StartIn response to a large number of requests, we also provide our General Terms and Conditions in English (see below). However, the German version of the GT&C shall be binding upon all users and form part of the contract entered into. The German version shall prevail in the event of any differences between the two versions.
General Terms and Conditions
Last amended: December 2010
The following General Terms and Conditions (GT&C) apply to any contractual relationship between textunes GmbH, Mehringdamm 57, 10967 Berlin, Germany (registered at Amtsgericht Charlottenburg, Commercial Register No. HRB 119902, EU VAT ID DE265139086) (hereinafter referred to as "textunes") and its clients (" users") regarding free-of-charge and paid services and offerings provided via the web pages accessible through the domain textunes.de (hereinafter collectively referred to as "textunes website") and via the textunes application (hereinafter collectively referred to as "textunes app"). At the textunes website and through the textunes app (see Part I.), clients may register, receive e-books and other media content (text, images, audio and interactive content; hereinafter collectively referred to as "content") by downloading it (see Part II.) and store and manage such content in textunes user accounts (see Part I.).
A contract is entered into with textunes as the seller to the extent to which mobile devices are used to receive content by downloading it via the textunes app, provided that purchase and payment are handled via textunes user accounts. These GT&C apply to these transactions, particularly Part II.
Content may, for instance, be acquired additionally or exclusively through third-party platform operators, such as Apple iTunes or Google Android Market. In this case, purchase and payment are handled through the user accounts of the individual platform operators, and a contract is entered into exclusively with the respective provider (e.g. with iTunes S.à.r.l., 8 rue Heinrich Heine, L-1720 Luxembourg; a third-party provider offering content via the platform etc.) as the seller. The terms of use of the respective provider and/or platform operator apply, which may be consulted at the website of this provider (such as at http://www.apple.com/legal/ itunes/de/terms.html).
Content acquired through platform operators may also be stored, under certain conditions, as a personal backup copy in textunes user accounts. Such storage in textunes user accounts is governed by the following GT&C (see Part I.). The contractual relationship between the user and the platform operator and/or content provider remains unaffected.
Any general terms and conditions of the user that contradict, or deviate from, these GT&C do not apply except if textunes expressly consents to them.
Part I. - General Terms of Use
1. Services, range of users
1.1 The system of the user must comply with certain conditions in order to use the services provided by textunes. For the purpose of downloading and managing content, the user requires the textunes app, which is available for various mobile devices, and, in certain cases, a web-enabled computer with a web browser. The complete service offering of textunes is non-binding and without obligation.
1.2 textunes will use its best efforts to carefully maintain and update the textunes website and textunes app. However, users may not claim the permanent availability of the textunes website and the textunes app. textunes assumes no warranty whatsoever regarding the availability of content at any time, in particular for any delays due to technical reasons that are beyond the control of textunes. In addition, textunes assumes no liability for the textunes website and textunes app always being free of errors and omissions, and updated. Delays and authoring errors may occur, as well as the posting of incorrect information. textunes reserves the right to temporarily suspend access to content or to the textunes website and/or the textunes app for maintenance purposes.
1.3 textunes users require a playback software in order to play back content. The required textunes app for iPhone, iPod touch, iPad etc. is available exclusively via iTunes and under the conditions of iTunes S.à.r.l. The textunes app for other platforms and operating systems, such as Android, is available via various other providers subject to the conditions for downloading that can be viewed at the respective website. Any connection fees incurred must be paid separately by the user.
1.4 Users must be at least 18 years of age in order to use the services offered by textunes and, in particular, to receive and use content. Minors may use such content only if supervised by a parent or guardian, who is to enter into the contract and supervise the use of the content.
2. Registration
2.1 The receipt and use of content may require the user to register by transmitting the required registration data (personal data including email address) and, if payments are to be made, billing data (credit card information or online authorization for direct debit) and to create a textunes user account, which requires the choice of a username and password ("access data").
2.2 A contract is entered into after submission of the registration form by the user with the subsequent confirmation of the e-mail address or activation of the user account by the user, and when textunes has activated the user account following a check of the registration data.
2.3 Users are under the obligation to enter complete and correct information in the course of the registration process. Any changes to personal data must immediately be entered in the "Settings" area or communicated to textunes in any other way. textunes reserves the right of civil and criminal prosecution in the case of any incorrect payment information or unlawful statement of incorrect data or third-party information.
