terms of use

G E N E R A L   T E R M S   A N D   C O N D I T I O N S   O F   U S E (G T C U)

for the use of the online Platform and services of

„Fanklub“

Fanklub Music FKM GmbH

Speckbachergasse 47/11, 1160 Wien
Austria
kontakt@fanklub.com
VAT ID: ATU76541002
Commercial register: 549269z, Commercial Court Vienna
 

1. Scope
   1. The following General Terms and Conditions of Use (GTCU) shall apply to all acts of use and business relationships between the User on the one hand and Fanklub Music FKM GmbH (hereinafter referred to as: FKM) on the other hand arising from the use of the online Platform and services "Fanklub", currently available at fanklub.com (hereinafter referred to as: Platform).
   2. The version of the GTCU valid at the time of use shall apply.
   3. Deviating, conflicting or supplementary GTCU/TCS of the User, even if known, shall not become part of the Agreement unless FKM has expressly agreed to their validity in writing. FKM hereby expressly objects to the User's GTCU/TCS.
   4. The User shall be expressly informed of any possible future Amendments to the GTCU. By continuing to use the services of the Platform, the User also accepts the Amendments to the GTCU.

2. Platform
   1. FKM shall provide Music Creators with a communication Platform for managing an online fan club. The User shall obtain the opportunity to join the fan club and support their artist.
   2. A substantial part of the published information ("Content"), in particular in the range of the respective fan club, shall originate from the Music Creators. In these cases, FKM shall only act as a purely technical disseminator/host, with no influence on the published content of the players and shall neither supervise it nor check its correctness. The Music Creator alone shall assume responsibility for the content.
   3. FKM shall only be held responsible for this content in accordance with § 16 (1) ECG if FKM is aware of illegal content and does not remove/block this content immediately after becoming aware of it.

3. Ownership of the Platform and the (exclusive) Content
   1. The Platform is owned by FKM in its entirety and in its parts and is protected by copyright.
   2. The content of the Music Creators is their property and shall be licensed to FKM only to the extent necessary or appropriate to keep it available for retrieval.   
   3. FKM undertakes to provide Music Creators with the opportunity to offer exclusive content to Users in order to increase the attractiveness of their own fan club. FKM points out that this exclusive content is intended solely for fan club members. Any further distribution or publication by the fan club member bypassing the paywall is prohibited and constitutes a violation of the Music Creator's right of exclusivity as well as a violation of the Music Creator's copyrights and ancillary copyrights.
   4. When the app is downloaded by the User, the General Terms and Conditions of the online store (e.g., Apple App Store, Google Play) shall also apply, upon which FKM has no influence. The conditions of the app download are displayed on the terminal device screen. The apps may be required to use FKM's services. The User shall acquire the non-exclusive, but temporally and geographically unlimited right to save a copy of the app for their own purposes on their end device.  

4. Basic Gratuitousness of Use by the User
   1. The use of the Platform shall be free of charge for the User, unless otherwise stated.
   2. The User shall not derive any legal claim for the future from the free provision of the Platform.
   3. FKM reserves the right vis-à-vis the User to discontinue the Platform or individual functionalities at any time, to make them available against payment, to restrict them or to block a User without giving reasons.

5. Registration
   1. Individual functionalities of the Platform are subject to registration. By registering, the User shall bindingly declare their contractual offer for registered use, which FKM shall be entitled to accept by activating the service.
   2. Upon registration, the User undertakes to correctly provide the requested data, in particular their first and last name as well as their e-mail address, and to accept the Terms and Conditions in the currently valid version. The data must be kept up to date in the current usage relationship.
   3. FKM shall be entitled to reject the User's offer of activation without stating reasons.
   4. In order to prevent misuse of their account, Users are obliged to keep their password secret and not to disclose it in any way to unauthorized persons. The User shall not be entitled to transfer their account to a third party for use, either in part or in full, whether in return for payment or free of charge. In the event of any irregularities, the User shall notify FKM of such irregularities without delay. FKM will never ask the User to submit their password other than in the Password Input Mask.

6. Paid Use: Participation in the Fan Club
   1. Admission to the fan club supervised by the Music Creator shall be subject to a fee.
   2. FKM and the Music Creator shall be entitled to reject the User's offer to participate in the Fan Club without giving reasons.
   3. The prices and conditions shown on the screen shall apply.
   4. The subscription fees of the Fan Club shall be determined in principle by FKM (and may be increased arbitrarily by the User himself/herself in accordance with the "pay-what-you-want” model); however, the contractual relationship concerning participation in the Fan Club shall be established exclusively between FKM and the User. Only in the internal relationship shall FKM be obligated vis-à-vis the Music Creator to pay out their share of the fan club's revenues.  
   5. By joining the Fan Club, the User shall acquire the right to exclusively access (in advance) the content reserved by the Music Creator for the Fan Club Members.
   6. The editorial design of the fan club to increase its attractiveness shall remain at the discretion of the respective Music Creator. FKM has no influence on this editorial arrangement by the Music Creator – provided it complies with the guidelines for the use of the Platform.  

