FizzyFesta Terms of Service
Last updated: 22nd April 2024
General Terms & Definitions – All Users
Before using FizzyFesta (the "App"), please read these terms of service (“Terms”) carefully. These Terms serve as a legally binding agreement between you and FizzyFesta UG ("Fizzy," "we," "our," or "us")., registered at Londoner Str 3, 60327 Frankfurt am Main, Germany. These Terms govern your use of the App and our related websites, services, applications, products, and content (collectively, the "Services"). Any reference in these Terms to "Services" includes Fizzy Content (as defined further below) or any other part of the Services, and any reference to these "Terms" includes any terms or policies referred to in these Terms, such as our Community Guidelines.
Our Services are provided for private and domestic use only. You agree not to use our platform for any commercial or business purposes. For the purposes of these Terms, “you” and “your” means you as the user of our Services.
MANDATORY ARBITRATION AND DISPUTE RESOLUTION
THESE TERMS OF USE INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION WHERE PERMITTED BY LAW, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT UNLESS SUCH AN AGREEMENT IS PROHIBITED BY LAW. THE DISPUTE RESOLUTION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION WHERE PERMITTED BY LAW. THESE TERMS OF USE ALSO INCLUDE A JURY WAIVER WHERE PERMITTED BY LAW. MORE INFORMATION ABOUT THE ARBITRATION AND CLASS ACTION WAIVER CAN BE FOUND IN THE ARBITRATION AGREEMENT, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER AT SECTION 11.4 BELOW.
DEFINITIONS
1. In these Terms, words written in capital letters and not otherwise defined shall have the following meanings:
2. Affiliate(s): Affiliate(s): refers to an entity that (directly or indirectly) controls, is controlled by, or is under common control with the relevant entity, including executive officers, directors, significant stockholders, subsidiaries, parent entities, and/or sister companies;
3. Business Day: means any weekday (Monday to Friday), other than a bank holiday or public holiday in the Germany;
4. Account: means the personalised account of a User (with at minimum a username and password) enabling access to the Platform.
5. Business Hours: means the hours between 09:00 and 17:00 CET on a Business Day;
6. Force Majeure: encompasses an event or series of related events beyond the reasonable control of Nocto, including but not limited to: i) war, disasters, explosions, fires, floods, riots, and terrorist attacks; ii) governmental measures or boycotts; iii) failures of the Internet or any public telecommunications network, cloud provider failures, electricity outages; iv) hacker attacks, denial of service attacks, viruses, or other malicious software attacks or infections; v) failures of third-party service providers; vi) strikes; vii) pandemics.
7. Intellectual Property: means any and all intellectual property rights, whether registered or unregistered, such as but not limited to patent rights, copyrights (including rights in source code and object code), database rights, rights in designs, utility models, trademarks, trade and business names and all associated goodwill, rights in or in connection with know-how and trade secrets.
8. GDPR: means the General Data Protection Regulation (Regulation (EU) 2016/679).
9. Fizzy: means digital tokens that can only be earned and used by the User within the Platform. Please note that these points hold no monetary value, are not transferable, and are solely for internal use within our app's rewards system.
10. Partner: means a legal person or natural person acting in the course of (the event and hospitality) business/trade (e.g. bar, club, restaurant, hotel, event organizer, artist, festival, experience operators, workshops, etc.), that wishes to promote their business, venue or event to Users of the Platform.
11. Platform: refers to the (mobile and web) software and platform application known as 'Fizzy' offered by Fizzy in accordance with these Terms.
12. Services: means any functions or services provided by Fizzy or a Partner in connection with the Platform.
13. Support: means support in relation to the use of, and the identification and resolution of errors in the Platform.
14. User: pertains to either (i) a natural person, at least 18 years old, who has downloaded the app or accessed Fizzy's business platform website and registered an Account, thereby accepting these Terms to access and utilize the Platform and related Services, or (ii) a Partner.
15. User Content: encompasses all profile information, (real-time) data, comments, feedback, reviews, photos, videos, or text content or other materials uploaded, posted, published, or transmitted via the Platform by the User, excluding analytics data relating to Platform usage and server log files.
16. Unless the context indicates otherwise, defined concepts in the singular also include the plural, and vice versa.
1. Acceptance of the Terms
1.1. Age Requirement The Services are not directed at any user under the age of 18. By using the Services, you confirm that you are 18 years of age or over. If we learn that someone under the relevant age specified above is using the Services, we will terminate that user’s account.
1.3 Earning Fizzy award The User is able to earn Fizzy, for example by proactively contributing to the community, by posting Insights (Picture and/or videos) that help others (measured by received likes), and/or by inviting friends to join, and/or by adding new experiences to the app, and/ or by commenting on other posts, and/or liking other posts. The User may spend the Fizzy to redeem deals as offered by Partners.
1.2. Agreement to Terms By using our Services, you agree to these Terms. Using our Services may include accessing them or downloading the App or any other Services to your mobile device, computer, or other device.
1.3. Non-Acceptance of Terms If you do not agree to these Terms, you must not use our Services.
2. Amendments to the Terms
2.1. Review and Updates Please review these Terms regularly. If we amend these Terms, we will update the “Last Updated” date at the top of these Terms, which reflect the effective date of the Terms. We may amend these Terms (and any supplemental terms) from time to time. For example, we may update these Terms when we update our Services and practices, when we combine multiple apps or services operated by us or our affiliates, or when there are regulatory changes.
2.2. Notification of Changes We will use reasonable efforts to generally notify you of any material changes to these Terms, such as through a notice on the App or a communication to the contact information associated with your account.
2.3. Acceptance of Changes If you do not agree to the new Terms, please stop using the Services. By continuing to use the Services after the effective date of the new Terms, you agree to be bound by the new Terms.
3. Your Account
3.1. Account Creation and Information To use our Services, you must create an account with us. When you create this account, you must provide accurate and up-to-date information. It is important that you keep your information current and complete. You must not create an account for someone else unless you obtain their express permission.
3.2. Account Management and Termination Notwithstanding anything else in these Terms, we reserve the right to deactivate, disable, suspend, or terminate your account or access to our Services at any time at our sole discretion without notice, including if we believe that you have not complied with any of the provisions of these Terms or our policies (including our Community Guidelines), or if activities occur on your account which we believe would or might cause damage to or impair the Services or infringe or violate any third party's rights, or violate any applicable laws or regulations.
3.3. Account Security You are responsible for safeguarding your account details, including your account password, and all use of the App under your account. If you know or suspect that your password or account has been compromised, you must promptly notify us at [info@fizzyfesta.com].
3.4. Account Activity You agree that you are solely responsible (to us and to others) for the activity that occurs under your account.
3.5. Account Deletion If you would like to delete your account, you can delete your account on the App. Once you choose to delete your account, you will not be able to access or reactivate your account. Please also see our Privacy Policy for more information on the deletion of your personal data.
3.6. Account Deactivation Due to Inactivity If you fail to log in to your account for the first time after registering it within a specified period, or fail to use your account for more than three consecutive months, we reserve the right to deactivate it. Before we deactivate your account, we will notify you in an appropriate manner. If you fail to log in and use your account within one month after our notification, you specifically authorize us to deactivate your account for inactivity, among all other authorizations you grant in these Terms.
4. Usage Rules
4.1. Compliance with Terms and Laws Your use of the Services is subject to these Terms and all applicable laws and regulations. You understand and agree that you shall not do, attempt to do, or encourage anyone to do, any of the following:
Violate these Terms or our terms or policies (including our Community Guidelines).
Use our Services to engage in any unlawful, misleading, fraudulent, or unauthorized activity. Prohibited activities include, but are not limited to, sexual solicitation, or the buying or selling of firearms, alcohol, and tobacco products between private individuals.
Make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile, or create any derivative works of the Services or any content included therein.
Distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof.
License, purchase, transfer, or sell any account or data obtained from us or the Services.
Market, rent, or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation.
Use the Services for any commercial or unauthorized purpose without our express written consent.
Interfere with the proper working of the Services, disrupt our website or any systems or networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services.
Incorporate the Services or any portion thereof into any other program or product.
Use automated scripts to collect information from or otherwise interact with the Services.
Attempt to artificially inflate the popularity of any user on the Services.
Impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity.
Use our Services to create, support, or transmit material that promotes terrorism, crime, or hate groups.
Attack, threaten, intimidate, or harass us or other users of our Services, or use our Services to promote violence or discrimination.
Use our Services to communicate or spread false news or information.
Create or attempt to create accounts, or access or collect information in unauthorized ways in connection with the Services.
Use or attempt to use another user’s account, service, or system without our express permission, or create a false identity on the Services.
Interfere with the intended operation of the Services, including misusing any reporting, dispute, or appeals channel.
4.2. Restrictions on Content You agree not to use the Services to upload, transmit, distribute, store, or otherwise make available in any way:
Files that contain viruses, trojans, worms, logic bombs, or other code or material that is malicious or could disable, overburden, or impair the proper working or appearance of the Services.
Any unsolicited or unauthorized advertising, solicitations, promotional materials, “spam”, “chain letters”, or any other prohibited form of solicitation.
Any material which does or may infringe someone else’s rights, including any intellectual property rights, image rights, or privacy rights of any other person.Any private information of any third party, including addresses, phone numbers, email addresses, personal identity document information including passport numbers, or credit card numbers.
Any material which is defamatory of any person, obscene, offensive, pornographic, involves nudity or sexual activity, hateful, or inflammatory.
Any material that is deliberately designed to provoke or antagonize people, or is intended to harass, bully, harm, hurt, scare, distress, embarrass, or upset people; any material that contains a threat of any kind, including threats of physical violence.Any material that would constitute, encourage, or provide instructions for a criminal offense, dangerous activities, suicide, or self-harm.
