Terms of Service
As of: 08/31/2015
1.2 HEADUP reserves the right to amend these TOS with future effect. In such cases, HEADUP will notify you of changes to the TOS in advance and advise you that the changes will be deemed to have been accepted if you do not object within four weeks or if you continue to use the services. We may also notify you of amendments to these TOS by publishing notifications or links in our service/offering.
2. Registration, Conditions of Participation, Legal Declarations
2.1 Participation is restricted to users who are fully legally competent or who act with the consent of a legal representative or guardian.
2.2 You are obligated to provide true, accurate and complete information as prompted by the registration form, and to keep the data in your member’s account current and accurate.
2.3 Please note that you may receive legal declarations (e.g. confirmation emails, changes to the TOS) per email. These changes shall be deemed to be duly received if they can be accessed in your mailbox in our service under normal circumstances.
2.4 Your user account is not transferable or inheritable.
3. Cancellation, Blockage of Member Account
3.1 You may delete your member account at any time and for any reason. HEADUP will subsequently delete your saved personal data.
3.2 You also agree that HEADUP is entitled, at its sole discretion and for any reason, to delete your password, your member account (or parts thereof and/or certain content), or terminate any other use of our services by you and delete any of your content. This shall in particular apply if you have not used the services provided by HEADUP for a substantial period of time or if HEADUP concludes that you have violated these TOS or have not complied with the essential guidelines of these TOS.
3.3 You agree that your access to HEADUP services may be interrupted without prior notice in accordance with the terms of this agreement and that HEADUP has the right to immediately block or delete your member account and all information and files, and/or prevent any further access to such files or to the service.
3.4 The obligations under sections 4, 5, 6, 8, 9, 10, 11 and 12 shall continue to apply following deletion of the member account to the extent that their applicability is related to your conduct prior to deletion of the account.
4. General Obligations of the User
4.1 You must ensure that you are the sole user of your member account, and consequently are required to keep your password confidential at all times.
4.2 You acknowledge that the owner of a member account is responsible for all activities conducted through his or her member account. In the event that you allow another person to use your account, e.g. a minor, without the consent of his or her parents or legal guardians, you acknowledge that you are fully responsible for the user’s actions, the control of his or her access and the use of the service by the user, as well as the consequences of any misuse.
4.3 You are obligated to immediately notify us of any unauthorized use of your password or member account, as well as of any other violation of security regulations, and shall be liable to HEADUP for any misuse of your member account for which you are responsible.
5. Responsibility, Prohibited Content and Behavior
5.1 All information, data, text, music, sounds, photos, graphics or other materials ("contents") stored, published or transmitted by you or other users while using the HEADUP service is the sole and full responsibility of the person with whom such content originates, i.e. you are solely and fully responsible for content created by you as well as content which you obtain from other sources and which you save, publish and/or transmit while using our services. In addition, you agree that content uploaded by you is not subject to the payment of royalties (e.g. requires notification of GEMA, GVL or other nationally or internationally active authors’ societies). In the event that legal relationships change subsequent to the provision of the CONTENT, you are obligated to delete the respective data or, alternatively, inform HEADUP via email regarding which data should be deleted so that this may be done.
5.2 As a rule, HEADUP does not review the contents which you or other users save, publish and/or transmit using our services and consequently assumes no liability for the accuracy, appropriateness and quality of such content. You acknowledge that using this service may exposes you to offensive, indecent or otherwise objectionable content if the user responsible for this content fails to adhere to the provisions of these TOS or applicable laws.
5.3 When using HEADUP services, you are prohibited from:
5.4 Although we generally do not monitor or control user content, we nevertheless reserve the right to summarily reject, block or delete contents accessible through our service without divulging reasons or, where applicable, to publish such content in another location within the service, in particular user content we become aware of which violates these TOS.
6. User Content
6.1 HEADUP permits you to use our services in accordance with legal provisions and the provisions of these TOS, in order to save, publish, transmit and share content with other users. HEADUP does not monitor such activity by you and neither asserts ownership of your content nor alters it.
6.2 By using our service, pursuant to the provisions of these TOS you authorize us to save and provide public access to your content as part of our service in its respectively applicable form.
6.3 You acknowledge and expressly agree that advertisements marketed by us are part of our service and are thus present within the context of your content, including potentially before and after your content (in particular for songs). You also acknowledge that the technical processing and transmission of our service, including content furnished by you, may necessitate transmission over various networks and/or require that technical changes be undertaken in order to meet the technical requirements of connected networks or other technical systems.
6.4 You warrant that you own all necessary rights to the content you use our service to save, publish and/or transmit, and that this does not violate third party rights of any kind, statutory provisions or the regulations in these TOS, in particular the regulations set forth in section 5.3. In the event that you do not own the rights to content which you have submitted, you warrant that you have effectively secured all required rights transfers, licenses, permissions, consent etc. In the event that you are in violation of these/one of these warranty(ies), in accordance with section 11 you hold us harmless from any third party claims and indemnify us in full.
