Terms & Conditions

1 October 2008

"MOOZEY" refers to the services provided subject to these General Terms and Conditions and/or ALK Solutions GmbH.

1 General – Scope of Application

1.1 Scope of Application

MOOZEY provides services under the top-level domain name moozey.com (hereinafter called "MOOZEY Website").

The following General Terms and Conditions (hereinafter called "GTC") apply to any business relationship between MOOZEY and any party to the contract (hereinafter called "User") with MOOZEY. By registering as User with the MOOZEY Website, you accept the following Terms and Conditions of Use.

These GTC govern the contractual relationship between User and MOOZEY. The service offer by MOOZEY is provided solely to persons of legal age.

The customer may at anytime, even after conclusion of the contract, retrieve, print, download, and save these GTC at the link "Terms & Conditions" found on the MOOZEY Website.

1.2 Exclusive Applicability of MOOZEY’s GTC

These GTC shall apply exclusively. Any terms and conditions by Users, which are in contradiction or deviating from these GTC, are not applicable, unless MOOZEY has confirmed their applicability in writing. These GTC shall also apply, if MOOZEY, aware of User terms and conditions in contradiction or deviating from these GTC, unconditionally accepts the offer to conclude a contract.

1.3 Availability of MOOZEY

The User acknowledges that a 100 (hundred) % availability of services provided by MOOZEY cannot technically be realized. MOOZEY, however, tries its best to provide continuous availability of its services. In particular, maintenance, security, or capacity concerns as well as any events beyond MOOZEY’s control (such as malfunctions of public communication networks, power outages, etc.) may lead to short-term malfunctions or unavailability of the services.

2 Scope of Services

2.1 Subject

The MOOZEY Website offers registered Users the possibility to create and implement marketing campaigns via mobile web and short message service (hereinafter called “SMS”).

2.2 User Responsibility for Third Party Contracts

MOOZEY does not itself provide mobile marketing campaigns and solely provides Users with a platform to organize such campaigns. MOOZEY provides technical applications, which allow general communication with mobile phone owners. MOOZEY does not take part in the content of this communication. The User is solely responsible to fulfill User’s obligations under contracts concluded with mobile phone owners. MOOZEY shall not be liable, if no contact can be established between User and mobile phone owner in connection with such contract using the MOOZEY Website. In addition, MOOZEY is not liable for Users or mobile phone owners breach of obligation arising under the contract concluded by Users and mobile phone owners.

2.3 Additional Services

MOOZEY reserves the right to charge additional fees for certain services. If the User is using one of the commercial membership plans, the User thereby accepts all related charges by clicking on the confirmation field associated with that particular plan. This action concludes a contract between MOOZEY and the User, thereby enabling the User to utilize that membership plan. The billing cycle for one membership plan is one month.

2.4 Obligation to Consent

Any and all use of the services and contents offered on the MOOZEY Website, which are beyond the services provided, require MOOZEY’s prior written consent.

2.5 Illegal Content

MOOZEY provides User content by mobile web and/or SMS only for as long as the content does not violate legal provisions or these GTC. MOOZEY is entitled to remove any illegal content from the MOOZEY Website without prior notification.

3 Conclusion of Contract, Registration, Confirmations During Registration

3.1 Conclusion of Contract

The contract between MOOZEY and the User is concluded during User’s online registration at the MOOZEY Website using the registration form and at the time, this registration is confirmed.

3.2 Acceptance of These GTC

To use MOOZEY, acceptance of these Terms and Conditions of Use, which become effective October 1, 2008, is required. These Terms and Condition of Use apply also, if Users access the MOOZEY Website or areas thereof from other websites, whenever those other websites provide complete or partial access via hyperlinks to the MOOZEY Website. Any conditions other than these Terms and Conditions of Use apply only and only then, when MOOZEY confirmed it in writing.

3.3 Personal Registration

The User has to register personally. It is expressly prohibited that a third party registers, in particular those third parties who register for individual persons on a commercial basis at various tele-service providers (registration services and/or enrollment services).

3.4 Password

During registration, the User selects a password. The User must protect the password. MOOZEY will not disclose the password to third parties. At no time will MOOZEY ever ask User for User’s password.

3.5 User Profile

Each User may only register once and only create one User profile.

3.6 User Identity

MOOZEY can technically not determine that a registered User for the MOOZEY Website is in fact that person the User professes to be. MOOZEY thus does not guarantee factual identity of a User.

3.7 Non-transferability of Membership

This membership may not be transferred to third parties.