Any material that is racist or discriminatory, including discrimination on the basis of someone’s race, gender, ethnicity, religion, nationality, disability, sexual orientation, caste, gender identity, serious disease, immigration status, or age.
Any material that constitutes foreign interference in applicable domestic politics conducted through information campaigns.
Any material that constitutes false news or information.
Any answers, responses, comments, opinions, analyses, or recommendations that you are not properly licensed or otherwise qualified to provide.Any material which is contrary to public order and good morals.
Any material that otherwise violates the applicable law or regulation.
Material that, in our sole judgment, is objectionable or which restricts or inhibits any other person from using the Services, or which may expose us, the Services, or its users to any harm or liability of any type.
Be prohibited from receiving our Services under applicable laws.
4.3. Automated Analysis Our automated systems analyze your content to offer personally relevant product features, including customized search results, tailored advertising, and detection of spam and malware. This analysis takes place as the content is transmitted, received, and stored.
4.4. Content Removal We retain the right, although we are not obligated, to remove or restrict access to any or all content on our Services at our sole discretion, for any reason or without reason, at any time and without prior notice. Our decision to remove or restrict access to content may be based on various factors, including but not limited to finding the content objectionable, its violation of these Terms or our other terms or policies (including our Community Guidelines), or its potential harm to the Services or our users.
5. Intellectual Property Rights
5.1. User-Generated Content Our Services may offer features designed to enable users to share content, such as photos, videos, comments, links, messages, and other materials, in compliance with these Terms. You are prohibited from using the Services to violate any intellectual property rights. We reserve the right, at our sole discretion and with or without notice, to block access to and/or deactivate the accounts of any user found to be infringing or alleged to be infringing on any intellectual property rights.
5A. Fizzy Content
5.2. Ownership of Content All content, software, technology, programs, web pages, photographs, pictures, images, text, graphics, illustrations, layout designs, logos, patents, audio, videos, music, and other elements in or on our Services, including the overall "look and feel" of the Services, and all trademarks, service marks, copyrights, and other intellectual property rights related thereto (the “FizzyFesta Content”) are owned or licensed by FizzyFesta UG.
5.3. Use of FizzyFesta Content The utilization of FizzyFesta Content for any purpose not explicitly authorized by these Terms is strictly forbidden. You are prohibited from downloading, copying, reproducing, publishing, distributing, transmitting, broadcasting, communicating, displaying, selling, licensing, or otherwise exploiting FizzyFesta Content for any purpose without our prior written consent or, where applicable, the consent of our licensors. We and our licensors retain all rights not expressly granted in and to their content.
5.4. Revenue and Monetization You acknowledge and agree that we may derive revenue, enhance goodwill, or otherwise increase our value as a result of your use of the Services, and unless expressly permitted by us in these Terms or in another agreement you have with us, you will not be entitled to any share of such revenue, goodwill, or value. Additionally, you recognize that, unless specifically authorized by us in these Terms or in another agreement you have with us, you (i) are not entitled to receive any income or compensation from any User Content or your utilization of any musical works, sound recordings, or audio-visual clips provided to you through the Services, including in any User Content you create, and (ii) are prohibited from attempting to monetize or obtain compensation from any User Content within the Services or on any third-party platform.
5.5. License Subject to these Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, worldwide license to utilize the Services, including downloading the App on a permitted device, and accessing FizzyFesta Content solely for your personal, non-commercial use during your utilization of the Services and strictly in accordance with these Terms. We reserve all rights not explicitly granted herein in the Services and FizzyFesta Content. No rights are granted concerning sound recordings and the musical works embodied therein that are provided from or through the Services. You acknowledge and agree that we may revoke this permission at any time at our sole discretion with or without prior notice.
5.6. Disclaimer You acknowledge and agree that, when you view content provided by others on the Services, you are doing so at your own risk. The content on our Services is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Services.
5B. User Content and Authorization
5.7. Ownership and License You maintain copyright ownership of your User Content; however, you grant us an irrevocable license to utilize, modify, reproduce, and distribute it. This license becomes void when your User Content is deleted from our systems.
5.8. Uploading User Content Users of the Services may upload, post, transmit, or otherwise provide content through the Services, such as text, photographs, user videos, sound recordings, and musical works. By submitting User Content, users grant us a license to utilize, modify, adapt, reproduce, and distribute such content.
5.9. Rights Granted The rights granted include the reproduction and performance of sound recordings and musical works on a royalty-free basis.
5.10. Use of Your Identity You grant us a royalty-free license to use your username, image, voice, and likeness to identify you as the source of your User Content.
5.11. Third-Party Services Third-party service operators have no separate liability for User Content posted via our Services.
5.12. Waiver of Rights By posting User Content, you waive rights to prior inspection or approval and any rights of privacy or publicity.
5.13. Disclosure of Identity We may disclose your identity to third parties claiming violation of intellectual property or privacy rights.
5.14. Ownership of Rights You must have all necessary permissions to post sound recordings to the Services.
5.15. Disclaimer We do not endorse or verify User Content and shall not be liable for its accuracy or completeness.
5.16. Representation and Warranty We make no representations or warranties regarding the accuracy or completeness of User Content. We are not obligated to pre-screen or edit any content posted by users.
5.17. Compliance with Usage Rules When utilizing a feature enabling the upload or transmission of User Content through the Services or third-party platforms, adhere to the Usage Rules mentioned above. Should you choose to upload or transmit User Content on third-party platforms, ensure compliance with their policies and the criteria outlined in the Usage Rules. You guarantee that any contributions adhere to these standards and indemnify us for any violations.
5.18. Confidentiality of User Content All User Content is considered non-confidential and non-proprietary. Do not post or transmit any User Content that is confidential or proprietary. By submitting User Content, you agree, represent, and warrant that you own the content, obtained necessary permissions, and have the rights to grant licenses as per these Terms.
5.19. Editing and Removal of User Content We or our authorized agents may edit, crop, or refuse to publish User Content at our sole discretion. We reserve the right to remove, block, or delete any posts that do not comply with the content standards outlined in the Usage Rules. Additionally, we may remove User Content that violates these Terms or our policies, or in response to complaints, at our discretion. Please retain copies of User Content submitted to the Services on your personal devices.
5.20. Control of User Content Visibility You control whether your User Content is made publicly available on the Services. Configure your privacy settings on the App accordingly.
5.21. Removal of Infringing Material We promptly remove infringing material upon notification. If you discover infringing content, contact us at info@fizzyfesta.com. We may terminate accounts that repeatedly infringe on others' intellectual property rights.
5.22. Feedback If you choose to provide feedback or suggestions, we may use them as we deem appropriate, without obligation to you.
6. Indemnification 6.1. You agree to indemnify, defend, and hold harmless FizzyFesta, our parent company, subsidiaries, affiliates, and each of their respective officers, directors, employees, agents, licensors, and advisors from any and all claims, liabilities, costs, and expenses, including legal fees, arising from any breach of these Terms by you or any user of your account, violation of your obligations, representations, or warranties under these Terms, or any claim directly or indirectly related to your use of the Services.
7. Disclaimer of Warranties FizzyFesta provides the Services to you on an "as is" and "as available" basis. We, along with our parent company, subsidiaries, and affiliates, make no representations or warranties regarding the Services. This includes any representation or warranty that your use of the Services will meet your expectations or requirements; that your use will be uninterrupted, timely, secure, error-free, or compatible with any other hardware, software, or system; or that the Services are free from viruses or other harmful components. To the fullest extent permitted by law, we disclaim all conditions or warranties regarding the Services, including implied terms of merchantability, satisfactory quality, fitness for a particular purpose, title, or non-infringement. No conditions, warranties, or other terms, whether express or implied, apply to the Services except as expressly set out in these Terms.
We reserve the right, at any time and at our sole discretion, to change, suspend, withdraw, or restrict the availability of all or any part of our Services without notice.
8. Limitation of Liability 8.1. These Terms do not limit any rights you have under applicable laws that cannot be excluded, or exclude or limit our liability to you for losses that cannot lawfully be excluded or limited by applicable laws. This includes liability for death or personal injury caused by our negligence or that of our employees, agents, or subcontractors, and for fraud or fraudulent misrepresentation.
8.2. To the fullest extent permitted by law, we are not liable to you for any direct or indirect loss of income or profits, loss of goodwill, loss of opportunity, loss of data, or any indirect or consequential losses you may incur. Our total liability for all claims related to the Services shall not exceed the amount you paid to us to use the Services within the last 12 months.
8.3. To the fullest extent permitted by law, we are not liable for any loss or damage incurred by you as a result of:
Your use or inability to use the Services;
Any conduct or content of any third-party on the Services, including defamatory or illegal conduct of other users or third parties, and advertising on the Services;
Reliance on the accuracy or completeness of FizzyFesta Content and User Content;
Changes we make to the Services or any features therein, or for any permanent or temporary cessation in the provision of the Services or any features therein;
Deletion of, corruption of, or failure to store any content and other communications data maintained or transmitted by or through your use of the Services;
Your failure to provide accurate account information; or
Your failure to keep your account password or other details secure and confidential.
8.4. Exclusion of Certain Damages We shall not be liable to you for any loss of profit, loss of business, loss of goodwill or business reputation, business interruption, or loss of business opportunity.
8.5. Exclusion of Certain Liabilities To the fullest extent permitted by law, we shall not be liable for any loss or damage to a device or digital content belonging to you caused by the Services. Additionally, we shall not be liable for any loss or damage that you could have reasonably avoided, including following our advice to apply an update offered free of charge, or damage caused by your failure to correctly follow installation instructions or failing to meet the minimum system requirements advised by us.
8.6. Mobile Charges You are responsible for any mobile charges that may apply to your use of our services, including text-messaging and data charges.
