END USER LICENSE AGREEMENT AND TERMS OF SERVICE
This End User License Agreement and Terms of Service (this “EULA”) is a binding contract between you, an individual user (“you”) and Heyanna UG (“Heyanna,” “we,” “us” or “our”) governing your use of the mobile software applications that Heyanna makes available for download (individually and collectively, the “App”), the related website located at www.heyanna.co and any other online properties owned or controlled by or on behalf of Heyanna (collectively with the App, the “Service”). BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, THEN YOU SHOULD NOT USE THE SERVICE.
Material Terms :
As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
- the Service is licensed, not sold, to you, and you may use the Service only as set forth in this EULA;
- you use the Service at your sole risk;
- the use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- we provide the App to you on an “as is” basis without warranties of any kind and Heyanna’s liability to you is limited;
- disputes arising between you and Heyanna will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in section 11 below, you and Heyanna are each waiving the right to a trial by jury or to participate in a class action;
1. General Terms and Conditions
a. Changes to this EULA. You understand and agree that we may change this EULA at any time without prior notice. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, then your sole remedy is to stop accessing, browsing, and otherwise using the Service.
c. Jurisdictional Issues. The Service is controlled and operated by Heyanna from Mannheim, Germany. Heyanna makes no representation that materials on the Service are appropriate, lawful, or available for use in any locations other than Germany. Those who choose to access or use the Service from locations outside of Germany do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized, or penalized is strictly prohibited.
d. Eligibility. The service is not for persons under the age of 18 or for any users previously suspended or removed from the service by Heyanna. IF YOU ARE UNDER 18 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By accessing or using the Service, you affirm that either you are at least 18 years of age or you have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age.
2. The Service
a. Description. The Service provides you with the opportunity to find flatmates for the purpose of sharing an apartment or house. For this purpose the service requires you to create a user profile, a coliving group profile (“crew profile), listings of rooms in a coliving apartment that shall be offered to individuals who search for a room, and criteria to personalize the suggested results. The suggested results will depend on the information you provided in any of the enumerated categories and are subject to change any time without further notice any without any liability to you.
b. Mobile Services. The Service will be accessible via a mobile phone, tablet, or other wireless device (collectively, “ Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you.
a. Log-In Credentials. In order to enjoy the benefits of the Service, you must download the App and register an account with us (an “Account”).
b. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You may not share the credentials for your Account with any third party. You agree to notify Heyanna immediately at email@example.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Heyanna will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Heyanna of such unauthorized use or loss of your credentials.
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information to Heyanna. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Heyanna, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Heyanna may terminate your Account immediately without notice and without any liability.
4. Subscriptions and Payment
a. Free use to end-users. Using the Service is free of charge for individuals for the sole purpose described in 2a. All commercial use is explicitly prohibited. This explicitly includes but is not limited to the use by property owners, real estate agents and property management agencies and their representatives.
5. Intellectual Property Rights
a. License. Subject to your complete and ongoing compliance with this Agreement, Heyanna hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for your personal, non-commercial use. Heyanna reserves all rights not expressly granted to you.
b. Content. Except for User Content, the content that Heyanna provides to end users on or through the Service, including without limitation, any text, graphics, photos, software, sound recordings (and the musical works embodied therein), and interactive features, may be protected by copyright or other intellectual property rights and owned by Heyanna or its third party licensors (collectively, the “Heyanna Content”). You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, Post, modify, create derivative works of, publicly perform, publicly display, use for commercial purpose or distribute any materials from the Service without prior express written permission of the owner of such material or as permitted by the Service’s intended functionalities. Your use of Heyanna Content must be in compliance with applicable law. Heyanna reserves all rights on the part of its licensors; users are not permitted to infringe the rights of the copyright owners of the sound recordings included on the Service or any musical works embodied therein (collectively “Music”). The unauthorized reproduction or distribution of the Music is expressly prohibited any may violated applicable law and subject you to liability for copyright infringement.
c. Marks. Heyanna trademarks, service marks, and logos (the “Heyanna Trademarks”) used and displayed on the Service are Heyanna’s registered and unregistered trademarks or service marks. You may not use any Trademarks as part of a link to or from the Service without Heyanna’s prior express written consent. You may not remove any Trademarks identifying the ownership or origin of any Heyanna Content. All goodwill generated from the use of any Heyanna Trademark will inure solely to Heyanna’s benefit.
6. User Content
a. Definition. “User Content” means any content that users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, any text, comments, images, videos, audio recordings and other works subject to protection under the laws of Germany or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, and excludes any and all Heyanna Content.
b. Screening User Content. Heyanna offers end users the ability to submit User Content to or transmit User Content through the Service. Heyanna does not pre-screen any User Content, but reserves the right to remove, disallow, block, or delete any User Content in its sole discretion. Heyanna does not guarantee the accuracy, integrity, appropriateness, availability, or quality of any User Content, and under no circumstances will Heyanna be liable in any way for any User Content.
c. Licenses to User Content. While you retain ownership of any rights you may have in your User Content, you hereby grant Heyanna an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, “ Use”) all or any part of all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing, and promoting Heyanna and the Service; (ii) displaying and sharing your User Content to other users of the Service; and (iii) providing the Service as authorized by this EULA. You further grant Heyanna a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content. Any User Content posted by you to or through the Service or transmitted to Heyanna will be considered non-confidential and non-proprietary, and treated as such by Heyanna, and may be used by Heyanna in accordance with this EULA without notice to you and without any liability to Heyanna.
d. You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of your Posting your User Content on the Service.
e. Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
f. Objectionable Content. You agree not to Post any User Content to the Service that is or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar, or in violation of any applicable laws (including laws related to speech); or (ii) promoting any product, good, or service, or bigotry, discrimination, hatred, intolerance, racism, or inciting violence (including suicide) (collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against such third party claims. If you encounter any Objectionable Content on the Service, then please immediately email firstname.lastname@example.org. Heyanna in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service.
