General Terms and Conditions for LAMA
Area of Application
1.LAMA is an offer by AB42 GmbH, Bernardgasse 32/11, 1070 Vienna, Austria, Austria, (hereinafter "LAMA" or "us" or "we"). LAMA offers a service that brings users (hereinafter "users") together, to ask questions and create video messages (hereinafter "greetings").
2.Insofar as provisions in these Terms and Conditions equally apply to all parties that use LAMA, these shall be described as "users".
3.These Terms and Conditions govern the relationship between us and the users as well as between the users with each other.
4.The general terms and conditions of business or other terms and conditions of the user shall not apply unless expressly agreed by LAMA.
Offer, Acceptance of the Terms and Conditions, Requirement for Participation
1.Upon registration on the website (hereinafter "website") or registration via smartphone app (together the "platform") and use of LAMA the user accepts these Terms and Conditions and declares that he/she is an adult or has the permission of parents or guardians to use the offer. If users are not in agreement with the provisions of these Terms and Conditions, they may not use the service.
2.LAMA endeavors to further develop, maintain and provide the offer. It is being continuously developed to adjust to various factors such as the demands of the users, the market as well as the technical and economic situation. Hereby the offer includes the service at its current stage of development. Users however have no entitlement to the offer remaining the same with regard to the scope and content or the availability of specific functions. There is equally no entitlement to the offer being permanently available or functioning without disruption.
3.Furthermore LAMA reserves the right to partially or fully cease the offer.
Subject of Contract
1.Users can conclude a contract with LAMA for the creation of a video message by a User. The subject of the contract with LAMA for users is therefore the transmission of a video, which is specified by the wishes of another user.
2.Users are commissioned by LAMA to create the corresponding video. Between the users and LAMA therefore the creation of videos is the subject of the contract.
Conclusion of Contract between users and their Contractual Duties
1.Upon registration on the platform a free user contract is concluded between the user and LAMA. Upon registering to the LAMA website users are obligated to complete all fields on the registration form truthfully and accurately. A successful registration is only possible when all mandatory fields are completed.
2.A contract between the users and LAMA for the transmission of videos subject to a fee is concluded as follows: upon the request of one user for the creation of a video, the user submits a binding offer to LAMA to conclude a contract on the provision of a greeting message. The price of the desired greeting video could be defined by the user. The content of this request is - in addition to the choice of User - also the specification of the greeting message, payment and in some circumstances also the choice of charity to which the donation should be made. A contract is first concluded when the request of the user is accepted by LAMA, at which point the user receives a message that a greeting video has been created and is ready for retrieval on the platform. By default the offer price is set to €0.
3.Payment may be issued via PayPal or credit card and is due when LAMA notifies the user that the video can be retrieved.
4.Users undertake not to issue requests that violate any laws, third party rights or good conduct, as well as such that are obscene or threaten violence.
5.Users agree that LAMA is not obligated to supply a video in which the greeting is identically worded or to give a correct answer as the users request.
6.The users, who receives the greeting receive simple unlimited rights of use to the videos supplied by LAMA and undertake not to use these videos for commercial purposes. Furthermore, users undertake not to edit the received greeting messages (e.g. cut, combine with a different audio, etc.) and thereby altering them, in particular regarding content or individual scenes. The users also undertake not to publish the video in a context that libels, insults or places LAMA or the other users in a negative light.
7.In the event that a user should breach these terms, LAMA and/or the user, who created the greeting can demand the deletion of the video, insofar as it has been published.
Conclusion of Contract with Users and their Contractual Duties
1.LAMA shall provide the users with a free smartphone app through which they can view the requests for the creation of a greeting video. Upon registering to the smartphone app, the users are obligated to complete all fields on the registration form truthfully and accurately. A successful registration is only possible when all mandatory fields are completed.
2.In the scope of this contract we only grant users the right to use the app for the purpose stipulated in these Terms and Conditions. Any further use by LAMA, in particular reproduction, distribution and decompilation is not permitted without express authorization.
3.A binding contract between the user and LAMA is first concluded when the user accepts the request from LAMA for the creation of a video by clicking the send button. The user can therefore decide which LAMA requests he/she wishes to accept, however is obligated upon acceptance to create the video in accordance with the provided details. If the user accepts a request he/she is obligated to create a greeting message that corresponds to the instructions of the user, who asked for the greeting.
4.Users must ensure that only they use their account. They acknowledge that as owners of the user accounts they are fully responsible for all activities that are performed via the user accounts.
5.Users are obligated to inform us without delay of any misuse of the password or user account as well as any other breach of security regulations and are liable towards LAMA for any misuse of the account that they have caused.
6.LAMA cannot ensure that the application functions identically on all end devices. The general functionality is dependent upon circumstances that LAMA cannot influence (user hardware, data speed, etc.).
7.LAMA advises that through the use of the app further costs outside the influence of LAMA (such as service provider costs) may be incurred by the users.
8.The users grant LAMA simple and transferrable rights to the greeting messages sent via the platform. The transferred rights are unlimited and primarily serve to fulfill the purpose of the contract. LAMA however reserves the right to use content for advertising purposes.
