General Terms and Conditions for www.encontrospicantes.com
Last edition – April 30th 2015
ATTENTION: No person under the age of 18 is permitted to visit this website or use the www.encontrospicantes.com Service.
The following General Terms and Conditions (hereinafter “GTC”) define the terms under which the www.encontrospicantes.com Service (hereinafter “the Service”) operated by Tyche Technologies AG a Swiss company, Reg Nr. CHE-420.114.703, under the brand name Dating Factory (hereinafter "us” “we” or “our" or “Dating Factory” or “Dating Factory Network”) shall be used. Please read these GTC carefully. By registering with the Service you recognize that you have read and accept the GTC. The GTC are an integral part of your contract. Differing terms and conditions are not accepted.
1.1 The Service can only be used after you have registered. Registration is free. You thereby enter into a non-fee based contractual relationship with us, which is governed by these GTC.
1.2 We also offer more extensive services under a subscription which is fee-based, if you wish to communicate with other members and use the Service in full. We always notify you accordingly before you use any fee-based services, indicating which fees are applicable and the respective amount. You choose how long you want to subscribe to the service for. The subscription period paid for by you shall extend automatically for a period equal to the original subscription unless cancelled by you. You can use the fee-based services after paying the appropriate fee.
1.3 Your membership is intended only for your personal use. You are not allowed to authorize others to use your membership or your account on www.encontrospicantes.com. That means you’re not allowed to share your access data with any third party or forward your access data to any third party. We offer the Service exclusively for private purposes. By registering, you undertake to use this Service exclusively for private purposes and not for commercial ones.
2. Registration and Service Use
2.1 The Service can only be used once registration has taken place.
2.2 By registering, you agree to these GTC and warrant that you are of age, i.e. at least 18 years old.
2.3 Services accessed over mobile devices might be restricted and not all features may be available. Only a limited selection of payment methods subscriptions may be offered.
2.4 You must ensure the truthfulness of the details given during the registration and later during purchase and payment.
2.5 We reserve the right to block your access to the Service if you use the Service in a manner that is illegal or breaches the obligations laid out in these GTC. However, blockage of access for the above reasons shall have no effect on your obligation to pay for the service purchased. In such an event, any amount up to 295 CHF already paid to us will not be refunded but retained as a penalty. We also reserve the express right to demand a flat-rate penalty of up to 295 CHF from you if you have paid no amount or an amount lower than 295 CHF. This will not prevent the assertion of any claims for greater losses actually incurred.
3. Conditions of Use
3.1 You are responsible for all details you provide. You must ensure that the details you provide are truthful and describe you personally. You undertake to refrain from willfully presenting data from third parties as yours. Willfully false details or details made with fraudulent intentions, in particular providing the bank or credit card details of a third party without their consent, will carry legal consequences.
3.2. You undertake to keep the details provided to us up to date, in particular your contact details and payment information.
3.3. You are solely responsible for the content that you publish or display on the service, or transmit to other members, and by posting content to any public area of the service, you automatically grant, and you guarantee that you have the right to grant, to us an irrevocable, perpetual, non-exclusive, worldwide license to use such information and content, and to grant and authorize sublicensing of this content. We reserve the right to use content from profiles, including the member username, photos and videos, for featuring them in promotional material. www.encontrospicantes.com has joined the Dating Factory network which pools resources and members of several websites to provide you with a larger selection of members to communicate with. Any content you post may be visible on other sites on the network.
3.4. We do not verify the accuracy or truth of any information published by members. Whilst we are entitled, but not obliged, to investigate the content of profiles, including uploaded images, for compliance with the law in general, with these GTC and with the rules specified by us on the relevant web pages and, if necessary, to reject, modify or even delete the content in question. By using this service you accept that any member profiles, messages and communication may not be genuine and the service is for entertainment purposes only.
3.5. You undertake to furnish no information that you are not explicitly requested to provide. In particular, this applies to names, residential addresses, e-mail addresses, web addresses, telephone numbers and fax numbers.
3.6. You undertake to treat other customers’ data (in particular names, residential addresses, e-mail addresses, web addresses, telephone numbers and fax numbers), e-mails and other forms of correspondence that you obtain in connection with your use of the Service with confidentiality; you also undertake to refrain from making these accessible to third parties without the consent of their originator. It is also forbidden to pass on the data of non-customers as part of the Service.
