1.1 Fretello operates an interactive online platform and mobile apps aiming to connect, and create new opportunities for, people who are, or want to learn an instrument or become better musicians.
1.2 In order to be able to use the complete spectrum of Fretello’s products and services, a one-time registration is required (see Section 4, below). However, certain content (e.g., information regarding music education or skills), including general descriptions of Fretello can be viewed without registration.
1.3 Fretello’s goal is to make music enjoyable and to make a positive contribution to people’s music skills.
2. VALIDITY OF THE T&C
2.1 Fretello offers the interactive Fretello.com platform and Fretello mobile apps on the basis of these T&C. By registering, the user consents to the validity of these T&C and any agreements incorporated therein by reference.
2.2 Neither the registration nor the use of the complete spectrum of products and services shall be possible without explicit consent to these T&C.
2.3 These T&C shall apply to all points of access, including (sub-)domains and mobile applications, for Fretello’s products and services. In particular, the Fretello online offering will be accessible via the following domains: fretello.com, fretello.at, fretello.de, fretello.us, fretello.org and fretello.net.
2.4 These T&C shall be valid until cancelled in the currently valid version as of 19 Sep, 2016.
2.5 Solely the German version of these T&C is binding.
3. SUBJECT OF THE AGREEMENT
Currently, Fretello essentially offers its users the following applications and information in several languages:
3.1 Fretello.com platform:
3.1.1 Personal profile page (label: my profile), including personal details
3.1.2 Training plans and records, as added by users, and presented and administered by Fretello, respectively
3.1.3 News regarding Fretello in short form
3.1.4 Mobile Music Apps
3.1.5 Content, e.g. texts, pictures and videos, regarding music, music education and didactic concepts will be presented by Fretello and professional third parties (music teachers, musicologists, …)
3.1.6 Blog: Presentation of company information, products and news in long form
3.1.7 Other Content:
- About us: Short description of Fretello
- Company offerings: Offers of Fretello addressed to companies
- Partners: Presentation of partners and supporters of Fretello
- Advertising by Fretello and/or third parties
- Support for users
3.2 Mobile applications; Fretello Lead
3.2.1 Fretello offers applications for Apple iPhones, Android phones and other smartphones on a global scale.
3.2.2 These applications can be used both isolated on the smartphone as well as in connection with the Fretello.com platform.
3.2.3 Subject to the user’s consent, relevant data is transmitted from the smartphone to the Fretello.com platform and shared with other social networks (e.g., Facebook), respectively.
3.2.4 The user hereby confirms the user’s knowledge that as a result of the transmission of data from the smartphone to the Fretello.com platform, certain costs of the mobile carrier will be incurred that have to be borne by the user.
3.2.5 The mobile applications are only available to users of smartphones. Accessing full functionality of the mobile applications is restricted in time and requires a subscription afterwards.
3.2.6 Additional terms and conditions on the part of the mobile phone-providers apply.
3.3 Other Services of Fretello
3.3.1 Fretello will send newsletters to registered users. By accepting these T&C, the user allows Fretello to send newsletters. The user can opt out of receiving a newsletter each time such newsletter is received. Upon opting out, the user will not receive any further newsletters from Fretello.
4.1 In order to be able to use the Fretello.com platform, a one-time, free registration is required. Fretello offers users two options of registering on the Fretello.com platform:
4.1.1 a free membership, where features are made available to users for a limited period of time;
4.1.2 a premium membership, with all options and features made available to users as long as the user has an active subscription.
4.2 Only persons legally capable to enter into agreements on their own behalf shall be permitted to register with Fretello. Minors may only register with Fretello subject to the explicit consent of their parents or legal guardians. A scanned copy of such written consent shall be sent by email to firstname.lastname@example.org.
4.3 By registering, the user confirms its knowledge and the unlimited recognition of the content of these T&C.
4.4 Each user shall register with Fretello once only, and confirms with its registration that it has not registered an account with Fretello before and has not deleted a previously activated user account.
4.5 Subject at all times to Section 13 hereof, a user can register in one of two ways:
4.5.1 Registration by use of the registration form provided on the Fretello.com platform:
For purposes of registration, the user shall provide the details requested by the registration form, e.g., first name, last name, date of birth, completely and correctly, unless such details are marked as voluntary. Registration is only possible by using the user’s civil name, i.e., the use of phantasy names or pseudonyms is not possible.
4.5.2 Adoption by Fretello of registration details provided by the user in the social network Facebook or Google G+:
Registration via Facebook Connect or via Google G+ requires the user to confirm that the selected details, which the user previously provided on Facebook or Google G+ , shall be adopted by the Fretello network. The user can subsequently add to or reduce such details in such user’s profile on the Fretello.com platform.
