General Terms and Conditions for the Use of getupp
1. Scope and Contractual Execution
1.1 getupp GmbH, Leinpfad 1, 22301 Hamburg (hereinafter “Provider”), operates the web application “getupp” in both the English and German languages. This service may be accessed using the website, www.getupp.com, and the associated application for Smartphones (hereinafter “App”).
1.2 User (hereinafter “User”) access to and use of getupp is subject to these General Terms and Conditions.
1.4 This contractual relationship between the Provider and User shall be exclusively subject to these General Terms and Conditions as amended at the time the contract is executed. The Provider hereby objects to any different User terms and conditions, unless the Provider has expressly stated otherwise.
1.5 The Provider may subsequently amend these General Terms and Conditions. In such an event the Provider will notify the User about the amended terms and conditions and will clearly indicate and reference the changes. The User may object to these amendments or changes within a month after receiving notification of the changes, if he or she is not in agreement therewith. If no objection is received within this time the amendments or changes shall be considered as accepted. If an objection is made then the Agreement shall continue unaltered.
2. Description of Services
2.1 Using getupp the User can fix the time and geographic place he or she would like to conduct certain activities (e.g. shopping, learning, meeting friends). This voluntary obligation, which is not legally binding, to conduct a specified activity at a certain time or place shall hereinafter be referred to as a “Commitment”. If the User opens the App and activates the appropriate operation at the time and geographical location as specified by the User’s Commitment, then this Commitment shall be considered as “completed”. The App determines the geographical position of the Smartphone in comparison to the fixed geographical position of the Commitment. If the User does not activate the appropriate verification operation in the getupp App at the right time and location, then the Commitment shall automatically be considered as “broken”. If a User has not completed a Commitment, then the User’s friends in Facebook (hereinafter “Friends”) will be automatically informed by an entry on the User’s Facebook Wall. The User may specify whether the User’s Friends are to be informed about the time and location of a Commitment and whether Friends should be informed about new Commitments and Commitments that have been completed. This service as described above and below shall be referred to as “getupp”. You may obtain more information about getupp by accessing www.getupp.com.
2.2 getupp may be accessed by using the website at www.getupp.com or through the App. The functionality of the website and the App can be different. As has been described above the User must install and use the App as a precondition to “completing” a Commitment.
2.3 The Provider reserves the right to place advertisements on the website and in the App.
2.4 The Provider shall not be liable for the availability or precision of the geographical positioning functionality of Smartphones, which are required in order to use getupp. The User is explicitly informed that getupp can only function at locations in which the User’s Smartphone can be localized adequately.
2.5 getupp has been developed for entertainment purposes and personal use. Specifically, the Provider cannot guarantee error-free operations and no interruptions all the time (see 2.6). Therefore the User is prohibited from entering into a Commitment by which the User could suffer financial loss or which would seriously damage the User’s reputation, if on account of a malfunction, getupp is unable to correctly determine the completion of a Commitment.
2.6 The Provider shall endeavor to keep getupp constantly operational. However, the Provider does not guarantee that getupp will be available to the User at particular times. The Provider is specifically authorized to temporarily interrupt or limit access to getupp, completely or partially, in order to rectify malfunctions or execute procedural or technical changes or improvements.
2.7 In particular the Provider does not guarantee the availability of Facebook and the application programming interfaces provided by Facebook.
2.8 The Provider is authorized in its equitable discretion to change getupp or discontinue services to the extent this is not unreasonable for the User.
2.9 In order to use getupp the User needs a Facebook user account and a Smartphone with an Internet connection that is supported by getupp. The User can find more information about which Smartphones are supported at www.getupp.com.
3.1 The Provider does not charge for the use of getupp.
3.2 The User will possibly incur connection charges by using getupp, which are dependant upon the User’s respective mobile or cellular phone contract as well as possible other agreements and as such are not the subject of these terms and conditions.
4. Cancellation and Deletion of the User Account
4.1 The User may cancel or terminate this Agreement for the use of getupp at any time without the need to state any reasons therefor. The User can cancel this agreement by logging on to getupp and pressing the “Delete” link under “preferences” and following the ensuing instructions or otherwise cancel this Agreement in writing using standard mail service.