2.4 Access data must not be disclosed to third parties. Users are responsible for any negligent treatment of such data and for all activities pursued via their user accounts, and are liable for any damage arising from illegal access. If textunes is informed of the illegal use of the account by third parties, textunes may block the textunes user account and, if applicable, the access to content without notice.
3. Right of revocation for consumers
If the user is a consumer, he or she enjoys a statutory right of revocation of the contractual relationship arising from the registration process. The wording of the statutory information on the right of revocation is included in Part III.
4. Securing content via textunes user accounts
4.1 By way of registration and the access data transmitted, the user also gets access to a personalized online library ("bookshelf") in which textunes permanently stores the content that the user purchased from textunes.
4.2 Under certain conditions, the user may additionally link content acquired through third-party platform operators, such as iTunes, to the textunes user account and secure it in the personal bookshelf. This enables the user to create personal backup copies of content acquired through iTunes. The respective provider remains the contractual partner with regard to applications acquired through third-party platform operators (e.g. iTunes) and sales transactions effected through such operators within applications ("in-app sales") irrespective of the securing of content via textunes user accounts.
4.3 textunes assumes no warranty whatsoever that content is always accessible via, or secured in, textunes user accounts. In particular, no claims may be lodged with respect to securing content acquired through third-party platform operators.
4.4 Within an existing registration, the bookshelf will be deleted only on the basis of an express written request submitted by the user or, in all other cases, after termination of the registration.
5. Users' duties
5.1 Users may not compromise the functionality and security of the services and offerings of textunes in any way, which includes, amongst other things: (a) access to data not intended for the user; (b) access to a user account without authorization; (c) any attempt to circumvent or compromise the functionality and security of the textunes website, technology, software or of any other components; (d) any attempt to circumvent and/or remove the textunes copy protection. textunes reserves the right to submit any such breach to civil and/or criminal prosecution.
5.2 textunes content and services may not be used for illegal purposes. Each user undertakes to comply with the laws of the Federal Republic of Germany.
5.3 The content of the textunes services is protected under applicable copyright, trademark, name or any other relevant laws. Without the consent of textunes, the user may not exploit, copy, distribute, make publicly accessible, reproduce or edit third-party content in any way.
5.4 Users are under the obligation to indemnify and hold harmless textunes from any damage or loss, including statutory fees incurred by legal representation, that arises from any violation of these GT&C, in particular of the provisions governing the granting of rights of use, or of any other applicable legislation as part of the acquisition and use of textunes content and services.
6. Liability
6.1 textunes assumes unlimited liability for willful intent and gross negligence.
6.2 textunes shall be liable for ordinary negligence only if material contractual obligations are breached; liability is limited to the damage or loss usually foreseeable at the time of entering into the contract. In this case, liability is limited to the compensation amount to which textunes is entitled under the contract; liability for any indirect and unforeseeable damage, loss of profit, unrealized savings, financial loss or any third-party claims shall be excluded.
6.3 The limitations and/or exclusions of liability in accordance with Item 6.2 also apply to the software programs that textunes provides free of charge for the purpose of reproducing, managing and downloading content (textunes app).
6.4 To the extent to which textunes uses hyperlinks to refer to third-party websites, textunes assumes no liability whatsoever for both their content and design. These hyperlinks merely serve to enable access to third-party content or products. If textunes is informed of any content being referred to that violates applicable legislation, textunes will remove the relevant hyperlink following a thorough review of the situation.
6.5 To the extent to which liability of textunes is excluded or limited, this also applies to the personal liability of its employees, representatives and agents, irrespective of the legal nature of the claim lodged.
6.6 The limitations and/or exclusions of liability in accordance with this Section 6 do not apply to any statutory liability regardless of culpability, particularly on the grounds of warranty or under the German Product Liability Act, or in the case of injury to life, limb or health.
7. Data protection, privacy
7.1 To the extent to which no additional consent has been given to further processing and use of user data, this data is stored, processed and used exclusively for the purpose of enabling the acquisition and use of textunes content, as well as for billing by textunes and within the remit of the applicable provisions of the Bundesdatenschutzgesetz (BDSG; Federal Data Protection Act) and of the Telemediengesetz (TMG; Telemedia Act).
7.2 Any other use of personal user information beyond these provisions, such as for sending out newsletters, shall require a separate consent by the user. In particular, textunes will not sell or otherwise disclose any data to third parties unless required for the purpose of contractual performance or acceptable under applicable laws and regulations.
