These Terms and Conditions of Use (to be referred to below as the ‘Terms and Conditions’) govern every and all use of the Service and the Online Platform as defined below. Please read these Terms and Conditions carefully so that you, the User, know your rights and obligations when you use the Service. You can download and print this document.
1 Definitions In these Terms and Conditions, the terms listed below have the following meaning, regardless of whether they are used in the singular or the plural:
1.1 Account: the personal section on the Online Platform containing the personal data and other details that the User has entered or that have been retrieved from the User’s social media account(s), which the User creates by registering for the Service and which is administered by the User.
1.2 Award: the fully automated message to the Buyer that he/she has placed the highest Bid and that he/she thereby has purchased the Video.
1.3 Bid: the amount that a User offers for a Video, including the Buyer’s Commission, any VAT that may be due, and any other taxes and/or duties.
1.4 Buyer: a User who concludes a Contract of Sale with an Artist through the Online Platform.
1.5 Buyer’s Commission: the percentage of the Purchase Price as communicated by Fantube on the Online Platform, that the Buyer owes Fantube for the use of the Service upon the Award, increased with VAT if applicable and other taxes and/or duties that may be due.
1.6 Fantube: Fantube GmbH, a private limited liability company, maintaining a place of business in Berlin, Germany, recorded in the German Chamber of Commerce’s register under number: HRB 184261 B
1.7 Artist: a User who uses the Service to sell and/or give away for free a personalized Video in connection with a Charity, trade, business, craft, or professional activities.
1.8 Consumer: a User who is a natural person and who uses the Service or wins a free Video or concludes a Contract of Sale as a Buyer for purposes that are unrelated to any business or professional activities and who does not qualify as a business owner for VAT purposes.
1.9 Contract of Sale: the contract of sale that is concluded through the Online Platform between the Artist on one hand and the Buyer on the other, with respect to a particular Video.
1.10 Information: all the material and all the information that Fantube places on the Online Platform or makes accessible through the Online Platform. Information does not include User Material.
1.11 Intellectual Property Rights: any and all intellectual property rights and related rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and neighbouring rights, as well as rights in respect of knowhow and performances on par with such rights (“eenlijnsprestaties”).
1.12 Video: one or more personal Video’s that the Artist offers for sale or for free on the Online Platform.
1.13 Online Auction: the online, computer-based and automated auction of Videos by Artists on the Online Platform.
1.14 Online Platform: Fantube’s digital environment, which enables Users to access the Service using software that Fantube has developed and offers via Internet, among others, the websites available through www.fantube.me, www.fantube.nl, and other top level domains registered by or on behalf of Fantube including any and all subdomains and sub-pages thereof, as well as mobile versions of these websites and any and all software programs and mobile or other applications with which the Service can be used, including on mobile devices such as smartphones and tablets.
1.15 Purchase Price: the amount of the highest Bid, which the Buyer owes the Artist. This includes the commission for Fantube, VAT if applicable and other taxes and/or duties that may be due. Meaning that the highest bid is the exact price what the Consumer needs to pay to Fantube.
1.16 Artist: the User who offers one or more Videos for sale on the Online Platform.
1.17 Service: the services that Fantube offers on the Online Platform, which appear from and are described on the Online Platform and in these Terms and Conditions, including the service that Artists can use to give away free Videos or sell Videos using an online, computer-based and automated auction, paid lottery or fixed price, and the related supplementary services.
1.18 User: any natural person who or legal entity that creates an Account, or uses the Service or is active on the Online Platform without registering.
1.19 User Material: information on the Online Platform that is provided by Users or that Users make accessible or publicise using the Online Platform including – but not limited to – Videos, descriptions of Videos, photographs, specifications, opinions, advertisements, messages, offers and/or announcements.
1.20 Charity: an organization set up to provide help and raise money for those in need..
1.21 Delivery period: delivery time which is set by the Artist himself. The Video will be delivered within the delivery period and the delivery period will start once the User has successfully bought a Video and received a payment confirmation per e-mail.
1.22 Auction period: total time that the auction runs, this period will be automatically prolonged by 1 minute in case a User bids in the last minute of the online auction.
1.23 Raised Funds: cumulated income (deducted by Buyers Commission) which Artists have raised for Charity by selling Videos for Charity via the Online Platform.
1.24 Raised Income: cumulated income (deducted by Taxes and Buyers Commission) which Artists have raised for their own by selling Videos via the Online Platform.
1.25 Paid Lottery: the online, computer-based and automated Lottery of Videos by Artists on the Online Platform. Artists decides price per Lot and only one person will win a certain Lottery.
2 Applicability of and amendments to the Terms and Conditions
2.1 The Terms and Conditions govern every use of the Service or the Online Platform. The User accepts these Terms and Conditions by using the Service, by visiting the Online Platform and/or by accepting these Terms and Conditions when creating an Account. The applicability of any other general terms and conditions is excluded.
2.2 The Online Platform is in English and will be offered in various language versions, which are aimed at different countries or territories. That can be determined, for example, from the extension of the URLs of each versions Internet address on the Online Platform (such as www.fantube.me/it for the Italians or www.fantube.me/fr for France). (Partly) Different Terms and Conditions may apply in respect of the various versions of the Online Platform. The various versions of the Terms and Conditions will be published on the Online Platform.
2.3 The country of the IP address that the User uses when he accesses the Online Platform will determine which version of the Online Platform the User will see. That usually will be the country in which the User resides.
2.4 Every User who resides in a country for which a specific version of these Terms and Conditions has been drawn up hereby accepts that this specific version of the Terms and Conditions always governs his use of the Online Platform, even if he visits the Online Platform from another country or in the event that he registers from another country and selects another version of the Terms and Conditions during the registration.
2.5 Every User who resides in a country for which no specific version of these Terms and Conditions has been drawn up hereby accepts that his use of the Online Platform always is governed by this generic version of the Terms and Conditions, even if he visits the Online Platform from a country for which a specific version of the Terms and Conditions has been drawn up or in the event that he registers from such a country and checks a different version of the Terms and Conditions during the registration.
