GREEN TOMATO MEDIA – NEVER HAVE I EVER…? ⊖__⊖ APP – Terms & Conditions
General Terms and Conditions of « Never Have I Ever…? ⊖__⊖ »
Business For Using « Never Have I Ever…? ⊖__⊖ »
We are looking forward to welcoming you as part of the « Never Have I Ever…? ⊖__⊖ » community. The following General Terms and Conditions of Business set out the legal framework for using « Never Have I Ever…? ⊖__⊖ » and the services that we offer. Therefore, please read these General Terms and Conditions of Business carefully.
2.1 Parties to the contract and subject matter of the contract
These General Terms and Conditions of Business form the basis of the user contract being formed between you and us, « Never Have I Ever…? ⊖__⊖ » (hereinafter referred to as “us” or “we”). The subject matter of this contract is the use, free of charge or for a fee, of the services we offer under the name « Never Have I Ever…? ⊖__⊖ » via our website, other « Never Have I Ever…? ⊖__⊖ » websites or via our software applications (hereinafter referred to individually as “Never Have I Ever…? ⊖__⊖ Service” or collectively as “Never Have I Ever…? ⊖__⊖ Services” or in general “Never Have I Ever…? ⊖__⊖”). If you would like to have a mobile app to use the « Never Have I Ever…? ⊖__⊖ » Services, please check our website to see if we have a mobile app for your end device and your end device’s operating system.
2.2 Terms and conditions for participating
A condition for opening a user account and using the « Never Have I Ever…? ⊖__⊖ » Services is that you are at least 18 years of age and have full legal capacity. « Never Have I Ever…? ⊖__⊖ » is intended exclusively for consumers. The legal definition of a consumer is every natural person that enters into a legal transaction for reasons that cannot be chiefly attributed to either their commercial or their self-employed occupation. Use of « Never Have I Ever…? ⊖__⊖ » for commercial purposes of any kind is expressly prohibited.
2.3 Additional terms and conditions
We reserve the right to agree to additional terms and conditions for individual « Never Have I Ever…? ⊖__⊖ » Services. We will, however, notify you of this in good time prior to use.
- « NEVER HAVE I EVER…? ⊖__⊖ » SERVICES AND PRICES
3.1 Services free of charge or for a fee
The scope of the services included in « Never Have I Ever…? ⊖__⊖ » and the « Never Have I Ever…? ⊖__⊖ » Services and available for use by you depends on the type of « Never Have I Ever…? ⊖__⊖ » Service and whether you use the « Never Have I Ever…? ⊖__⊖ » Services free of charge or for a fee. If you use it free of charge you only have access to certain basic functions and information of the respective « Never Have I Ever…? ⊖__⊖ » Service. A more extensive range of functions is available to you if you enable the respective content modules separately in return for a one-off payment or as part of a subscription for the respective « Never Have I Ever…? ⊖__⊖ » Service.
« Never Have I Ever…? ⊖__⊖ » offers two auto-renewing subscription options: $3.99 per week or $11.99 per month
- CONCLUSION OF A CONTRACT
How the respective contract is formed depends on the method by which you register for « Never Have I Ever…? ⊖__⊖ » for the first time and whether you sign up for additional fee-based services.
4.1 Registration via mobile apps
When registering via mobile apps, the formation of the user contract depends on the rules of the app store supplier (for example Apple, Google, Sony etc.). The contract is generally formed when you click on the “Install” field in the relevant app store and, where necessary, enter your password in question. Please note that in order to use the « Never Have I Ever…? ⊖__⊖ » Services it is still necessary to open a cost-free user account with us.
4.2 Conclusion of a contract for one off additional services for a fee or for subscriptions
You can purchase individual additional services either by paying a one-off fee or as part of a subscription. If you purchase the respective additional service via the website the contract is formed when you click on the field “Buy now”, or a similar field, and successfully enter your payment details. If you purchase the additional service via your mobile app, the contract is formed when you click on the field “Buy now”, or a similar field, as part of an in-app purchase and, where necessary, enter your password for the app store in question.
