Terms of Service (customer)
Terms of service
1. Scope of application
1.1 wewave is an offer of surprise surprise GmbH, Simon von Utrecht Str. 1, 20359 Hamburg, Germany (hereinafter "wewave").
1.2 These General Terms and Conditions (hereinafter "GTC") shall apply to all contracts concluded by a consumer or entrepreneur (hereinafter "Customer") with wewave with respect to the goods and/or services offered by wewave. The inclusion of the Client's own terms and conditions is hereby objected to, unless otherwise agreed.
1.3 A consumer in the sense of these GTC is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his commercial nor to his independent professional activity. An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
2. Subject matter of the contract
2.1 A customer has the opportunity to book personalized video messages from celebrities (hereinafter "Participants") on the wewave.de platform.
2.2 The subject matter of the contract between the Customer and wewave is thus the request and provision of the video by the Participant commissioned by wewave according to the Customer's specifications.
3. Conclusion of Contract
3.1 The goods and services presented do not represent binding offers on the part of wewave, but serve for the submission of a binding offer by the Client.
3.2 The Customer can submit the offer via the online order form integrated on the platform. In doing so, the Customer, after entering all necessary data and going through the electronic ordering process, submits a legally binding contractual offer with respect to the previously selected goods or services by clicking the button that concludes the ordering process.
3.3 After sending his order, the customer receives an automatic confirmation of receipt by e-mail. This serves only to confirm receipt of the order and does not constitute acceptance by wewave.
wewave can accept the offer of the customer within seven days. Acceptance is made by an order confirmation by e-mail or by delivery of the requested goods or fulfillment of the service, whereby the receipt of the order confirmation, goods or service by the customer is decisive. Acceptance can also be made by wewave requesting payment from the customer after the order has been placed.
If several of the aforementioned alternatives exist, the contract is concluded at the time when one of the aforementioned alternatives occurs. The period for acceptance of the offer begins on the day after the sending of the offer by the customer and ends with the expiration of the seventh day following the sending of the offer. If wewave does not accept the Client's offer within the aforementioned period, this shall be deemed a rejection of the offer with the consequence that the Client is no longer bound to its declaration of intent.
3.4 When submitting an offer via the online order form of the Platform, the text of the contract shall be stored by wewave after the conclusion of the contract and transmitted to the Client in text form (e.g. e-mail) after the Client's order has been sent. Any further access to the text of the contract by wewave shall not take place. If the Customer has set up a user account in the online store of the platform before sending its order, the order data shall be archived on the website of wewave and can be accessed by the Customer free of charge via its password-protected user account by providing the relevant login data.
3.5 Before bindingly submitting the order via the online order form of the Platform, the Customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better recognition of input errors can be the enlargement function of the browser, with the help of which the display on the screen is enlarged. The customer can correct his entries during the electronic ordering process using the usual keyboard and mouse functions until he clicks the button that concludes the ordering process.
3.6 Order processing and contacting usually take place via e-mail and automated order processing. The Customer shall ensure that the e-mail address provided by it for order processing is accurate so that e-mails sent by wewave can be received at this address. In particular, when using SPAM filters, the customer must ensure that all e-mails sent by wewave or by third parties commissioned by wewave with order processing can be delivered. Only the German language is available for the conclusion of the contract.
4. Cooperation obligations of the customer
The client is obligated to cooperate as far as it is necessary for the proper completion of the request and has to provide wewave with all information necessary for the completion of the request completely and in such a way that wewave and the participant have a reasonable processing time without being asked. The client is also obligated to take note of all written and verbal communications from wewave and to consult with wewave in case of doubt. If the client violates his obligation to cooperate, wewave is entitled to set a reasonable deadline with the declaration that the continuation of the completion of the request will be refused after the expiration of the deadline. After unsuccessful expiration of the deadline, wewave is entitled to terminate the contract without notice. The claim of wewave against the client for compensation of the additional expenses caused by the client's failure to cooperate as well as the damage caused remains unaffected by this.