2.6 In the event that there is any conflict between the provisions stipulated in the various (language) versions of these Terms and Conditions, this generic version in English will prevail, except insofar as the difference between this generic version and the specific version in question is the result of mandatory provisions of national law of the country for which the specific version in question applies.
2.7 Fantube is entitled to amend or supplement the Terms and Conditions at any time. The most up-to-date version of the Terms and Conditions can be found on the Online Platform or will be brought to Users’ attention during the use of the Service. Fantube will notify the Users by email in the event that an amendment or supplementation will significantly affect Users’ rights or obligations or it will clearly display the changes on the Online Platform’s homepage.
2.8 In the event that the User continues to use the Service after the Terms and Conditions have been amended or supplemented, the User thereby irrevocably accepts the amended or supplemented Terms and Conditions. In the event that the User does not wish to accept the amended or supplemented Terms and Conditions, the User’s only option is to stop using the Service and delete his Account.
3.1 The User accepts that the Service and the Online Platform contain only the functionalities and other characteristics that the User finds at the time of use (‘as-is basis’). Fantube expressly excludes any and all explicit and tacit guarantees, undertakings and indemnifications, of any kind whatsoever, including but not limited to those with respect to the quality, safety, lawfulness, integrity and correctness of the Service.
3.2 The User accepts that the functionalities of the Service and the Online Platform may change.
3.3 Artists offer personalized Videos on the Online Platform, and Users purchase or win those Videos directly from Artists. Fantube plays only a facilitating and supporting role, by offering an Online Platform and supplementary services. Fantube has no control over the quality, safety, lawfulness or correctness of the Videos that are offered, the Artist’s authority to sell Videos, or the authority or ability of Buyers to purchase Videos. Videos will be offered by various Artists and not by Fantube. Fantube is responsible for taking and concluding Users orders as a commercial agent of the relevant Artist. The provision of the ordered Video via the Online Platform is the responsibility of the Artist who provides them.
3.4 The legal implication of this is that when a User purchases a Video, it will create two binding legal contracts: (i)a contract between the User and Fantube (under which Fantube has certain responsibilities to the User in relation to the purchase of the Video). That contract is based on these Terms and Conditions of Use, specifically articles 3, 6, 8, 9 and 10. (ii) a contract between the User and the relevant Artist in respect of the provision or delivery of the Video which the User ordered through the Online Platform. That contract is based on these Terms and Conditions of Use, specifically articles 3 ,5, 6, 8, 9 and 10.
3.5 The User acknowledges and accepts the special circumstances that may arise in connection with an Internet auction and the errors that may occur. That includes – but is not limited to – an inability to access the Online Platform in whole or in part, an inability to place a Bid or to do so in a timely manner, or breakdowns of or defects in the Online Platform or the underlying hardware, network connections or software. Maintenance work on the Online Platform or on the underlying system also may prevent access in whole or in part or the ability to place a Bid in a timely manner. In no event is Fantube liable for any damage that the User sustains as a result of such technical problems or other errors.
3.6 The User acknowledges and accepts that some of the provisions stipulated in these Terms and Conditions may not apply in whole or in part in respect of certain Videos due to the nature of those Videos, such as Videos which the Artist gives away for free. In such cases the provisions stipulated in these Terms and Conditions will be interpreted in all reasonableness, in such a way that they apply with respect to the Contract of Sale in question or the Video in question, whereby the content, intent and spirit of the provision stipulated in these Terms and Conditions will be followed with as much as possible.
3.7 Amended or supplementary rules other than those stipulated in these Terms and Conditions may apply in respect of the purchase and/or sale of some Videos. Such rules will be stipulated on the Online Platform in respect of the Video in question as much as possible.
3.8 Notwithstanding any other provision stipulated in these Terms and Conditions, the User acknowledges and accepts that Videos are the property of the Artist and not of Fantube. No contract of sale will be concluded between Fantube and the Buyer, and Fantube does not transfer any ownership rights from the Artist to the Buyer.
3.9 In the event that there is or threatens to be a dispute between an Artist and a Buyer, in order to secure its own rights and those of other Users, Fantube will be entitled at all times to suspend payment of any and all funds of the Users in question, if they are not Consumers, at its discretion, and if necessary to freeze any balances that those Users may have. The foregoing provision does not in any way limit the statutory suspension rights that Fantube has towards Consumers. 4 Registering for the Service
4.1 In order to make optimal use of the Service, the User must create an Account in the manner described on the Online Platform. The User can also log in using certain services of third parties, such as a Facebook account. The User warrants towards Fantube that the information that he provides when he creates his Account is complete, truthful and up-to-date. The User must provide a username and password during the registration, which will give him access to the Account.
4.2 Before selling a Video via auction, paid lottery or fixed price, Artists has to choose if they support a Charity or not. In case they want to support a Charity they have to choose a Charity listed in the Charity overview on the Online Platform. A Charity has always the right to reject an Artist. Fantube is entitled to change the status of Accounts in the event that it finds a reasonable cause to do so, for example in the event an Artist fails to deliver a Video in time.
4.3 Artists are obliged to provide their actual name when they create their Accounts.
4.4 The User is obliged to comply with all applicable tax laws and regulations and in that respect to register in the correct capacity and to provide all required information when registering. Artists may also be designated as business owners for VAT purposes, in which case they also will be required to provide a correct VAT number. The User is fully liable for the consequences of providing any incomplete or incorrect information with respect to his tax position and fully indemnifies Fantube against any and all claims brought by third parties, including the tax authorities, and against any and all damage and/or costs that ensue from or are related thereto, and Fantube will immediately recover such claims, damage and costs from the User.
4.5 Users are not permitted to create an Account in the name of another person and/or to provide false information. Users may not log in to third-party services accounts of other persons or allow other persons to log in on behalf of the User.
4.6 The User himself is responsible for keeping his username and password combination secret. Thus, the User is liable for any and all use of the Service using his username and password and the User indemnifies Fantube with respect to any damage that ensues from misuse or use of his username and password. Fantube is entitled to assume that the User is the actual party that logs in using the User’s username and password.
