Terms and Conditions

of ViralSpoon GmbH, Baseler Platz 6, 60329 Frankfurt am Main, Germany

These General Terms and Conditions (“Terms”) apply to the services of ViralSpoon GmbH (also referred to as “we” or “ViralSpoon”) provided to customers (hereinafter “Customer” or “You”). The Customer's own general terms and conditions do not apply unless we expressly agree to their application. Our services and these Terms are directed exclusively at business entities within the meaning of § 14 of the German Civil Code (BGB) as well as legal entities under public law and special funds under public law, and not at consumers (§ 13 BGB).

Preamble

If you have entered into a license agreement with us for the provision of services, or if you have placed an order through our order process followed by an order confirmation (collectively referred to hereinafter as the “Agreement” or “License Agreement”), you acquire the following services and rights, subject to any specific agreements in the License Agreement, the offer, or your order.

1. Subject Matter of the Agreement

(1) ViralSpoon offers a fully comprehensive, cross-platform, AI-powered software for automating your social media management — from planning to posting your content (collectively hereinafter also referred to as “Services”).

(2) Our services under the License Agreement for ViralSpoon may include the components listed below. An overview of our services is provided in the service description, available in its current version on our website at https://viralspoon.de/features or set out in the Agreement. The specific service components we provide to you under the contractual relationship are set out in the License Agreement, the offer, or your order.

(3) Should we process personal data on your behalf as part of the contractual relationship, this processing takes place on the basis of the data processing agreement pursuant to Art. 28 GDPR (“DPA”), which takes effect immediately upon the Agreement becoming effective. The applicable DPA is attached to the License Agreement as an appendix.

a. Software / SaaS Services

(1) ViralSpoon and the processes carried out through ViralSpoon constitute a “Software-as-a-Service” (“SaaS”) solution (hereinafter also referred to as “Software” or “SaaS Services”), accessible directly via a web browser. Please familiarize yourself in advance with the technical requirements for the successful use of our software on our website at https://viralspoon.de/features

(2) The core features include

• AI-powered, automated planning of posts, content, stories, reels, etc.
• AI-powered, automated creation of content (in particular text and image material) for posts, content, stories, reels, etc.
• AI-powered, automated publishing of posts, content, stories, reels, etc.

An overview of our entire service portfolio is provided in the service description, available in its current version on our website at https://viralspoon.de/features.

(3) The specific service components we provide under the contractual relationship with you are set out in the License Agreement, your order, or the order/booking confirmation.

(4) We provide our SaaS Services under a “subscription model,” which legally constitutes a rental arrangement for the duration of our contractual relationship.

b. Consulting Services

In addition to the SaaS Services, we offer consulting services (including project-based services), such as workshops, customizing, or advisory services in connection with the use of our software. If, for example, you would like individual support in using our software, this can be arranged through a separate agreement on the scope of services and remuneration. For consulting services, our effort is billed based on the person-days or hours incurred.

c. Web & Server Hosting

(1) In connection with our SaaS Services, we also provide web and server hosting services. Our web and server hosting services include, in particular, making an IT environment available for our software. The IT environment is set up on one or more servers. These servers are located locally with us or in rented data centers. They may also consist of virtual private servers or be rented from professional hosting providers.

(2) As part of our web and server hosting services, we provide you with storage space in the size you have booked on our server for storing your data.

(3) We further ensure that your stored data is retrievable via the internet. You remain the sole rights holder of the data and may request its release at any time. You are not entitled to make your storage space available to any third party for their use.

d. Support Services

(1) In connection with our SaaS Services, we also offer supplementary support services. These support services consist in particular of applying security updates and the ongoing further development of our services.

(2) We further guarantee direct availability for urgent assistance in support cases

(3) You can reach us as follows:

Email support at info@viralspoon.de

2. Remuneration for Our Services

(1) Our services can be booked under the terms of the selected pricing model or under the terms of the offer created individually for you.

(2) We generally bill our consulting services based on effort.

(3) All remuneration is stated exclusive of statutory VAT applicable at the time and place the service is rendered. We are entitled to collect all remuneration through payment service providers. Should we do so, you must also observe the terms and conditions of these payment service providers when using them. We do not charge you a separate fee for any of the payment service providers.

(4) Remuneration for the services we provide is generally payable by you in advance for the respective contract month. We are also entitled to invoice you for the respective remuneration up to 12 months in advance. Where our remuneration takes the form of a commission or other usage-based fee, we are entitled to invoice you monthly in arrears for the commission or remuneration incurred in the preceding month.

