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Current version dated: 1. august 2018

 

1. Basis

(a) Masterminds Productions GmbH, Brunaustrasse 158, 8951 Fahrweid, Switzerland (WE or MASTERMINDS) offers a voice messaging app (APP), which you can download free of charge from the Apple App Store “iTunes” or Google Play Store. With this app you can, among other things, communicate individually or in a group with other users via voice messages and exchange images and locations (SERVICES).

(b) The following terms of use (TERMS OF USE) are general terms of use between you (YOU or USER) and MASTERMINDS. The TERMS OF USE regulate access to and use of the app.

(c) Insofar as these TERMS OF USE do not contain any provisions, the terms of Apple Media Services (APPLE TERMS OF USE) or Google Play Store in force at the time of installation, use or access of the APP shall apply, which can be accessed at: https://play.google.com/intl/de_li/about/play-terms.html.

 

2. Scope of application 

(a) By installing, using or accessing the APP, YOU as the USER agree to the TERMS OF USE in the version applicable at the time of installation, use or access of the APP. The current version of the TERMS OF USE can be found in the app under: Settings -> Terms of Use and can be accessed via the following link: https://masterminds-productions.ch/?page_id=292.

(b) The MASTERMINDS Data Protection Declaration (DATA PROTECTION DECLARATION) forms an integral part of these Terms of Use. You will find the DATA PROTECTION DECLARATION in the app: Settings -> Data Protection Declaration and it can be accessed via the following link: https://masterminds-productions.ch/?page_id=183. You can also request the current DATA PROTECTION DECLARATION from US at any time (see contact details). The USER declares to have read this in the valid version and to have given his/her consent to it.

(c) The relationship between the USER and MASTERMINDS (each one PARTY and together the PARTIES) is governed exclusively by the TERMS OF USE and the DATA PROTECTION DECLARATION. Deviating or conflicting terms and conditions of business shall not apply.

 

3. Registration and payment

(a) The SERVICES may only be used by persons who are at least 16 years of age at the time of registration.

(b) In order to use the services of APP, the USER must confirm that he/she meets the minimum age and register with his/her mobile phone number when downloading the APP. Registration is completed upon verification of the mobile phone number via SMS code. The USER is responsible for providing complete and truthful information.

(c) Our SERVICES are free of charge to use.

 

4. Access to the app and availability of services 

(a) MASTERMINDS grants the USER a limited, revocable, non-exclusive, non-transferable and non-sublicensable right to access the APP and to use the SERVICES provided in accordance with these TERMS OF USE.

(b) The USER is entitled to download and install one (1) copy of the APP and to use it for his/her personal, non-commercial use.

(c) MASTERMINDS reserves the right to modify or terminate the SERVICES at any time and without prior notice. Upon termination of the SERVICES, for any reason whatsoever, the right granted to the USER to use the MASTERMINDS SERVICES and to use the APP automatically terminates.

(d) The availability of the SERVICES may be interrupted at any time, for example for maintenance, repair or improvement purposes or due to power failures.

 

5. Use of the app and obligations of the USER 

(a) The USER is obliged to use the APP in accordance with the TERMS OF USE.

(b) The USER acknowledges that when using the APP, costs (such as, for example, data tariffs levied by the mobile phone provider or the network operator) may be incurred. The USER is responsible for all costs, fees and taxes associated with the use of the APP.

(c) The USER may not use the SERVICES offered by MASTERMINDS and the APP in an inadmissible, unlawful manner or in a manner which is contrary to the TERMS OF USE. In particular, when using the APP, he/she may not disseminate any illegal, obscene, insulting, threatening, defamatory, harassing, racist or offensive content. Should it be determined that use of this nature has occurred, MASTERMINDS reserves the right to deactivate the USER’s account and to exclude him/her from using the APP. In this case, the USER is not allowed to create a new account without the written permission of MASTERMINDS.

(d) The USER is obliged to ensure the security of his/her account and to inform MASTERMINDS immediately if unauthorised use is detected.