4.7 The User must notify Fantube as soon as the User knows or has reason to suspect that a username and/or password has become known to unauthorised parties, without prejudice to his own obligation to immediately take effective measures, such as changing his password.
4.8 In principle, anyone may register with Fantube. However, in the event that the User is younger than 18 years of age, he must have permission to do so from his legal representative(s) (guardian or one or both of his parents). The User warrants, by accepting these Terms and Conditions, that he is in fact 18 years of age or older or that he has received permission from his legal representative(s) to create his Account.
4.9 Fantube reserves the right to change the registration and login procedure, the password, the username and/or certain User information in the event that it considers it necessary to do so in the interest of Fantube, third parties or the operation of the Service.
4.10 Charities can register on the platform and will be screened and validated by Fantube. A Charity will only be visible on the Online Platform after Fantube’s approval and if they are registered at the International Committee of Fundraising Organization (ICFO – https://www.icfo.org), or registered at a daughter organisation of the ICFO.
5 Offering Videos
5.1 The User must enter certain information in his Account, including his email address and phone number, in order to be able to win, buy or sell Videos on the Online Platform.
5.2 Which Artists are featured on the Online Platform will be at the sole discretion of Fantube. Each User who signs-up to use the Online Platform as an Artist will be screened and validated upfront and can only use the Service after the Artist has been accepted by Fantube. Fantube has the right to reject any Artist at any point in time. Even if the Artist has been accepted and has been using the Online Platform, Fantube has the right to remove the Artist from the Online Platform, in the event of sexual, unethical, hateful, bullying or abusive content is made on the Online Platform or is made by the Artist on other social media platforms (such as YouTube, Facebook, Twitter).
5.3 In the event that the Artist fails to deliver a Video within the delivery period, the Artist will receive an official warning per mail and will be contacted by Fantube. When the Artist after receiving 2 (two) official warnings and does not deliver another Video, Fantube has the right to remove the Artist from its platform.
5.4 When the Artist offers Videos, he must clearly state the Delivery period and if he supports a Charity, and which Charity that is. In the event that the Artist does not support a Charity, his profile will show ‘’supports: none’’.
5.5 When the Artist offers Videos, he must clearly and comprehensibly provide information regarding the Video being offered. That information must in any event include at least one (1) accurate example of a personal Video (2) delivery period of the Video (3) if and which Charity he supports.
5.6 Fantube is neither responsible nor liable towards other Users for the description of Videos, including the Artist’s information and statements referred to in Article 5.4. The Artist accepts that Fantube may propose or make changes to and/or supplement the description of the Video offered. The Artist will be given an opportunity to review the description before the Paid Lottery or Online Auction commences, undertakes to make use of that opportunity, warrants that the Video will be in accordance with the description and indemnifies Fantube against any claims brought by the Buyer in connection with the Video’s failure to be in compliance with that description.
5.7 Fantube is entitled to have the texts with respect to a particular Video translated so that the Videos can also be offered in other countries, possibly using machine translations. Fantube does not accept any liability whatsoever for any errors in the texts as a result of such translations. In the event that a Buyer does not wish to conclude a Contract of Sale as a result of an incorrect translation of information that is essential to the sale, and the Buyer demonstrates that the incorrect translation led to the Buyer entering into the Contract of Sale and that he would not have entered into the Contract of Sale in the event that the translation had been correct, the Artist will be obliged to assist in terminating the Contract of Sale.
5.8 The Artist may withdraw a Videos until the time at which they have been published on the Online Platform and are visible to other Users. After that time, the Artist no longer will be permitted to change the conditions attached to the offer. In the event that, notwithstanding the foregoing provision, a Video is nonetheless removed from the Online Auction at the Artist’s request, the Artist will be fully liable for any damage caused thereby, subject to Article 21.
5.9 The Artist will offer the Videos exclusively on the Online Platform and therefore he will not (or no longer will) offer them through other sales channels. The Artist will remove Videos from other websites, including auction platforms, online marketplaces and its own or others’ web shops.
5.10 Fantube has the right to cancel any kind of Video offered on the Online Platform at any point time.
6 Online Auction and Paid Lottery procedure
6.1 Users are obliged to comply with any and all reasonable directions and instructions with respect to an Online Auction or Paid Lottery that are given by or on behalf of Fantube. Fantube will decide what will be done in the event that situations arise in respect of an Online Auction or Paid Lottery that are not provided for in these Terms and Conditions and/or in the event that a dispute between Users or other irregularities arise.
6.2 Fantube is entitled at all times, before, during and after an Online Auction, to make it temporarily or permanently impossible for Users to offer and bid on Videos.
6.3 Fantube is entitled to stipulate as a condition in respect of certain Online Auctions or Videos (or categories of Online Auctions or Videos) and/or in respect of Offers starting at certain amounts that Users must deposit with Fantube a certain amount, to be determined by Fantube, or provide another form of security for payment.
6.4 It will be possible to participate in an Online Auction during the term stipulated on the Online Platform. The minimum increment by which the User must increase a Bid will depend on the highest Bid at that time. The minimum bidding increments are indicated on the Online Platform. Which is a minimum of 50% above the highest bid and a maximum of 300% above the highest bid. For example: in case the highest bid is 100 euro, the next bid should at least be 150 euro (+50%) and can maximum be 300 euro (+300%). If during the last minute of the term of the Online Auction another Bid is placed, the term of the Online Auction will be extended automatically, in each case by one (1) minute.
6.5 It may be possible to bid on Videos in different currencies. Bids will be shown on the Online Platform, rounded off to whole currency units. That may affect the amount of the minimum bidding increments. It is also possible that the Purchase Price will be rounded off to whole currency units before it is paid out to the Artist. Amounts will be rounded up or down automatically depending on certain upper and lower limits to be set in advance.
6.6 At the start of each Online Auction, the exchange rates that will apply for the sale of the Videos in the Online Auction in question will be set at the exchange rate that applies at the time at which the Online Auction commences. Thus, each Bid that is made during the Online Auction will be made at the fixed exchange rate, and the Raised Funds and/or Raised Income will be paid out at that fixed exchange rate.
