General terms and conditions for users on MyHood
Status May 1, 2021
MyHood GmbH, Mehringdamm 57, 10961 Berlin (hereinafter referred to as "MYHOOD") operates a portal for car enthusiasts and car-related companies (hereinafter referred to as the "Platform") under the URL www.myhood.com.
The following General Terms and Conditions (hereinafter referred to as "GTC") regulate the rights and obligations of the users with regard to the use of the platform. The GTC of MYHOOD shall apply exclusively. Conflicting or deviating terms and conditions of a contracting party are contradicted. The deviating GTC are not included unless their validity has been expressly agreed to by MYHOOD.
1 Use, conclusion of contract, registration
1.2 Via the platform, natural persons of unlimited legal capacity over the age of 18 (hereinafter referred to as "Users") can create private user profiles, create vehicle profiles and publish content (photos and Youtube videos). Private user profiles are exclusively reserved for private individuals. Commercial or predominantly commercial use requires registration as a professional user in accordance with section 1.3.
1.3 In addition, users as well as legal entities may act commercially as entrepreneurs within the meaning of § 14 BGB (e.g. traders or content creators) on the platform and are then considered professional users. For this purpose, the user profile can be converted into a commercial account (Creator Profile or Brand Profile) by MYHOOD under the conditions of section 1.5. A claim for activation does not exist, the decision is solely incumbent on MYHOOD. Commercial accounts can advertise various services and products related to the automotive sector and offer them on the so-called marketplace (including lead-outs).
1.4 Content creators who do not act primarily in the exercise of their commercial or self-employed professional activity when using the platform ("occasional content creators") can also use a premium account and are thus considered professional users. The validity of consumer protection regulations in favor of the occasional content creators remains unaffected. Occasional Content Creators are entitled to the right of revocation according to section 14 like consumers.
1.5 Prerequisite for the use of the platform as a professional user is the prior registration by providing the mandatory information. After registration, the professional user receives an e-mail in response to his offer to conclude a usage contract in order to verify and activate the account. The contract on the use of the platform by the professional user shall be concluded solely by activation of the account on the platform by MYHOOD.
1.6 It is expressly not permitted to impersonate someone or something else (e.g. person or company) as well as to create user profiles for others without express authorization.
1.7 The contract is concluded in German. However, the GTC can be retrieved and saved on the website at any time after the conclusion of the contract on the use of the platform.
2.1 MYHOOD makes the platform available to users. The activity of MYHOOD consists solely in making the platform available.
2.2 The platform can be used by private users for the following purposes: - posting videos, photos, texts and other content in newsfeed, user profile, vehicle profiles, video pages, project pages and club pages, - exchanging chat messages with other users, - linking third-party offers from third-party sites via a so-called leadout connection ("leadout offers").
2.3 The Platform may be used by Professional Users for the following purposes:
- Posting videos, photos, text and other content as part of the commercial or content creator activity provided on the Platform ("Content Creator Content"),
- Posting videos, photos, texts and other content in news feeds, user profiles, vehicle profiles, video pages, project pages and club pages,
- creation of award pages incl. organizing of competitions
- Exchange of chat messages with other users,
- linking of third-party offers from third-party sites via a so-called leadout connection ("leadout offers").
Commercial or "Content Creators" content and leadout offers are together or individually the "professional user offers". The placement of marketplace and leadout offers as a commercial user is subject to the conclusion of a separate contract between MYHOOD and the respective professional user.
2.4 As a matter of principle, MYHOOD will not become a contractual partner of the marketplace or leadout offers concluded exclusively between the users on the platform. A contractual relationship regarding the execution of services is exclusively established between the offering professional user and his customer. The content of the contract is governed by the agreements made between these parties. MYHOOD shall not be subject to any rights and obligations regarding such contractual relationship, in particular, professional users shall not act as vicarious agents or assistants of MYHOOD. However, MYHOOD reserves the right to offer its own offer on the marketplace as a professional user.