3.7. You warrant that you have no commercial intentions and will refrain from using the information entrusted to you for commercial purposes or purposes that breach the contract. You undertake to send messages to other customers for no purpose other than that of personal communication and in particular not for the purposes of advertising or tendering goods or services. You also undertake to refrain from sending "chain mail" or similar.
3.8. You shall not misuse us and in particular shall refrain from using the Service in order to
- distribute defamatory, objectionable or otherwise illegal material (e.g. but not limited to material that infringes third party personality rights such as photos of third parties);
- threaten or harass others and/or violate their rights;
- to pledge or demand money or payment in kind.
3.9. You also undertake
- not to upload any data containing a virus (infected software) to the Service;
- not to upload any data to the Service containing software or other material that are copyright protected or protected by other commercial property rights unless you are the owner of the rights in question or have obtained the consent necessary to use the software or materials from the holder of the rights;
- not to use the Service in such a way that the availability of the Service to other customers are negatively affected;
- not to intercept e-mails or make any attempt to do so.
3.10. If you do not comply with any one of the obligations set out in the paragraphs above, this may lead to us terminating the contractual relationship and access to the Service being immediately blocked. Any pecuniary claim by us against you remains unaffected by this. Furthermore, we reserve the right to initiate civil or criminal proceedings against you.
3.11. If you use the Service in conjunction with business interests or use the details and data entrusted to you for commercial purposes, you shall be obligated to pay a contractual penalty of 10,000 CHF for each proven contravention or the highest amount permitted by law, without prejudice to any claim for damages.
3.12. You undertake to hold us harmless against all proceedings, loss, demands or claims for damages that may arise during your registration for and use of the Service. In particular, you shall indemnify us against any liability and all obligations, expenses and claims resulting from losses due to malicious gossip, insult, defamation and violations of personality rights by other customers, due to non-provision of services for customers or due to the violation of intellectual property rights or other rights by you. Furthermore, you shall indemnify us against all liability and claims arising from a breach of these GTC by you.
3.13. You are expected to open and respond to the messages that you receive at regular and appropriate intervals and, if necessary, file these on your own computer or another storage medium.
3.14. All incoming messages of users of the free service are stored in the internal mailbox on the site for 30 days. All incoming messages for paying subscribers are stored in your internal mailbox on the site for 3 months. We reserve the right to review and delete any messages, comments, photos, video and whole profiles (the "content") that in our sole judgement violate these Terms or may be offensive, illegal, or that might violate the rights or put in danger safety of other members.
3.15. We are entitled to delete your profile if have not used the free Service for more than six (6) months from the database, even without consultation or notice. On the one hand, this measure helps to protect your data as, after this period has elapsed, we will be forced to assume that you are no longer interested in the storage of your data; on the other hand, the measure serves to keep the database free of inactive customers, thereby improving the service offered by us.
3.16. In order to use the www.encontrospicantes.com chat program you need to have Adobe Flash Player installed.
4. SPECIAL CONDITIONS FOR EU CUSTOMERS: Right of withdrawal
Information concerning the exercise of the right of withdrawal
Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right of withdrawal, you must inform us Dating Factory, Customer Service, The Exchange, Bristol Road, Bridgewater, Somerset, TA6 4RR, United Kingdom, (Fax: +44(0)1278501112, E-mail: email@example.com), of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, or any other format of written refund request that clearly states your email address, name of the website, date of payment. Refund request has to have your full name and signature. We may request any valid form of ID for additional verification.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from you choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for your initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of contract.
Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
— To Dating Factory, Customer Service, The Exchange, Express Park, Bristol Road, Bridgewater, Somerset, TA6 4RR, United Kingdom:
— I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
— Ordered on (*)/received on (*): __________________________
— Name of consumer (s): __________________________
— Address of consumer(s): __________________________
— Signature of consumer(s) (only if this form is notified on paper): __________________________
(*) Delete as appropriate
Please Note: To help us with identifying you and processing your withdrawal quickly, please notify us about the following details combined with your withdrawal notice:
-your email address with which you signed up and
-which of our platforms you want to withdraw from
5. Termination; Extension of the contract; Cessation of the service
When discussing termination, a strict distinction must be drawn between the free contractual relationship that comes into existence upon registration and the paid contractual relationship that comes into existence upon purchase of a paid service.
You are entitled to terminate the free contractual relationship with us at any time without stating your grounds for doing so.