6.7 Artists accept that they may be paid a lower (or higher) Purchase Price in their own currency than they would have received in the event that the exchange rate at the time at which the Online Auction closed or the time at which the Purchase price is paid out had been applied.
6.8 Every Bid will be deemed to have been made by the person whose Account was used to make the Bid. Thus, the User is always bound towards the Artist by the Bids that are made using his Account, even if a third party makes Bids using his Account.
6.9 Except in specific situations that will be stipulated with the Online Auction in question, a Bid that has been made will be unconditional and irrevocable. The User may not invoke any typographical errors or mistakes.
6.10 The Artist is not permitted to make a Bid on Videos that the Artist is offering himself and/or to instruct other persons to make such a Bid.
6.11 The Contract of Sale will be deemed to have been concluded as a result of the automatic Award. Fantube is not a party to the Contract of Sale. Supplementary conditions that apply with respect to offering Videos and/or making Bids may be stipulated on the Online Platform and/or in messages and/or emails from Fantube.
6.12 Planning of paid Videos and/or free Videos will be as following: Artists can choose how many Videos he wants to sell and/or give away in a certain period. The Online Platform will only show one kind of each Video product at a time. The 2 Video products are: free Video and paid Video. The paid Video can be sold via an online auction or via fixed price. In case Artists offer a fixed price Video, at the profile page of that Artist the User can see how many fixed price Video’s are available of that Artist. In case Artists offer Videos for the online auction, only one Video auction will take place at the time. The Auction Period will be automatically generated and depends on the amount of Video’s the Artist want to sell via auction in a certain period. The Auction Period will be automatically determined and is the amount of offered auction Video’s divided by the period in which the Artist would like to offer them. For example: If the Artist decides to offer 4 auction Video’s a month, the auction period will be 7 days per auction. After each auction the Online Platform will automatically check how many auction Videos are available in which timeframe and will adjust the Auction Period when needed. In case the Artist changes the amount of offered Videos in the online auction, the Auction Period for the next Video will be the amount of offered auction Videos, set by the Artist, divided by the period in which the Artist wants to offer them to his audience.
6.13 The Artist has the right to change his personal settings, such as Charity, amount of offered Videos for the online auction or Paid Lottery, percentage of the income that should go to Charity, at any point in time. However once an auction is shown on the Online Platform, the Artist needs to fulfil that specific Video order first and for the next online auction the changes will be implemented..
6.14 During an online Video auction Users can bid a maximum of 2500 euro per Video. Only in special cases Fantube might raise the maximum bid per Video.
6.15 In the event that Artists offer free Video’s on the Online Platform, an Automated lottery will choose the winner of the free Video. Each Artist can choose how many free Video’s they want to offer and in which time frame. All Users who have signed up for the automated Video lottery will have an equal chance of winning. The system will automatically choose one winner after the lottery time has ended. The User who won receives an Award and has to fulfil the Video request.
6.16 During a Paid Lottery, Users can buy a lot for the lot price which is set by the respective Artist. An automated computer based system will choose the winner of the lottery. The User will be updated via email and can add the personal information to the video request.
7 Rules governing Charities and sales by Commercial Artists
7.1 Charity has the right to reject any Artist to raise funds for them on the Online Platform, without a reason and at any point in time.
7.2 Charity having an account on the Online Platform have access to their analytics in which they can see how much Raised Funds there are in a certain period of time.
7.3 Each Charity needs to be accepted by Fantube before being highlighted on the Online Platform. Fantube has the right to reject Charities from being on the Online Platform at any point in time.
7.4 The Artist is obliged to truthfully state whether or not he is offering Videos in a professional capacity. In the event that the Artist is not acting in the context of practising a profession or conducting a business, he is obliged to indicate that he is a ‘private Artist’. Commercial Artists are obliged to register as such (or using another designation for Commercial Artists communicated on the Online Platform) and to provide Fantube with a valid Chamber of Commerce and/or VAT number.
7.5 Charities who want to participate on Fantube will be screened and validated by Fantube. A Charity will only be visible on the Online Platform after Fantube’s approval and if they are registered at the International Committee of Fundraising Organization (ICFO – https://www.icfo.org), or registered at a daughter organisation of the ICFO, such as: – Centraal Bureau Fondsenwerving (CBF – https://www.cbf.nl) in the Netherlands or – BBB Wise Giving Alliance (BBB – www.bbb.org/charity) in USA or – Deutsches Zentralinstitut für soziale Fragen (DZI – www.dzi.de) in Germany etc. Fantube has the right to reject any Charity at any point in time.
8 Consumers’ rights
8.1 Consumers who bought a Video, and received a payment confirmation, will receive the Video within the delivery period. The delivery period, as stated on the Artist profile on the moment of the sale, will start once the Consumer received the payment confirmation per email. In case the Consumer does not receive the Video within the delivery period he can cancel the Video order and after the cancellation is confirmed by Fantube, receive a 100% refund of the cost price of that Video.
8.2 Once a Video is not delivered in time, the customer has the option to cancel the Video order from the moment that the delivery period is ended and the consumer did not yet receive the Video. In case the Consumer does not cancel the Video order, he accepts to receive the ordered Video on a later time. Until the Consumer cancels the Video, the Video can still be recorded by the Artist and sent.
8.3 Fantube cannot guarantee that Artists record the ordered Video and/or record the Video in time. The Consumer can only cancel an ordered Video once the delivery period has ended and the Consumer did not receive the Video before that.
8.4 Consumers have the right to sent a first reaction Video back to the Artist via the Online Platform. Only one first reaction Video can be sent by each Video which is ordered/won. record a first reaction Video from the person who receives the Video
8.5 Consumers have the right to review, 1 (bad) to 5 (good) stars, a Video once they received it from the Artist. Each consumer who bought a Video can only rank that specific Artist once.