5. Design of the video message
The video message of the participant contains the essential contents for the purpose of the respective video message, i.e. the occasion of the video message and the mention of the indicated name of the addressee and the customer as well as the name of the celebrity. Further wishes of the customer about the design of the videos are not binding. The participants are free to design the videos and to bring in their own ideas. The participants cannot be obligated to a certain conversion, a certain external appearance (clothes, Make Up, etc.) or a certain place of recording.
6. License to use private video message ("private video")
6.1 After payment of the fee, wewave grants the Client a non-exclusive, non-transferable and non-sublicensable, simple right of use and utilization (license of use), unlimited in time and place, for personal, non-commercial use. The right includes publication on a personal website or social media channel of the customer (such as Instagram, Facebook, LinkedIn, TikTok, Twitter, etc.) as well as sending via messenger services by the customer (e.g. WhatsApp, Facebook Messenger, Telegram, etc.). This use must be done in accordance with the respective terms and conditions of the provider. wewave shall not be liable for any loss, damage, costs or liabilities in connection with the video message beyond the license of use and in violation of these or other terms and conditions.
6.2 The customer is expressly prohibited to use a private video commercially, to pass on granted rights to third parties and to change the original version of the video in any way. This includes, for example, editing and cutting the video, separating out individual scenes and excerpts, changing the soundtrack or cropping the image.
6.3 The customer is expressly prohibited from requesting or using or publishing video messages if they:
- are grossly offensive
- are extremist
- represent propaganda for anti-constitutional organizations,
- are pornographic or sexual in nature
- glorify and/or trivialize war or violence,
- offend common decency, good manners or good manners,
- are insulting, defamatory, threatening, obscene and/or harassing,
- glorify or trivialize drugs
- are harmful to minors,
- are racist, national socialist or serve illegal purposes,
- promote a terrorist or extremist organization,
- incite to a criminal act or the sending of which itself constitutes a criminal act or are used in connection with a criminal act (for example in the context of stalking/ stalking under Section 238 of the Criminal Code),
- contain party or similar political propaganda,
- are punishable by law or otherwise unlawful or refer to unlawful content and/or violate the rights of third parties.
7. License to use commercial video message ("business video")
The video may be used by the customer for commercial purposes worldwide. This exclusively includes the use of the video in communication with business partners and customers via social media platforms, messenger services or the customer's own website or the use in digital advertisements on the Internet, e.g. online advertising on social media or other websites.
Use is limited to a period of 3 months from receipt of the video message by the customer. Longer use requires the conclusion of a separate agreement with wewave prior to the expiration of the 3 months (firstname.lastname@example.org) and may incur further costs.
8. No right of withdrawal
According to § 312g para. 2 no. 1 BGB (German Civil Code), the customer has no right of withdrawal, as the offered goods and services are not prefabricated and for their production an individual selection or determination by the customer is decisive and/or these are clearly tailored to the personal needs of the consumer.
At the latest 3 days after receipt of the video message by the customer or in case of use and application of the video message by the customer, the video is considered as accepted and accepted in its form. If a video does not contain the essential content of the video request (occasion, correct names) or has gross image/sound disturbances, the customer must complain to wewave immediately, at the latest within 3 days and before use and utilization. If the objection is justified, wewave will provide a rectified version of the video message by the participant. If the reworked video also does not contain the essential content, the customer may withdraw from the contract. Claims for damages remain unaffected within the scope of clause 11.
10. Video fee and payments
All prices stated are total prices and already include the statutory value-added tax. The fee is due upon sending the request and will be refunded in case of non-fulfillment of the contract by wewave or the participant.
The customer is able to pay the accruing video fee to wewave in different ways:
We use the payment service provider "Shopify Payments", 3rd Floor, Europa House, Harcourt Building, Harcourt Street, Dublin 2. If you choose a payment method offered through the payment service provider Shopify Payments, the payment processing is carried out by the technical service provider Stripe Payments Europe Ltd., 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland, to whom we pass on your information provided during the ordering process together with information about your order (name, address, account number, bank code, credit card number if applicable, invoice amount, currency and transaction number) in accordance with Art. 6 (1) lit. b DSGVO. Your data will only be passed on for the purpose of payment processing with Stripe Payments Europe Ltd. and only insofar as it is necessary for this purpose. You can find more information on the data protection of Shopify Payments at the following Internet address: https://www.shopify.com/legal/privacy. Data protection information on Stripe Payments Europe Ltd. can be found here: https://stripe.com/de/privacy.