(e) The USER grants MASTERMINDS a worldwide, perpetual, non-exclusive, royalty-free, sublicensable and transferable right, in particular, to use, reproduce, distribute, create derivative works and display the information (and its contents) which the USER uploads, sends, stores, transmits or receives via our SERVICES. The rights granted by the USER are limited to the purpose of operating and providing our services or to other purposes set out in the DATA PROTECTION DECLARATION.

(f) The USER may not transfer his/her rights and obligations under these TERMS OF USE to third parties.

(g) In addition, the USER shall meet all further obligations provided for in the TERMS OF USE.

 

6. MASTERMINDS’ guarantees and liability

(a) Subject to mandatory legal provisions, all assurances, guarantees and warranties with regard to the APP or SERVICES offered by MASTERMINDS are hereby expressly excluded.

(b) The USER acknowledges that he/she uses APP at his own risk.

(c) MASTERMINDS assumes no responsibility for the accuracy of the data available on the APP (including location data).

(d) The APP is delivered as self-functioning software in its actual state. In particular:

_________(I) the USER has no claim against MASTERMINDS for perfect usability, intercompatibility with other systems, fast reaction time or the availability of the APP or the SERVICES at any time.

_________(II) MASTERMINDS is not responsible for the use of the APP. The telecommunication service provider of your selected mobile phone or Internet contract is responsible for the transmission of information via a telecommunications system and you must address any related complaints or claims to your telecommunications service provider.

(e) The USER is solely responsible for the security of his/her user data and is obliged to ensure that the necessary backups are created.

(f) Unless otherwise provided in the TERMS OF USE, MASTERMINDS’ liability for all direct or indirect losses in connection with, but not limited to, the use or availability of the APP, the interaction of various users in the context of the use of the APP, and the modification or termination of the SERVICE is hereby expressly excluded.

(g) The exclusion of liability shall not apply in the case of intentional or grossly negligent damage or insofar as mandatory liability provisions apply or liability cannot otherwise be excluded under mandatory statutory provisions.

 

7. The USER’s liability and indemnity

(a) Should a third party, in particular other users, authorities etc. assert claims against MASTERMINDS, which have been justified by or in connection with the use of the APP by the USER, the USER shall release MASTERMINDS from all liabilities, damages, losses and expenses (including court costs and reasonable attorneys’ fees) and indemnify MASTERMINDS in full in this regard.

(b) In particular, the USER is liable to MASTERMINDS and indemnifies MASTERMINDS for any direct or indirect damages resulting from an alleged infringement of third-party rights, in particular, intellectual property rights and personal rights, including reasonable attorneys’ fees and court costs.

 

8. Intellectual property rights

(a) The content and services provided by MASTERMINDS, including but not limited to source code, layout and structure, are the intellectual property of MASTERMINDS or its licensors. All trademarks, copyrights, patent rights, know-how rights and other intellectual property rights belong to MASTERMINDS or its licensors.

(b) The USER acknowledges that he/she does not acquire any intellectual property rights to the contents and services provided by MASTERMINDS, including but not limited to copyrights, trademarks, patent rights or know-how.

(c) The contents of the APP may only be printed or otherwise reproduced for private purposes. You may not modify, copy, transmit, pass on, display, perform, reproduce, publish, licence, broadcast and/or create derivative works for commercial or public purposes from the contents of the APP.

(d) The USER is not allowed to access the source code of the APP. Furthermore, the USER may not reverse engineer, decompile or disassemble the source code.

(e) The USER declares that he/she has acquired all necessary rights from third parties in connection with the contents uploaded.

 

9. Confidentiality and confidentiality obligations

(a) Subject to deviating provisions in the TERMS OF USE and the DATA PROTECTION DECLARATION and conflicting, mandatory legal provisions, MASTERMINDS undertakes to keep confidential the USER’s information that is not generally known or accessible, and to fulfil any confidentiality obligations.