8.6 The Artist hereby acknowledges and accepts that the Online Platform includes a review platform, upon which Consumers may publicly post viewable reviews about the Video they received from the Artist (only in relation to the ordered Video) (“User Generated Content”). The Artist should note that this review platform may not be opted out from and may from time to time contain negative reviews and/or feedback from Customers, which is outside Fantube’s control. However, if the Artist, acting reasonably, feels that any User Generated Content is defamatory of the Artist or any person or in some other way is a violation of any person’s legal rights, the Artist may flag and report that User Generated Content to Fantube. In such case, Fantube shall review the same and in its sole discretion take any action it deems necessary or desirable (including, for example, removing or amending the relevant piece of User Generated Content).
9 Payment and Commissions
9.1 After the Online Auction has ended, the User who made the highest Bid will receive the automatic Award from Fantube, which will contain an overview of the Videos that have been purchased and the Purchase Price due. The Purchase Price includes all costs, such as Buyer’s Commission if applicable and any VAT that may be due.
9.2 One invoice will be made available to the Buyer, including the automatic Award. Fantube will issue an invoice for the Purchase Price on behalf of the Artist.
9.3 The Buyer must pay the Purchase Price to/through Fantube on the basis of the above-mentioned invoice, within the term stipulated in the overview. The Buyer must ensure that all amounts are received net, and he is therefore responsible and liable for any costs (such as bank costs), taxes (such as taxes levied at source), duties and/or withholdings. The e-mail will contain a link to Fantube’s online payment page. Payment must be made using one of the payment methods indicated on that page.
9.4 The User accepts that Fantube will draw up and send invoices on behalf of the Artist insofar as it is mandatory to issue invoices on the basis of applicable laws and regulations. The Artist is responsible at all times for ensuring that the invoice is correct and complete, and Fantube does not accept any liability whatsoever in that respect.
9.5 In the event that a Buyer won an auction and fails to pay the Purchase Price within 7 days after receiving the Award, the Video will automatically be cancelled and a new Video will be placed in the auction. Meaning that the Buyer has no right anymore to buy the Video for that Purchase Price.
9.6 Fantube will pay out the Raised Income for the Artist on a monthly basis. Within 30 days after the end of each month will Fantube transfer the Raised Income to the Artist. Notwithstanding the foregoing, Fantube will be entitled to suspend payment to the Artist, in particular in the event that the Buyer has given notice of a dispute due to nonconformity of the Video.
9.7 Fantube will pay out the Raised Funds to a Charity on a quarterly monthly basis. Within 30 days after quarter has ended will Fantube transfer the Raised Funds of that previous quarter to the Charity. Notwithstanding the foregoing, Fantube will be entitled to suspend payment to the Charity, in particular in the event that the Buyer has given notice of a dispute due to nonconformity of the Video.
9.8Buyers commission: a Buyer will have to pay a commission for the use of the Online Platform. In case Artists offer a Video for free, the Online Platform won’t charge any commission.
9.9 Buyers commission is always included in the Purchase Price of the Video, meaning that the Online Platform will never charge any extra costs.
9.10 Buyers commission will be 8% of the Purchase Price of the Video sold for Charity and 30% of the Purchase Price of the Video sold for the Artist himself. For example if an Artist sells a Video for a Chartiy on the Online Platform, Fantube will keep 8% of the Purchase Price. The amount which the Charity receives will be 92% of the Purchase Price of that Video.
10 Delivery and acceptance of the Videos
10.1 The Artist is responsible for sending the Video to the Buyer in accordance with the Contract of Sale and conditions that the Artist communicated in advance, such as sending the Video within the delivery period.
10.2 In case the Artist has not yet delivered the Video to a Consumer, Fantube will remind the Artist with a push-message 48, 24 and 12 hours before the end of the delivery period.
10.3 The Artist has the right to reject a Video request at any point in time. In case the Artist rejects a Video request he should give a valid reason, such as request contains sexual content, is unethical, abusive, misleading, cyberbullying etc.. Only after Fantube’s confirmation the rejection of the Video request will be officially rejected. In the Video request is paid and gets rejected, the Buyer will receive a 100% refund of the Purchase Price.
10.4 Artists can setup their own delivery period, which will implemented for all their Videos. The maximum delivery period which Artists can use as default is 3 weeks. Artists can change their delivery period at any point in time. In case there is no auction running, the changed delivery period will be implemented directly. In case there is a running auction ongoing, the old delivery period will be used and once a next auction will be opened the adjusted delivery period will be implemented.
10.5 The Delivery Period of a Video will start the day after the Buyer received a payment confirmation per e-mail. The payment confirmation will only be sent to the Buyer once the payment was successful and all mandatory fields in the Video request has been filled in.
10.6 GMT+1 will be used as the main time to determine when the Delivery Period will start.
10.7 In the event that the Artist fails to comply with his obligation to deliver on the ground of this Article (10), even after he has been given proper notice of default, the Artist will be in default and the Buyer will be entitled to dissolve the Contract of Sale. Fantube may send the notice of default and the notice of dissolution to the Artist on behalf of the Buyer.
10.8 In the event of dissolution as a result of the Artist’s failure to comply with his obligation to deliver on the ground of Article 10.7, the Artist will be liable for any and all damage and costs that Fantube sustains and/or incurs as a result.
10.9 In the event of dissolution as a result of the Artist’s failure to comply with his obligation to deliver on the ground of Article 10.7, the Artist will receive a first warning. When it happens again the Artist receives a second warning. In case it happens for a third time Fantube may reject the Artist for offering any Videos on the Online Platform in the future and even remove the Artist from the Online Platform.
10.10 The Buyer who made the highest Bid will be obliged to accept delivery of the Video within the Delivery Period, which was shown on the Artist profile page during the auction.
10.11 Any complaints and disputes between the Artist and the Buyer must be reported to Fantube as quickly as possible. Although, in principle, the Buyer and the Artist must resolve disputes between themselves, if necessary Fantube will make reasonable efforts to mediate between the Artist and the Buyer. In the event that the Artist and the Buyer are unable to agree on a solution and Fantube still is in possession of the Purchase Price, the Artist and the Buyer hereby accept that Fantube will have the final right to decide whether the Purchase Price will be refunded to the Buyer or will be paid on to the Artist. In that context Fantube will not be liable to compensate any damage or pay any other compensation to the Buyer or the Artist. Fantube is not a party to any dispute.