(5) Our invoices become due upon receipt by you and are payable without deduction within 14 calendar days to the account specified in the invoice.

(6) We have the right to increase or decrease our prices if the prices of our service providers change, if this is necessary to offset inflationary price changes, if the consumer price index changes accordingly, or in the event that we wish to price our business model differently. You will, of course, be notified of price changes in good time in advance so that you can accept or reject them. Should you not agree to a price change, we will attempt to find a solution through joint discussions. Should no solution be found, either party has the right to terminate this Agreement with one (1) month's notice once negotiations have failed.

3. Term of the Agreement

(1) The agreement for the software is concluded for the duration chosen in the offer, the agreement, or the order process, or otherwise, in the absence of specific terms, for the standard term of one year from conclusion of the agreement (“Initial Term”).

(2) Termination is possible at any time. The provisions on termination are set out in the offer, the agreement, or the order process. Otherwise, i.e., in the absence of provisions in the aforementioned documents and processes, the following applies: the notice period for both parties is one (1) month to the end of the term. Termination may be given in text form or by correspondingly ending use of our services in your admin area. In the absence of termination, the agreement is automatically extended by the duration of the Initial Term each time.

(3) An upgrade of the selected pricing model or an expansion of booked services is possible at any time with immediate effect. Reducing the number of users or downgrading a pricing model is possible at any time with effect from the respective following month. No refund will be made for costs paid or payable for the current month.

(4) Upon termination taking effect, access to our services will be blocked for you and your users. You may export the content processed using our services until the termination takes effect. After that, we will completely delete the access. We may provide support services in connection with the termination upon request and, where applicable, for a separate fee.

(5) The right to extraordinary termination of this Agreement for good cause remains unaffected.

4. Online Booking

(1) Should you book your access to our software and other services through our online booking process, the following provisions apply in addition to the other contractual terms.

(2) To use our software in accordance with these Terms, you must create a free user account. This requires online registration via our website.

(3) After successful registration, the license agreement for the use of our services is concluded through the following steps:

• a. On our website, you will find information about the content and cost of the paid services we offer. This information does not yet constitute an offer to conclude a contract for the use of our services.
• b. Only by submitting the corresponding booking form do you make a binding offer to us to conclude a contract for the relevant services.
• c. Before submitting the booking form, we point out that the booking is subject to a fee and give you the opportunity to review these Terms and other contractual conditions. You can also download and save these.
• d. We also give you the opportunity, before submitting the booking form, to review and, if necessary, correct your entries.
• e. After submitting the booking form, you will receive a booking confirmation from us at the email address you provided. This confirmation of receipt generally also constitutes acceptance of your offer to book the service.
• f. In this email, or in a separate email, we will send or make available to you the contract text (consisting of the order, these Terms, the order confirmation, and the invoice), where applicable as a link (contract confirmation). You can download and save this.
• g. Upon full payment of the purchased services, you receive immediate access to the services, unless otherwise agreed.

5. Integrated Services

(1) To provide our services, we partly rely on services from other providers (hereinafter also “Integrated Services”). This applies, for example, to all services provided by our software. The Integrated Services made available as part of our services can be found in our service description at https://viralspoon.de/features.

(2) The following applies when using services that rely on Integrated Services:

• a. We provide no guarantee or warranty as to the accuracy and usability of the responses and results generated by the Integrated Services. They may well be incorrect. You should therefore not base actions derived from the responses and results on their content without verification, but should critically question them if they seem odd to you.
• b. We provide no guarantee or warranty regarding the permanent availability of the Integrated Services. Since these are provided by other organizations, we have no influence over their technical availability.
• c. We provide no guarantee or warranty that the responses and results may be freely used by you. We expressly point out that all responses and results may be protected by (copyright) law. Such protection generally prohibits, in particular, any further distribution of the responses and results by you.
• d. You decide for yourself, and are therefore solely responsible for, what information and data you share with our services that rely on Integrated Services. While we do review the Integrated Services for compliance with applicable laws and our policies, you should nevertheless not share any information or data that is subject to data protection or confidentiality obligations, or that constitutes particularly sensitive information about you.

(3) We assume no responsibility for responses and results resulting from the use of services that rely on Integrated Services, or for actions or omissions on your part. This means we are not liable for the accuracy of the responses and results of the Integrated Services, nor for any actions or omissions resulting therefrom on your part. Otherwise, our liability is governed by the liability provisions communicated below.

(4) We therefore recommend that you review and manually approve all posts, content, stories, reels, etc. created using our services before publishing them. In particular, we strongly recommend that you only activate the “automatic approval” function for posts, content, stories, reels, etc. if you are willing to accept, on your own responsibility, the additional risks arising from the lack of human review associated with automated approval.