7. Information Duties

Pursuant to § 5a (1) Consumer Protection Act (KSchG) and § 4 Abs 1 Distance and Foreign Transactions Act (FAGG) FKM shall provide the consumer with the following information, to the extent already possible within the framework of the GTC:

1. Main Features of the Service: FKM's service consists of operating a communication Platform to support an online fan club.
2. Main Features of the Service: Agreements for a definite or indefinite period of time to use the online fan club. 
3. Contracting Party: Fanklub Music FKM GmbH, Speckbachergasse 47/11, 1160 Vienna, Austria, kontakt@fanklub.com
4. Total Price/Cost: The prices shown include all taxes and duties.
5. Remote Communication Costs: User's regular tariff (no value-added tariffs).
6. Terms of Payment: by choice and availability: payment provider (Paypal) /credit card/SEPA/bank transfer.
7. Right of Withdrawal: see Cancellation Policy.
8. Warranty Right: pursuant to § 922 ff General Civil Code

8. Right of Withdrawal and Cancellation Policy
   1. The User, insofar as he/she is a consumer within the meaning of the Consumer Protection Act (KSchG) or a consumer within the meaning of the Austrian Distance Selling Act (FAGG), shall be legally entitled pursuant to § 3 KSchG and § 4 para. 1 no. 8 FAGG to revoke their contractual declaration (order) made at a distance or outside the business premises of FKM or (following acceptance [activation] by FKM) to withdraw from the Agreement under the Terms and Conditions of the following Cancellation Policy.
   2. Withdrawal Period: The withdrawal must be exercised within 14 (fourteen) days after acceptance (= activation).
   3. Cancellation Policy: Pursuant to § 3 KSchG and § 4 (1) Z 8 FAGG FKM shall inform the User about the following legal right of withdrawal:

R I G H T   O F   W I T H D R A W A L

You have the right to cancel this Agreement within fourteen (14) days without giving any reason.

The withdrawal period is fourteen days from the day of the conclusion of the Agreement (“Activation”).

In order to exercise your right of withdrawal, you must inform us,

Fanklub Music FKM GmbH

Speckbachergasse 47/11, 1160 Vienna, Austria
kontakt@fanklub.com

by means of a clear declaration (e.g., a letter by postal mail or e-mail) of your decision to withdraw from this Agreement.

For compliance with the withdrawal period, it shall be sufficient for you to send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

C O N S E Q U E N C E S   O F   W I T H D R A W A L

If you withdraw from this Agreement, we shall return to you all payments we have received from you without undue delay and no later than within fourteen days from the day on which we received the notification of your withdrawal from this Agreement. For this repayment, 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 for this repayment.

9. Payments
   1. The agreed fees shall be due for payment immediately.
   2. Payment shall be made via the integrated payment providers, who shall handle the payment process on their own responsibility. Upon activation of the payment process, the User is redirected to the payment provider. 
   3. In the event of default in payment by the User, the statutory default interest shall apply at the applicable rate. Furthermore, in the event of default in payment, the User undertakes to reimburse FKM for any reminder and collection expenses incurred, to the extent that they are necessary for appropriate legal action. In any case, this includes the costs of two reminder letters worth € 15.00 (Euro fifteen) each as well as the standard costs of a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims shall remain unaffected.
   4. In the event of default in payment on the part of the User, FKM shall be entitled to demand immediate payment for all services and partial services rendered. Furthermore, FKM shall not be obliged to provide any further services until the outstanding amount has been settled and may withhold its own services.
   5. If payment in installments has been agreed, FKM reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (loss of date).

10. Term/Cancellation
    1. A gratuitous usage relationship concluded for an indefinite period of time may be terminated by either party with immediate effect.
    2. The paid Fan Club Membership may be terminated by either Party or the Music Creator in writing or via the online menu by giving 2 weeks' notice to the end of a prepaid period, otherwise to the end of a calendar month without giving reasons.
    3. Fan club memberships that are expressly limited in time may only be terminated by either party for good cause during the term of the Agreement. This provision shall also apply if the User (in particular in connection with a package booking) has agreed to a minimum subscription period (= waiver of termination). The agreement of a minimum length of subscription shall not constitute a time limit and allows the receipt of benefits to continue for the period of the minimum length of subscription.
    4. The Music Creator shall have a special right of termination in the form that he/she may exclude Fan Club members from the Fan Club with immediate effect who persistently persecute, insult, abuse, threaten him/her or other Fan Club members, or who repeatedly and despite warning disregard reasonable rules of communication. Any credit balance already paid in advance shall be forfeited in this case. 
    5. After termination of the contractual relationship, FKM shall be entitled, but not obligated (subject to compliance with data protection laws), to immediately delete the User's account and content (in whole or in part). Rights already granted shall remain unaffected by the termination of the usage relationship.  