4.6 Following successful registration, the user can log in to the Fretello apps by either (i) entering its email address and the chosen password, or (ii) accomplishing the log-in via Facebook connect or Google G+.
4.7 If the registration process is not completed, e.g., as a result of missing personal details or the lack of consent to these T&C, Fretello will delete the corresponding account within a period of seven days.
4.8 Fretello reserves the right to reject users without giving reasons. In this event, any transmitted details will be deleted promptly.
4.9 Fretello is not responsible for the actual identity of the user, since personal identification via the internet is possible only to a limited extent. Each user shall itself confirm the identity of other users prior to entering into any form of interaction with such users, e.g., adding as a friend or by writing messages.
5. GENERAL TERMS AND CONDITIONS FOR ALL USERS
5.1 Fraud protection.
5.1.1 You must protect your account from unauthorized and fraudulent use. Please notify us immediately by email at email@example.com of any unauthorized or fraudulent use of your account, or if you suspect that your account may be at risk.
5.1.2 Fretello will not refund any amounts paid by you to fretello.com before you report an unauthorized or fraudulent use of your account.
5.1.3 Fretello.com has the right to close or cancel the account of any registered user in the event of any unauthorized or fraudulent use of the account.
5.2 Fretello.com may run promotions and free offers, which may be subject to additional terms or restrictions. These promotions and offers may not be transferred between users.
6. SPECIAL TERMS AND CONDITIONS FOR PREMIUM MEMBERS
6.1 In order to use the Fretello after the free trial period expires, you must (i) be a registered user of the Fretello.com platform, and (ii) pay the stipulated price, including applicable VAT, if any, and any other fees or amounts associated with the premium services, by credit card or any other form of payment accepted by Fretello (the “Subscription”). If you are not a registered user of the Fretello.com platform, you must register before you can execute the Subscription.
6.2 Fretello offers different subscription periods so that you can choose the one that best satisfies your needs. The different subscription types and applicable prices are available for viewing inside the Fretello apps. All prices are subject to change at Fretello’s discretion at any time.
6.3.1 Payment is made in advance for each subscription period. In other words, you can select the subscription period that best satisfies your needs to access Fretello once the free trial expires. Once you signed up and paid for the subscription, the selected validity period will be associated with your account.
6.3.2 Payments for the entire term of your premium membership shall be due immediately upon invoicing. Payment can be made using different online payment systems (Paypal, Credit Card, ). If Fretello is unable to collect any fees from an account designated by the user due to lack of funds, the user shall bear all costs arising therefrom, including bank charges related to any debit entries or similar charges. Fretello may deliver invoices and payment reminders to the user by email.
6.4 When your subscription period expires, your credit card will be charged automatically with the standard subscription price which was valid at the arrangement, i.e., special offer prices do not apply in this case, and your subscription will be renewed for the same period of time unless you cancel your subscription, at least prior to the expiration of your current subscription.
6.5 You may cancel your subscription at any time by initiating the cancellation in your Google Play or iTunes account. Unless otherwise provided for in Section 8, Fretello will not refund previously paid amounts.
6.6 Subject to Section 6.4, for lack of a user’s cancellation of such user’s subscription, each subscription period ends only upon expiration of the agreed-upon time period, and regardless of the user’s actual use of the Fretello during such period. Each user can check the length of the current subscription period by viewing such user’s account information.
6.7 Application of Other Rules. Unless otherwise specified in this Section 6, all other provisions of these General Term and Conditions apply also to the Premium Members.
7.1 Each user shall have the right to terminate the use of Fretello’s online platform at any time via its account settings („My Profile“). Fretello shall confirm such termination vis-a-vis the user.
7.2 Additionally, Fretello reserves the right to terminate a user’s membership for important reasons, such as due to gross breaches of the user‘s obligations.
7.3 As a result of any termination pursuant to this Section 8 or cancellation pursuant to Section 9 hereof,
7.3.1 all personal details provided by the user upon registration shall be deactivated. Any details made public by the user, e.g., routes, notes on other users’ walls, will be (i) anonymized, i.e., it will be made clear that such details were provided by a deleted user, or (ii) deleted, in the event of cancellation.
7.3.2 upon the user’s request, all saved personal details shall be irrevocably deleted. The user shall request such deletion by email sent to firstname.lastname@example.org, which shall include the email address provided to Fretello upon registration.