4 Obligations of the Contractual Party as User of MOOZEY

4.1 Customer’s Duty to Inform

Prior to using the services of MOOZEY, the User informs him-/herself about the current General Terms and Conditions and the current membership plans of MOOZEY, which are described on the MOOZEY Website.

4.2 User Liability and Indemnification of MOOZEY

The User will indemnify MOOZEY from any and all third party claims against MOOZEY, because of any violation of that third party’s right arising out of offers and/or contents provided by the member. The User shall cover all costs relating to MOOZEY’s defense of aforementioned claims including, but not limited to all court costs and attorney fees.

4.3 The User is obligated to

Provide only truthful and not misleading statements in User’s account information and User does not use any pseudonyms or pen names. The User must promptly inform MOOZEY about any changes to User’s information. The User may not use any pseudonyms or pen names.
Observe all applicable law, while using the contents and services provided by MOOZEY. In particular, it is prohibited to distribute any contents, which are harmful to minors, violate any laws for the protection of minors, contents such as child pornography or contents, which are extremist in nature, or offensive, slanderous, and/or racist. Furthermore, it is prohibited to distribute spam, use viral attacks, chain letters, and misuse the services provided by MOOZEY to attack the security precautions taken by a foreign network, hosts, or accounts.
In particular, the User may not use legally (e. g. by copyright, trademark, patent, or registered designs) protected contents without being expressly authorized to do so, or purchase, offer, or sell goods or services protected by law and conduct or promote any other anti-competitive activities including aggressive customer procurement (such as chain, snowball, or pyramid schemes).
The User is prohibited from using any mechanisms, software, or scripts in connection with the MOOZEY Website. The User may use, however, any interfaces or software, which is provided to the User within the scope of services offered by MOOZEY on the MOOZEY Website.
It is prohibited to use any activity, which is suitable to affect, especially overburden the system function of MOOZEY’s infrastructure.

5 Membership Plans, Invoices, Billing Cycle

5.1

Detailed information about any costs relating to membership plans according to section 2.3 of these GTC are stated on the MOOZEY Website under "Membership Plans". The fees stated there are binding. Any fees for memberhsip plans are payable and due for the entire period of the contract immediately upon payment. The User may pay his invoice by using bank debit or specifically accepted credit cards, or other online payment options, which are offered. Depending on the payment method chosen, MOOZEY is authorized to draft or rather debit any fees due.

5.2

If the funds cannot be debited, the User is responsible for any costs arising therefrom, specifically any bank charges in connection with debits returned unpaid and similar fees to the extent that these events were caused by the User. MOOZEY may send User any invoices in connection with membership plan fees by email. MOOZEY agrees to keep those invoices for download in the area "Billing Summary" for one (1) year counted from the date of the invoice.

6 Duration of Contract, Contract Termination

6.1 Minimum Contract Duration

The minimum contract duration of a membership plan is one month.

If the contract is not terminated, then the contract period automatically renews itself for an additional month.

6.2 Termination of Contract by User

The User may terminate the use of MOOZEY at any time and without stating any reason. The contract can be terminated through a link at the MOOZEY Website, which can be accessed in the area "Account Cancellation". The User must state the User’s registered password at the MOOZEY Website, when cancelling the contract. Subsequently, the contract is terminated immediately after receipt of the termination notice.

MOOZEY do not offer refunds for the membership plan’s unused time.

6.3 Termination Without Notice by MOOZEY for a Significant Reason

If there is a significant reason, MOOZEY may terminate the membership contract at any time and without notice following legal provisions. A significant reason is present, if it can be concluded after considering all circumstances and interests of MOOZEY and User that a continuation of the contract until termination date would be unreasonable.

6.4 Significant Reasons According to Section 6.3

Significant reasons are in particular, the following events:

The User violates legal rules and regulations.
The User violates the User’s obligation under this contract, in particular section 3 and 4 of these General Terms and Conditions of Use.
The reputation of services offered by MOOZEY on its website faces great harm by the User’s presence (e.g. if after registration, if becomes known that the User has been convicted of any premeditated crime).
The User advertises for associations or organizations or their methods or activities, which are under observation by law enforcement agency for the purpose of protecting the security and the protection of minors.

This list of significant reasons according to section 6.3 is not limited to those specified herein.

6.5 Sanctions

If there is a significant reason according to sections 6.3 and 6.4, MOOZEY may impose sanctions on the User without terminating the contract without notice.

MOOZEY may delete contents, which the User has created.

MOOZEY may send cease-and-desist letters or block access to its services.

The right to terminate without notice remains unaffected by the sanctions stated herein.