8.7. Disputes with Third Parties To the fullest extent permitted by law, any dispute you have with any third party arising out of your use of the services, including, by way of example and not limitation, any carrier, copyright owner, or other user, is directly between you and such third party. You irrevocably release us and our affiliates from any and all claims, demands, and damages (whether actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
8.8. Security and Virus Protection We do not guarantee that our Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs, and platform to use our Services. It is recommended that you use your own virus protection software.
9. Privacy
9.1. Processing of Personal Data Through the Platform and Services, Fizzy processes personal data about its Users. Fizzy's Privacy Policy provides additional information regarding the types of personal data that may be processed, the purposes of processing, data breaches, and security measures.
9.2. Accessing the Privacy Policy The Privacy Policy can be accessed on Nocto's website and within the app. In addition to accepting these Terms, Users must also agree to the content of Fizzy's Privacy Policy to register for an Account.
10. Limitation of Liability
10.1. Total Aggregate Liability The total aggregate liability of Fizzy due to an attributable failure or any other legal reason shall at all times be limited to an amount of EUR 250.
10.2. Exclusion of Indirect Loss or Damage Fizzy's liability for indirect loss or damage, consequential loss or damage, loss of profit, loss of revenues, missed savings, reduced goodwill, loss or damage due to business stagnation or interruption, loss or damage in connection with the use of the Platform or Services, is expressly excluded. Additionally, Fizzy's liability for the damage, destruction, or loss of User Content, or for the (temporary) unavailability of the Account or Platform, is expressly excluded.
10.3. Exceptions to Exclusions The exclusions and restrictions mentioned in clauses 10.1 to 10.2 will not apply if the damage or loss results from intentional acts or gross recklessness by Fizzy.
10.4. Force Majeure Fizzy shall not be liable for any damages, losses, or costs incurred by the User or any third party as a result of Force Majeure.
10.5. Default Notice Except where performance by Fizzy is permanently impossible, Fizzy will only be in default for an attributable failure after receiving written notice of the default, granting Fizzy a reasonable term of at least thirty (30) days to remedy the default.
10.6. Reporting Damages A condition for filing any claim for damages is that the User reports the damage to Fizzy in writing as soon as possible and not later than 10 (ten) days after the damage occurred. Claims for damages against Fizzy shall lapse six (6) months after the damage occurred.
10.7. Indemnification The User shall release, defend, indemnify, and hold harmless Fizzy and its affiliates from any claims, liabilities, damages, losses, expenses, or costs arising from or related to the User's use of the Platform, User Content, violation of these Terms, or violation of any law, regulations, or third-party rights.
10.8. Third-Party Websites and Resources The Platform may contain links to third-party websites or resources. Fizzy is not responsible or liable for the availability, accuracy, content, products, or services on such websites or resources. Links to third-party websites or resources do not imply endorsement by Fizzy.
10.9. Responsibility for Alcohol Consumption Fizzy does not accept liability for alcohol consumption by the User. Each User is responsible for ensuring compliance with the law, and each Partner is responsible for ensuring that marketing communications directed towards Users comply with relevant regulations.
11. Applicable Law, Dispute Resolution, and Other Terms
11.1. Governing Law and Jurisdiction These Terms shall be governed by and construed in accordance with the laws of Germany, excluding its conflict of law provisions. Any dispute, controversy, or claim arising out of or in connection with these Terms, including any question regarding their existence, validity, or termination, shall be exclusively submitted to the courts of Frankfurt am Main, Germany, unless mandatory legal provisions stipulate otherwise.
11.2. Alternative Dispute Resolution If any disputes arise from or in connection with these Terms, the parties shall first attempt to settle such disputes amicably through good-faith negotiations. Should no resolution be reached within a reasonable period, the dispute shall be finally resolved by arbitration in Frankfurt am Main, Germany, in accordance with the German Arbitration Act (Deutsche Institution für Schiedsgerichtsbarkeit e.V. - DIS) and its rules. The language of the arbitration shall be German. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the DIS Arbitration Rules. The arbitral award shall be final and binding on both parties. Each party shall bear its own costs of arbitration, unless the arbitral tribunal determines otherwise.
11.3. Severability If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
11.4. Waiver Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
11.5. Open-Source Software The App contains certain open-source software. Each item of open-source software is subject to its own applicable license terms.
11.6. Interpretation Any use of the plural in these Terms shall imply use of the singular and vice versa, as the context demands.
12. Entire Agreement
12.1. Entire Agreement These Terms (including the “Supplemental Terms – App Stores” below) constitute the whole legal agreement between you and Fizzy and govern your use of the Services, and completely replace any prior agreements between you and Fizzy made in relation to the Services.
12.2. Language of Agreement The Terms shall be made in English Language. If required under the relevant local law, the Terms shall be made in both the English Language and in the local language. Both texts are equally original. In case of any inconsistency or different interpretation between both texts, the local language shall be deemed to be automatically amended to conform with and to make it consistent with the relevant English text.
13. Other Terms
13.1. No Waiver Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
13.2. Severability If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
11.4. Compliance with German Law These Terms shall be construed and interpreted in accordance with the laws of Germany. Any disputes arising out of or in connection with these Terms shall be subject to the exclusive jurisdiction of the courts of Germany.
11.5. Contact You can contact us at
FizzyFesta UG
Londoner str 3, 60327 Frankfurt am Main, Germany
info@fizzyfesta.com
if you have any questions.
Supplemental Terms for Specific Devices
Google Play These supplemental terms apply as between FizzyFesta and you. Google, Inc. or its affiliates (“Google”) is not a party to these terms. By downloading the App from Google Play (or its successors) operated by Google, you acknowledge and agree that:
In case of any conflict between the Google Play Terms of Services and the other terms and conditions in these Terms, the Google Play Terms shall apply regarding your use of the App downloaded from Google Play.
You acknowledge that Google bears no responsibility or liability related to compliance or non-compliance by Fizzy or you under these Terms or the Google Play Terms.
Apple Store These supplemental terms apply as between Fizzy and you. Apple Inc. (“Apple”) is not a party to these terms. By downloading the App from the Apple Store (or its successors) operated by Apple, you acknowledge and agree that:
The license granted to you is limited to a personal, non-commercial use right to install the App on Apple device(s) authorized by Apple that you own or control, subject to Apple’s App Store Terms of Services.
Apple is not responsible for the App or its content and has no obligation to provide maintenance or support services for the App.
Apple is not liable for any claims relating to the App or its use, including product liability claims, non-conformity to legal requirements, or intellectual property infringement claims by third parties.
Apple and its subsidiaries are third-party beneficiaries of these Terms and have the right to enforce these Terms against you.
FizzyFesta authorizes access to and use of the App by multiple users through Family Sharing or similar functionality provided by Apple.
FizzyFesta Terms of Service
Last updated: 22nd April 2024
General Terms & Definitions – All Users
Before using FizzyFesta (the "App"), please read these terms of service (“Terms”) carefully. These Terms serve as a legally binding agreement between you and FizzyFesta UG ("Fizzy," "we," "our," or "us")., registered at Londoner Str 3, 60327 Frankfurt am Main, Germany. These Terms govern your use of the App and our related websites, services, applications, products, and content (collectively, the "Services"). Any reference in these Terms to "Services" includes Fizzy Content (as defined further below) or any other part of the Services, and any reference to these "Terms" includes any terms or policies referred to in these Terms, such as our Community Guidelines.
Our Services are provided for private and domestic use only. You agree not to use our platform for any commercial or business purposes. For the purposes of these Terms, “you” and “your” means you as the user of our Services.
MANDATORY ARBITRATION AND DISPUTE RESOLUTION
THESE TERMS OF USE INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION WHERE PERMITTED BY LAW, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT UNLESS SUCH AN AGREEMENT IS PROHIBITED BY LAW. THE DISPUTE RESOLUTION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION WHERE PERMITTED BY LAW. THESE TERMS OF USE ALSO INCLUDE A JURY WAIVER WHERE PERMITTED BY LAW. MORE INFORMATION ABOUT THE ARBITRATION AND CLASS ACTION WAIVER CAN BE FOUND IN THE ARBITRATION AGREEMENT, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER AT SECTION 11.4 BELOW.
DEFINITIONS
1. In these Terms, words written in capital letters and not otherwise defined shall have the following meanings:
2. Affiliate(s): Affiliate(s): refers to an entity that (directly or indirectly) controls, is controlled by, or is under common control with the relevant entity, including executive officers, directors, significant stockholders, subsidiaries, parent entities, and/or sister companies;
3. Business Day: means any weekday (Monday to Friday), other than a bank holiday or public holiday in the Germany;
4. Account: means the personalised account of a User (with at minimum a username and password) enabling access to the Platform.
5. Business Hours: means the hours between 09:00 and 17:00 CET on a Business Day;
6. Force Majeure: encompasses an event or series of related events beyond the reasonable control of Nocto, including but not limited to: i) war, disasters, explosions, fires, floods, riots, and terrorist attacks; ii) governmental measures or boycotts; iii) failures of the Internet or any public telecommunications network, cloud provider failures, electricity outages; iv) hacker attacks, denial of service attacks, viruses, or other malicious software attacks or infections; v) failures of third-party service providers; vi) strikes; vii) pandemics.
7. Intellectual Property: means any and all intellectual property rights, whether registered or unregistered, such as but not limited to patent rights, copyrights (including rights in source code and object code), database rights, rights in designs, utility models, trademarks, trade and business names and all associated goodwill, rights in or in connection with know-how and trade secrets.
8. GDPR: means the General Data Protection Regulation (Regulation (EU) 2016/679).
9. Fizzy: means digital tokens that can only be earned and used by the User within the Platform. Please note that these points hold no monetary value, are not transferable, and are solely for internal use within our app's rewards system.
10. Partner: means a legal person or natural person acting in the course of (the event and hospitality) business/trade (e.g. bar, club, restaurant, hotel, event organizer, artist, festival, experience operators, workshops, etc.), that wishes to promote their business, venue or event to Users of the Platform.