4.2 The Provider may terminate this contractual relationship without cause at any time upon 14 days’ notice. A notice of termination or cancellation may be made via e-mail sent to the User’s e-mail address that has been specified by the User.
4.3 Either party may terminate this Agreement for cause. The Provider may terminate this Agreement for cause particularly in cases where the User not only materially breaches these General Terms and Conditions or repeatedly breaches, but especially if the User breaches the code of conduct set forth in Section 5 hereto. Termination for cause may be sent via e-mail.
4.4 Subsequent to termination or cancellation the User’s account including all contents will be permanently deleted, in particular all outstanding and past Commitments. This, however, does not expressly affect contents that have already been published by getupp for a User on the User’s Facebook Wall. If a User would like to delete contents, which have already been published on the Facebook Wall, the User must do this him or herself. The User may find information about how to delete information posted on the User's Facebook Wall at www.facebook.com.
4.5 The User is expressly informed that the User may sever the connection between getupp and the User’s Facebook user account at any time. The User can obtain more information about this at www.facebook.com. Unlinking getupp from the User’s Facebook account does not constitute cancellation or termination and does not result in an automatic deletion of the getupp user account and associated content.
5. User Code of Conduct
5.1 The Provider cannot technically with any amount of certainty determine whether a registered user is actually the person the user claims to be. Therefore the Provider does not guarantee or warrant the actual identity of any user.
5.2 getupp uses the Facebook interface (“Facebook API”) in order to publish Commitments on the User’s Facebook Wall. For this reason the User promises to comply with Facebook’s terms and conditions of use when using getupp. These terms and conditions of use can be retrieved at http://www.facebook.com/terms.php.
5.3 On the website and in the App getupp integrates Internet services from for displaying maps, for geographical searches and for the conversion of geographical coordinates into address information (“reverse geocoding”). For this reason the User promises to comply with Google’s terms and conditions of use when using getupp. These terms and conditions of use can be retrieved at www.google.com/accounts/TOS.
5.4 The User may only use such content for getupp that may be used publicly, which also includes a publication release for the Internet and does not infringe upon third-party rights. Likewise the User promises to comply with all applicable laws when using getupp as well as observe all rights of third parties.
5.5 The User may not:
- block, overwrite, modify or copy getupp in any way, provided that this is not required for the proper use of this service;
- disseminate or release to the public, outside of getupp, getupp contents created by users, if and to the extent this does not occur through getupp designated operations;
- perform actions, which are designed to impair the functionality of the getupp infrastructure, in particular those that would excessively overload it;
- insert racist, disparaging, insulting or immoral contents;
- insert pornographic contents or contents which are a violation of the laws designed for the protection of minors, or advertise, offer or sell pornographic material or material which is in contravention of the laws designed for the protection of minors;
- molest other Users unreasonably (especially with Spam);
- insert legally protected contents (e.g. copyrights, trademarks, patents, registered designs or utility patents) or advertise, offer or sell legally protected goods and services without being authorized to do so;
- conduct or promote anticompetitive activities including progressive User advertising (such as chain marketing, ponzi or pyramid schemes).
5.6 Upon breach of the above provision or any other conduct in contravention of the law the Provider is entitled in its equitable discretion to exclude the User temporarily or permanently from the use of specific getupp services or the continued use of getupp and if necessary employ other measures in order to stop any breach or violation. In particular the Provider is entitled in such cases to remove content without notice. The Provider expressly reserves the right to assert any additional claims.
6. Responsibility for Content, Data and/or User Information
6.1 The Provider assumes no responsibility or liability for contents, data and/or information provided to getupp by Users nor for any content contained on linked external websites.
6.2 Insofar as the User observes an unlawful use of getupp or use contrary to the terms of agreement, the User shall inform the Provider accordingly.
7.1 The Provider shall be held liable without limitation for User loss pursuant to the law caused by the intentional or grossly negligent misconduct of the Provider or its agents as well as for bodily injury and loss according to the German Product Liability Act.
