Terms of use app

General Terms and Conditions of Peloton Informationstechnologie GmbH, Finkenweg 7 65843 Sulzbach; Germany (hereinafter ‘Provider’), e-mail: info@peloton-it.de

1. General provisions
   1. The Provider provides its customers with an app in accordance with these General Terms and Conditions.
   2. The Provider does not recognise any terms and conditions that deviate from these terms and conditions and that are used by the customer – subject to express consent.
   3. If the app is distributed via an app store, the terms and conditions of the respective app store also apply to the purchase of the app.
2. Subject matter of the contract
   1. The provider makes an app available to the customer. The app serves to honour the memory of deceased persons. Users can create groups in memory of deceased persons or join existing groups. The aim is to display, like and comment on photos, videos and texts of the deceased person in a timeline so that every user can view and remember the life of the deceased person. Users can download the app free of charge and use it permanently free of charge.
      Each group created is free of charge for the period specified by the provider. Thereafter, each group member can contribute to the maintenance of the group by paying a fee, and all group members will continue to have access for the duration of the amount paid. The amount to be paid per day is specified by the provider in the app.
   2. Users have the option of extending the term of one or more groups by paying an amount chosen by one or more users. Payment is made using the payment methods offered by the provider Apple Pay, Google Pay or via Stripe credit card, debit card or SEPA direct debit. The extension period depends on the amounts paid. The provider confirms the payment and extension of the group content to the user after the purchase.
   3. Without payment by group members, group content will be deactivated after 30 days. Users can then no longer view group content. However, group content can be reactivated with full functionality within 365 days of the expiry of the free period or the last payment by a payment from a group member. If no further payment is made 365 days after expiry of the last payment, group content will be irrevocably deleted by the provider.
   4. The provider shall provide the services in accordance with the current state of the art. It shall continuously develop the app and improve it through ongoing updates and upgrades. The availability of the app is 98.5% on an annual average, including maintenance work, but availability may not be impaired or interrupted for more than two consecutive calendar days. This excludes necessary regular maintenance work and periods in which availability is restricted due to events for which the provider is not responsible (e.g. force majeure, acts of third parties, technical problems or changes in the legal situation).
   5. The provider is not the author of the content published in the app and does not check it for accuracy, topicality or possible legal violations before publication.
3. Registration, conclusion of contract, costs, cancellation
   1. Customers can register in the app. By registering, a free contract of use is concluded between the provider and the customer. The contract can be cancelled at any time without notice.
   2. The app is initially offered free of charge; term extensions of created or existing groups within the app are subject to a charge, see section 2. The provider reserves the right to offer the app or certain functions of the app in future only for a fee from the outset. If this is the case, the provider shall inform the customer of the change at least one month before the planned change to the cost structure and grant the customer the right to object to the change. If the customer objects, the provider shall be entitled to an extraordinary right of cancellation at the time the change comes into effect.
4. Obligations of the customer
   1. The customer is obliged to keep the data provided during registration up to date at all times and to refrain from violating these GTC and applicable law. The customer must ensure that his account is only used by himself. He must treat his access data and the data stored by him confidentially and ensure that third parties do not have access to his data. If the customer culpably breaches this obligation, he shall be responsible for any resulting damage.
   2. The customer is obliged to use the app only for its intended purpose and to comply with all contractual and statutory provisions when using the app. Any use beyond the purpose of the user relationship is prohibited. In particular, the customer is not authorised to transfer the app or the storage space provided to a third party for use, in part or in full, for a fee or free of charge
   3. No content may be stored in the app that portrays the deceased person negatively in words or images. This also includes unfavourable depictions, slurs or derogatory statements. Section 9 applies accordingly to offences.
   4. The customer can act as a simple user or as a group administrator. They automatically receive the role of group administrator when a group is created. He can transfer this role to another group member. The group administrator is responsible for monitoring group contributions. If a group member reports a post, the group administrator receives a message via the conflict reporting system. He must then check the post and either deactivate, delete or retain it.
5. Copyright and rights of use
   1. By posting content, the user grants the provider a simple right of use to this content free of charge. The posted content may be published by the provider of the app and viewed and shared by users until revoked. In the event of revocation, the content concerned will be made unrecognisable.
   2. If the user posts content to which third-party rights exist (in particular trademark and copyrights), he must ensure that he has the necessary rights of use to post the content (in particular in the case of copyrights and trademark rights). If the user is not legally in a position to transfer the rights of use specified in section 5.1 to the provider, he is not authorised to publish this content in the app. The user who uploads the photo/video in question to the app is responsible for obtaining any necessary consent from persons depicted in the photos or videos uploaded.
6. Order processing
   Insofar as the provider processes personal data of message recipients, it acts as the user’s processor within the meaning of Art. 28 GDPR. The order processing relationship is governed by the following paragraphs.
7. In-app purchases
   1. The customer has the option of purchasing additional digital services within the app (so-called in-app purchases). The subject matter of the contract is the transfer of a simple right of use to these services. The customer is not authorised to reproduce the provided content physically or electronically and/or to transfer reproductions to third parties. Unless otherwise agreed, the services are provided exclusively for private use, meaning that commercial use is not permitted without express authorisation. The rights of use shall not be transferred until the contractually owed remuneration has been paid in full. If the digital services are made available to the customer before this point in time, this shall not be regarded as an implied transfer of rights of use.
   2. The purchase is made by selecting the desired amount and the resulting usage period and then tapping the purchase button. Until the online purchase process is completed, the customer can correct their selection and entries or cancel the purchase at any time. By tapping the ‘Order with costs’ button, the customer submits a binding contract offer. The contract offer is accepted when the credit balance is credited to the respective group