11. Availability
    1. FKM shall provide all services in each case in accordance with the existing technical, economic, operational and organizational possibilities. FKM shall therefore not provide any warranty for any interruptions, malfunctions, delays, deletions, transmission errors or memory failure in connection with the use of the Platforms. The User shall acknowledge that the Platforms offered by FKM are also offered with the involvement of third-party network operators. The availability of the Platforms is therefore dependent on the technical provision of third-party services beyond FKM's control.
    2. FKM shall not assume any obligation to keep the services offered uninterrupted and available online at all times. FKM shall be entitled to interrupt the services for a reasonable period of time for internal reasons, e.g., for maintenance purposes. The User shall not be entitled to derive any claims from this; in return, FKM shall work towards the rapid elimination of faults.

12. Warranty

FKM shall provide warranty exclusively for use against payment pursuant to the provisions of §§ 922 ff of the Austrian Civil Code (ABGB).

13. Liability
    1. The liability of FKM and that of its organs, employees, contractors or other vicarious agents ("people") shall be limited in principle to intent or gross negligence; liability for slight negligence shall be excluded. This exclusion of liability shall not apply to personal injury and damage to property which FKM has taken over for processing purposes.
    2. Insofar as the liability of FKM is excluded or limited, this shall also apply to the personal liability of its "people".

14. Sweepstakes

If FKM organizes a sweepstake via the Platform, the following regulations shall apply unless other sweepstake conditions are stated:

Employees and vicarious agents of FKM and of the companies involved in the sweepstakes are not eligible to participate. FKM reserves the right to exclude participants from the sweepstakes who unfairly influence or attempt to influence the sweepstakes. The winners will be determined after the end of the sweepstakes and notified by e-mail. The prize is not transferable to third parties. Cash payment of the prize and recourse to legal action are excluded; the participant shall bear the personal taxes incurred by him/her.

15. Content posted or submitted         
    1. FKM undertakes to provide its Users with opportunities on its Platforms to post content such as photos, text, graphics, videos, etc. ("Content") and thus publish it in an interested forum or submit it to the Music Creator or another User. The respective User shall be responsible for the content. With regard to such content, FKM shall act as a purely technical disseminator/host, which shall have no influence on the content disseminated by the Users and shall not supervise such content. According to § 16 (1) ECG, FKM can only be held responsible if FKM has knowledge of illegal content and does not remove/block this content immediately after becoming aware of it. If, in the opinion of the User, content violates rights or laws, the User should report this to kontakt@fanklub.com or via the corresponding contact option on the Platform.
    2. The User shall grant FKM a geographically and materially unrestricted, transferable, non-exclusive right of exploitation, use and processing, in particular for purposes of retrieval, publication and distribution via the Platform, for the duration of the applicable statutory term of protection of the content posted by the User.
    3. FKM shall not be obliged to keep the content retrievable. FKM shall be entitled to reject the User's content at any time, to publish it elsewhere, to shorten it or to delete it.
    4. The User expressly undertakes not to post any content whose provision, publication or use violates applicable law or infringes the rights of third parties (in particular copyrights and personal rights). It is expressly forbidden to post content that is racist, pornographic, inhumane, insulting or contrary to public decency.
    5. If a third party plausibly claims that its rights have been infringed by the content, FKM shall be entitled, but not obliged, to disclose the contact details stored about the User.

16. Links / Embedding

To the extent that FKM provides access to third-party online services via links (or embedded content), FKM shall not be responsible for the third-party content contained therein. FKM shall not adopt the linked content as its own. If links refer to illegal content, this should be reported to kontakt@fanklub.com or via the corresponding contact option of the Platform.

17. Data Protection
    1. FKM declares to comply with Austrian/European data protection law and to provide Users with sufficient guarantees for lawful and secure data processing.
    2. Data processing shall be carried out on the basis of the separately available data protection information.
    3. From a data protection perspective, the operation of the respective fan club shall take place under the joint responsibility (Art 26 GDPR) of the FKM with the respective Music Creator.

18. Miscellaneous
    1. Should individual provisions of this Agreement be or become invalid in whole or in part, or should there be a gap in the Agreement, this shall not affect the validity of the remaining provisions.
    2. Amendments and supplements to the Agreement must be made in writing. This shall also apply to any waiver of the written form requirement. Declarations by e-mail, fax or via the query mask shall be deemed to be in writing.
    3. Wherever in this Agreement terms referring to natural persons are used in the masculine form only, they shall refer to women and men equally. When applying the designation to specific natural persons, the respective gender-specific form shall be used.

19. Applicable Law / Jurisdiction / Place of Performance
    1. This contractual relationship shall be governed by Austrian substantive law to the exclusion of the conflict of law rules.
    2. For all disputes arising directly or indirectly from the contract, the place of jurisdiction shall be the Austrian court having local and subject-matter jurisdiction for 1160 Vienna. If the User is a consumer, this place of jurisdiction shall only be deemed to be agreed if he/she has his/her domicile, habitual residence or place of employment in this judicial district or if he/she lives abroad.
    3. The Place of Performance for the contractual services is in 1160 Vienna.