8. SPECIAL CANCELLATION RIGHT FOR CONSUMERS
8.1 If you as a User are registered on the Fretello.com platform for a purpose that is not related to either your commercial or professional freelance activity, the following provisions apply to you as a consumer within the meaning of Section 1 of the Austrian Consumer Protection Act (Konsumentenschutzgesetz; KSchG):
8.2 Right of Withdrawal from Contract. You may cancel your agreement with Fretello in writing, e.g., by letter, fax or email, within 14 days from the later of the date (i) on which the agreement was entered into and (ii) of receipt of any physical products you may have ordered, in each case without stating any reasons. You can cancel the agreement by sending your notification to:
Pocket Lifestyle IT-Solutions GmbH
Industriezeile 35, 4020 Hagenberg
8.3 In the event of cancellation, any benefits received by one party from the other must be returned, and any economic advantages gained must be repaid. If you are not able to return the services rendered to Fretello in full or in part, you are obligated to reimburse Fretello for the value lost. This may mean that you are required to fulfill your payment obligations until cancellation has become effective. Obligations to reimburse costs must be fulfilled within 30 days. For you, this period begins when you send your contract termination, for us when we receive it.
9. USER OBLIGATIONS AND CONDUCT
9.1 Each user of the Fretello.com platform must
9.1.1 truthfully provide, and keep current and complete, its registration details, and must not pass on such details to third parties;
9.1.2 only save, publish, transmit and distribute such content, e.g., photos, pictures, text, representations or videos, if the user is authorized to pass on such content, i.e., (i) if the user has the exclusive right to use such content or, (ii) in the event that the user is not the owner of such rights with respect to content provided by it, if the user guarantees to Fretello that all required rights, licenses, permits etc. have been validly obtained. This shall also apply to content subject to intellectual property rights, such as trade names and trademarks. The user shall be exclusively responsible for such content;
9.1.3 not save, publish, transmit or distribute any content that is racist, insulting, discriminating, denunciating, sexual, glorifies violence or is otherwise illegal;
9.1.4 not to send chain letters or messages to more than one recipient at any one time, i.e., the user must not send mass emails or spam;
9.1.5 not carry out any disrupting interferences in the Fretello network by use of technical or electronic aids, such as hacking attempts, brute force-attacks, planting of viruses/worms/trojans and other disrupting attempts regarding Fretello’s software or hardware;
9.1.6 not copy, distribute, transmit or collect by use of technical aids, e.g., by crawlers or bots, accessible details without the consent of the respective owner;
9.1.7 provide prompt notice via email to email@example.com of any detected breaches of the aforementioned obligations;
9.1.8 diligently care for the personal details and only allow such persons access to its own details that are close to the user; and
9.1.9 regularly save important personal details externally, e.g., on an external storage medium, hard drive or in the cloud. Fretello shall not be responsible for any lost or impaired details.
10. BREACH OF USER OBLIGATIONS
10.1 In order to ensure the proper and reliable provision of services, Fretello imposes the following sanctions upon breach obligations by a user:
- deletion of content;
- temporary deactivation of user account; and
- cancellation (irrevocable deactivation).
10.2 The type of sanction shall depend on the purpose, impact and type of the breach in light of Fretello’s and the user’s interests.
10.3 In the event a user account shall be cancelled in accordance with this Section 10, the respective user shall not be permitted to register again.
11.1 Fretello permits its registered users to use the offered portfolio of products and services in accordance with statutory law and these T&C, in order to upload, save, publish, distribute, transmit and share content with other users.
11.2 The user consents that as a result of the automatic evaluation of the way such user uses the platform, it may be exposed to certain offers and/or marketing messages tailored to such user.
11.3 The user consents that marketing measures may also be taken in the proximity of content created by such user.
11.4 Fretello shall have the right to save content or disclose such content to third parties, to the extent this is required by law, or legally permissible and reasonably necessary, in order to
11.4.1 comply with statutory law, or court or administrative orders
11.4.2 ensure compliance with these T&C;
11.4.3 react to claims of breaches of law raised by third parties; or
11.4.4 safeguard the rights, property or personal safety of Fretello, its users and the general public.
11.5 The user grants Fretello the irrevocable, free, non-exclusive and unlimited right to use all content generated, transmitted, saved and published by such user. Accordingly, Fretello shall have the right to use, irrespective of the type of usage, all content both as part of the Fretello platform and any other activity of Fretello or any company affiliated with Fretello. This shall include the right to change and edit such content, unless such changes or edits impair material interests of the user. In this connection, the user waives, to the extent legally permissible, all intellectual property rights. However, to the extent feasible, in the event that Fretello uses content created by a user outside the Fretello platform, Fretello shall note that such content was created by the user.
11.6 Fretello does not claim ownership of any content created by users and will not supervise such content.
11.7 Fretello reserves the right to delete content created by users without giving reasons. In this event, the user shall be notified and, in the event of a breach of these T&C, may be sanctioned in accordance with Section 10.
11.8 Fretello shall not be responsible for inaccurate content created by users, e.g., details regarding routes or events etc..
13. REPRESENTATIONS AND WARRANTIES
13.1 Fretello does not represent or warrant that the Fretello.com platform will be available at all times, or that it and the necessary hardware and software will be completely free from errors.
