prohibitions or is otherwise prohibited under these General Terms and Conditions, you are requested to inform immediately support@maloum.com without delay. The Provider will immediately investigate all notifications and, in the case of an obviously justified notification, delete the content complained of within 24 hours, otherwise in any case within seven days after carrying out the necessary further investigations in the case of the actual existence of prohibited content.
17. Applicable law and place of jurisdiction
17.1. For all disputes arising from the contractual relationship between Creator and Provider, the competent court at the Provider's registered office in Vienna, Austria, is agreed as the exclusive place of jurisdiction. Austrian law shall apply to all legal relationships between the Provider and the Creator, to the exclusion of the referral and conflict of law provisions.
17.2. For the resolution of all disputes arising from the contractual relationship between Fan and Provider, one of the courts in whose jurisdiction the Fan (consumer) has his domicile, habitual residence or place of employment has jurisdiction. All legal relations between the Provider and the Consumer shall be governed by Austrian law, to the exclusion of the conflict of laws rules, insofar as the Consumer is not thereby deprived of the protection afforded to him by the consumer protection provisions of the country of his habitual residence, which may not be derogated from by agreement.
18. Severability clause
Should individual provisions of these GTC be wholly or partially invalid or become invalid as a result of a change in the law or supreme court rulings, the remainder of the contractual relationship shall remain valid. 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.
19. Alternative Dispute Resolution
The EU Commission has set up a website for online dispute resolution between entrepreneurs and consumers (ODR platform). You can access this at http://ec.europa.eu/consumers/odr/. The Provider is in principle willing, but not obliged, to participate in dispute resolution before a competent consumer arbitration board.
20. CANCELLATION POLICY
20.1. Right of withdrawal for consumersAs a consumer, you have the right to cancel this contract within 14 days without giving any reason. The withdrawal period starts 14 days from the day of the conclusion of the contract. In order to exercise your right of withdrawal, you must send us (neolime GmbH) an Email to support@maloum.com of your withdrawal from this contract by means of a clear declaration (e.g. a letter sent by post, e-mail). You can use the attached model withdrawal form for this purpose, which is, however, not mandatory. To comply with the withdrawal period, it is sufficient for you to send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.
20.2 Consequences of cancellationIf you revoke this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the favourable standard delivery offered by us), without undue delay and at the latest within 14 days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees because of this repayment. 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 the services already provided up to the time you notify us of the exercise of the right of withdrawal with regard to this contract compared to the total scope of the services provided for in the contract.
20.3 Exclusion of the right of withdrawalThe right of withdrawal does not exist if you are acting as an entrepreneur within the meaning of § 1 of the Austrian Commercial Code (UGB) when concluding the contract. The right of withdrawal also does not exist if, among other things, you express an explicit wish for contract fulfilment within the meaning of the following point 20.4. of these GTC before the expiry of the withdrawal period or if you order goods that are manufactured according to customer specifications or are clearly tailored to personal needs.
20.4 Express request for performance of the contract before expiry of the withdrawal periodWhen concluding a subscription or a paid individual call-off, you have to expressly agree by clicking on a check box that we start performing our services already before the end of the withdrawal period (§ 18 para 1 line 11 Distance and Foreign Transactions Act). Furthermore, by clicking on the aforementioned check box you have to confirm your knowledge that you lose your right of withdrawal by the premature start of the performance of the contract. Without this consent and without your confirmation, we can only perform services for you from our paid individual offers and subscriptions after the expiry of the fourteen-day revocation period.Status: 16. 1. 2023
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.