11. Platform: refers to the (mobile and web) software and platform application known as 'Fizzy' offered by Fizzy in accordance with these Terms.
12. Services: means any functions or services provided by Fizzy or a Partner in connection with the Platform.
13. Support: means support in relation to the use of, and the identification and resolution of errors in the Platform.
14. User: pertains to either (i) a natural person, at least 18 years old, who has downloaded the app or accessed Fizzy's business platform website and registered an Account, thereby accepting these Terms to access and utilize the Platform and related Services, or (ii) a Partner.
15. User Content: encompasses all profile information, (real-time) data, comments, feedback, reviews, photos, videos, or text content or other materials uploaded, posted, published, or transmitted via the Platform by the User, excluding analytics data relating to Platform usage and server log files.
16. Unless the context indicates otherwise, defined concepts in the singular also include the plural, and vice versa.
1. Acceptance of the Terms
1.1. Age Requirement The Services are not directed at any user under the age of 18. By using the Services, you confirm that you are 18 years of age or over. If we learn that someone under the relevant age specified above is using the Services, we will terminate that user’s account.
1.3 Earning Fizzy award The User is able to earn Fizzy, for example by proactively contributing to the community, by posting Insights (Picture and/or videos) that help others (measured by received likes), and/or by inviting friends to join, and/or by adding new experiences to the app, and/ or by commenting on other posts, and/or liking other posts. The User may spend the Fizzy to redeem deals as offered by Partners.
1.2. Agreement to Terms By using our Services, you agree to these Terms. Using our Services may include accessing them or downloading the App or any other Services to your mobile device, computer, or other device.
1.3. Non-Acceptance of Terms If you do not agree to these Terms, you must not use our Services.
2. Amendments to the Terms
2.1. Review and Updates Please review these Terms regularly. If we amend these Terms, we will update the “Last Updated” date at the top of these Terms, which reflect the effective date of the Terms. We may amend these Terms (and any supplemental terms) from time to time. For example, we may update these Terms when we update our Services and practices, when we combine multiple apps or services operated by us or our affiliates, or when there are regulatory changes.
2.2. Notification of Changes We will use reasonable efforts to generally notify you of any material changes to these Terms, such as through a notice on the App or a communication to the contact information associated with your account.
2.3. Acceptance of Changes If you do not agree to the new Terms, please stop using the Services. By continuing to use the Services after the effective date of the new Terms, you agree to be bound by the new Terms.
3. Your Account
3.1. Account Creation and Information To use our Services, you must create an account with us. When you create this account, you must provide accurate and up-to-date information. It is important that you keep your information current and complete. You must not create an account for someone else unless you obtain their express permission.
3.2. Account Management and Termination Notwithstanding anything else in these Terms, we reserve the right to deactivate, disable, suspend, or terminate your account or access to our Services at any time at our sole discretion without notice, including if we believe that you have not complied with any of the provisions of these Terms or our policies (including our Community Guidelines), or if activities occur on your account which we believe would or might cause damage to or impair the Services or infringe or violate any third party's rights, or violate any applicable laws or regulations.
3.3. Account Security You are responsible for safeguarding your account details, including your account password, and all use of the App under your account. If you know or suspect that your password or account has been compromised, you must promptly notify us at [info@fizzyfesta.com].
3.4. Account Activity You agree that you are solely responsible (to us and to others) for the activity that occurs under your account.
3.5. Account Deletion If you would like to delete your account, you can delete your account on the App. Once you choose to delete your account, you will not be able to access or reactivate your account. Please also see our Privacy Policy for more information on the deletion of your personal data.
3.6. Account Deactivation Due to Inactivity If you fail to log in to your account for the first time after registering it within a specified period, or fail to use your account for more than three consecutive months, we reserve the right to deactivate it. Before we deactivate your account, we will notify you in an appropriate manner. If you fail to log in and use your account within one month after our notification, you specifically authorize us to deactivate your account for inactivity, among all other authorizations you grant in these Terms.
4. Usage Rules
4.1. Compliance with Terms and Laws Your use of the Services is subject to these Terms and all applicable laws and regulations. You understand and agree that you shall not do, attempt to do, or encourage anyone to do, any of the following:
Violate these Terms or our terms or policies (including our Community Guidelines).
Use our Services to engage in any unlawful, misleading, fraudulent, or unauthorized activity. Prohibited activities include, but are not limited to, sexual solicitation, or the buying or selling of firearms, alcohol, and tobacco products between private individuals.
Make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile, or create any derivative works of the Services or any content included therein.
Distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof.
License, purchase, transfer, or sell any account or data obtained from us or the Services.
Market, rent, or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation.
Use the Services for any commercial or unauthorized purpose without our express written consent.
Interfere with the proper working of the Services, disrupt our website or any systems or networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services.
Incorporate the Services or any portion thereof into any other program or product.
Use automated scripts to collect information from or otherwise interact with the Services.
Attempt to artificially inflate the popularity of any user on the Services.
Impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity.
Use our Services to create, support, or transmit material that promotes terrorism, crime, or hate groups.
Attack, threaten, intimidate, or harass us or other users of our Services, or use our Services to promote violence or discrimination.
Use our Services to communicate or spread false news or information.
Create or attempt to create accounts, or access or collect information in unauthorized ways in connection with the Services.
Use or attempt to use another user’s account, service, or system without our express permission, or create a false identity on the Services.
Interfere with the intended operation of the Services, including misusing any reporting, dispute, or appeals channel.
4.2. Restrictions on Content You agree not to use the Services to upload, transmit, distribute, store, or otherwise make available in any way:
Files that contain viruses, trojans, worms, logic bombs, or other code or material that is malicious or could disable, overburden, or impair the proper working or appearance of the Services.
Any unsolicited or unauthorized advertising, solicitations, promotional materials, “spam”, “chain letters”, or any other prohibited form of solicitation.
Any material which does or may infringe someone else’s rights, including any intellectual property rights, image rights, or privacy rights of any other person.Any private information of any third party, including addresses, phone numbers, email addresses, personal identity document information including passport numbers, or credit card numbers.
Any material which is defamatory of any person, obscene, offensive, pornographic, involves nudity or sexual activity, hateful, or inflammatory.
Any material that is deliberately designed to provoke or antagonize people, or is intended to harass, bully, harm, hurt, scare, distress, embarrass, or upset people; any material that contains a threat of any kind, including threats of physical violence.Any material that would constitute, encourage, or provide instructions for a criminal offense, dangerous activities, suicide, or self-harm.
Any material that is racist or discriminatory, including discrimination on the basis of someone’s race, gender, ethnicity, religion, nationality, disability, sexual orientation, caste, gender identity, serious disease, immigration status, or age.
Any material that constitutes foreign interference in applicable domestic politics conducted through information campaigns.
Any material that constitutes false news or information.
Any answers, responses, comments, opinions, analyses, or recommendations that you are not properly licensed or otherwise qualified to provide.Any material which is contrary to public order and good morals.
Any material that otherwise violates the applicable law or regulation.
Material that, in our sole judgment, is objectionable or which restricts or inhibits any other person from using the Services, or which may expose us, the Services, or its users to any harm or liability of any type.
Be prohibited from receiving our Services under applicable laws.
4.3. Automated Analysis Our automated systems analyze your content to offer personally relevant product features, including customized search results, tailored advertising, and detection of spam and malware. This analysis takes place as the content is transmitted, received, and stored.
4.4. Content Removal We retain the right, although we are not obligated, to remove or restrict access to any or all content on our Services at our sole discretion, for any reason or without reason, at any time and without prior notice. Our decision to remove or restrict access to content may be based on various factors, including but not limited to finding the content objectionable, its violation of these Terms or our other terms or policies (including our Community Guidelines), or its potential harm to the Services or our users.
5. Intellectual Property Rights
5.1. User-Generated Content Our Services may offer features designed to enable users to share content, such as photos, videos, comments, links, messages, and other materials, in compliance with these Terms. You are prohibited from using the Services to violate any intellectual property rights. We reserve the right, at our sole discretion and with or without notice, to block access to and/or deactivate the accounts of any user found to be infringing or alleged to be infringing on any intellectual property rights.
5A. Fizzy Content
5.2. Ownership of Content All content, software, technology, programs, web pages, photographs, pictures, images, text, graphics, illustrations, layout designs, logos, patents, audio, videos, music, and other elements in or on our Services, including the overall "look and feel" of the Services, and all trademarks, service marks, copyrights, and other intellectual property rights related thereto (the “FizzyFesta Content”) are owned or licensed by FizzyFesta UG.
5.3. Use of FizzyFesta Content The utilization of FizzyFesta Content for any purpose not explicitly authorized by these Terms is strictly forbidden. You are prohibited from downloading, copying, reproducing, publishing, distributing, transmitting, broadcasting, communicating, displaying, selling, licensing, or otherwise exploiting FizzyFesta Content for any purpose without our prior written consent or, where applicable, the consent of our licensors. We and our licensors retain all rights not expressly granted in and to their content.
5.4. Revenue and Monetization You acknowledge and agree that we may derive revenue, enhance goodwill, or otherwise increase our value as a result of your use of the Services, and unless expressly permitted by us in these Terms or in another agreement you have with us, you will not be entitled to any share of such revenue, goodwill, or value. Additionally, you recognize that, unless specifically authorized by us in these Terms or in another agreement you have with us, you (i) are not entitled to receive any income or compensation from any User Content or your utilization of any musical works, sound recordings, or audio-visual clips provided to you through the Services, including in any User Content you create, and (ii) are prohibited from attempting to monetize or obtain compensation from any User Content within the Services or on any third-party platform.