4.3 Correction of input errors
If you would like to purchase a one-off additional service or a subscription on our website you can interrupt the process at any time and correct any errors until you have successfully entered your payment details.
If you would like to purchase a one-off additional service or a subscription via our mobile app as part of an in-app purchase, we will not ask you for any further billing or payment details because you will purchase the service via your account with your app-store supplier. Please contact the relevant app-store supplier if you would like to correct any input errors.
- TERMS OF VALIDITY
5.1 User contract
The user contract concluded between you and us once you register your account is valid for an indefinite period.
5.2 One-off additional services
One-off additional services may be offered for a fixed term. They will then end automatically at the end of the term without needing to be cancelled.
Our subscriptions are offered with varying minimum terms of validity and are automatically renewed for the same minimum term that has been selected until you or we cancel them.
In order to avoid any misunderstanding, please note that the term of a subscription is determined by calendar and is independent from your use or extent of your use of the respective « Never Have I Ever…? ⊖__⊖ » Service.
- TERMS AND CONDITIONS OF PAYMENT
6.1 Collection of fees
Fees are collected when the contract is concluded for purchases of additional services through the payment of a one-off sum. The fee is collected for the relevant minimum term when the contract is concluded for the purchase of a subscription. If the subscription is renewed automatically, the fee is collected in advance at the start of the relevant renewal period. Different terms and conditions apply if the fee is collected via iTunes; in this case the fee is already collected 24 hours before the start of the respective billing period.
6.2 Payment default
We reserve the right to assert further claims for late payments.
- PAYMENT METHODS
If you purchase « Never Have I Ever…? ⊖__⊖ » services for a fee via in-app purchases, the respective app-store supplier will bill you. Please consult this supplier to find out what payment methods are available. If you purchase « Never Have I Ever…? ⊖__⊖ » services for a fee via our website, you can find an overview of the payment methods we accept.
If we incur costs and/or expenses because a payment is declined and this is your fault (e.g. because there are insufficient funds in the account or the credit card limit has already been exhausted), then we are entitled to bill you for the actual costs and/or expenses incurred.
Where there is a legitimate reason, we reserve the right for each purchase to refrain from offering certain payment methods and to specify alternative payment methods.
- RIGTH TO CANCEL
8.1 Cancellation policy
If you have entered into a contract for use of « Never Have I Ever…? ⊖__⊖ » or purchased a one-off additional service or a subscription, in each case, you are entitled to the following right of withdrawal.
You have the right to cancel the contract within 14 days without stating any reasons. The cancellation period runs for 14 days from the conclusion of the contract.
Unequivocal notification (e.g. a letter sent by post, a fax or an email) of your decision to cancel the contract. You can use the attached model cancellation form for this, but you are not obliged to do so. You can also complete the model cancellation form (Refund request), or make a separate unequivocal cancellation request, on our website and submit it electronically. If you use this option, we will send you immediate (e.g. via email) acknowledgement of the receipt of such cancellation. To meet the deadline for cancellation it is sufficient to send us the notification of your wish to exercise your right of cancellation before the cancellation period expires.
8.2 Consequences of cancellation
If you cancel the contract we are obliged to refund all the payments that we have received from you, including the delivery costs (except for any additional costs incurred as a result of your choosing a different delivery method to the least expensive standard delivery method that we offer), promptly and at the latest within 14 days from the day on which we received the notification of your cancellation of the contract. For this refund we will use the same payment method that you used for the original transaction unless a different arrangement has been expressly agreed with you; under no circumstances will you be charged any fees in respect of this refund.
If you asked for the services to start during the cancellation period you must pay us an appropriate amount, equal to the proportion of the services that have already been provided by the time you inform us that you are exercising your right to cancel this contract compared to the full scope of the services covered by the contract.
End of the cancellation policy.
8.3 Lapse of the right of cancellation
In the case of a contract for the provision of services the right of cancellation lapses if we have provided the service in full and only began to perform the service after you gave your express approval and simultaneously confirmed that you were aware that you would lose your right of cancellation if we had completely fulfilled the contract.