7 Responsibility for Content, Data, and/or Customer Information

7.1

MOOZEY is not responsible for any content, data and/or information provided by Users of the MOOZEY Website, and MOOZEY is not responsible for any contents on external websites accessible via links. In particular, MOOZEY does not guarantee the truth of those contents, that those contents fulfill a special purpose, or may serve such a purpose.

7.2

If a mobile phone owner or a User of MOOZEY notices an illegal activity or any use contrary to the contract, he/she/it may report such event by using the contact form on the MOOZEY Website. This contact form may be accessed from any page on those websites.

8 MOOZEY’s Liability

8.1 Limited Liability for Services Provided by MOOZEY

MOOZEY is liable for User’s damage claims arising under the contract and outside the contract only, if MOOZEY acted willfully or was gross negligent. If significant contractual duties are violated (so-called cardinal duties), in case of debtor’s default and MOOZEY’s impossibility of services, MOOZEY is also liable for any breach of duty, which is the fault of its employees and agents.

8.2 Limited Liability for Reasonably Foreseeable Damages.

MOOZEY’s liability is limited to any damages, which typically are reasonably foreseeable at the time of conclusion of contract, unless MOOZEY acted willfully/was gross negligent and its legal representatives, employees, and agents acted with gross negligence.

8.3 Liability of Legal Representatives, Employees, or Agents

Whenever MOOZEY’s liability is excluded or limited, it shall also apply to the liability of MOOZEY’s legal representatives, employees, or agents.

8.4 Non-applicability of Limited Liability in Certain Cases

The aforementioned limitations of liability do not apply to any injuries to life, body, or health, as well as in case of mandatory legal regulations such as the Product Liability Act.

8.5 Liability for Services/Third Party Contents

In individual cases, MOOZEY directs mobile phone owners via hyperlinks (“Links“) to external mobile web pages. The Users themselves are responsible for the content of these external mobile web pages. MOOZEY neither guarantees, nor is liable for any contents of these mobile web pages.

If MOOZEY discovers or is informed by others that there is a concrete reference to external contents, which were linked, but those contents could potentially lead to a civil or criminal liability, then MOOZEY expressly distances itself from any such content and will stop linking to the same.

8.6 No Liability for Lost Income

Any liability for User’s and/or its contractual partner’s loss of earnings is excluded.

9 Data Protection

MOOZEY is authorized to collect, process, and use any information received from mobile phone owners and such information provided during the use of a service according to legal regulations and for as long as it is necessary to provide proper service and fulfill the terms of this contract. The services are provided by a User of the MOOZEY Website and within the legal framework, MOOZEY is entitled and obligated to transmit the information entered by the mobile phone owner to the extend necessary to fulfill the contract and for billing purposes to the service provider (the corresponding User of the MOOZEY Website). This information is specifically the mobile phone number, e-mail address, first name, last name, address, and type of mobile phone as well as time, place of using this service.

MOOZEY does not transmit without express consent by User any inventory data, connection- or content data to third parties, unless MOOZEY is authorized or obligated by law.

10 Final Clause

10.1 Written Form

The contract and any changes thereof including this clause must be done in writing. There are no other agreements.

10.2 Changes to the GTC; User’s Right to Object

MOOZEY reserves itself the right to change these General Terms and Conditions of Use at any time and without stating any reasons, except it is not just and reasonable for the User. MOOZEY shall notify the User of any changes to these General Terms and Conditions of Use in a timely manner. If the User does not object to the validity of these new General Terms and Conditions within two (2) weeks after notification, then these changes to the General Terms and Conditions of Use are deemed accepted by User. Receipt of notification is presumed. In this notification, MOOZEY shall inform the User about the right to object and the significance of the objection term as well as the consequences of an omitted objection.

10.3 Transmission by Email, Fax, Letter

If not otherwise agreed upon, the User may send all information to MOOZEY by email, by fax, or by mail using the contact form, which is available on every one of the web pages on MOOZEY Websites. MOOZEY can transmit any information to the User by e-mail, fax, or mail to the address, which the User has provided as current account information in the User account.

10.4 Supplemental Terms and Conditions

If individual conditions of these General Terms and Conditions are invalid or become unenforceable, the validity of the remaining conditions is hereby unaffected. The Parties to the contract agree to replace any condition, which becomes invalid with a valid condition, which in its regulatory content comes as close as possible to the economically desired meaning and purpose of the invalid condition. The same shall apply to contractual loopholes.

10.5 Place of Performance and Jurisdiction

The place of performance under these GTC and, if permissible by law, the place of jurisdiction is MOOZEY's main place of business.

10.6 Applicable Law

German law applies. The UN Convention on Contracts for the International Sale of Goods (CISG) and the Conflicts of Law in International Private Law are hereby excluded.