5.5. License Subject to these Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, worldwide license to utilize the Services, including downloading the App on a permitted device, and accessing FizzyFesta Content solely for your personal, non-commercial use during your utilization of the Services and strictly in accordance with these Terms. We reserve all rights not explicitly granted herein in the Services and FizzyFesta Content. No rights are granted concerning sound recordings and the musical works embodied therein that are provided from or through the Services. You acknowledge and agree that we may revoke this permission at any time at our sole discretion with or without prior notice.
5.6. Disclaimer You acknowledge and agree that, when you view content provided by others on the Services, you are doing so at your own risk. The content on our Services is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Services.
5B. User Content and Authorization
5.7. Ownership and License You maintain copyright ownership of your User Content; however, you grant us an irrevocable license to utilize, modify, reproduce, and distribute it. This license becomes void when your User Content is deleted from our systems.
5.8. Uploading User Content Users of the Services may upload, post, transmit, or otherwise provide content through the Services, such as text, photographs, user videos, sound recordings, and musical works. By submitting User Content, users grant us a license to utilize, modify, adapt, reproduce, and distribute such content.
5.9. Rights Granted The rights granted include the reproduction and performance of sound recordings and musical works on a royalty-free basis.
5.10. Use of Your Identity You grant us a royalty-free license to use your username, image, voice, and likeness to identify you as the source of your User Content.
5.11. Third-Party Services Third-party service operators have no separate liability for User Content posted via our Services.
5.12. Waiver of Rights By posting User Content, you waive rights to prior inspection or approval and any rights of privacy or publicity.
5.13. Disclosure of Identity We may disclose your identity to third parties claiming violation of intellectual property or privacy rights.
5.14. Ownership of Rights You must have all necessary permissions to post sound recordings to the Services.
5.15. Disclaimer We do not endorse or verify User Content and shall not be liable for its accuracy or completeness.
5.16. Representation and Warranty We make no representations or warranties regarding the accuracy or completeness of User Content. We are not obligated to pre-screen or edit any content posted by users.
5.17. Compliance with Usage Rules When utilizing a feature enabling the upload or transmission of User Content through the Services or third-party platforms, adhere to the Usage Rules mentioned above. Should you choose to upload or transmit User Content on third-party platforms, ensure compliance with their policies and the criteria outlined in the Usage Rules. You guarantee that any contributions adhere to these standards and indemnify us for any violations.
5.18. Confidentiality of User Content All User Content is considered non-confidential and non-proprietary. Do not post or transmit any User Content that is confidential or proprietary. By submitting User Content, you agree, represent, and warrant that you own the content, obtained necessary permissions, and have the rights to grant licenses as per these Terms.
5.19. Editing and Removal of User Content We or our authorized agents may edit, crop, or refuse to publish User Content at our sole discretion. We reserve the right to remove, block, or delete any posts that do not comply with the content standards outlined in the Usage Rules. Additionally, we may remove User Content that violates these Terms or our policies, or in response to complaints, at our discretion. Please retain copies of User Content submitted to the Services on your personal devices.
5.20. Control of User Content Visibility You control whether your User Content is made publicly available on the Services. Configure your privacy settings on the App accordingly.
5.21. Removal of Infringing Material We promptly remove infringing material upon notification. If you discover infringing content, contact us at info@fizzyfesta.com. We may terminate accounts that repeatedly infringe on others' intellectual property rights.
5.22. Feedback If you choose to provide feedback or suggestions, we may use them as we deem appropriate, without obligation to you.
6. Indemnification 6.1. You agree to indemnify, defend, and hold harmless FizzyFesta, our parent company, subsidiaries, affiliates, and each of their respective officers, directors, employees, agents, licensors, and advisors from any and all claims, liabilities, costs, and expenses, including legal fees, arising from any breach of these Terms by you or any user of your account, violation of your obligations, representations, or warranties under these Terms, or any claim directly or indirectly related to your use of the Services.
7. Disclaimer of Warranties FizzyFesta provides the Services to you on an "as is" and "as available" basis. We, along with our parent company, subsidiaries, and affiliates, make no representations or warranties regarding the Services. This includes any representation or warranty that your use of the Services will meet your expectations or requirements; that your use will be uninterrupted, timely, secure, error-free, or compatible with any other hardware, software, or system; or that the Services are free from viruses or other harmful components. To the fullest extent permitted by law, we disclaim all conditions or warranties regarding the Services, including implied terms of merchantability, satisfactory quality, fitness for a particular purpose, title, or non-infringement. No conditions, warranties, or other terms, whether express or implied, apply to the Services except as expressly set out in these Terms.
We reserve the right, at any time and at our sole discretion, to change, suspend, withdraw, or restrict the availability of all or any part of our Services without notice.
8. Limitation of Liability 8.1. These Terms do not limit any rights you have under applicable laws that cannot be excluded, or exclude or limit our liability to you for losses that cannot lawfully be excluded or limited by applicable laws. This includes liability for death or personal injury caused by our negligence or that of our employees, agents, or subcontractors, and for fraud or fraudulent misrepresentation.
8.2. To the fullest extent permitted by law, we are not liable to you for any direct or indirect loss of income or profits, loss of goodwill, loss of opportunity, loss of data, or any indirect or consequential losses you may incur. Our total liability for all claims related to the Services shall not exceed the amount you paid to us to use the Services within the last 12 months.
8.3. To the fullest extent permitted by law, we are not liable for any loss or damage incurred by you as a result of:
Your use or inability to use the Services;
Any conduct or content of any third-party on the Services, including defamatory or illegal conduct of other users or third parties, and advertising on the Services;
Reliance on the accuracy or completeness of FizzyFesta Content and User Content;
Changes we make to the Services or any features therein, or for any permanent or temporary cessation in the provision of the Services or any features therein;
Deletion of, corruption of, or failure to store any content and other communications data maintained or transmitted by or through your use of the Services;
Your failure to provide accurate account information; or
Your failure to keep your account password or other details secure and confidential.
8.4. Exclusion of Certain Damages We shall not be liable to you for any loss of profit, loss of business, loss of goodwill or business reputation, business interruption, or loss of business opportunity.
8.5. Exclusion of Certain Liabilities To the fullest extent permitted by law, we shall not be liable for any loss or damage to a device or digital content belonging to you caused by the Services. Additionally, we shall not be liable for any loss or damage that you could have reasonably avoided, including following our advice to apply an update offered free of charge, or damage caused by your failure to correctly follow installation instructions or failing to meet the minimum system requirements advised by us.
8.6. Mobile Charges You are responsible for any mobile charges that may apply to your use of our services, including text-messaging and data charges.
8.7. Disputes with Third Parties To the fullest extent permitted by law, any dispute you have with any third party arising out of your use of the services, including, by way of example and not limitation, any carrier, copyright owner, or other user, is directly between you and such third party. You irrevocably release us and our affiliates from any and all claims, demands, and damages (whether actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
8.8. Security and Virus Protection We do not guarantee that our Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs, and platform to use our Services. It is recommended that you use your own virus protection software.
9. Privacy
9.1. Processing of Personal Data Through the Platform and Services, Fizzy processes personal data about its Users. Fizzy's Privacy Policy provides additional information regarding the types of personal data that may be processed, the purposes of processing, data breaches, and security measures.
9.2. Accessing the Privacy Policy The Privacy Policy can be accessed on Nocto's website and within the app. In addition to accepting these Terms, Users must also agree to the content of Fizzy's Privacy Policy to register for an Account.
10. Limitation of Liability
10.1. Total Aggregate Liability The total aggregate liability of Fizzy due to an attributable failure or any other legal reason shall at all times be limited to an amount of EUR 250.
10.2. Exclusion of Indirect Loss or Damage Fizzy's liability for indirect loss or damage, consequential loss or damage, loss of profit, loss of revenues, missed savings, reduced goodwill, loss or damage due to business stagnation or interruption, loss or damage in connection with the use of the Platform or Services, is expressly excluded. Additionally, Fizzy's liability for the damage, destruction, or loss of User Content, or for the (temporary) unavailability of the Account or Platform, is expressly excluded.
10.3. Exceptions to Exclusions The exclusions and restrictions mentioned in clauses 10.1 to 10.2 will not apply if the damage or loss results from intentional acts or gross recklessness by Fizzy.
10.4. Force Majeure Fizzy shall not be liable for any damages, losses, or costs incurred by the User or any third party as a result of Force Majeure.
10.5. Default Notice Except where performance by Fizzy is permanently impossible, Fizzy will only be in default for an attributable failure after receiving written notice of the default, granting Fizzy a reasonable term of at least thirty (30) days to remedy the default.
10.6. Reporting Damages A condition for filing any claim for damages is that the User reports the damage to Fizzy in writing as soon as possible and not later than 10 (ten) days after the damage occurred. Claims for damages against Fizzy shall lapse six (6) months after the damage occurred.
10.7. Indemnification The User shall release, defend, indemnify, and hold harmless Fizzy and its affiliates from any claims, liabilities, damages, losses, expenses, or costs arising from or related to the User's use of the Platform, User Content, violation of these Terms, or violation of any law, regulations, or third-party rights.
10.8. Third-Party Websites and Resources The Platform may contain links to third-party websites or resources. Fizzy is not responsible or liable for the availability, accuracy, content, products, or services on such websites or resources. Links to third-party websites or resources do not imply endorsement by Fizzy.
10.9. Responsibility for Alcohol Consumption Fizzy does not accept liability for alcohol consumption by the User. Each User is responsible for ensuring compliance with the law, and each Partner is responsible for ensuring that marketing communications directed towards Users comply with relevant regulations.
11. Applicable Law, Dispute Resolution, and Other Terms
11.1. Governing Law and Jurisdiction These Terms shall be governed by and construed in accordance with the laws of Germany, excluding its conflict of law provisions. Any dispute, controversy, or claim arising out of or in connection with these Terms, including any question regarding their existence, validity, or termination, shall be exclusively submitted to the courts of Frankfurt am Main, Germany, unless mandatory legal provisions stipulate otherwise.