In the case of a contract for the delivery of digital content that is not stored on a physical data carrier the right of cancellation also lapses if we have begun to perform the contract after you gave your express approval and simultaneously confirmed that you were aware that you would lose your right of cancellation once we had begun to perform the contract.
8.4 Model form for your cancellation
o make it as easy as possible for you to cancel and to avoid any potential queries, we have provided an electronic cancellation form for you to use However, you can of course also use the cancellation form below instead. Please make sure to inform us on the specific « Never Have I Ever…? ⊖__⊖ » Service that you want to withdraw from.
- LIABILITY FOR DEFECTS
9.1 Statutory provisions
Statutory provisions apply to claims due to defective services. Your consumer rights remain unaffected in any case.
9.1 Disclaimer of guarantees
We do not make any representations or guarantees that the use of the « Never Have I Ever…? ⊖__⊖ » Services will bring the training- or other result intended by you. We do not promise a concrete success. Also, the actual training result will depend on factors which cannot be influenced, such as, for example, physical disposition and preconditions. Consequently, results may vary strongly between individuals despite the same use of the « Never Have I Ever…? ⊖__⊖ » Services.
10.1 Liability for services provided free of charge
For services provided free of charge, we will be liable, regardless of the legal basis, exclusively for damage due to willful conduct or gross negligence or the absence of a guaranteed feature. Our liability is not limited for willful misconduct. In the event of gross negligence or the absence of a guaranteed feature our liability is limited to reasonable, foreseeable damage. Otherwise, our liability is excluded.
10.2 Liability for services provided for a fee
In the case of services provided for a fee we have, regardless of the legal basis, unlimited liability in principle for damage due to willful conduct or gross negligence or the absence of a guaranteed feature.
If we breach a material contractual obligation as a result of slight negligence, our liability is limited to reasonable, foreseeable damage. A material contractual obligation is any obligation that is necessary to fulfill the purpose of the contract, and on the fulfillment of which you as the consumer can rely or ought to be able to rely.
Our liability in the event of any injury to life, limb or health that is our fault remains unaffected by the above-mentioned limitations.
Otherwise, our liability is excluded.
10.3 Liability of our employees
To the extent that our liability is excluded or limited, this exclusion or limitation also applies to our employees and agents.
10.4 Product liability
Claims under the German Product Liability Act remain unaffected by the above-mentioned liability exclusions or limitations.
- RIGHT OF USE OVER « NEVER HAVE I EVER…? ⊖__⊖ » CONTENT
Depending on which services have been enabled for you, or which services you have purchased, the services we offer contain content which is protected by copyright or otherwise and we hold the respective rights. We grant you a non-exclusive and non-transferable right to use this content in a non-commercial form within the scope of the contractual provisions. Purely for the avoidance of doubt we draw your attention to the fact that in particular distributing our content or making it publicly available, e.g. on websites other than « Never Have I Ever…? ⊖__⊖ » websites, is not permitted. The right of use will lapse when your access to the respective service is no longer enabled (e.g. after you have cancelled your subscription) or when your user contract ends.
- RESPONSIBILITY FOR USER-GENERATED CONTENT
12.1 Disclaimer of responsibility for third party content
You are solely responsible for content that you post within the « Never Have I Ever…? ⊖__⊖ » Services. We accept no responsibility for this content, nor do we monitor it.
12.2 Compliance with statutory provisions
When supplying your own content you are obliged to comply with all the applicable laws and other legislation of the Federal Republic of Germany. Regardless of whether or not it constitutes a criminal offense, it is prohibited to supply content of a pornographic, sexual, violent, racist, seditious, discriminatory, offensive and/or defamatory nature.
In addition you are also obliged to refrain from infringing any third-party rights. This applies in particular to personality rights of third parties as well as to third-party intellectual property rights (such as, for example, copyrights and trademark rights). In particular you must also hold the necessary rights over your profile picture or any other picture you post.