6. Principles for the Provision of Our Services

(1) Our software is online-based. Using our software requires a functioning internet connection.

(2) You are responsible for ensuring that the technical requirements for our software are met. You can check these on our website at https://viralspoon.de/features.

(3) Should you use our services and our software on behalf of third parties, you are solely responsible for ensuring that, in your contractual relationship with such third parties, our License Agreement including all appendices, in particular these Terms, as well as all legal requirements, in particular data protection provisions, are fully complied with without exception.

(4) We provide you with the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures required to enable the users you have authorized for our software to access it. Each authorized user receives a unique user ID that may only be used by that respective user. You are responsible for providing accurate information about each authorized user (names, email addresses, and contact information) for this process and for keeping this information up to date. You must obligate each authorized user to comply with these Terms, the License Agreement, and all provisions referenced herein.

(5) With our software and its features, we merely provide you with a technical basis for the purposes you implement within the limits of the services purchased (see in particular the service description at https://viralspoon.de/features). We assume no responsibility for actions carried out using our software or for content processed using our software. All actions carried out and content processed by you using our software are governed exclusively by the statutory provisions, agreements, and contracts you conclude with your customers, partners, employees, and social media platforms, etc., with or for which you use our software.

(6) We therefore recommend that you review and manually approve all posts, content, stories, reels, etc. created using our services before publishing them. In particular, we strongly recommend that you only activate the “automatic approval” function for posts, content, stories, reels, etc. if you are willing to accept, on your own responsibility, the additional risks arising from the lack of human review associated with automated approval.

(7) The statutory provisions on tenancy law apply to the use of our software. Maintenance measures such as updates, patches, and hotfixes are part of our service. Further support is offered subject to separate agreement. Beyond these maintenance measures, the statutory warranty rules for defects under tenancy law apply.

(8) Adjustments, changes, and additions to the software, as well as measures for identifying and resolving malfunctions, will only lead to a temporary interruption or impairment of availability if this is strictly necessary for technical reasons.

(9) You may not make our services available to third parties for commercial use.

(10) We are entitled to have our services provided by third parties and subcontractors.

(11) Where we give you the opportunity to use third-party services, in particular social media platforms, within our services — especially as part of using our software — this may occur under a separate contractual relationship between you and the third party, if specifically indicated. If you use such services, we are not responsible for the third party's performance. Only the terms agreed in that contractual relationship between you and the third party apply.

(12) We have the right to provide updates, upgrades, extensions, and other material improvements to our software at our discretion during the term of the Agreement. You acknowledge that such updates may result in changes to the appearance and/or functionality of the software or the supported environment, and/or that continued use of the software may require you to update your own system, including new operating systems (e.g., iOS, Android, or Windows) or web browsers.

(13) In the event of force majeure, we are released from our obligation to provide the services for the corresponding duration, provided that performance is actually impossible for us. Force majeure includes fire, explosion, flood, war, blockade, embargo, pandemic, and industrial action not attributable to us or a subcontractor.

(14) You are responsible for the actions of your users and are answerable for them as for your own actions.

(15) Links or functionalities within our software may lead you to third-party websites and software that are not operated by us and for which we are not responsible. Such links or functionalities are either clearly marked or recognizable through a change in the browser's address bar or a change in the user interface.

(16) When using our software, it is prohibited to:

• infringe third-party rights such as trademarks, copyrights, and name rights.
• harass other customers or third parties.
• use malicious or virus-infected documents, files, third-party IT systems, or data in connection with our services.
• use mechanisms, software, and scripts beyond the functionalities and interfaces provided, in particular where these block, modify, copy, or overwrite our services.
• impair our services through data alteration, computer sabotage, forgery of data relevant to evidence, suppression of data relevant to evidence, computer fraud, data espionage, interception of data, or other criminal offenses under the German Criminal Code (§§ 303a, 303b, 269, 270, 274, 263a, 202a, 202b StGB).

(17) We are entitled, stating legitimate reasons, to deny access to our software and to suspend or exclude you as a customer or your users, or to terminate the Agreement for cause, should we receive repeated complaints about you or should the provisions of the Agreement and these Terms, other requirements communicated by us, or compliance with statutory provisions be repeatedly disregarded. We will inform you of this without delay in each case and give you the opportunity to respond. Before any complete suspension or exclusion, we will inform you in advance within a reasonable period, stating the relevant reasons. Should you remedy the reason that led to the denial, suspension, or exclusion, we will consider reinstating you in our software.