11.2. Alternative Dispute Resolution If any disputes arise from or in connection with these Terms, the parties shall first attempt to settle such disputes amicably through good-faith negotiations. Should no resolution be reached within a reasonable period, the dispute shall be finally resolved by arbitration in Frankfurt am Main, Germany, in accordance with the German Arbitration Act (Deutsche Institution für Schiedsgerichtsbarkeit e.V. - DIS) and its rules. The language of the arbitration shall be German. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the DIS Arbitration Rules. The arbitral award shall be final and binding on both parties. Each party shall bear its own costs of arbitration, unless the arbitral tribunal determines otherwise.
11.3. Severability If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
11.4. Waiver Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
11.5. Open-Source Software The App contains certain open-source software. Each item of open-source software is subject to its own applicable license terms.
11.6. Interpretation Any use of the plural in these Terms shall imply use of the singular and vice versa, as the context demands.
12. Entire Agreement
12.1. Entire Agreement These Terms (including the “Supplemental Terms – App Stores” below) constitute the whole legal agreement between you and Fizzy and govern your use of the Services, and completely replace any prior agreements between you and Fizzy made in relation to the Services.
12.2. Language of Agreement The Terms shall be made in English Language. If required under the relevant local law, the Terms shall be made in both the English Language and in the local language. Both texts are equally original. In case of any inconsistency or different interpretation between both texts, the local language shall be deemed to be automatically amended to conform with and to make it consistent with the relevant English text.
13. Other Terms
13.1. No Waiver Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
13.2. Severability If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
11.4. Compliance with German Law These Terms shall be construed and interpreted in accordance with the laws of Germany. Any disputes arising out of or in connection with these Terms shall be subject to the exclusive jurisdiction of the courts of Germany.
11.5. Contact You can contact us at
FizzyFesta UG
Londoner str 3, 60327 Frankfurt am Main, Germany
info@fizzyfesta.com
if you have any questions.
Supplemental Terms for Specific Devices
Google Play These supplemental terms apply as between FizzyFesta and you. Google, Inc. or its affiliates (“Google”) is not a party to these terms. By downloading the App from Google Play (or its successors) operated by Google, you acknowledge and agree that:
In case of any conflict between the Google Play Terms of Services and the other terms and conditions in these Terms, the Google Play Terms shall apply regarding your use of the App downloaded from Google Play.
You acknowledge that Google bears no responsibility or liability related to compliance or non-compliance by Fizzy or you under these Terms or the Google Play Terms.
Apple Store These supplemental terms apply as between Fizzy and you. Apple Inc. (“Apple”) is not a party to these terms. By downloading the App from the Apple Store (or its successors) operated by Apple, you acknowledge and agree that:
The license granted to you is limited to a personal, non-commercial use right to install the App on Apple device(s) authorized by Apple that you own or control, subject to Apple’s App Store Terms of Services.
Apple is not responsible for the App or its content and has no obligation to provide maintenance or support services for the App.
Apple is not liable for any claims relating to the App or its use, including product liability claims, non-conformity to legal requirements, or intellectual property infringement claims by third parties.
Apple and its subsidiaries are third-party beneficiaries of these Terms and have the right to enforce these Terms against you.
FizzyFesta authorizes access to and use of the App by multiple users through Family Sharing or similar functionality provided by Apple.
FizzyFesta Terms of Service
Last updated: 22nd April 2024
General Terms & Definitions – All Users
Before using FizzyFesta (the "App"), please read these terms of service (“Terms”) carefully. These Terms serve as a legally binding agreement between you and FizzyFesta UG ("Fizzy," "we," "our," or "us")., registered at Londoner Str 3, 60327 Frankfurt am Main, Germany. These Terms govern your use of the App and our related websites, services, applications, products, and content (collectively, the "Services"). Any reference in these Terms to "Services" includes Fizzy Content (as defined further below) or any other part of the Services, and any reference to these "Terms" includes any terms or policies referred to in these Terms, such as our Community Guidelines.
Our Services are provided for private and domestic use only. You agree not to use our platform for any commercial or business purposes. For the purposes of these Terms, “you” and “your” means you as the user of our Services.
MANDATORY ARBITRATION AND DISPUTE RESOLUTION
THESE TERMS OF USE INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION WHERE PERMITTED BY LAW, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT UNLESS SUCH AN AGREEMENT IS PROHIBITED BY LAW. THE DISPUTE RESOLUTION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION WHERE PERMITTED BY LAW. THESE TERMS OF USE ALSO INCLUDE A JURY WAIVER WHERE PERMITTED BY LAW. MORE INFORMATION ABOUT THE ARBITRATION AND CLASS ACTION WAIVER CAN BE FOUND IN THE ARBITRATION AGREEMENT, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER AT SECTION 11.4 BELOW.
DEFINITIONS
1. In these Terms, words written in capital letters and not otherwise defined shall have the following meanings:
2. Affiliate(s): Affiliate(s): refers to an entity that (directly or indirectly) controls, is controlled by, or is under common control with the relevant entity, including executive officers, directors, significant stockholders, subsidiaries, parent entities, and/or sister companies;
3. Business Day: means any weekday (Monday to Friday), other than a bank holiday or public holiday in the Germany;
4. Account: means the personalised account of a User (with at minimum a username and password) enabling access to the Platform.
5. Business Hours: means the hours between 09:00 and 17:00 CET on a Business Day;
6. Force Majeure: encompasses an event or series of related events beyond the reasonable control of Nocto, including but not limited to: i) war, disasters, explosions, fires, floods, riots, and terrorist attacks; ii) governmental measures or boycotts; iii) failures of the Internet or any public telecommunications network, cloud provider failures, electricity outages; iv) hacker attacks, denial of service attacks, viruses, or other malicious software attacks or infections; v) failures of third-party service providers; vi) strikes; vii) pandemics.
7. Intellectual Property: means any and all intellectual property rights, whether registered or unregistered, such as but not limited to patent rights, copyrights (including rights in source code and object code), database rights, rights in designs, utility models, trademarks, trade and business names and all associated goodwill, rights in or in connection with know-how and trade secrets.
8. GDPR: means the General Data Protection Regulation (Regulation (EU) 2016/679).
9. Fizzy: means digital tokens that can only be earned and used by the User within the Platform. Please note that these points hold no monetary value, are not transferable, and are solely for internal use within our app's rewards system.
10. Partner: means a legal person or natural person acting in the course of (the event and hospitality) business/trade (e.g. bar, club, restaurant, hotel, event organizer, artist, festival, experience operators, workshops, etc.), that wishes to promote their business, venue or event to Users of the Platform.
11. Platform: refers to the (mobile and web) software and platform application known as 'Fizzy' offered by Fizzy in accordance with these Terms.
12. Services: means any functions or services provided by Fizzy or a Partner in connection with the Platform.
13. Support: means support in relation to the use of, and the identification and resolution of errors in the Platform.
14. User: pertains to either (i) a natural person, at least 18 years old, who has downloaded the app or accessed Fizzy's business platform website and registered an Account, thereby accepting these Terms to access and utilize the Platform and related Services, or (ii) a Partner.
15. User Content: encompasses all profile information, (real-time) data, comments, feedback, reviews, photos, videos, or text content or other materials uploaded, posted, published, or transmitted via the Platform by the User, excluding analytics data relating to Platform usage and server log files.
16. Unless the context indicates otherwise, defined concepts in the singular also include the plural, and vice versa.
1. Acceptance of the Terms
1.1. Age Requirement The Services are not directed at any user under the age of 18. By using the Services, you confirm that you are 18 years of age or over. If we learn that someone under the relevant age specified above is using the Services, we will terminate that user’s account.
1.3 Earning Fizzy award The User is able to earn Fizzy, for example by proactively contributing to the community, by posting Insights (Picture and/or videos) that help others (measured by received likes), and/or by inviting friends to join, and/or by adding new experiences to the app, and/ or by commenting on other posts, and/or liking other posts. The User may spend the Fizzy to redeem deals as offered by Partners.
1.2. Agreement to Terms By using our Services, you agree to these Terms. Using our Services may include accessing them or downloading the App or any other Services to your mobile device, computer, or other device.
1.3. Non-Acceptance of Terms If you do not agree to these Terms, you must not use our Services.
2. Amendments to the Terms
2.1. Review and Updates Please review these Terms regularly. If we amend these Terms, we will update the “Last Updated” date at the top of these Terms, which reflect the effective date of the Terms. We may amend these Terms (and any supplemental terms) from time to time. For example, we may update these Terms when we update our Services and practices, when we combine multiple apps or services operated by us or our affiliates, or when there are regulatory changes.
2.2. Notification of Changes We will use reasonable efforts to generally notify you of any material changes to these Terms, such as through a notice on the App or a communication to the contact information associated with your account.
2.3. Acceptance of Changes If you do not agree to the new Terms, please stop using the Services. By continuing to use the Services after the effective date of the new Terms, you agree to be bound by the new Terms.
3. Your Account
3.1. Account Creation and Information To use our Services, you must create an account with us. When you create this account, you must provide accurate and up-to-date information. It is important that you keep your information current and complete. You must not create an account for someone else unless you obtain their express permission.
3.2. Account Management and Termination Notwithstanding anything else in these Terms, we reserve the right to deactivate, disable, suspend, or terminate your account or access to our Services at any time at our sole discretion without notice, including if we believe that you have not complied with any of the provisions of these Terms or our policies (including our Community Guidelines), or if activities occur on your account which we believe would or might cause damage to or impair the Services or infringe or violate any third party's rights, or violate any applicable laws or regulations.
3.3. Account Security You are responsible for safeguarding your account details, including your account password, and all use of the App under your account. If you know or suspect that your password or account has been compromised, you must promptly notify us at [info@fizzyfesta.com].