9.Users undertake not to create videos that violate laws, third party rights or good conduct, or those that are obscene or threaten violence. If a User finds a content to be violating human rights or displaying offensive content such as nudity, pornography or obscenities, it can be reported using our "Report" button and will be reviewed by the LAMA team.
10.In the event that LAMA in the scope of mediation (see no. 6 of these Terms and Conditions) comes to the conclusion that the video created by the user does not fulfill the minimum requirements of the user, who asked the question or does not comply with the expected type and quality, the contract shall be rescinded for all contracting parties and a claim to payment on the part of the user is waived.
11.The user receives payment from LAMA for the creation of the video. Claim to payment arises first when the video is accepted by the user, who answers the question or when in the scope of mediation (see no. 6 of these Terms and Conditions) LAMA decides that the video corresponds to the request. The amount of payment is provided as the net amount (minus applicable VAT) that LAMA receives from the users less a fee calculated by LAMA (20 % of the net price as long as no deviating agreement is concluded). Payment shall be issued as soon as the user requests this via the app, however only when a credit of at least 200 EUR is available. Insofar as the video is in mediation (see no. 6 of these Terms and Conditions), there is no claim to payment of the amount concerned during this period.
12.The users are responsible for the correct taxation of payments issued by LAMA.
Acceptance of the Video, Mediation
1.Within one week following notification from LAMA that a video can be downloaded, users have the opportunity to report it as a dispute. Following the expiry of this week, the video is considered accepted on the part of the users.
2.A user can report a video as disputed when he/she is of the opinion that it does not correspond to the desired specifications. It is hereby to be observed that the users are not obligated to follow all of the other users' specifications, but only the content important for the purpose of the video.
3.If a video is reported as disputed, LAMA decides on the procedure. If LAMA concludes that the video fulfills the desired purpose and does not contain any inappropriate content the user is obligated to accept the video. In the event that LAMA decides that the user's complaint is justified the contract shall be revoked. The user acknowledges that LAMA's decision in the scope of mediation is binding for all parties.
Donations from Users
1.With the LAMA platform we do not only wish to bring users together and spread joy, but also allow third parties to profit. Users therefore are free to undertake to donate to charity a freely selectable percentage after the deduction of the LAMA fee.
2.If a user wants to donate to a third party, he/she has to write a mail with the confirmation to info@ab-42.com.
3.The recipients of the donations are third parties (non-government organisations).
4.LAMA guarantees that the donation shall be deducted from the User's fee and issued to the recipient named for the donation. Payment of the donation to the recipient is subject to the same conditions as the payment of commission to LAMA on the part of the users.
Amendments to the Terms and Conditions
LAMA reserves the right to amend these Terms and Conditions with effect for the future. In this case we shall notify the user in advance regarding the amendment of the Terms and Conditions and advice that the amendments apply as accepted when no objection is received within 6 weeks.
1.LAMA processes user data in conjunction with the purpose of the contract and in accordance with the legal provisions. For the purpose of using the app, LAMA stores the data of the user (for example name, e-mail or date of birth). These data shall only be used by LAMA to operate the platform, shall be treated confidentially and not forwarded to third parties that are not involved in the ordering or payment processes. The user has the right upon request to receive information regarding his personal data stored by us. In addition he has the right to correct inaccurate data, or request that this data be blocked or deleted insofar as not statutory obligation to retention applies.
Liability in accordance with the Telemedia Act
The user acknowledges that LAMA assumes no responsibility for content that LAMA itself has not created or acknowledged.
1.LAMA is only liable for damage arising from intentional acts or gross negligence. This also applies to indirect consequential damage, in particular pure economic loss with the exception of death, personal injury, endangerment to health and the breach of cardinal contract duties.
2.Limitation of liability in this provision shall also apply to LAMA's employees and vicarious agents.
3.Claims to liability arising from mandatory national law shall hereby remain unaffected.
1.In the event that LAMA is claimed against on the grounds of the acts or content of users, users shall release us and our agents free from all claims as well as the necessary costs arising through a legal defense against claims initiated by third parties on the grounds of a legal infringement for which the user is responsible.
2.The necessary costs particularly include court and lawyers' fees to the statutory amount.
3.Users are furthermore obligated to inform us truthfully, immediately and fully of the legal infringement and all circumstances that serve to defend against third party claims and to provide the materials required.
Rights of LAMA Operators
1.In the event of infringements against these Terms and Conditions, laws and/or other regulations published on the LAMA website, we may temporarily or permanently exclude users from the use of this offer.
2.Users permit us to delete or restrict user accounts and functions at any time.
Applicable Law, Contract Language, Final Provisions
1.The contract relationship between users and LAMA and these Terms and Conditions are subject to Austrian law, insofar as there is no mandatory conflicting provision.
2.Contract language is English insofar as no mandatory provisions conflict with this.
3.In the event that one or more provisions of this contract should be or become invalid, the validity of the remaining provisions shall hereby remain unaffected. The contracting parties are obligated to replace an invalid provision with a valid provision that most closely achieves the desired result of the contract.
Effective date: June 2017
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