In case of a payment via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg, the respective general terms and conditions apply (https://www.paypal.com/de/webapps/mpp/ua/legalhub-full. wewave does not store any payment information.
11. Reaction videos and right to self-promotion
Customers have the option to upload reaction videos to the video messages they receive on the platform.
11.1 When uploading, customers transfer to wewave the exclusive and complete rights of use and exploitation, which are transferable and sublicensable without restriction, to the reaction videos and all persons seen and heard in them. This includes the rights to reproduce and distribute the reaction videos (including the right of public access, database and streaming rights), as well as to use the videos in the context of self-promotion for wewave and the platform. In addition, the Customer transfers to wewave the right that wewave may edit and transform the reaction videos in any way, as well as the use of any information in the video request to the Participant (except last name).
11.2 The Customer also transfers to wewave the right to use and exploit the reaction videos in all other ways of use known and unknown at the time of the conclusion of the contract, as well as to store, archive, publish and reproduce them, while preserving its personal rights. There is no time or place limitation of the rights, nor is the transfer of all aforementioned rights to third parties prohibited.
11.3 The Customer further agrees that the Private or Business Videos may be used in the context of self-promotion for wewave and the Platform.
11.4 When uploading a Reaction Video, the customer must ensure that its content is lawful and does not violate applicable laws, does not violate any rights of third parties and, in particular, does not violate criminal law provisions, property law, copyright, competition law, the law on the protection of minors, trademark law and other industrial property rights as well as the personal rights of third parties and morality, and that all persons to be seen and heard in the Reaction Videos have consented to the contractual use and the granting of exclusive rights of use to the aforementioned extent.
The customer assures that the contents and information provided by him do not infringe upon the rights of third parties in an unlawful manner. He/she indemnifies wewave from justified claims of third parties in this context upon first request and reimburses wewave for the reasonable costs of legal defense. This does not apply if the client is not responsible for the infringement. wewave is obligated to inform the client immediately about a possible infringement of third party rights in this context that has come to its attention and to give the client the opportunity to comment within a reasonable period of time. If wewave culpably violates its duty to inform the client, wewave may not invoke the indemnification claim regulated herein. Possible claims for damages by wewave remain unaffected.
13.1 wewave is liable to the Client for all contractual, quasi-contractual and statutory, including tortious claims for damages and reimbursement of expenses as follows:
- for any legal reason without limitation in case of intent or gross negligence, intentional or negligent injury to life, body or health,
- on the basis of a guarantee promise, insofar as nothing else is regulated in this respect,
- on the basis of mandatory liability under the Product Liability Act.
13.2 In addition, wewave is liable to the Client for culpable breach of material contractual obligations. Material contractual obligations are obligations that the contract imposes on the Seller according to its content to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on the compliance with which the Customer may regularly rely. If wewave negligently violates an essential contractual obligation, liability is limited to the foreseeable damage typical for the contract, unless liability is unlimited in accordance with the above section.
13.3 In all other respects, any liability of wewave shall be excluded.
The above liability provisions shall also apply with regard to the liability of wewaves for its vicarious agents and legal representatives.
14. Rights of wewave
15. Jurisdiction & Applicable Law
All legal relationships between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the laws on the international sale of movable goods. In the case of consumers, this choice of law shall only apply to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence.
If the customer acts as a merchant, legal entity under public law or special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract is the registered office of wewave. If the Client has its registered office outside the territory of the Federal Republic of Germany, the registered office of wewave shall be the exclusive place of jurisdiction for all disputes arising from this contract, if the contract or claims arising from the contract can be attributed to the professional or commercial activity of the Client. However, in the above cases, wewave is in any case entitled to appeal to the court at the registered office of the Client.
16. Alternative dispute resolution
The EU Commission provides a platform for online dispute resolution on the Internet at the following link: http://ec.europa.eu/consumers/odr.
This platform serves as a contact point for the out-of-court settlement of disputes arising from online purchase or service contracts involving a consumer.
wewave is neither obligated nor willing to participate in a dispute resolution procedure before a consumer arbitration board.