13.2 Fretello does not represent or warrant that the transmission of data via other systems, in particular the internet and telecommunication networks, is not tracked, recorded or distorted by third parties.
13.3 The user uses the Fretello offering exclusively at its own risk. This applies, without limitation, to
13.3.1 the related use of any hardware, including, but not limited to the respective smartphone;
13.3.2 downloading of the user’s own and third party content; and
13.3.3 any use by the user of data created or provided by Fretello, including, but not limited to (i) measured exercise speeds, or (ii) recommendations for actions, e.g., workout plans etc. The user explicitly acknowledges that any such data or content may contain errors, and Fretello does not, to the extent permitted by law, assume any responsibility for the correctness of such data.
13.4 The use of any software or hardware offered by Fretello is no substitute for the consultation by the user of a specialized doctor.
13.5 Additionally, Fretello does not make any representations or warranties with respect to external links, banners or other information and marketing offers that may be made accessible to the user. Any contractual arrangements entered into between the user and a third party provider, e.g., via linked websites or banners, result in a contractual relationship between such user and the third party provider only. Fretello does not make any representations or warranties with respect to products or services of third party providers.
14. LIMITATION OF LIABILITY
14.1 Fretello shall be liable as currently provided by law, regardless of the statutory basis of such liability (precontractual, contractual, tort) only if Fretello has caused a certain damage willfully or with gross negligence. In the event of slight negligence, Fretello shall not be liable to other businesses and shall be liable to consumers only for personal damages. Fretello shall not be liable to businesses for follow-on damages, mere pecuniary losses, lost profits or damages resulting from claims of third parties.
14.2 Unless required by statutory law, neither Fretello nor any of its business affiliates shall be liable for damages resulting from the use of content made accessible through the use of the online platform or other forms of use of the online platform or mobile apps. This also applies to damages resulting from errors, problems, viruses or loss of data.
14.3 Fretello.com assumes no liability for downloaded material or material obtained as a consequence of using the Fretello.com platform. The Registered User is solely responsible for any damages caused by such materials to his computer system or for information that is lost as a consequence of downloading materials from the Fretello.com platform.
14.4 The Registered User is exclusively liable for any claims of lawsuits of any kind in any way derived from or related to conflicts with other users. The Registered User acknowledges and accepts that Fretello.com will not, under any circumstances, be liable for the acts and omissions of other users, including the damages associated with such acts or omissions.
15. INDEMNIFICATION BY USERS
15.2 The user shall indemnify Fretello for all claims raised by third parties as a result of an infringement of their rights by the user in connection with content uploaded to the Fretello.com platform by such user or as a result of any other usage by such user of applications available from Fretello. The user shall bear the costs of any legal proceedings, in which Fretello may be involved in connection with such claims, including all court costs and attorney’s fees to the extent permitted by law, unless the user was not at fault in causing such infringement.
15.3 In the event that a claim is brought by a third party, the user shall promptly, truthfully and completely make available to Fretello all information available to such user that may be necessary to verify such claim and defend against it. Any additional claims for damages that Fretello may be entitled to bring against the user shall not be affected.
16. CHANGES TO THE T&C
16.1 Fretello reserves the right to amend these T&C from time to time for a number of reasons including, without limitation, for commercial reasons, to comply with applicable law or regulations, or for customer service-reasons. At any time, the then-current version of these T&C is available for viewing on the Fretello.com platform.
16.2 Changes to these T&C, other than changes to Section 3 require the consent of the respective user, to whom the changed T&C shall apply. If Fretello intends to implement such changes to these T&C, Fretello will give the user as much prior notice of such changes as possible. Such notice shall be made (i) via email to the email address the user previously supplied, (ii) on the relevant pages of the Fretello.com platform, or (iii) on any other device through which the user accesses the Fretello services. We may invite the user to accept the new T&C by clicking “yes” or “I accept”, checking a “tick box” or any other similar method of confirmation. Any such modifications will take effect within thirty days of publication.
16.3 In the event that the user does not consent to the changed T&C, it shall not be permitted to any further use of the Fretello.com platform.
16.4 Following amendment of the T&C, the continued use of Fretello’s offering following the notification or, as the case may be, expiration of such thirty days-period, by any registered user shall be deemed user’s consent to the amended T&C.
16.5 Subject to Sections 17.1 to 17.4, any changes to these T&C must be made in writing. No ancillary oral arrangements exist.
17.1 In the event that individual provisions of these T&C shall be or become invalid, all other terms and conditions shall remain in full force and effect.
17.2 Governing Law and Jurisdiction.
17.2.1 These T&C and all contractual relations and litigation between the users and Fretello shall be governed by Austrian law, excluding the conflict of law-provisions of the United Nations Convention on Contracts for the International Sale of Goods.
17.2.2 Place of delivery and exclusive court of jurisdiction shall be Linz, Austria.