11 Use of the Service
11.1 Each use of the Service and the Online Platform is for the risk, account and responsibility of the User.
11.2 By placing User Material on the Online Platform or making it available via the Service, the User guarantees that: (i) He is authorised to do that and entitled to grant the rights to Fantube as referred to in these Terms and Conditions. (ii) The User Material that he makes available: a) Is not misleading; b) Is not discriminatory with regard to appearance, race, religion, sex, culture, descent or otherwise offensive, does not call for violence against and/or the harassment of another person or other people and, in Fantube’s opinion, is not in conflict with public morality or good taste, is not violent, does not contain a link to pornographic material or pornographic websites and does not promote committing illegal activities; c) Does not contain the personal data of others; d) Does not consists of chain letters, junk mail or spam and does not contain links to websites, commercial or otherwise; e) Cannot have a negative effect on the reputation or good name of Fantube and its affiliated companies and/or its directors; f) Is not in conflict with any laws or regulations or with these Terms and Conditions, does not infringe any rights of third parties, including rights from agreement, Intellectual Property Rights, privacy rights or is otherwise unlawful towards third parties or Fantube; and (iii) Fantube will not be obliged to perform any payment, taxation, levy or deduction of any nature whatsoever to anyone as a result thereof, including to persons or parties whose work, model, brand or performance is included in the User Material, including to collective rights organisations.
11.3 In using the Service, the User is obliged to comply with all applicable national, European and international regulations in respect of – including but not limited to – his activities with regard to the bidding on, offering, purchasing and selling of Videos via the Online Platform.
11.4 In using the Service, the User guarantees that he: (i) Will not circumvent or manipulate the Online Platform, such as the auction process or account registration process. On breach of this provision the User is obliged to compensate all damage and costs incurred by Fantube as a result. (ii) Will not use viruses, Trojan horses, worms, bots or other software or technical tools that can damage the Service or the Online Platform, or can make the Service or Online Platform inaccessible or are intended to circumvent technical protective measures; (iii) Will perform no actions that put an unreasonable and/or disproportional strain on the infrastructure of the Service and/or that can hinder the functionality of the Service; (iv) Will perform no actions that manipulate or impair Fantube’s review system; (v) Will not use applications that monitor the Service and/or copy parts of the Service.
11.5 The User owes an immediately payable penalty of € 1,000 (in words: one thousand euros) to Fantube for each breach of Article 11.4 and for each day, including part of the day, that such a breach continues, without prejudice to Fantube’s right to recover the actual damage.
11.6 All technical means that are required to use the Service, including – but not limited to – hardware and an internet connection, as well as the costs of the use thereof, will be fully for the account of the User.
12 Prices and Payment
12.1 The User can use some parts of the Service only against payment. The prices for the use of these parts are stated on the Online Platform.
12.2 Payment must always take place fully in advance, unless otherwise indicated. The User can therefore only use these parts of the Service after he has paid the amount due completely.
12.3 Payment of these parts of the Service takes place via a secured payment environment of a third party, such as iDeal or a credit card company. Fantube has no influence on that and is therefore not responsible or accountable for the use or inability to use this payment environment.
12.4 Fantube retains the right to change the commission for the Service at any time. The User cannot derive any rights from price changes.
12.5 The Artist may change the price and/or the amount of the Videos, which are sold for a fixed price, whenever he wants. In case the Artist changes the fixed price, that price will be implemented immediately on the Online Platform. The Users who already bought a video for the previous fixed price, and received a payment confirmation from Fantube, have the right to receive a video for the price they paid for it.
13 User Material
13.1 The User retains all Intellectual Property Rights to his User Material, but hereby grants Fantube a free, unencumbered, global, non-exclusive, perpetual and non-cancellable licence to communicate his User Material to the public and/or to reproduce it for all purposes Fantube deems necessary, including – but not limited to – promotional purposes. This licence does not end when the User or Fantube removes the User’s Account and/or the User discontinues the use of the Service.
13.2 Under the aforementioned licence, the User grants Fantube, among other things, but without exclusion, (I) the right to (automatically) translate his User Material (or have it translated) to other languages than the original in order to be able to offer the Service in other countries as well, (ii) the right to print and/or use his User Material in (social) media and (iii) the right to use his User Material for promotional purposes.
13.3 The User hereby waives his personality rights to User Material, in so far as applicable and in so far as possible.
13.4 The User accepts that his User Material can be used by other Users. Fantube does not guarantee that Users will comply with these Terms and Conditions.
13.5 The User understands and accepts that he is responsible and accountable for User Material he places on the Online Platform or makes using the Service.
13.6 The User understands and accepts that User Material of other Users is not checked and/or viewed by Fantube. Fantube has no knowledge of this at all and is therefore not responsible and/or accountable for this.
13.7 If the User is of the opinion that certain User Material is unlawful, the User can report this to Fantube. The User can contact Fantube to make a report, contact details are listed below.
13.8 Fantube retains the right to remove User Material from the Online Platform, to shorten it or otherwise change it if it sees reason to do so, without accepting any responsibility or liability for its contents, without being held liable for any damage and without being obliged to pay any compensation. This article does not affect Fantube’s other rights and authorities and Fantube retains the right to take other (legal) measures, including – but not limited to – providing the User’s personal data to third parties.
13.9. The User may only use the video which he received from the Artist for non-commercial purpose. Also the Artist who received the first reaction video from the Consumer, may only be used for non-commercial purpose.Video Both Artists and Consumers may be share the video on social media platforms.
13.10 Fantube shares User data, such as email address and name, with Artists, Management and/or Charity. Fantube will only share User data with an Artist, Management and/or Charity in case: a User is subscribed to that Artist on the Online Platform, the User has received a video from that Artist on the Online Platform, the User has bid on the auction of the artist, the User participated once with an video lottery of that artist. The Artist, Management and/or Charity may use this data for own promotion and or marketing purposes.
14 Availability and interruption of the Service
14.1 Fantube does not guarantee that the Service and all parts of the Service and/or the Online Platform are at all times available and without interruptions or failures. Failures in the Service can also occur, but not exclusively, as a result of failures in the internet or telephone connection or due to viruses or faults/defects. Fantube is in no way liable or liable for compensation towards the User for any damage arising or resulting from the (temporary) inaccessibility or (interim) failure of the Service and/or the Online Platform.