(b) Disclosure of confidential information by one PARTY shall not give rise to any liability claim on the part of the other PARTY,

_________(I) if information is disclosed:

____________(1) to auditors, advisors to one PARTY; or

____________(2) in connection with company transactions, sales etc. to purchasers or prospective purchasers; 

or

_________(II) if the matter at hand relates to information, in particular, ideas, concepts and other know-how:

____________(1) which was already known to the PARTIES at the time of the conclusion of the contract;

____________(2) which is publicly known and have not been made public by either of the PARTIES;

____________(3) which comes from a third party who legally possesses this information and is not subject to any confidentiality obligation;

____________(4) which has been developed independently and autonomously by one PARTY without having used the information of the other PARTY for this purpose;

____________(5) which must be disclosed due to legal regulations or orders issued by official bodies;

(c) MASTERMINDS reserves the right to involve third parties based in Germany or abroad in the provision of the SERVICES. The USER expressly agrees to the disclosure of his/her data to the aforementioned third parties and releases MASTERMINDS from its confidentiality obligations, in particular, but not limited to, the secrecy of telecommunications pursuant to Art. 43 ff. of the Telecommunications Act.

 

10. Data protection

(a) MASTERMINDS undertakes to comply with the applicable data protection regulations.

(b) You will find more information on MASTERMINDS’ data protection in the DATA PROTECTION DECLARATION, which forms an integral part of these TERMS OF USE. You will find the DATA PROTECTION DECLARATION in the app: Settings -> Data Protection Declaration and it can be accessed via the following link: https://masterminds-productions.ch/?page_id=183.  You can also request the current DATA PROTECTION DECLARATION from US at any time (see contact details).

 

11. GOOGLE-PLAY TERMS OF USE

(a) The provisions in this item 11 shall not result in any further obligations on the part of MASTERMINDS towards the USER which do not already result from other provisions in these TERMS OF USE.

(b) Notwithstanding any conflicting provisions in these TERMS OF USE:

_________(I) you have no further rights to use the APP or to use the APP than are given in the APPLE TERMS OF USE;

_________(II) you may not use the APP in any manner contrary to the APPLE TERMS OF USE; and

_________(III) you may use the APP only with Google branded products as permitted by the GOOGLE-PLAY TERMS OF USE.

(c) Both you as the USER and MASTERMINDS as the PROVIDER of the APP agree and consent that:

_________(I) these TERMS OF USE represent an agreement between you and MASTERMINDS;

_________(II) Google LLC is not a party to these TERMS OF USE;

_________(III) MASTERMINDS, and not Google LLC, is solely responsible for the APP under these TERMS OF USE;

_________(IV) Google LLC has no obligation to maintain the APP or provide support for the APP;

_________(V) Google LLC is not liable for the APP’s failure to comply with any applicable warranties or representations and MASTERMINDS is solely responsible under these TERMS OF USE for any claims, losses, damages, responsibilities, costs or expenses resulting from the failure to comply with any applicable warranties regarding the APP;

_________(VI) MASTERMINDS, and not Google LLC, is responsible under these TERMS OF USE for any responsibilities relating to the APP or its access and use, including but not limited to:

____________(1) product liability claims

____________(2) claims resulting from the fact that the APP does not comply with the applicable legal or regulatory provisions; and

____________(3) claims under consumer protection law and similar legal regulations

_________(VII) in the event that claims are asserted by third parties for the alleged infringement of intellectual property rights by the APP or your direction over and use of the APP, MASTERMINDS, and not Google LLC under these TERMS OF USE, is solely responsible for the investigation, defence, and resolution of disputes by settlement and exoneration in connection with such infringement claims; and

_________(VIII) Google LLC and its subsidiaries are third parties to these TERMS OF USE and by agreeing to these TERMS OF USE, you grant Google LLC and its subsidiaries the right to enforce these TERMS OF USE against you as third parties benefiting from these TERMS OF USE.

(d) You represent and warrant that:

_________(I) you are not in a country affected by a U.S. government embargo or classified by the U.S. government as a country that supports terrorists (“terrorist supporting” country); and

_________(II) you are not on a U.S. Government list of prohibited or restricted parties.

 

12. APPLE TERMS OF USE

(a) The provisions in this item 11 shall not result in any further obligations on the part of MASTERMINDS towards the USER which do not already result from other provisions in these TERMS OF USE.