   3. The app provider does not save the text of the contract. The German or English language is available for the conclusion of the contract.
      The statutory warranty for defects applies.
   4. The customer’s contractual partner in the event of an in-app purchase is the operator of the respective app store. In addition to these GTC, the contractual terms and conditions of the app store operator shall take precedence in the case of in-app purchases.
8. Support
   Application or software problems are dealt with by the provider as part of the support service. Support services are to be requested via the communication channels provided for this purpose or via the ticket system that may be available for the purpose of the fastest possible processing. During regular business hours, support requests are generally processed chronologically, according to the order in which they are received by the provider.
9. Blocking and blocking of content
   No content may be stored in the app that is offensive, extremist, glorifies or trivialises violence, incites hatred, is right-wing extremist, discriminatory, anti-constitutional, harmful to minors or pornographic, violates the rights of third parties (e.g. trademark and copyright law) or other applicable law or morality (in particular criminal law and the law on administrative offences) or contains malicious code or malware. If the provider becomes aware that unauthorised content within the meaning of this paragraph may be stored on the storage space provided as part of the app, it shall proceed as follows:
   1. The provider will immediately carry out a cursory check of the content in question. If the cursory examination reveals that unauthorised content cannot be ruled out, the provider may, at its own discretion, temporarily block it or take other measures appropriate to the risk situation, up to and including deletion of the content. The provider shall request the customer to respond and grant him a reasonable period of time to do so.
   2. As soon as the customer’s statement has been received or if the customer has not submitted a statement within the period allowed, the provider will make a final decision on how to deal with the content in question. In particular, the following measures may be considered: warning; indefinite blocking or permanent deletion of the content; temporary blocking of the customer (alternatively, partial blocking may also take place); ordinary or extraordinary termination of the contract; criminal complaint or complaint to the public order office (if a criminal offence is involved that may pose a risk to the life, limb or safety of a person, the provider is legally obliged to report this).
   3. The provider will only take the respective measure after a thorough and objective assessment, taking into account in particular the severity of the violation, the number of total violations, potential effects on the services provided by the provider, its customers and other third parties, the overall behaviour (e.g. ability to understand the violation), the fault (intent, negligence), the motives for the violation (if recognisable) and the customer’s statement (if any).
   4. The provider shall inform the customer of the assessment, its result and the measures decided upon, provided there are no legal reasons to the contrary.
   5. The provider will not proactively check the stored content and – unless otherwise stated – will not carry out any automated checks of the stored content. However, it will take action as soon as it recognises such content itself or is informed of such content by third parties. If the customer becomes aware of such content, they can of course contact the provider at any time using the contact details in the legal notice.
10. Warranty for defects
    The provider guarantees the functionality and operational readiness of the app in accordance with the provisions of this contract and otherwise in accordance with the statutory warranty provisions.
11. Liability and indemnity
    1. If the app is offered to the customer free of charge, the provider is only liable for intent and gross negligence (§ 521 BGB).
    2. If the app is purchased for a fee or fee-based services are purchased within the app (in-app purchases), the following liability regulation applies: The provider is liable without limitation for any legal reason in the event of intent or gross negligence, in the event of intentional or negligent injury to life, limb or health, on the basis of a guarantee promise, unless otherwise regulated in this respect, or on the basis of mandatory liability such as under the Product Liability Act. If the provider negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical of the contract, unless unlimited liability applies in accordance with the above clause. Essential contractual obligations are obligations which the contract imposes on the provider according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may regularly rely. Any further liability of the provider is excluded.
    3. The above liability provisions also apply with regard to the liability of the provider for its vicarious agents and legal representatives.
    4. The user shall indemnify the provider against any third-party claims – including the costs of legal defence in their statutory amount – that are asserted against the provider due to actions by the customer in breach of the law or the contract. This also applies in particular to the cases set out in Section 5.
12. Confidentiality, secrecy and data protection
    The provider is obliged to process all personal data that it processes within the scope of the app confidentially and in accordance with data protection regulations. Details can be found in the privacy policy.
13. Final provisions
    1. The contracts concluded between the provider and the customer are subject to the substantive law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
    2. If the customer is a merchant or has no general place of jurisdiction in Germany, the parties agree that the place of jurisdiction for all disputes arising from this contractual relationship shall be the registered office of the provider. Sentence 1 shall not apply if an exclusive place of jurisdiction is established for the dispute.
    3. The provider is authorised to amend these GTC for objectively justified reasons (e.g. changes in case law, the legal situation, market conditions or corporate strategy) and subject to a reasonable period of notice. Existing customers will be notified by e-mail at least two weeks before the change comes into effect. If the existing customer does not object within the deadline set in the notification of change, their consent to the change shall be deemed to have been granted. The notification shall draw attention to the intended change and the consequences of an objection or failure to object.
14. Information on online dispute resolution / consumer arbitration
    1. The EU Commission provides a platform for online dispute resolution on the Internet at the following link: https://ec.europa.eu/consumers/odr
    2. This platform serves as a contact point for the out-of-court settlement of disputes arising from online purchase or service contracts in which a consumer is involved. The provider is neither willing nor obliged to participate in a consumer dispute resolution procedure in accordance with the VSBG.
    3. The provider’s e-mail address can be found in the heading of these GTC.

Status: November 2024