3.4. Account Activity You agree that you are solely responsible (to us and to others) for the activity that occurs under your account.
3.5. Account Deletion If you would like to delete your account, you can delete your account on the App. Once you choose to delete your account, you will not be able to access or reactivate your account. Please also see our Privacy Policy for more information on the deletion of your personal data.
3.6. Account Deactivation Due to Inactivity If you fail to log in to your account for the first time after registering it within a specified period, or fail to use your account for more than three consecutive months, we reserve the right to deactivate it. Before we deactivate your account, we will notify you in an appropriate manner. If you fail to log in and use your account within one month after our notification, you specifically authorize us to deactivate your account for inactivity, among all other authorizations you grant in these Terms.
4. Usage Rules
4.1. Compliance with Terms and Laws Your use of the Services is subject to these Terms and all applicable laws and regulations. You understand and agree that you shall not do, attempt to do, or encourage anyone to do, any of the following:
Violate these Terms or our terms or policies (including our Community Guidelines).
Use our Services to engage in any unlawful, misleading, fraudulent, or unauthorized activity. Prohibited activities include, but are not limited to, sexual solicitation, or the buying or selling of firearms, alcohol, and tobacco products between private individuals.
Make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile, or create any derivative works of the Services or any content included therein.
Distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof.
License, purchase, transfer, or sell any account or data obtained from us or the Services.
Market, rent, or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation.
Use the Services for any commercial or unauthorized purpose without our express written consent.
Interfere with the proper working of the Services, disrupt our website or any systems or networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services.
Incorporate the Services or any portion thereof into any other program or product.
Use automated scripts to collect information from or otherwise interact with the Services.
Attempt to artificially inflate the popularity of any user on the Services.
Impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity.
Use our Services to create, support, or transmit material that promotes terrorism, crime, or hate groups.
Attack, threaten, intimidate, or harass us or other users of our Services, or use our Services to promote violence or discrimination.
Use our Services to communicate or spread false news or information.
Create or attempt to create accounts, or access or collect information in unauthorized ways in connection with the Services.
Use or attempt to use another user’s account, service, or system without our express permission, or create a false identity on the Services.
Interfere with the intended operation of the Services, including misusing any reporting, dispute, or appeals channel.
4.2. Restrictions on Content You agree not to use the Services to upload, transmit, distribute, store, or otherwise make available in any way:
Files that contain viruses, trojans, worms, logic bombs, or other code or material that is malicious or could disable, overburden, or impair the proper working or appearance of the Services.
Any unsolicited or unauthorized advertising, solicitations, promotional materials, “spam”, “chain letters”, or any other prohibited form of solicitation.
Any material which does or may infringe someone else’s rights, including any intellectual property rights, image rights, or privacy rights of any other person.Any private information of any third party, including addresses, phone numbers, email addresses, personal identity document information including passport numbers, or credit card numbers.
Any material which is defamatory of any person, obscene, offensive, pornographic, involves nudity or sexual activity, hateful, or inflammatory.
Any material that is deliberately designed to provoke or antagonize people, or is intended to harass, bully, harm, hurt, scare, distress, embarrass, or upset people; any material that contains a threat of any kind, including threats of physical violence.Any material that would constitute, encourage, or provide instructions for a criminal offense, dangerous activities, suicide, or self-harm.
Any material that is racist or discriminatory, including discrimination on the basis of someone’s race, gender, ethnicity, religion, nationality, disability, sexual orientation, caste, gender identity, serious disease, immigration status, or age.
Any material that constitutes foreign interference in applicable domestic politics conducted through information campaigns.
Any material that constitutes false news or information.
Any answers, responses, comments, opinions, analyses, or recommendations that you are not properly licensed or otherwise qualified to provide.Any material which is contrary to public order and good morals.
Any material that otherwise violates the applicable law or regulation.
Material that, in our sole judgment, is objectionable or which restricts or inhibits any other person from using the Services, or which may expose us, the Services, or its users to any harm or liability of any type.
Be prohibited from receiving our Services under applicable laws.
4.3. Automated Analysis Our automated systems analyze your content to offer personally relevant product features, including customized search results, tailored advertising, and detection of spam and malware. This analysis takes place as the content is transmitted, received, and stored.
4.4. Content Removal We retain the right, although we are not obligated, to remove or restrict access to any or all content on our Services at our sole discretion, for any reason or without reason, at any time and without prior notice. Our decision to remove or restrict access to content may be based on various factors, including but not limited to finding the content objectionable, its violation of these Terms or our other terms or policies (including our Community Guidelines), or its potential harm to the Services or our users.
5. Intellectual Property Rights
5.1. User-Generated Content Our Services may offer features designed to enable users to share content, such as photos, videos, comments, links, messages, and other materials, in compliance with these Terms. You are prohibited from using the Services to violate any intellectual property rights. We reserve the right, at our sole discretion and with or without notice, to block access to and/or deactivate the accounts of any user found to be infringing or alleged to be infringing on any intellectual property rights.
5A. Fizzy Content
5.2. Ownership of Content All content, software, technology, programs, web pages, photographs, pictures, images, text, graphics, illustrations, layout designs, logos, patents, audio, videos, music, and other elements in or on our Services, including the overall "look and feel" of the Services, and all trademarks, service marks, copyrights, and other intellectual property rights related thereto (the “FizzyFesta Content”) are owned or licensed by FizzyFesta UG.
5.3. Use of FizzyFesta Content The utilization of FizzyFesta Content for any purpose not explicitly authorized by these Terms is strictly forbidden. You are prohibited from downloading, copying, reproducing, publishing, distributing, transmitting, broadcasting, communicating, displaying, selling, licensing, or otherwise exploiting FizzyFesta Content for any purpose without our prior written consent or, where applicable, the consent of our licensors. We and our licensors retain all rights not expressly granted in and to their content.
5.4. Revenue and Monetization You acknowledge and agree that we may derive revenue, enhance goodwill, or otherwise increase our value as a result of your use of the Services, and unless expressly permitted by us in these Terms or in another agreement you have with us, you will not be entitled to any share of such revenue, goodwill, or value. Additionally, you recognize that, unless specifically authorized by us in these Terms or in another agreement you have with us, you (i) are not entitled to receive any income or compensation from any User Content or your utilization of any musical works, sound recordings, or audio-visual clips provided to you through the Services, including in any User Content you create, and (ii) are prohibited from attempting to monetize or obtain compensation from any User Content within the Services or on any third-party platform.
5.5. License Subject to these Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, worldwide license to utilize the Services, including downloading the App on a permitted device, and accessing FizzyFesta Content solely for your personal, non-commercial use during your utilization of the Services and strictly in accordance with these Terms. We reserve all rights not explicitly granted herein in the Services and FizzyFesta Content. No rights are granted concerning sound recordings and the musical works embodied therein that are provided from or through the Services. You acknowledge and agree that we may revoke this permission at any time at our sole discretion with or without prior notice.
5.6. Disclaimer You acknowledge and agree that, when you view content provided by others on the Services, you are doing so at your own risk. The content on our Services is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Services.
5B. User Content and Authorization
5.7. Ownership and License You maintain copyright ownership of your User Content; however, you grant us an irrevocable license to utilize, modify, reproduce, and distribute it. This license becomes void when your User Content is deleted from our systems.
5.8. Uploading User Content Users of the Services may upload, post, transmit, or otherwise provide content through the Services, such as text, photographs, user videos, sound recordings, and musical works. By submitting User Content, users grant us a license to utilize, modify, adapt, reproduce, and distribute such content.
5.9. Rights Granted The rights granted include the reproduction and performance of sound recordings and musical works on a royalty-free basis.
5.10. Use of Your Identity You grant us a royalty-free license to use your username, image, voice, and likeness to identify you as the source of your User Content.
5.11. Third-Party Services Third-party service operators have no separate liability for User Content posted via our Services.
5.12. Waiver of Rights By posting User Content, you waive rights to prior inspection or approval and any rights of privacy or publicity.
5.13. Disclosure of Identity We may disclose your identity to third parties claiming violation of intellectual property or privacy rights.
5.14. Ownership of Rights You must have all necessary permissions to post sound recordings to the Services.
5.15. Disclaimer We do not endorse or verify User Content and shall not be liable for its accuracy or completeness.
5.16. Representation and Warranty We make no representations or warranties regarding the accuracy or completeness of User Content. We are not obligated to pre-screen or edit any content posted by users.
5.17. Compliance with Usage Rules When utilizing a feature enabling the upload or transmission of User Content through the Services or third-party platforms, adhere to the Usage Rules mentioned above. Should you choose to upload or transmit User Content on third-party platforms, ensure compliance with their policies and the criteria outlined in the Usage Rules. You guarantee that any contributions adhere to these standards and indemnify us for any violations.
5.18. Confidentiality of User Content All User Content is considered non-confidential and non-proprietary. Do not post or transmit any User Content that is confidential or proprietary. By submitting User Content, you agree, represent, and warrant that you own the content, obtained necessary permissions, and have the rights to grant licenses as per these Terms.
5.19. Editing and Removal of User Content We or our authorized agents may edit, crop, or refuse to publish User Content at our sole discretion. We reserve the right to remove, block, or delete any posts that do not comply with the content standards outlined in the Usage Rules. Additionally, we may remove User Content that violates these Terms or our policies, or in response to complaints, at our discretion. Please retain copies of User Content submitted to the Services on your personal devices.
5.20. Control of User Content Visibility You control whether your User Content is made publicly available on the Services. Configure your privacy settings on the App accordingly.
5.21. Removal of Infringing Material We promptly remove infringing material upon notification. If you discover infringing content, contact us at info@fizzyfesta.com. We may terminate accounts that repeatedly infringe on others' intellectual property rights.
5.22. Feedback If you choose to provide feedback or suggestions, we may use them as we deem appropriate, without obligation to you.