(b) Notwithstanding any conflicting provisions in these TERMS OF USE:

_________(I) you have no further rights to use the APP or to use the APP than are given in the APPLE TERMS OF USE;

_________(II) you may not use the APP in any manner contrary to the APPLE TERMS OF USE; and

_________(III) you may use the APP only with Apple branded products with an iOS operating system belonging to or owned by you as permitted by the APPLE TERMS OF USE.

(c) Both you as the USER and MASTERMINDS as the PROVIDER of the APP agree and consent that:

_________(I) these TERMS OF USE represent an agreement between you and MASTERMINDS;

_________(II) Apple, Inc. is not a party to these TERMS OF USE;

_________(III) MASTERMINDS, and not Apple, is solely responsible for the APP under these TERMS OF USE;

_________(IV) Apple, Inc. has no obligation to maintain the APP or provide support for the APP;

_________(V) Apple, Inc. is not liable for the APP’s failure to comply with any applicable warranties or representations and MASTERMINDS is solely responsible under these TERMS OF USE for any claims, losses, damages, responsibilities, costs or expenses resulting from the failure to comply with any applicable warranties regarding the APP;

_________(VI) MASTERMINDS, and not Apple Inc., is responsible under these TERMS OF USE for any responsibilities relating to the APP or its access and use, including but not limited to:

____________(1) product liability claims

____________(2) claims resulting from the fact that the APP does not comply with the applicable legal or regulatory provisions; and

____________(3) claims under consumer protection law and similar legal regulations

_________(VII) in the event that claims are asserted by third parties for the alleged infringement of intellectual property rights by the APP or your direction over and use of the APP, MASTERMINDS, and not Apple Inc. under these TERMS OF USE, is solely responsible for the investigation, defence, and resolution of disputes by settlement and exoneration in connection with such infringement claims; and

_________(VIII) Apple Inc. and its subsidiaries are third parties to these TERMS OF USE and by agreeing to these TERMS OF USE, you grant Apple Inc. and its subsidiaries the right to enforce these TERMS OF USE against you as third parties benefiting from these TERMS OF USE.

(d) You represent and warrant that:

_________(I) you are not in a country affected by a U.S. government embargo or classified by the U.S. government as a country that supports terrorists (“terrorist supporting” country); and

_________(II) you are not on a U.S. Government list of prohibited or restricted parties.

 

13. Applicable law and jurisdiction

(a) These TERMS OF USE are subject to Swiss substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention).

(b) For any disputes arising from or in connection with these TERMS OF USE, the competent courts of the city of Zurich, Switzerland, shall have exclusive jurisdiction.

(c) The above clauses on the choice of law and jurisdiction do not apply if and to the extent that YOU (i) are a consumer within the meaning of Swiss law or a consumer within the meaning of another legal system and (ii) YOU may invoke the application of another law and/or the jurisdiction of another court under the relevant legal system.

 

14. Miscellaneous

(a) The current version of the TERMS OF USE can be found in the app under: Settings -> Terms of Use and can be accessed via the following link: https://masterminds-productions.ch/?page_id=292.  You can also request the current version of the TERMS OF USE from US at any time (see contact details).  Changes can be made by MASTERMINDS at any time and without prior notice. Any changes will be communicated to you as USER and must be accepted for further use of the SERVICES.

(b) Should individual provisions of these TERMS OF USE be invalid, ineffective or unenforceable, the validity or effectiveness of the remaining parts of these TERMS OF USE shall not be affected or impaired thereby.

 

15. Contact

Masterminds Productions GmbH is a limited liability company under Swiss law with its registered office in Weiningen (ZH). YOU can contact MASTERMINDS at the following postal address, by email or by phone:

Contact details:

Masterminds Productions GmbH

Brunaustrasse 158

8951 Fahrweid

Schweiz

Tel. no.: +41 44 748 30 30

E-Mail: info@masterminds-productions.ch