7. Your Duties to Cooperate for Our Services

(1) In particular, you must provide the following contributions and cooperation to us, free of charge, as ancillary obligations:

• If necessary: granting the required usage rights to third-party software, in particular databases, server operating systems, and applications.
• If necessary: creating backups of the IT system and other IT components.
• Ensuring, on your own responsibility, compliance with all laws, contracts, and agreements existing in connection with the use of our services, in particular compliance with the requirements of all social media platforms with or for which you use our services, as well as compliance with all data protection and employment law provisions existing in connection with the use of our software.
• Reports of material or legal defects and disruptions must include a description of the problem (e.g., with screenshots, anonymized log files).
• If necessary: communicating your applicable policies for remote access to your IT system.
• If necessary: providing test cases, test data, and test environments.
• For security-relevant updates, we reserve the right to adjust our services at short notice. Any resulting adjustments to your IT systems must be made by you. We will provide support in this regard where needed.
• Independent and self-responsible integration of the software (including any interface, where applicable) into the customer's existing IT system.

(2) If the provision of our service is delayed due to a circumstance for which you, your legal representatives, employees, or agents are responsible, any agreed deadlines are extended by the corresponding period. We are thus released from our obligation to perform until you have properly fulfilled your duties to cooperate.

8. Disclaimer & General Liability

(1) Use of our services is at your own risk. Our software is provided without any express or implied warranty. Oral or written advice given by us, our employees, legal representatives, vicarious agents, and other third parties associated with us does not constitute a warranty or in any way extend the scope of this warranty, and you may not rely on such information or advice.

(2) Furthermore, we are not liable for defects or errors occurring on social media platforms such as Meta, Google, LinkedIn, etc., for or on which you use our services. Should problems arise within the sphere of these platforms that affect the provision of our software's services, any resulting damage to you, your users, employees, or third parties shall not be borne by us. Any corresponding liability on the part of ViralSpoon is hereby excluded, unless we were exceptionally responsible for the liability situation that led to the damage.

(3) Subject to separate provisions in the contract or these Terms and Conditions, in particular Sections 7 and 8, we are liable for direct property and financial damage caused by us, our legal representatives, vicarious agents, and subcontractors engaged by us, up to EUR 100,000 per damage event, and up to a maximum of EUR 200,000 per year of the contract term, regardless of the number of damage events.

(4) In cases of simple negligence, our liability is limited to typical and foreseeable damage. Outside of a breach of material contractual obligations, our liability for indirect property and financial damage, in particular lost profits, is fully excluded in cases of simple negligence. In cases of force majeure and free-of-charge use of our services, our liability for simple negligence is excluded entirely. Material contractual obligations are those whose fulfillment is essential to the proper performance of the contract and on whose fulfillment you may rely. Both parties agree that the typical and foreseeable damage is limited to twice the order value.

(5) We are liable without limitation for injury to life, body, or health, as well as for intentional or fraudulent conduct. The same applies to any written guarantee we provide regarding the quality or durability of a service we render.

(6) Our liability under the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.

(7) You are responsible for the actions of your employees, legal representatives, vicarious agents, and any other users of our services as if they were your own actions. Furthermore, within the scope of your responsibility (see in particular Section 6 of these Terms and Conditions), you shall indemnify us upon first request against any liability claims by third parties arising from damage caused by your use of our services to third parties or other affected persons.

9. Warranty for Our Services

(1) Subject to the provisions of this section, the statutory provisions apply in the event of material and legal defects. Section 377 of the German Commercial Code (HGB) applies. All claims for defects are subject to your prompt notification of the defect pursuant to Section 377 (1) and (3) HGB.

a. Material Defects

(2) In the event of material defects, you initially have the right, at our discretion, to free repair or replacement (hereinafter "supplementary performance"). If the defect cannot be remedied after two attempts at supplementary performance, we will examine, before any termination or withdrawal, whether your interests can be met through an alternative solution.

(3) In the case of rental, no-fault liability for damages for defects present at the time of transfer under Section 536a (1) of the German Civil Code (BGB) is excluded.

b. Legal Defects

(4) Our services are provided free of third-party rights. Please inform us immediately in text form if you become aware of any third-party rights to our services.

(5) At our request, you must leave the defense against claims asserted by third parties to us, provide us with all necessary information, make declarations, and grant authorizations. In return, we will indemnify you against payment and damage claims arising from third-party rights.