6.5 HEADUP has the right to store and forward content to third parties, to the extent that this is legally mandated or, in its best judgment, is necessary and legally permissible, in order to (a) comply with statutory regulations or judicial or administrative orders, (b) assert these TOS, (c) address claims of infringement by a third party (d) protect the rights, property or personal safety of HEADUP, its users and the public.
7. Notice regarding legal infringements
7.1 HEADUP respects the intellectual rights of third parties and encourages its users to do the same.
7.2 If you believe your copyrights have been violated by content from another user who uses our service to save, publish or transmit his or her content, please inform us of this by providing the following information:
7.3 The entity in charge of copyright matters at HEADUP to whom copyright violations should be reported is: Headup Games GmbH & Co. KG, Nordstr. 102, 52353 Düren, Germany, info(AT)headupgames(DOT)com.
7.4 Please notify us of any illegal content which violates these TOS. If you have determined that content posted by other users is in violation of the TOS or statutory regulations, please notify us by using the abuse report form. Please specify the identification data of the person in violation of these rules together with the corresponding content or a description thereof in the appropriate field on the form.
8. Exclusion of Warranty, Links
8.1 We offer our services in the form deemed appropriate by us at any one time and reserve the right to interrupt or discontinue these services at our discretion. You use our service at your own risk.
8.2 HEADUP does not guarantee that the service will meet your or anyone else’s requirements or that it is available interruption-free at all times in a timely, secure and error-free manner. HEADUP makes no guarantee with respect to the results which can be achieved by using our service or with respect to the accuracy and reliability of the information available as part of the service. In addition, HEADUP does not guarantee that the hardware and software used for our service will correctly work at all times or that potential errors in the hardware and software will be corrected, and assumes no liability for damages resulting from the use or inability to use HEADUP services, to include the loss of data or data corruption. In particular, HEADUP is not liable for replacement costs or for costs arising in connection with the purchase of goods or services, messages received, or other business transactions, or in connection with changes to your information or data, or for costs otherwise incurred by using HEADUP services. HEADUP also assumes no liability for the behavior of users or other third parties or for content or declarations transmitted by users or other third parties within the scope of the service.
8.3 Our service may contain links to other websites and services, including content which our users may save on our servers as part of our services. We do not review the targets of these links or claim ownership of contents available on or via such third party services or sources, and exclude any and all liability or warranty with respect to this information.
9. Liability and Limitation of Liability
9.1 Claims against HEADUP for damages, irrespective of the legal basis, are excluded, unless HEADUP, its legal representatives or vicarious agents are guilty of intent or gross negligence. HEADUP shall only be liable for ordinary negligence if a provision essential to the attainment of the contractual purpose has been violated by HEADUP, its legal representatives, senior management or vicarious agents.
9.2 The above liability limitation does not apply to claims for damages resulting from injury to life, limb or health or the assumption of a quality guarantee or fraudulent concealment of defects by HEADUP.
9.3 To the extent that HEADUP is liable for ordinary negligence pursuant to section 1, the claim for damages shall be limited to foreseeable damages typical for the contract.
9.4 Claims for damages against HEADUP expire 12 months after they arise, unless the damages resulted from illegal or intentional actions.
9.5 To the extent that HEADUP is excluded from liability, this shall also apply to companies affiliated with HEADUP, as well as to the personal liability of staff, employees, colleagues, representatives, partners and vicarious agents of HEADUP and/or companies affiliated with HEADUP.
10 Liability Release
You hereby declare that you indemnify and hold harmless HEADUP, companies affiliated with HEADUP, as well as staff, employees, colleagues, representatives, partners and vicarious agents, with regard to demands or claims of any kind asserted by third parties on the basis of or in connection with content you save, publish and/or transmit while using HEADUP services, or which are asserted as a result of the use of our service or on the basis of a violation by you of these TOS or third party rights. This includes all reasonable attorney’s and court costs.
11. Trademark and other intellectual property rights of HEADUP
Your acknowledge that HEADUP is exclusively entitled to all rights to the HEADUP service and its representation, including trademark rights, patent rights, copyrights or licensing rights, as well as other rights or comparable legal entitlements related to them, and that you will refrain from using these rights without prior, express, written consent from HEADUP, or will not remove references to HEADUP’s legal ownership.
In particular, you may not use the HEADUP brand name, copy, alter or disassemble software, create a copy thereof or attempt to find the source code, sell or assign software, issue associated sub-licenses, or transfer and/or claim software rights as your own. By way of clarification, the above does not apply to your own content which you contribute to our service and for such content contributed by other users. However, you are obligated to respect authorized parties’ entitlements to such content.
12. Applicable Law, Place of Fulfillment, Legal Venue
12.1 German law shall apply, to the exclusion of the UN’s CISG.
12.2 To the extent legally permissible, the place of fulfillment and legal venue shall be Cologne, Germany.
13.3 Oral ancillary agreements do not exist. Amendments to these contractual conditions must be made in writing. This also applies to the repeal or amendment of the written form clause.
13.4 If individual contractual provisions are or become invalid in part or whole, the remaining provisions of the contract shall remain unaffected. In the event of such invalidity, the contractual parties shall agree to a provision which most closely approximates the invalid provision. The same shall apply to gaps or omissions.