7. Restrictions on Use of the Service
a. In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to: make unauthorized copies or derivative works of any content made available on or through the Service; use any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; attempt to decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service; delete or alter any material Heyanna or any other person or entity Posts on the Service; frame or link to any of the materials or information available on the Service; alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available; use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Heyanna or obtained from the Service; provide any false personal information to Heyanna; create a new account with Heyanna, without Heyanna’s express written consent, if Heyanna has previously disabled an account of yours; solicit or collect personal information from other Users; disclose personal information about a third person on the Service or obtained from the Service without the consent of that person; use the Service to send emails or other communications to persons who have requested that you not send them communications; use the Service, without Heyanna’s express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming; or violate any applicable federal, state, or local laws or regulations or the terms of this EULA.
8. External Sites
The Service may contain links to, or the ability to share information with, third party websites (“External Sites”). Heyanna does not endorse any External Sites or the content made available on such External Sites. Heyanna is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You agree that Heyanna will have no liability to you arising from your use, engagement, exposure to, or interaction with any External Sites.
While we are continually working to develop and evaluate our own product ideas and features, we know we don’t have all the answers. We therefore welcome your feedback, comments, and suggestions. If you choose to contribute by sending Heyanna any ideas (“Feedback”), then regardless of what your accompanying communication may say, the following terms will apply. Accordingly, by sending Feedback to Heyanna, you agree that: a. Heyanna has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason; b. Feedback is provided on a non-confidential basis, and Heyanna is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and c. You irrevocably grant Heyanna perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
10. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements
a. Respect of Third Party Rights. Heyanna respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same.
b. Repeat Infringer Policy. Heyanna’s intellectual property policy is to (i) remove or disable access to material that Heyanna believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” Heyanna considers a “repeat infringer” to be any user that has uploaded User Content or Feedback to or through the Service and for whom Heyanna has received more than two takedown notices with respect to such User Content or Feedback. Heyanna has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Heyanna’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “ Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Heyanna with the user alleged to have infringed a right you own or control, and you hereby consent to Heyanna making such disclosure. Your communication must include substantially the following: i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed; ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works; iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Heyanna to locate the material; iv. Information reasonably sufficient to permit Heyanna to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted; v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
d. Designated Agent Contact Information. Heyanna’s designated agent for receipt of Notifications of Claimed Infringement (the “ Designated Agent”) can be contacted at:
Via E-mail: email@example.com
e. Counter Notification. If you receive a notification from Heyanna that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Heyanna with what is called a “ Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Heyanna’s Designated Agent through one of the methods identified in Section 10.d and include substantially the following information: i. A physical or electronic signature of the subscriber; ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for any judicial district in which Heyanna may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.d above or an agent of such person.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Heyanna in response to a Notification of Claimed Infringement, then Heyanna will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Heyanna will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Heyanna will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Heyanna’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Heyanna’s system or network.
Heyanna reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
11. Dispute Resolution
a. General. You and Heyanna agree that any dispute arising out of or in any way related to this EULA or your use of the App, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA, will be resolved by binding arbitration. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND HEYANNA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b. Exceptions. Notwithstanding Section 11.a above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. No Class Actions. YOU AND HEYANNA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Heyanna agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
12. Limitation of Liability and Disclaimer of Warranties
a. HEYANNA, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “HEYANNA PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE. THE HEYANNA PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO ANY USER, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
b. THE HEYANNA PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO HEYANNA PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE HEYANNA PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY HEYANNA PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH HEYANNA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEYANNA’S LIABILITY, AND THE LIABILITY OF ANY OTHER HEYANNA PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US AND 100€.
13. Third Party Disputes
a. To the fullest extent permitted by law, any dispute you have with any third party arising out of your use of the service, including, by way of example and not limitation, any carrier, copyright owner, or other user, is directly between you and such third party, and you irrevocably release the Heyanna parties from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
b. The owners of any content licensed to Heyanna for use on the Service are intended beneficiaries of this EULA and shall have the right to enforce this EULA against you for any unauthorized use of their content in any court of competent jurisdiction. The provisions of Section 11 do not apply to any dispute between you and a third party licensor of content to Heyanna.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Heyanna Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; (b) your access to, use, or misuse of Heyanna Content or the Service; or (c) your User Content. Heyanna will provide notice to you of any such claim, suit, or proceeding. Heyanna reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting Heyanna’s defense of such matter at your expense.
15. Term and Termination of the EULA
a. Term. As between you and Heyanna, the Term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or Heyanna
b. Termination. You may terminate this EULA by sending written notification to Heyanna at firstname.lastname@example.org, deleting the App from your mobile device, and terminating all other uses of the Service. Heyanna reserves the right, in its sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA. Heyanna may further terminate this EULA for any other reason upon ten (10) days’ notice to you using the email address associated with your account credentials. Heyanna reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
c. Sections 1, 3.b, 5.b, 5.c, 6.d, 6.e, 6.f, 7, 9 – 11, 15, 16.c, and 17 – 20 and all defined terms used therein will survive the termination of this EULA indefinitely
16. Consent to Electronic Communications
17. Contact Us
You may contact us in connection with your use of the Service by mail at Heyanna, Julius-Hatry-Straße 1, 68163 Mannheim, and by email at email@example.com.
18. Open Source Software
The App contains certain open source software. Each item of open source software is subject to its own applicable license terms.