7.3. Detailed information is included in the separate Privacy Statement, which is hereby acknowledged by the user.
8. Termination of registration and changes to services
8.1 Both the user and textunes may at any time terminate the registration, giving one week's notice.
8.2 In addition, textunes may terminate the registration of the user with immediate effect if the user violates these Terms of Use. Prior to such termination, textunes will usually send a reminder to the user specifying a period within which the user is bound to remedy the breach, and terminate the registration only if such breach is not remedied, or repeated.
8.3 textunes reserves the right to amend these Terms of Use and the content and structure of the textunes services at any time, which also includes the option of making certain offerings and services chargeable, or of discontinuing them.
9. Final provisions
9.1 textunes may transfer user registrations or contracts entered into with textunes to third parties, which will not create disadvantages for users. Users will also be entitled to the same contractually agreed services. In such a case, textunes will inform the user of the transfer of the contractual relationship. This transfer takes effect if no objection is made within one month after the submission of this information by textunes.
9.2 All legal relationships between textunes and the users are governed exclusively by the laws of the Federal Republic of Germany, excluding the provisions of the UN Convention on the International Sale of Goods (CISG).
9.3 The exclusive place of performance and venue shall be the legal seat of textunes, currently Berlin, provided the user is a merchant, or has no place of residence in Germany.
9.4 Business relationships between textunes and the users are governed by the GT&C applicable at the time of entering into the contract. If these GT&C are amended, textunes will inform the users of such amendments by sending them via email or using any other appropriate method.
9.5 The inclusion of the new GT&C in the contract may be objected to in writing within a period of one (1) month. If the user continues the contractual relationship without objection after expiry of the one-month period, this shall be deemed a consent to the applicability of the new GT&C.
9.6 Should one or more provisions, or parts thereof, contained in these GT&C be or become fully or partly ineffective or invalid, this shall not affect the validity of all other provisions of these GT&C. The invalid or ineffective provisions shall be replaced with legally valid and effective provisions that come as close as possible to the GT&C as a whole and to all other contractual agreements in factual, legal and commercial terms. The same applies to any gap or omission in these GT&C.
9.7 textunes stores these GT&C and all other data pertaining to the user agreement after entering into the contract. These Terms and Conditions are only available in German.
Part II. – General Terms and Conditions Pertaining to the Purchase of Content
Following successful registration, the user may purchase information and content via the textunes app. As a supplement to the above General Terms of Use included in Part I, the following provisions apply to any contracts entered into between textunes and the user.
If the user purchases content from a third-party platform operator (such as iTunes), a contract is entered into exclusively with the respective provider (e.g. with iTunes S.à.r.l., 8 rue Heinrich Heine, L-1720 Luxembourg; a third-party provider offering content via the platform etc.) as the seller. The terms of use of the respective provider and/or platform operator apply, which may be consulted at the website of this provider (such as at http://www.apple.com/legal/itunes/de/terms.html).
Content is provided exclusively to end consumers. No billing is made for commercial purposes.
1. Purchase options, entering into and/or termination of contracts
Via the textunes app, textunes provides users with various options to purchase content:
1.1 Individual purchase
a) Content may be purchased individually from the overall textunes offering.
b) The contract between the user and textunes is entered into upon the binding order of the selected content and confirmation of the purchase by textunes.
1.2 Subscription
a) In addition, content may be purchased through a membership in the form of a subscription. Against a paid subscription fee, users are provided with the option to purchase content from the offering for a defined period. Detailed information is contained in the relevant subscription offer.
b) Subscriptions become effective upon the binding order by selecting and actively confirming the content at the textunes website or in the textunes app, and upon confirmation of the purchase by textunes. Item 1.1 b) applies accordingly.
c) The subscription is entered into for the selected period, and extends for an identical period if not terminated giving the specified notice.
d) Subscriptions may be terminated at any time in written or electronic form (i.e. via email, fax, letter sent to textunes) whilst adhering to a processing period of at least ten workdays until the end of the agreed contractual period. Such terminations are confirmed by email. In this message, textunes states the exact date on which the subscription expires.
e) Notwithstanding any contractual agreements with content providers, such as publishers, both registration and access to the personal bookshelf of the user and the existing rights of use of previously purchased content remain in force even after termination of the subscription agreement.
f) Both the user and textunes may terminate the subscription agreement for cause. Such causes include, for instance, ongoing default or similar breaches of contractual obligations by either of the parties.