We are entitled to delete or remove any content that is unlawful or that infringes the above-mentioned principles at any time. If you infringe the above-mentioned principles we are entitled to give you a warning or to temporarily block your user account or to cancel the user contract for good cause in accordance with clause 13.3.
If you infringe the principles mentioned in clause 12.2 and that this is your fault (i.e. because you acted either negligently or with intent), you are obliged to indemnify us against any third-party claims arising from such infringement. We reserve the right to assert claims for damages and other claims.
- ENDING THE CONTRACT
13.1 User contract
You have the right to cancel your user account at any time, without stating any reasons, thereby also ending your user contract. To do this you simply have to select the necessary settings in your profile. Please note that after you have cancelled your user account we will or may delete all the content and results that you added, and you will no longer have access to content that you already purchased. If at the time of deleting your account you still have a current subscription or have booked an additional service that has not yet expired, any sum that you have already paid will not be refunded, not even on a pro rata basis.
We are entitled to cancel the user contract without stating any reasons by giving two (2) weeks’ written notice, but no earlier than at the end of the minimum contractual term or at the end of the respective renewal period of your subscription and/or at the end of the term of any additional service for which you have paid a one-off fee.
Every subscription for a « Never Have I Ever…? ⊖__⊖ » Service must be cancelled individually. You can cancel the respective subscription without stating any reasons at any time effective at the end of the minimum contractual term or at the end of the respective renewal period. You can cancel any subscriptions purchased via our website by selecting the appropriate setting in your user profile. Alternatively, you may also cancel your subscription by email, sent to the address , or by post. Subscriptions purchased via in-app purchase must be cancelled using the settings in the respective app store. If your subscription fee is collected via iTunes, contrary to the provisions above a notice period of 24 hours before the end of the minimum contractual term or before the end of the respective renewal period applies for technical reasons. Your user account and any other subscriptions will continue to exist after you have cancelled your subscription.
We are entitled to cancel your subscription with effect from the end of the minimum contractual term or with effect from the end of the respective renewal period by giving two (2) weeks’ written notice.
13.3 Cancellation for good cause
The right to cancel for good cause remains unaffected in the case of either party. In particular we are entitled to cancel your user contract or your subscription with immediate effect, and to cancel your user account, if you seriously or repeatedly breach the provisions of the user contract and/or these General Terms and Conditions of Business, or if you are in arrears with your payment obligations.
- PERSONAL DATA
- CHANGE TO THE GENERAL TERMS AND CONDITIONS OF BUSINESS
We reserve the right to change or modify these General Terms and Conditions of Business with future effect. We will advise you of the changes by email no later than two (2) weeks before the new version of the General Terms and Conditions of Business is scheduled to enter into force. If you do not object to the validity of the new General Terms and Conditions of Business within such period and continue to use « Never Have I Ever…? ⊖__⊖ », then the new General Terms and Conditions of Business will be deemed to have been accepted. In the event that you do object, we expressly reserve our rights of ordinary cancellation. We will also advise you again separately of your right to object, the deadline to do so and the legal consequences of your objection or failure to object.
- FINAL PROVISIONS
16.1 Applicable law
The relationship between the parties is governed exclusively by German law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). In relation to business transactions with consumers within the European Union, the law of the consumer’s place of residence may also be applicable where such law contains consumer law provisions that it is mandatory to apply.
16.2 Place of jurisdiction
If you do not have a place of general jurisdiction in Germany or in another EU Member State, or if you have moved your permanent place of residence to a country outside the EU after these General Terms and Conditions of Business have entered into effect, or if your permanent place of residence or usual place of residence at the time the complaint is filed is not known, then the exclusive place of jurisdiction for all disputes arising from this contract will be our place of business.
16.3 Language of the contract
The language of the contract is English.
16.4 Severability clause
Should any individual provisions of these General Terms and Conditions of Business be or become invalid in whole or in part, this will not affect the validity of the remaining provisions.
- INFORMATION ABOUT THE SUPPLIER
FLAT A, 15/F Hillier commercial Building 65-67 Bonham
Strand East, Sheung Wan, Hong Kong
Email: [email protected]