14.2 Fantube is at all times authorised, without prior notice, to make procedural, technical, commercial or other changes and/or improvements to the Service and/or the Online Platform, to put the Service and/or the Online Platform out of operation (temporarily) and/or to limit the use of the Service and/or the Online Platform if this is necessary in its opinion, for example in the context of reasonably necessary maintenance to the Service and/or the Online Platform.
15 Intellectual Property Rights
15.1 The Intellectual Property Rights in respect of the Online Platform, the Service, the Information and the database, including – but not limited to – the Intellectual Property Rights to the texts, images, design, photos, software, audiovisual material and other material lie with Fantube or its licensors.
15.2 Subject to the conditions as set forth in these Terms and Conditions, Fantube grants the User a limited, personal, revocable, non-exclusive, not (sub) licensable, non-transferable right to use the Service and to view the Information in the manner and in the format as it is made available via the Service.
15.3 It is expressly not permitted to copy or publish the Service, the Online Platform, the User Material not originating from the User and/or the Information and/or other data, or to use the above for direct or indirect commercial purposes or for any other purpose than the purposes stated in these Terms and Conditions, unless Fantube or the rightholder in question have given their express and written permission for that.
15.4 Unless expressly permitted under mandatory law or under these Terms and Conditions, or at the request or with the permission of Fantube, the User is not permitted to decompile or reverse engineer the Service, the Online Platform and/or their source or object code(s).
15.5 Fantube can take technological measures to protect the Online Platform or the Service and/or their separate parts. The User may not remove or circumvent these technological protective measures or offer the means to do so.
15.6 It is not permitted to remove, hide or change notices or statements with regard to Intellectual Property Rights or to make them illegible.
15.7 Nothing in these Terms and Conditions is intended to transfer any Intellectual Property Rights to the User. The User will not perform any actions that can infringe the Intellectual Property Rights of Fantube, Users and/or third parties, such as registering domain names, brands or Google Adwords, search terms (keywords) that are similar or identical to any mark to which Fantube and/or the Users can apply Intellectual Property Rights.
15.8 By using the platform you agree to the Terms & Conditions of use, meaning that the Online Platform has the right to use names, logo’s, Video’s or content uploaded on the platform for own marketing purposes.
16 Customer Service & Resolving Issues
16.1 We care about your experience and want to ensure we maintain the highest standards possible and so if you would like to make a complaint about one of our Users or Artists, please email us at [email protected] or call us on 0049-15773237895.
16.2 Following receipt of a complaint we will contact the Artist and/or User to try and resolve the issue on your behalf. If we are unable to resolve the issue following contact with the User and/or Artist, if we consider it to be fair in all the circumstances, we may at our sole discretion elect to: -give you a credit note for the disputed/complained about amount of your Order (to be redeemed on the Online Platform to reduce the purchase price of any Services); or -as a last resort or in extreme circumstances and always at our sole discretion refund the disputed/complained about amount directly to you via the original method of payment. Please note that it might take up to 30 days to receive a full refund in such cases.
16.3 Further or alternatively, if you are unhappy with the Video you received from an Artist, you can also leave an honest feedback on Online Platform to reflect your experience. Your feedback will be shown on the profile of that Artist.
16.4 IMPORTANT NOTE: PLEASE DO BEAR IN MIND THAT WE TAKE ALL COMPLAINTS ABOUT OUR USERS AND ARTISTS VERY SERIOUSLY AND WILL ALWAYS DO WHAT WE CAN TO HELP TO RESOLVE THEM.
17.1 The collection of (personal) data of Users, including User Material and Information, that is collected by Fantube and displayed on the Online Platform should be viewed as a legally protected database. Fantube is the producer of the database and therefore has the exclusive right to grant permission for i) the requesting or reusing of the entirety or a substantial part, from a quantitative and qualitative point of view, of the contents of the database and ii) the repeated and systematic requesting or reusing of non-substantial parts, from a quantitative and qualitative point of view, of the contents of the database, in so far as this is in conflict with the normal operation of the database or causes unjustified damage to Fantube’s lawful interests. The User may only request or reuse data from the database if and in so far as this is permitted under these Terms and Conditions.
18 Report of alleged unlawful material
18.1 Fantube is not liable for any damage in connection with the unlawful use of the Online Platform or the Service. Fantube is only obliged to remove unmistakably unlawful User Material after receipt of a report, under the conditions indicated below.
18.2 Fantube has determined a procedure by means of which the presence on the Online Platform or the accessibility via the Online Platform and/or the Service of alleged unlawful User Material or an alleged wrongful act can be reported to Fantube here.
18.3 Fantube retains the right to refuse to grant a request to block or remove User Material or discontinue an activity if it has valid reasons to doubt the correctness of the report or the legitimacy of the evidence submitted or if a balancing of interests does not require that of Fantube. In that context, Fantube can for example require a court decision of a competent court, which decision shows that the User Material in question is without a doubt unlawful.
18.4 Fantube will in no way be a party to a dispute between the User and any third party that makes a report.
18.5 If the User makes a report, the User indemnifies Fantube and all its affiliated companies as well as its management, directors, employees, representatives and legal successors against any claim by third parties in connection with the blocking or removal of User Material or the discontinuation of activities. The indemnification also relates to all damage Fantube suffers, may still suffer or the costs Fantube must incur in connection with such a claim, including – but not limited to – the compensation of costs for legal assistance.
18.6 Fantube respects and protects the privacy of the parties making a report. All personal information provided to it in the context of a report will always be handled confidentially and will only be used to handle the report.
19.2 The platform respects the privacy of its users and will do its best to create a safe environment for its users.
19.3 Fantube shares User data, such as email address and name, with Artists, Management and/or Charity. Fantube will only share User data with an Artist, Management and/or Charity in case: a User is subscribed to that Artist on the Online Platform, the User has received a video from that Artist on the Online Platform, the User has bid on the auction of the artist, the User participated once with an video lottery of that artist. The Artist, Management and/or Charity may use this data for own promotion and or marketing purposes.