3 Duties of the users
3.1 When registering, the user must provide truthful and complete information regarding all required information and, if necessary, update this information immediately after a change. This applies in particular to information provided by professional users regarding the identity of the user, his address, telephone number, e-mail address and information about the business. Professional users are not permitted to use stage names, pseudonyms or other fanciful names in the course of their business activities.
3.2 The user shall keep login data - including the password used - secret at all times and shall ensure in an appropriate manner that log-in data does not become accessible to third parties.
3.3 Insofar as a person has registered on behalf of a company registered as a professional user, this person alone shall be deemed to be the authorized representative of the user. MYHOOD will never ask the user for his password. If the user suspects or has knowledge that his password has been misused or that a third party has knowledge of the access data and/or is misusing his account, he is obliged to immediately change his password and notify MYHOOD of the unauthorized use.
3.4 The following activities are prohibited under these GTC:
- Creation of marketplace or leadout offers without real sales intentions or with fraudulent intentions;
- Hacking attempts, i.e. attempts to overcome, circumvent or otherwise disable security mechanisms, the use and/or distribution of viruses, worms, Trojans, brute force/DDoS attacks;
- Distributing unsolicited commercial messages (SPAM), chain letters or pyramid schemes;
- Copying, modifying or reproducing the content of other users;
- Use of scripts, bots or other software that may affect or interfere with the system integrity and system functions of the MYHOOD platform;
- Machine reading of contents of the MYHOOD platform ("scraping"), in particular by means of bypassing security mechanisms via IP spoofing.
- Posting of advertising content that does not refer to professional user offers in accordance with these GTC, in particular advertising for own Internet marketplaces outside the platform, enticing away or intercepting other users or, in general, advertising on topics not related to the platform;
- Posting of advertising content without sufficient separation from editorial or other non-advertising informational content;
- Modification, deletion or blocking of content generated by MYHOOD or other users;
- Violation of applicable legal provisions, such as infringement of third-party rights, in particular third-party copyrights, personal rights, patent and trademark rights, and other rights; violation of applicable criminal laws and youth protection regulations;
- Posting of content that is racist, grossly offensive, pornographic or sexual, harmful to minors, extremist, glorifies or trivializes violence, glorifies war, promotes a terrorist or extremist political organization, incites a criminal act, contains defamatory statements, is offensive or unsuitable for minors;
- posting false, incorrect, outdated or incomplete content, in particular false information about technical equipment.
3.5 Users are not permitted to use addresses, contact data and e-mail addresses obtained through the use of the MYHOOD marketplace for purposes other than contractual communication. In particular, the resale of data and/or the sending of advertising is expressly prohibited, unless the respective person concerned has expressly consented to this use and contact. The user can prove the existence of such consent to MYHOOD upon request.
4 Rights to User Content
4.1 Each user shall ensure that he/she is the owner of the necessary rights for all content which he/she posts or makes accessible on the platform, including offers, texts (in particular descriptions in offers, information on products, vehicles or on the user himself/herself), videos, music or images, or videos including trademarks or other protectable signs contained in each case (collectively, the "user content"), in order to post these on the platform for the purposes intended by him/her, and is also entitled to grant MYHOOD the necessary rights of use.
4.2 In addition, the user shall ensure that all content posted on the platform and the information required for the conclusion of the user contract in his account are truthful and complete.
4.3 It is the sole responsibility of the respective User to check whether the content posted by him on the platform (e.g. comments, ratings, etc.) complies with applicable law and does not violate any rights of third parties. In particular, it is the sole responsibility of the respective professional user to check whether the professional user offer posted by him on his own responsibility complies with applicable law and does not violate any third party rights.
4.4 MYHOOD does not assume any liability for the content posted by the users, in particular (but not exclusively) the information and content provided by the professional user in the professional user offer. Claims are to be directed solely against the user concerned. Leadout offers can be found on third-party sites that are outside MYHOOD's access area.