We are entitled to terminate the existing free contractual relationship with you following a 14-day notice period. The right to terminate for good cause or to block you remains unaffected by this.
The paid contractual relationship must be terminated at least 14 calendar days before the respective duration of the contract expires or, if another period was specified upon purchase of the paid access, within the specified period. The termination of the paid contractual services is only effective if it takes place by means of an explicit, written declaration. To aid clear assignment and to protect against misuse, you must always specify your registration details as an absolute necessity.
Note: A paid contractual agreement cannot be terminated simply by deleting the profile. If you have purchased a paid service and delete your profile, the paid contractual relationship shall remain unaffected by this. If a service has been paid for but not used and you delete your profile, you are merely refusing to use the service. This means that you will receive no refund for the payment already made. As described above, the written form is always an absolute necessity for the termination of a paid contractual relationship.
Please send the written termination via letter or fax to:
THE EXCHANGE, EXPRESS PARK
5.2 Extension of the contract
The contract relating to a paid service is automatically extended by a period of time specified upon purchase provided that you do not terminate your contract in writing at least 14 calendar days before the respective contract duration expires, or, if another period was specified upon purchase of the paid access, within the specified period, giving your full registration details.
The rule may be deviated from in the case of trial subscriptions, advertising campaigns and similar. For these too, you are informed of the duration of the trial subscription, the option to terminate and the automatic extension that occurs failing exercise of this option in each case.
When purchasing a paid service, you are informed, upon receipt of the order confirmation, of the relevant duration, the start date of the contract and the duration of the extension applicable if no termination is made on time. You will be sent payment confirmation e-mail, which contains your payment reference. You must keep a copy of this information as this may be required if you wish to cancel your payment agreement.
For trial offers your subscription will renew automatically based on the period equal to the first full subscription agreed upon after the trial and will continue to be renewed unless cancelled or suspended by you. Subscriptions will be billed periodically on the same day of the month as the first payment unless the transaction is not successful, in which case it will be tried again at a later date. The subscription fees for the service may be changed by www.encontrospicantes.com at any time (e.g. due to VAT changes, etc.) with effect to the next renewal period. We’ll inform you about the changed renewal price and your extraordinary right for termination if you disagree with the new price. If you are unhappy with any subscription fee changes you may terminate your membership by sending us the signed service suspension request form.
Discounted subscription fees for special offers apply only to the initial payment. Further recurring payments will be charged at normal published prices unless specified in the said offer.
5.3 Cessation of the service
We are entitled to cease providing the services offered in full or in part. We will inform you of the planned cessation and its scope ahead of time, at least 14 days before the full or partial cessation of the services. If you have paid for, but not yet fully exhausted an entitlement to the Service at the time of the cessation, you will receive a pro-rated refund for this non-exhausted entitlement.
6. Information on data
6.1 In the running of its services, we undertake to comply with legal provisions pertaining to data protection.
6.2 You acknowledge and agree that all content uploaded by you to the Service is available for all customers within the Dating Factory database. This is applicable regardless of the matter that other customers may have registered for the services provided by or us via other websites in the Dating Factory Network or us or via other cooperation partners. Reciprocally you also enjoy the benefits of this central Dating Factory database for the Services provided which are available via different domains, due to the broader database available for you.
6.3 Your profile and its contents may be searchable by, and you may be able to search for the profiles and their contents of members registered to other websites operated and powered by us, for example, co-branded or privately labeled. Your profile and its contents may be searchable by third-party search engines, for example Google, MSN, etc.
6.4 To improve your chances of success www.encontrospicantes.com provides you with a free icebreaker messaging service. This feature ensures your profile gets maximum visibility as your matches are automatically sent a personal icebreaker message on your behalf.
6.5 In the course of serving ads to this site and you using some part of the web-site, us or our third-party advertiser may place or recognize a unique cookie on your browser. Cookies are a normal part of internet operations and are also used by www.encontrospicantes.com to safely identify you each time you login and use the site and to keep your session active when you don’t use the website for some time. Any information that us or third parties collect via cookies and marketing campaigns tracking software is totally anonymous. By registering on this website you agree to allow the placement of these cookies. For more information on the types of cookie we use on the sites please visit our cookie information page.
7. Rights of use and copyright
All rights to programs, services, processes, software, technologies, brands, trade names, inventions and materials that belong to us shall remain exclusively ours. We are the owner of all rights of use for the above-mentioned rights. The use of all programs and the content, materials, brands and trade names contained therein are only permissible for the purposes specified in these GTC. Any reproduction of the programs, services, processes, software, technologies, brands, trade names, inventions and materials belonging to us are not permissible unless expressly authorized by us.