1.3 Trial offers ("promotion codes")
a) As part of special promotion activities, textunes offers a free or reduced-fee option to test the textunes services. These trial offers are valid only during the specified promotion period. No claim may be lodged with respect to receiving these offers, and they are generally available only once for new clients. For the purpose of using these offers, the user must register as a textunes user and agree to the GT&C. In the case of multiple use in breach of the agreement, textunes reserves the right to bill the services used as damages. The right to purchase trial offers for future periods ceases to exist upon termination of the user account.
b) Depending on the type of trial offer, Item 1.1 b) or Item 1.2 b) apply accordingly to the contractual agreement.
2. Right of revocation for consumers
If the user is a consumer, he or she enjoys a statutory right of revocation of the contractual agreement regarding individual purchase, subscription and/or trial offers. The wording of the statutory information on the right of revocation is included in Part III.
3. Provision for download
3.1 When the contract has been entered into, the content is transferred to the personal bookshelf of the user, and is available for download to the textunes app. If a subscription to periodical content (such as sequels) is selected, content appears successively and is provided for download in the personal bookshelf of the user as soon as it is available.
3.2 Following the download, the user has the option of reloading individual content to the textunes app and replacing downloaded copies of content, for instance in the event of damage. However, this option exists only subject to the contractual agreements with the content provider, such as a publisher, i.e. as long as textunes has itself the right, as a result of having been granted rights by the content providers, to provide the reload option. textunes thus reserves the right to remove without notice specific content from the bookshelf of the user in the case of temporary licenses or for any other reason.
3.3 The user may cancel orders – notwithstanding any right of revocation available to the user – only to the extent to which content has not yet been downloaded.
3.4 Download of content by the user is subject to the usual connection fees billed by the telecommunications providers, particularly mobile communications providers. The user must pay these fees separately and additionally. textunes assumes no responsibility for providing required software, devices or any other services.
4. Granting of rights
4.1 Content is protected under applicable copyright, trademark, name or any other relevant laws. textunes grants to the user a non-exclusive, non-transferable right to use purchased content and to transfer, store and use it for private, non-commercial purposes on a maximum of three mobile playback devices, such as smart phones. Content is supplied with copy protection.
4.2 Any further use, in particular additional copying, is not permitted. However, the rights of the user stipulated in section 69d subsection 2 and 3 and section 69e UrhG (Urheberrechtsgesetz; German Copyright Act) remain unaffected.
4.3 It is not permitted to convert, modify or – particularly on the Internet and other networks – provide content free of charge or against payment, and to distribute, transmit, make available, exchange, make publicly accessible and/or commercially use it in any way.
4.4 If any unauthorized third party uses the right (access data) to purchase and use textunes content for reasons within the control of the user, the user is under the obligation of refunding any related costs to textunes and any other holders of rights and/or to satisfy any associated claims for damages.
5. Payment and billing
5.1 Prices to be paid for textunes content result from the price details indicated next to the respective content forming part of the textunes offering at the time of ordering. Subscription fees are stated separately. All prices are stated including VAT at the applicable statutory rate.
5.2 The relevant individual purchase price is due immediately; textunes will debit the bank account or credit card of the user. Third-party systems (e.g. Paypal, One-Click-Buy) subject to separate terms of use may also be used for payment processing.
5.3 The user receives an email confirmation of the orders submitted. No further invoicing is performed.
5.4 textunes or the third-party payment processor accepts credit card payments. By entering credit card information, the user authorizes textunes to debit the credit card in accordance with the general terms and conditions for credit card payment transactions.
5.5 textunes or the third-party payment processor provides the option of electronic payment by direct debit. If this method is chosen, the user authorizes textunes to debit the account identified by account number and bank code with the amounts payable for purchased content.
5.6 textunes reserves the right to offer additional payment methods to complement or replace the currently offered methods.
5.7 To ensure timely payments, the user takes responsibility for complete, up-to-date and correct billing information (credit card information or account data for direct debit purposes).
5.8 Should a bank unsuccessfully attempt to debit the account for reasons within the responsibility of the user, textunes may claim the invoice amount plus the related expenses incurred by textunes up to the usual, reasonable amount. In the case of default, textunes may also claim interest at the applicable statutory rate. If textunes furnishes evidence of a higher loss or damage arising in the event of default, textunes may also claim the actual amount incurred.
5.9 In addition, textunes may block access to content stored in the personal bookshelf if the user is in default or if the communicated billing data/documents do not result in full and timely payment of amounts due to textunes.