(6) If our services are in fact encumbered by third-party rights, we are entitled, at our discretion, to:

• remove the third-party rights or their assertion (e.g., by paying license fees), or
• modify our services in such a way that third-party rights are no longer infringed.

c. General

(7) Claims for defects are void if you have made changes to the services without our prior consent, or if the services are used by you for a purpose not covered by this contract and this action is solely or predominantly responsible for the occurrence of the defect.

(8) All claims for defects, unless already limited or excluded under the aforementioned provisions, become time-barred after 12 months.

10. Your Right to Use Our Services

a. Software Use & General

(1) You receive a simple, non-exclusive right to use our services, limited in time to the duration of the contract and unrestricted in scope of location.

(2) Companies in which you hold a majority interest are equally entitled to use the software, provided that the relevant licenses have been acquired. This does not include an independent right to sublicense or otherwise transfer your rights of use. This right of use ends when the company no longer meets the requirements of an affiliated company (e.g., within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG)).

(3) Should you use our services and our software on behalf of third parties, you are entitled, subject to compliance with the obligations under Section 6 (3) of these Terms and Conditions, to pass on your right to use our services to these third parties within the framework of the provisions of this Section 10.

(4) You are not entitled to exhibit, publicly communicate — in particular make publicly available — edit, modify, translate, decompile, or otherwise alter the software. Your rights under Sections 69d (3) and 69e of the German Copyright Act (UrhG) remain unaffected.

(5) We are entitled to otherwise use our services, including new releases, as well as any general know-how, practical experience, methods, and procedures developed in connection with the contract (e.g., making them available to third parties, as open source software, etc.).

(6) Test and demo licenses are limited to a term of up to 30 days, unless otherwise agreed.

b. Open Source Software

(1) With respect to open source software contained in our services, we grant you such rights as can be transferred to you under the license terms applicable to us. You are permitted to use our services solely within the scope of these license terms. We assume no warranty or liability for any use beyond this scope.

11. Transfer to Third Parties

(1) We are entitled to transfer the contract to a legal successor or a company affiliated with us. We will inform you of this in text form at least two months before the planned transfer.

12. Confidentiality

(1) In the course of the collaboration, both parties gain knowledge of trade secrets of the other party or third parties. A trade secret is information that is neither generally known nor readily accessible to persons who normally deal with this type of information, is therefore of economic value, and is subject to reasonable confidentiality measures (cf. Section 2 of the German Trade Secrets Act (GeschGehG)). A trade secret is also information that is marked as a trade secret, that is protected by industrial property rights or copyright, that is subject to banking secrecy or data protection, and in which there is a legitimate interest in confidentiality. Information is not a trade secret if it was already known to the other party prior to disclosure, if it became publicly known after disclosure without any involvement of the disclosing party, if the disclosed party learned of it through an authorized third party, or if the disclosed party developed it itself.

(2) The receiving party, as well as everyone who comes into contact with trade secrets as part of their duties, is obligated to treat trade secrets as strictly confidential and to use or disclose them to third parties and employees only if necessary in connection with the business purpose. Otherwise, the receiving party will protect the trade secrets from being accessed by third parties.

(3) Objects, files, or other intangible items containing trade secrets must be deleted immediately or returned to the disclosing party at its request, or at the latest upon termination of the contractual relationship.

13. Reference Mentions

Both parties are entitled to mention the respective other party, including its logo and a brief description of the respective company, in their external communications. Information necessary for this purpose, such as logo, descriptive texts, version status, and contact and support channels, must be provided in advance.

14. Final Provisions

(1) The assignment of individual claims arising from this contract requires the prior consent of the other party in text form. This does not apply to the assignment of monetary claims.

(2) The entire contractual relationship between the parties is governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

(3) The place of jurisdiction for all disputes arising from the contractual relationship is the court with subject-matter jurisdiction at our registered office.

(4) Compliance with export control law and all import and export regulations relating to our services is solely your responsibility.

(5) Amendments and additions to these Terms and Conditions, as well as to the entire contract between us, must be made in text form to be effective. Amendments and additions to the contract that we make (or are required to make) due to changed legal or technical requirements for the provision of our services, and which have no negative impact on the services owed to you, become effective if you do not object to a change within one (1) month of receiving notice of the change in text form, provided we have informed you in advance of your right to object. If you object to the change, the contract continues unchanged and we are entitled to terminate the contract for cause with one (1) month's notice to the end of the following calendar month.

(6) Should any provision of the contract be invalid, or should the contract contain a gap requiring regulation, this shall not affect the validity of the remaining or incomplete provisions. In such a case, the parties undertake to replace or complete the invalid or incomplete provisions with provisions that come economically closest to the invalid or incomplete provisions.

As of March 2024