8.1 Direct contact is only established between our customers following mutual agreement. We are therefore not liable in the event that no such contact is established within the duration of the agreement. However, we endeavor to mediate contact between our customers by providing the technological means to this end.
8.2 We are not liable for the misuse of data and information as the possibility exists, despite its explicit prohibition, that you may use the Service in an improper or illegal manner. Furthermore, we are not liable in the event that information made accessible to a third party by you is misused by this third party.
8.3 We make no guarantee that the service will operate properly at all times, i.e. that it will be constantly available without interruption. In particular, we are not liable for faults in technical equipment or in the quality of access to the service due to force majeure or events beyond the control of us (e.g. failure of communication networks).
8.4 We are not liable for unauthorized attainment of your personal information by third parties, e.g. in the form of access to the database by hackers.
8.5 For other losses that occur due to causes other than those stated above, we shall only be liable in cases of intent and gross negligence on the part of its executive bodies, employees and vicarious agents, and this liability are proportionate to other causes contributing to the loss.
8.6 In the event of injury to life, body or health or in the case that we have breached material contractual obligations we are also liable for slight negligence. Liability in the latter case is limited to foreseeable, direct losses typical to this type of contractual relationship.
8.7 Liability is otherwise excluded.
9.1 Any objections to the amount charged or billed and must be raised and justified in writing to Dating Factory within six (6) weeks of the queried charge being made or the invoice being received. If you do not raise any justified objections within this 6-week period, the charged or invoiced costs shall be deemed as approved. For the avoidance of doubt, non-usage of the service, if the service has been available, is not a justified objection.
If a justified objection is raised, the legitimate account claimed will be reimbursed to you or, optionally, you will be offered an extension of the paid service. This extension will be for the period for which you raised the justified objection.
You also have the right to set us a grace period of five working days for proper performance. If the cause of the complaint is not resolved by the end of this grace period, you have the right to terminate the contract.
Mere immaterial interference to the service does not entitle you to a complaint. An immaterial interference to a paid service occurs when the period during which you are unable to use the paid service does not exceed two consecutive days.
You can only offset or assert a right of retention on the basis of your own claim against us if this claim is legally established, uncontested or recognized.
9.2 In cases of non-payment or a default on payment by you, we reserve the right to commission a debt collection agency and demand that you pay your fees. We also reserve the right to levy interest for arrears in an amount based upon legal provisions.
We reserve the right to demand that you pay the expenses arising from the unauthorized cancellation of a credit card payment or an unjustified objection to a direct debit payment to the extent possible under law.
10. Disputes resolution
To resolve a complaint regarding the service or the website, you should contact www.encontrospicantes.com customer support team using the Contact us form on the www.encontrospicantes.com website.
11.1 Except as expressly provided in the written form, the information on our payment page (s) in case you purchase paid services and these GTC constitute the entire agreement between us and you with respect to website and Service use.
11.2 The registration and subscription are personal to you. You will not assign, transfer or charge your rights and responsibilities under your registration and subscription.
11.3 We are authorized to commission third-party service providers and vicarious agents with the rendering of parts of or the entire spectrum of the Services provided that this does not give rise to any disadvantages for you.
11.4 Should individual provisions of these GTC’s or the contract become void or incomplete, the validity of the remaining provisions of the GTC’s or contract shall in no way be affected. As far as provisions do not become part of the contract or are invalid, the content of the contract shall be governed by applicable legal provisions.
11.5 The construction, validity and performance of these GTC’s will be governed in all respects by the laws of Switzerland and you agree that any dispute arising under these GTC or the contract will be subject to the non-exclusive jurisdiction of the Swiss courts, unless otherwise determined by mandatory law.
11.6 All correspondence in respect of memberships or subscriptions only be addressed to:
THE EXCHANGE, EXPRESS PARK
The Dating Factory Network, the www.encontrospicantes.com website and the Service are provided by Tyche Technologies AG, Reg. No. CHE-420.114.703, Switzerland. (Please address all correspondence to customer support. Correspondence to the Swiss office will be forward to the customer support department with the corresponding delays, or returned unopened to sender.)
These T&C have been translated for your convenience, If there is any discrepancy between this version and the original German version the German version shall apply.