20.1 Fantube accepts no liability whatsoever for damage resulting from the provision of the Service, including – but not limited to – damage resulting from or in connection with the use of the Online Platform and/or the Service or from wrongful acts or otherwise, in so far as this is permitted pursuant to mandatory law.
20.2 Fantube can among other things never be held liable for any damage suffered as a result of the conclusion of a Contract of Sale by a Buyer or Artist, including – but not limited to – damage that ensued because the User concluded unfavourable agreements, for example because more or less money was paid for the purchased Videos than the expected value.
20.3 The only action the User can take if he believes that he has suffered damage is discontinuing the use of the Service and deleting his Account, subject to the applicability of Article 22.
20.4 In so far as despite the above Fantube would be liable for any damage for any reason whatsoever, it is only liable for the compensation of direct damage the User suffers as a result of a shortcoming or wrongful act that can be attributed to Fantube. Direct damage only includes material damage to goods, reasonable costs incurred to prevent or limit direct damage and reasonable costs incurred to determine the cause of the damage, the liability, the direct damage and the manner of repair.
20.5 If and in so far as Fantube would be liable for damage for any reason whatsoever, its liability is in any case limited to: the total commissions received by Fantube from the User in question in the period of three months prior to the action that led to liability.
20.6 This limitation of liability does not intend to exclude the liability of Fantube for intent and/or deliberate recklessness of Fantube itself (“own actions”) and/or its management.
20.7 A condition for the creation of any right to compensation is always that the User reports the damage to Fantube in writing as soon as possible after the creation of the damage. Each claim for compensation against Fantube expires by the mere lapse of twelve months after the creation of the claim.
20.8 This article also covers all companies affiliated with Fantube as well as its management, directors, employees, representatives and legal successors.
20.9 Content rights: The content on the Online Platform is updated on a daily basis. However the platform cannot guarantee that all information (i.e. amount of open requests and prices) is always 100% accurate. The platform has the right to make changes, which are valid immediately, and these changes do not need to be communicated upfront.
21 Guarantees and indemnifications
21.1 The User is liable towards Fantube for, and fully indemnifies Fantube against, all damage and costs Fantube suffers or incurs as a result of (i) an attributable breach in the performance of the Terms and Conditions by the User, (ii) any actions of the User in the use of the Service or (iii) a wrongful act. All costs incurred by Fantube and damage suffered by Fantube that is in any way related to such claims will be compensated by the User.
21.2 The User guarantees that the User Material that he shares via the Service is unencumbered and that there are no third parties that can claim Intellectual Property Rights to it, as well as that the User Material does not infringe or is in conflict with any right of third parties and that the use thereof is also not wrongful towards third parties in any other way.
21.3 The User indemnifies Fantube against all claims of third parties, for any reason whatsoever, in respect of compensation of damage, costs, interest, taxes, levies and/or deductions in connection with or resulting from his User Material, his use of the Online Platform, the Service and/or a breach of these Terms and Conditions and/or any rights of third parties, including – but not limited to – Intellectual Property Rights.
21.4 The obligations to indemnify in this article also apply for any companies affiliated with Fantube as well as its management, directors, employees, representatives and legal successors.
22 Term and termination
22.1 The User has the right to discontinue the use of the Service and to delete his Account at any time. Fantube has the right to refuse the deletion of his Account if the User still has to comply with some obligations (such as payment or Video delivery obligations) towards Fantube or other Users. If the User acts in conflict with these Terms and Conditions, Fantube is entitled, in addition to the other (legal) means available to Fantube, to limit or suspend the User’s activities in connection with the Service or to put them out of operation immediately, in whole or in part, temporarily or otherwise, to discontinue and/or remove his Account temporarily or permanently, to issue a warning, to terminate the Service or to refuse to provide the Service to the User. Fantube will in no way be liable or liable for compensation towards the User for this.
23 Miscellaneous, applicable law and competent court
23.1 The Terms and Conditions, the use of the Service and the Online Platform, any disputes following therefrom, as well as all Contracts of Sale between Artists and Buyers, are governed by German law, unless otherwise provided in or pursuant to mandatory treaty provisions.
23.2 Users acknowledge that international private-law rules may have the result that another law than German law (also) applies to transactions with other Users, particularly to transactions with Consumers.
23.3 All disputes that arise between the User and Fantube will be submitted to the competent court in the district of Berlin, unless mandatory law stipulates that the dispute must be submitted to another court. With regard to Consumers, disputes must be submitted to the competent court in the district of Berlin, unless the Consumer chooses the court that is competent according to law within one month after Fantube has invoked this provision in writing.
23.4 It can also be decided in mutual consultation that a Consumer submits a dispute with Fantube or with another User to an authority for extrajudicial dispute resolution (see the website of the ODR Platform for more information). Such consultations will be held by Fantube in good faith, but it will never be obliged to subject itself to such procedures.
23.5 Fantube may transfer rights and obligations that follow from these Terms and Conditions to third parties and will inform the User thereof. If the User does not find the transfer of obligations to a third party acceptable, the User can discontinue the use of the Service and delete his Account, subject to applicability of Article 22.
23.6 If any provision(s) in these Terms and Conditions is/are void or invalid in whole or in part for any other reason, the User and Fantube remain bound to the remaining part of the Terms and Conditions. Fantube will replace the void and/or invalid part (with regard to the specific User or specific situation) by provisions that are valid and of which the legal consequences, in view of the contents and object of these Terms and Conditions, are in line with the invalid part as much as possible.
24.1 For questions about the Service, the Online Platform or these Terms and Conditions, you can contact Fantube via the following contact information at all times: Fantube GmbH, Rigaer strasse 18B, 10247 Berlin, Germany, [email protected] T +49 15773237895
25 Amendments of these Terms
We’ll notify before We make changes to these Terms and give the opportunity to review on the revised terms before continuing to use the Services.The continued use of the Services, following notice of the changes to Our terms, policies or guidelines, constitutes as acceptance of Our amended terms and policies (pop-up Terms asking user to agree).