4.5 The user grants MYHOOD the non-exclusive, transferable, sub-licensable, royalty-free, spatially unlimited right to use the user content for the purpose of providing and (subject to section 4.8) advertising the platform to the extent necessary. The right of use granted by the User therefore includes the right to technically reproduce the content (e.g. in the context of storage), to edit it and to make it publicly accessible on the platform. The right of public access ends at the moment the user removes a posted content from the platform or deletes his account.
4.6 Within the scope of the granting of rights pursuant to section 4.5, MYHOOD also has the right to technically process its User Content in such a way that it can also be displayed on mobile end devices or software applications of MYHOOD or third parties. User content can also be accessed worldwide via the platform. Offers and other content may be translated automatically for this purpose.
4.7 The granting of the rights of use to MYHOOD pursuant to section 4 by the user also refers to such user content that is available on his website and/or in his social media accounts.
4.8 Professional users also agree that MYHOOD may use their public user content for the promotion of the platform during the term of the contract on the use of the platform. This includes the public accessibility of the user content of the professional user both via own channels (such as websites or apps of MYHOOD) and via channels operated by third parties, such as websites or apps operated by advertising partners of MYHOOD, in order to draw the attention of visitors of the website or apps to the platform. This expressly also includes the integration of the platform into the services of third parties through so-called framing or any other technical embedding.
4.9 The presentation of the user content on the platform is solely the right of MYHOOD. MYHOOD, not the user, decides where, in which form and in which position (ranking) an entry appears.
4.10 Company names, corporate identifiers, trademarks, logos, data, information, images, videos, search results and texts as well as other contents of MYHOOD enjoy protection under copyright law and/or other laws protecting intellectual property. The reproduction, distribution and editing of content (in whole or in part) are only permitted with the express permission of MYHOOD. Content that does not originate from MYHOOD itself also enjoys copyright protection under copyright law and/or other laws for the protection of intellectual property in favor of the respective rights holder.
4.11 For the duration of the use of the platform, MYHOOD grants users a simple, non-exclusive, spatially unrestricted, non-transferable right, which may be revoked at any time, to use content on the platform and the functions provided therein.
5 User guarantees and indemnification
5.1 The user guarantees that user content posted by him on the platform is correct in terms of content, complete and up-to-date as well as free of third-party rights.
5.2 The user shall indemnify MYHOOD upon first request against all claims of third parties, which they therefore assert against MYHOOD,
- because he violates the warranty according to clause 5.1;
- he does not properly fulfill offers as a professional user;
- or culpably violates other obligations from the contract with the user or according to these GTC.
6 Rights of MYHOOD in case of infringements
6.1 MYHOOD is entitled to remove user content or not to publish it if it violates legal provisions, the rights of third parties or these GTC.
6.2 MYHOOD reserves the right to sanction users upon becoming aware of culpable violations of legal provisions or these GTC, depending on the severity of the violation. This may include a warning to the user or the adjustment of offers and profile details. Serious violations may result in the temporary blocking or permanent deletion of individual searches or offers as well as the users concerned. MYHOOD also reserves the right to issue a permanent virtual ban in case of serious violations.
6.3 The right of MYHOOD to extraordinarily terminate the contract on the use according to these GTC without notice remains unaffected.
7.1 MYHOOD offers users the possibility to rate the offer of other users on the platform.
7.2 For this reason, the user is only entitled to submit ratings that reflect a truthful picture of the rated content. Furthermore, the ratings are to be written in a factual form. Users are obliged to provide only truthful information in the reviews they submit. The ratings submitted by users must be factual and may not contain any abusive criticism.
7.3 Any improper use of the rating system is prohibited. In particular, it is prohibited:
- to make evaluations about themselves or to have them made by third parties without the order having been executed;
- to include circumstances in evaluations that are not related to the provision of the services in question;
- to use ratings for a purpose other than the evaluation of services (e.g. for advertising purposes unrelated to the platform);
- coerce other users to act, tolerate or refrain from acting by threatening to submit or not to submit a rating.