5.10 If the outstanding amount is not paid even after a repeated reminder or direct debit attempt by textunes, textunes authorizes a third party to claim the receivable (dunning) whilst transferring the required data and to perform the required receivables management activities (collection, legal proceedings and execution). All costs incurred by dunning and receivables management activities are claimed as damages and added to the receivable on top of the amount owed for the services provided.
5.11 Subscriptions are additionally subject to the following compensation and invoicing provisions:
a) textunes reserves the right to change subscription fees giving thirty (30) days' notice. In the event of an increase, textunes will inform the user accordingly and justify the subscription fee increase. The user may terminate the existing contract without specifying any reason until expiration of the notice period. If no termination is made, the new prices apply to the contract after expiration of the notice period.
b) In the case of a subscription for a defined period, textunes debits the agreed amount payable on an identical day of each month, beginning with the day on which the subscription agreement was entered into (effective date).
c) If direct debit attempts fail in two (2) consecutive months, or if the user does not pay a receivable due under the contract within two (2) months, textunes may terminate the contract for cause. In such a case, all outstanding invoice amounts and accrued bank fees are invoiced as a total, which becomes due immediately. In addition, textunes may claim damages and costs of default from the user.
d) If a subscription for a defined period is terminated prematurely for any reason whatsoever, the user authorizes textunes, with immediate effect, to debit the total of the outstanding monthly amounts or to charge the credit card of the user accordingly.
5.12 The user may set off against any textunes claims only if his or her counterclaims have been declared unappealable or are not disputed by textunes. In addition, the user may exercise any right of retention only to the extent to which his or her counterclaim is based on the same contractual agreement.
6. Warranty
6.1 textunes does not warrant that the requested content is received by the user at a defined point in time.
6.2 textunes also reserves the right to remove specific content from the overall offering without notice in the case of temporary licenses or for any other reason.
6.3 textunes assumes no responsibility or liability whatsoever for any hardware or software installed by the user being suitable for using the textunes services in each specific case. Support and information provided at the textunes website or by textunes staff is offered in good faith. textunes assumes no liability whatsoever for the accuracy and correctness of this information.
6.4 textunes assumes no responsibility or liability whatsoever for the factual correctness of the content.
6.5 If any content reveals technical defects, the user may claim, as subsequent contractual performance, the remedy of the defect or the provision of content free from defects. textunes may refuse the type of subsequent performance claimed if it would inevitably result in unreasonable costs.
6.6 If textunes fails to remedy the defect twice, or if textunes refuses both types of subsequent performance or does not subsequently perform under the contract within a reasonable period, the user may exercise his or her statutory warranty rights (claiming a price reduction, withdrawal from the contract, refund of expenses or payment of damages in lieu of the contractually agreed service). The right to withdraw from the contract and the right to claim damages instead of the contractually agreed service shall be excluded if the defect of the content is merely immaterial.
6.7 Any liability of textunes for defects shall be excluded to the extent to which such defects were caused by inappropriate handling of content by users or third parties in contravention of the relevant product regulations.
Part III. – INFORMATION ON CONTRACT REVOCATION
1. Right of revocation
You may revoke your contract without stating any reason within a period of one month in written or electronic form (for instance by letter, fax, email). This period commences upon receipt of this information in written or electronic form but not prior to entering into the contract and not prior to fulfilling our duty to inform pursuant to Article 246 section 2 in conjunction with section 1 subsections 1 and 2 EGBGB (Einführungsgesetz zum Bürgerlichen Gesetzbuch; Introductory Statute to the German Civil Code) and our obligations pursuant to section 312e subsection 1 sentence 1 BGB (Bürgerliches Gesetzbuch; German Civil Code) in conjunction with Article 246 section 3 EGBGB. Timely submission of the revocation shall suffice for compliance with the deadline for revocation. The revocation must be addressed to:
textunes GmbH
Mehringdamm 57, 10967 Berlin, Germany
Fax +49 30 66 77 30 210
Email: support@textunes.de
2. Consequences of revocation
In the case of an effective revocation, the products or services received by either party must be returned and any derived benefits (e.g. interest) reimbursed. If you are unable to return the product or service in full or in part, or only in deteriorated condition, you may have to compensate us for any related deterioration in value, which may cause you to pay the amounts owed under the contract for the period until the revocation date nonetheless. Obligations to refund payments must be met within a period of 30 days. For you, this period commences upon submission of the revocation. For us, this period commences upon its receipt.
3. Please note:
Your right to revoke the contract expires prematurely in relation to the provision of services if the contract has been completely fulfilled by both parties upon your express request (such as by starting a download) prior to you having exercised your right of revocation.