6. Indemnification 6.1. You agree to indemnify, defend, and hold harmless FizzyFesta, our parent company, subsidiaries, affiliates, and each of their respective officers, directors, employees, agents, licensors, and advisors from any and all claims, liabilities, costs, and expenses, including legal fees, arising from any breach of these Terms by you or any user of your account, violation of your obligations, representations, or warranties under these Terms, or any claim directly or indirectly related to your use of the Services.
7. Disclaimer of Warranties FizzyFesta provides the Services to you on an "as is" and "as available" basis. We, along with our parent company, subsidiaries, and affiliates, make no representations or warranties regarding the Services. This includes any representation or warranty that your use of the Services will meet your expectations or requirements; that your use will be uninterrupted, timely, secure, error-free, or compatible with any other hardware, software, or system; or that the Services are free from viruses or other harmful components. To the fullest extent permitted by law, we disclaim all conditions or warranties regarding the Services, including implied terms of merchantability, satisfactory quality, fitness for a particular purpose, title, or non-infringement. No conditions, warranties, or other terms, whether express or implied, apply to the Services except as expressly set out in these Terms.
We reserve the right, at any time and at our sole discretion, to change, suspend, withdraw, or restrict the availability of all or any part of our Services without notice.
8. Limitation of Liability 8.1. These Terms do not limit any rights you have under applicable laws that cannot be excluded, or exclude or limit our liability to you for losses that cannot lawfully be excluded or limited by applicable laws. This includes liability for death or personal injury caused by our negligence or that of our employees, agents, or subcontractors, and for fraud or fraudulent misrepresentation.
8.2. To the fullest extent permitted by law, we are not liable to you for any direct or indirect loss of income or profits, loss of goodwill, loss of opportunity, loss of data, or any indirect or consequential losses you may incur. Our total liability for all claims related to the Services shall not exceed the amount you paid to us to use the Services within the last 12 months.
8.3. To the fullest extent permitted by law, we are not liable for any loss or damage incurred by you as a result of:
Your use or inability to use the Services;
Any conduct or content of any third-party on the Services, including defamatory or illegal conduct of other users or third parties, and advertising on the Services;
Reliance on the accuracy or completeness of FizzyFesta Content and User Content;
Changes we make to the Services or any features therein, or for any permanent or temporary cessation in the provision of the Services or any features therein;
Deletion of, corruption of, or failure to store any content and other communications data maintained or transmitted by or through your use of the Services;
Your failure to provide accurate account information; or
Your failure to keep your account password or other details secure and confidential.
8.4. Exclusion of Certain Damages We shall not be liable to you for any loss of profit, loss of business, loss of goodwill or business reputation, business interruption, or loss of business opportunity.
8.5. Exclusion of Certain Liabilities To the fullest extent permitted by law, we shall not be liable for any loss or damage to a device or digital content belonging to you caused by the Services. Additionally, we shall not be liable for any loss or damage that you could have reasonably avoided, including following our advice to apply an update offered free of charge, or damage caused by your failure to correctly follow installation instructions or failing to meet the minimum system requirements advised by us.
8.6. Mobile Charges You are responsible for any mobile charges that may apply to your use of our services, including text-messaging and data charges.
8.7. Disputes with Third Parties To the fullest extent permitted by law, any dispute you have with any third party arising out of your use of the services, including, by way of example and not limitation, any carrier, copyright owner, or other user, is directly between you and such third party. You irrevocably release us and our affiliates from any and all claims, demands, and damages (whether actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
8.8. Security and Virus Protection We do not guarantee that our Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs, and platform to use our Services. It is recommended that you use your own virus protection software.
9. Privacy
9.1. Processing of Personal Data Through the Platform and Services, Fizzy processes personal data about its Users. Fizzy's Privacy Policy provides additional information regarding the types of personal data that may be processed, the purposes of processing, data breaches, and security measures.
9.2. Accessing the Privacy Policy The Privacy Policy can be accessed on Nocto's website and within the app. In addition to accepting these Terms, Users must also agree to the content of Fizzy's Privacy Policy to register for an Account.
10. Limitation of Liability
10.1. Total Aggregate Liability The total aggregate liability of Fizzy due to an attributable failure or any other legal reason shall at all times be limited to an amount of EUR 250.
10.2. Exclusion of Indirect Loss or Damage Fizzy's liability for indirect loss or damage, consequential loss or damage, loss of profit, loss of revenues, missed savings, reduced goodwill, loss or damage due to business stagnation or interruption, loss or damage in connection with the use of the Platform or Services, is expressly excluded. Additionally, Fizzy's liability for the damage, destruction, or loss of User Content, or for the (temporary) unavailability of the Account or Platform, is expressly excluded.
10.3. Exceptions to Exclusions The exclusions and restrictions mentioned in clauses 10.1 to 10.2 will not apply if the damage or loss results from intentional acts or gross recklessness by Fizzy.
10.4. Force Majeure Fizzy shall not be liable for any damages, losses, or costs incurred by the User or any third party as a result of Force Majeure.
10.5. Default Notice Except where performance by Fizzy is permanently impossible, Fizzy will only be in default for an attributable failure after receiving written notice of the default, granting Fizzy a reasonable term of at least thirty (30) days to remedy the default.
10.6. Reporting Damages A condition for filing any claim for damages is that the User reports the damage to Fizzy in writing as soon as possible and not later than 10 (ten) days after the damage occurred. Claims for damages against Fizzy shall lapse six (6) months after the damage occurred.
10.7. Indemnification The User shall release, defend, indemnify, and hold harmless Fizzy and its affiliates from any claims, liabilities, damages, losses, expenses, or costs arising from or related to the User's use of the Platform, User Content, violation of these Terms, or violation of any law, regulations, or third-party rights.
10.8. Third-Party Websites and Resources The Platform may contain links to third-party websites or resources. Fizzy is not responsible or liable for the availability, accuracy, content, products, or services on such websites or resources. Links to third-party websites or resources do not imply endorsement by Fizzy.
10.9. Responsibility for Alcohol Consumption Fizzy does not accept liability for alcohol consumption by the User. Each User is responsible for ensuring compliance with the law, and each Partner is responsible for ensuring that marketing communications directed towards Users comply with relevant regulations.
11. Applicable Law, Dispute Resolution, and Other Terms
11.1. Governing Law and Jurisdiction These Terms shall be governed by and construed in accordance with the laws of Germany, excluding its conflict of law provisions. Any dispute, controversy, or claim arising out of or in connection with these Terms, including any question regarding their existence, validity, or termination, shall be exclusively submitted to the courts of Frankfurt am Main, Germany, unless mandatory legal provisions stipulate otherwise.
11.2. Alternative Dispute Resolution If any disputes arise from or in connection with these Terms, the parties shall first attempt to settle such disputes amicably through good-faith negotiations. Should no resolution be reached within a reasonable period, the dispute shall be finally resolved by arbitration in Frankfurt am Main, Germany, in accordance with the German Arbitration Act (Deutsche Institution für Schiedsgerichtsbarkeit e.V. - DIS) and its rules. The language of the arbitration shall be German. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the DIS Arbitration Rules. The arbitral award shall be final and binding on both parties. Each party shall bear its own costs of arbitration, unless the arbitral tribunal determines otherwise.
11.3. Severability If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
11.4. Waiver Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
11.5. Open-Source Software The App contains certain open-source software. Each item of open-source software is subject to its own applicable license terms.
11.6. Interpretation Any use of the plural in these Terms shall imply use of the singular and vice versa, as the context demands.
12. Entire Agreement
12.1. Entire Agreement These Terms (including the “Supplemental Terms – App Stores” below) constitute the whole legal agreement between you and Fizzy and govern your use of the Services, and completely replace any prior agreements between you and Fizzy made in relation to the Services.
12.2. Language of Agreement The Terms shall be made in English Language. If required under the relevant local law, the Terms shall be made in both the English Language and in the local language. Both texts are equally original. In case of any inconsistency or different interpretation between both texts, the local language shall be deemed to be automatically amended to conform with and to make it consistent with the relevant English text.
13. Other Terms
13.1. No Waiver Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
13.2. Severability If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
11.4. Compliance with German Law These Terms shall be construed and interpreted in accordance with the laws of Germany. Any disputes arising out of or in connection with these Terms shall be subject to the exclusive jurisdiction of the courts of Germany.
11.5. Contact You can contact us at
FizzyFesta UG
Londoner str 3, 60327 Frankfurt am Main, Germany
info@fizzyfesta.com
if you have any questions.
Supplemental Terms for Specific Devices
Google Play These supplemental terms apply as between FizzyFesta and you. Google, Inc. or its affiliates (“Google”) is not a party to these terms. By downloading the App from Google Play (or its successors) operated by Google, you acknowledge and agree that:
In case of any conflict between the Google Play Terms of Services and the other terms and conditions in these Terms, the Google Play Terms shall apply regarding your use of the App downloaded from Google Play.
You acknowledge that Google bears no responsibility or liability related to compliance or non-compliance by Fizzy or you under these Terms or the Google Play Terms.
Apple Store These supplemental terms apply as between Fizzy and you. Apple Inc. (“Apple”) is not a party to these terms. By downloading the App from the Apple Store (or its successors) operated by Apple, you acknowledge and agree that:
The license granted to you is limited to a personal, non-commercial use right to install the App on Apple device(s) authorized by Apple that you own or control, subject to Apple’s App Store Terms of Services.
Apple is not responsible for the App or its content and has no obligation to provide maintenance or support services for the App.
Apple is not liable for any claims relating to the App or its use, including product liability claims, non-conformity to legal requirements, or intellectual property infringement claims by third parties.
Apple and its subsidiaries are third-party beneficiaries of these Terms and have the right to enforce these Terms against you.
FizzyFesta authorizes access to and use of the App by multiple users through Family Sharing or similar functionality provided by Apple.