8 Availability of the platform
8.1 MYHOOD shall endeavor to avoid impairments or other restrictions of the use of the platform as far as this is technically possible. However, due to the further development and maintenance of the platform by MYHOOD, temporary restrictions of use may occur.
8.2 MYHOOD may make the use of the platform or individual functions of the platform or the extent to which individual functions can be used subject to certain conditions, such as verification of registration data, duration of use, type of use, status of the rating profile (including detailed ratings), payment history or dependent on the presentation of certain proofs (e.g. proof of identity, purchase, payment or ownership).
8.3 The claim of users to use the platform exists only within the scope of the current state of the art. MYHOOD temporarily restricts its services if this is necessary with regard to capacity limits, the security or integrity of the servers or for the implementation of technical measures and this serves the proper or improved provision of services (maintenance work).
9.1 MYHOOD is not liable for third-party sites and linked content. MYHOOD is not liable for any statements or actions of users. MYHOOD is not part of the contractual relationship between third parties concluded on the platform.MYHOOD does not give any assurance about the suitability, availability or quality of the services offered by the professional user.
9.2 MYHOOD is not liable for repair, tuning and other construction instructions given by users or other third parties on or in connection with the platform as well as recommendations for the use or combination of car parts. In this respect, MYHOOD does not assume any liability for the correctness, up-to-dateness and completeness of the content of such instructions and/or recommendations. Any liability for damages caused by third party recommendations is excluded, unless MYHOOD is (co-)at fault. MYHOOD points out the compliance with the applicable legal, in particular road traffic and road traffic licensing regulations.
9.3 MYHOOD shall be liable in accordance with the statutory provisions only for intent and gross negligence on the part of MYHOOD, its legal representatives, executive employees or other vicarious agents. The same applies to the assumption of guarantees or any other strict liability as well as to claims under the Product Liability Act or in case of culpable injury to life, body or health. MYHOOD shall be liable on the merits for simple negligent breaches of essential contractual obligations caused by MYHOOD, its representatives, executive employees and simple vicarious agents, i.e. such obligations on the fulfillment of which the user regularly relies and may rely for the proper performance of the contract on the use of the platform, in this case, however, limited to the amount of the typically arising, foreseeable damage.
9.4 Within the scope of the limitations described above, the user has no claim to completeness, correctness or restoration of data (e.g. in case of destruction of the databases used for the operation of the online marketplace).
9.5 Insofar as MYHOOD's liability is excluded or limited, this shall also apply in favor of the personal liability of its legal representatives, executive employees and simple vicarious agents.
10 Term of the contract, termination
10.1 The contract on the use of the platform is concluded for an indefinite period of time and may be terminated by the user at any time by deactivating his account.
10.2 Professional users and MYHOOD shall observe a notice period of one month to the end of the month, unless otherwise stipulated in the respective individual contract concluded. The period of notice begins with the notification of the termination in text form. Termination shall have no effect on the rights and obligations arising from the contract between the Users, insofar as these arose prior to termination of the contract or arise from post-contractual obligations.
10.3 The right to extraordinary termination of the contract without notice for good cause shall remain unaffected. An important reason for extraordinary termination by MYHOOD exists in particular if MYHOOD becomes aware of the fact that the user violates the contract, including the provisions of these GTC, in each case if and insofar as MYHOOD has issued a warning to the user and within a period of two (2) weeks the violation is not discontinued and it is proven that the violation does not persist
11 Data protection, marketing
11.1 Informationen zur Datenverarbeitung durch MYHOOD im Rahmen der Plattform erhält der Nutzer in der Datenschutzerklärung von MYHOOD. Diese ist abrufbar unter [LINK].