7.2 Provider liability for damages – regardless of the legal basis – is limited according to the following provisions inasmuch as nothing else is specified in the guarantee or warranty from the Provider:
7.2.1 For loss caused by slight negligence the Provider shall only be liable inasmuch as such negligence is caused by a material breach of a contractual duty (cardinal duty). Cardinal duties are those contractual obligations which are necessary for the proper execution of the contract and upon which the User may rely. If the Provider is negligently liable then the Provider’s liability is limited to reasonably foreseeable losses.
7.2.2 Provider liability for the negligent loss of data and/or programs is limited to the reasonable effort and expense necessary to restore such that would have accrued from periodic and reasonable data storage given the circumstances through the User.
7.3 The provisions of the above paragraph shall apply correspondingly for a limitation of the reimbursement obligation for futile effort and expense (§ 284 of the German Civil Code (BGB)).
7.4 The above limitations of liability shall also apply for the benefit of the Provider’s agents and employees.
7.5 The Provider shall not be held liable for any costs that are incurred by the User for products or services, which are not expressly offered by the Provider itself. This especially applies to expenses incurred for data transfers to or from the User’s portable communication device.
8. Hold Harmless
8.1 The User shall hold the Provider harmless from all claims arising from or in connection with the User’s breach of these provisions or an infringement of third party rights. This also includes the requisite costs of legal defense.
8.2 The aforementioned User obligations shall not apply inasmuch as the User is not responsible for the legal breach or infringement concerned.
8.3 In the event of a claim by a third party, the User shall promptly furnish the Provider with all information that is necessary for an assessment and analysis of the third party’s claims.
9. Grant of License Rights by the User
9.1 The User grants the Provider the right to post Commitments, which have not been satisfied, on the User’s Facebook Wall. The entry on the Wall will contain the User’s profile picture and name, additional information about not satisfying the Commitment and a note that the entry was published by getupp (“via getupp”). The entry will also be provided with a hyperlink to the page containing the details about the Commitment at www.getupp.com.
9.2 The User also grants the Provider the right to announce new Commitments on the User’s Facebook Wall to the User’s Friends and/or inform Friends about the completion of Commitments. If the User does not wish that new and satisfied Commitments are posted on the User’s Facebook Wall, the User can deactivate the appropriate options when setting up a new Commitment. Furthermore, the User can opt to conceal the time and location of a Commitment and permit Friends to vote on whether or not a Commitment will be satisfied.
9.3 Commitments set up by the User in getupp will be allowed to be seen by other Users within getupp. The Provider limits access to those Facebook Friends of a User that are also members of getupp.
9.4 The User grants the Provider the right to display specific information about new Commitments of the User on the public welcome page at www.getupp.com and allow all visitors to www.getupp.com access to this information, but for those Commitments that are announced on the User’s Facebook wall. Only the User’s profile picture, the User’s first name and the description of the Commitment will be shown. Last name, category, geographical location, time and completion or non-completion and other information will not be disclosed in this area. If the User does want his or her new Commitments to be disclosed publicly in this area of the public welcome page of www.getupp.com, the User can deactivate this option in the “settings” area at www.getupp.com.
9.5 The User has the right to view all information disclosed at getupp within the scope of using getupp. The User is not permitted to download for permanent storage, alter, disseminate or publicize information contained within getupp, which is not the User’s.
10. Data Protection
10.1 The operation of an interactive Internet application is based on the exchange and publication of information, news and data about the User. The confidentiality of any transmission is not warranted or guaranteed.
10.2 The Provider collects, processes and uses personally identifiable information about the User within the scope of this agreement according to the provisions of law.
11. Governing Law, Place of Performance and Venue
11.1 German law shall exclusively govern to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods, even if the User has its, his or her residence or domicile outside of Germany.
11.2 The place of performance for services is Hamburg, Germany.
11.3 Jurisdictional venue shall be the court(s) having personal jurisdiction over the Provider at his registered office or domicile for all present and future claims arising from or based on the business relationship with merchants, public law legal entities, or trusts or foundations. The same venue shall be applicable if the User is not subject to personal jurisdiction within Germany, after executing the contract moves his or her place of residence or habitual abode outside of Germany, or at the time a complaint is filed the User’s residence or whereabouts is unknown. The mandatory provisions of the European Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters shall remain unaffected.
© 2011 getupp GmbH. Last updated on 26 February 2011.