11.2 Profinutzer können bei der Nutzung der Plattform zudem eigenständig und in eigener Verantwortung personenbezogene Daten verarbeiten. In Bezug auf diese Daten ist der jeweilige Profinutzer rechtlich verantwortlich. Auf solche eigenständigen Verarbeitungen durch den Anbieter hat MYHOOD keinen Einfluss. Rechte sind allein gegen den Anbieter geltend zu machen.
12 Final provisions, applicable law; place of jurisdiction
12.1 Sollte eine Bestimmung dieser AGB oder ein Teil einer solchen Bestimmung unwirksam sein oder werden, berührt dies nicht die Wirksamkeit dieser AGB im Ganzen.
12.2 Die vertraglichen Beziehungen der Parteien richten sich nach dem Recht der Bundesrepublik Deutschland unter Ausschluss des internationalen Kollisionsrechts und des UN-Kaufrechts. Ist der Nutzer Verbraucher mit Wohnsitz in der Europäischen Union, ist auch das Recht desjenigen Landes, in dem der Nutzer seinen gewöhnlichen Aufenthaltsort hat, zur Anwendung kommen, wenn es sich um zwingende Bestimmungen handelt und dem Nutzer ansonsten der Schutz dieser zwingenden Bestimmungen entzogen würde.
12.3 Erfüllungsort für die Erfüllung aller Pflichten aus oder im Zusammenhang mit diesem Vertrag, insbesondere Zahlung und Lieferung, ist Berlin, falls der Nutzer Unternehmer ist. Soweit der Nutzer Unternehmer, eine juristische Person des öffentlichen Rechts oder ein öffentlich-rechtliches Sondervermögen ist, ist als ausschließlicher Gerichtsstand der Landgerichtsbezirk Berlin vereinbart.
12.4 In the event of a dispute, consumers have the option of contacting the online dispute resolution platform. The "OS platform" is available via the link http://ec.europa.eu/consumers/odr/. MYHOOD is neither obliged nor willing to participate in an out-of-court dispute resolution before a consumer arbitration board.
12.5 MYHOOD reserves the right to update these GTC from time to time, as far as this is reasonable under consideration of the mutual interests of the parties of the user agreement according to these GTC. Users will be informed about the change in due time in a suitable manner (e.g. by e-mail, push message, notification in the customer account). The use of the platform is governed by the currently valid version of the GTC. If the User does not object within a period of 6 weeks after notification, the amended GTC shall be deemed approved. The user will be informed separately about the consequences of silence when the change is announced.
13 Right of revocation
13.1 If the User is a consumer, he shall be entitled to a right of withdrawal in accordance with the instructions set out here in the Annex if the contract is concluded by means of distance communication.
13.2 Means of distance communication are means of communication that can be used to initiate or conclude a contract between a consumer and an entrepreneur without the simultaneous physical presence of the contracting parties.
13.3 The User who is a consumer has the right to revoke the contract within fourteen days without giving any reason. The revocation period is fourteen days from the day of the conclusion of the contract.
13.4 To exercise the right of withdrawal, the user must inform MYHOOD MyHood GmbH, Mehringdamm 57, 10961 Berlin, phone: +49 (0) 30 60 985 2 985, e-mail: email@example.com by means of a clear declaration (e.g. a letter or e-mail sent by post) of his decision to withdraw from the contract.
13.5 For this purpose, the User may use the sample revocation form attached to the order form, which is, however, not mandatory.
13.6 In order to comply with the revocation period, it is sufficient that the user sends the notification of the exercise of the right of revocation before the expiry of the revocation period.
13.7 The right of withdrawal shall also expire if MYHOOD has started the execution of the contract for the delivery of digital content not on a tangible data carrier even if the entrepreneur has started the execution of the contract - after the user has expressly agreed that MYHOOD shall start the execution of the contract before the expiry of the withdrawal period and - the user has confirmed his knowledge that he loses his right of withdrawal by his consent with the start of the execution of the contract.
MyHood GmbH; July 2021