Terms and Conditions

1. General

1.1. By accessing the iContest website or iContest mobile applications, or any related service, the user or visitor (hereinafter referred to as "You", "Your", "User" or "Users"), regardless of the type of media through which the User accesses the Service, agrees to these terms and conditions (hereinafter referred to as „t&c“) including to the Privacy Policy (together to the "terms and conditions"). The applications or services of Rate My item (hereinafter also referred to as „APP“) offer Users an innovative way to rate (e.g. someones pictures of his/her creation - hereinafter also referred to as „item“), to upload own Items and achieve the related evaluations. We as the RateMyTate GmbH (hereinafter also referred to as „iContest“) are offering this APP to you subject to the following terms and conditions (hereinafter referred to as „t&c“). By downloading or using the APP the following t&c apply to you exclusively.

1.2. As an application based software, the APP provides an upload function where a User can upload and categorize his/her Items (hereinafter also referred to as „Creator“). Other Users can rate different Items (hereinafter also referred to as „Rator“) and the Creator receives an evaluation of his/her own item dependent on how often he rated someone’s Items. Items will be ranked, could be searched, could be marked as a favorite or evaluations could be shared with third party applications. A User can message other users. A User can create public or private events, Users could be invited to upload Items and other Users could rate the uploaded Items within an afore defined period of time.

2. User

2.1. Downloading the APP and using our products or Services is only allowed to Users at least at the age of 14 years. In case of users under 18 years of age their parent or legal guardian has to agree to be bound by these t&c.

2.2. To use the APP and access the Services, the User has to create an account or login through a third party API (e.g. facebook or google login). By creating the account or logging in through a third party API the User confirms that the conditions in section 2.1. are fulfilled.

3. Content

3.1. Amongst others the APP allows Users to rate shared content as well as to share and post content by themselves. Before uploading the content (eg pictures) cannot be screened, verified or reviewed by iContest.

3.2. The User grants iContest a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, transferable sub-licensable license to use, rate, offer to other users for rating purposes, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your content and any name, username or likeness provided in connection with your content in all media formats and channels now known or later developed, without compensation to you. When the User posts or otherwise shares content on or through our Services, he/she understands that his/her content and any associated information will be visible to the public.

3.3. The User grants iContest consent to use the content, regardless of whether it includes an individual’s name, likeness, voice or persona, sufficient to indicate the individual’s identity.

3.4. The User represents and warrants that

a. he/she owns the content posted, shared or uploaded by him/her or otherwise has the right to grant the rights and licenses set forth in these t&c

b. he/she agrees to pay for all royalties, fees, and any other monies owed by reason of content he/she posted, shared or uploaded and

c. he/she has the legal right and capacity to enter into these t&c in his/her jurisdiction.

3.5. The User may not create, post, store or share any content that violates these t&c or for which he/she does not have all the rights necessary to grant us the license described above. Although we have no obligation to screen, edit or monitor content, we may delete or remove content at any time and for any reason. Removed content may continue to be stored by iContest, including, without limitation, in order to comply with certain legal obligations. iContest is not a backup Service and the User agrees that he/she will not rely on the Services for the purposes of content backup or storage. iContest will not be liable to the User for any modification, suspension, or discontinuation of the Services, or the loss of any content.

4. Prohibited conduct and content

4.1. The User will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and he/she is solely responsible for his/her conduct while accessing or using the APP.

The User will not:

a. Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
b. Use or attempt to use another User’s account without authorization from that User and iContest;
c. Use the APP or our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
d. Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
e. Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
f. Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
g. Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these t&c.

4.2. The User may also only post or otherwise share content that is non-confidential and he/she has all necessary rights to disclose. The User may not create, post, store or share any content that:

a. Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
b. Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
c. May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
d. Contains or depicts any statements, remarks or claims that do not reflect his/her honest views and experiences;
e. Impersonates, or misrepresents his/her affiliation with, any person or entity;
f. Contains any unsolicited promotions, political campaigning, advertising or solicitations;
g. Contains any private or personal information of a third party without such third party’s consent;
h. Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
i. Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose iContest or others to any harm or liability of any type.

4.3. iContest does not control, endorse or take responsibility for any shared, posted or uploaded content or third-party content available on or linked to by the APP or their Services.

5. Indemnification

5.1. To the fullest extent permitted by applicable law, the user will indemnify, defend, and hold harmless iContest and its employees and agents (individually and collectively, the “Indemnified Parties”) against all claims and proceedings (to include any settlements made with the consent of the parties hereto and reasonable legal and expert costs and expenses) made or brought (whether successfully or otherwise) by whom ever arising out of or related to (a) his/her access to or use of the APP or our Services; (b) his/her content; (c) his/her violation of these t&c; (d) his/her violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) his/her conduct in connection with the APP or our Services.

5.2. The User agrees to promptly notify Indemnified Parties of any third party claims, cooperate with Indemnified Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). The User also agrees that the Indemnified Parties will have control of the defense or settlement of any third party Claims.

6. Disclaimers

6.1. The APP and Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

6.2. iContest does not represent or warrant that the APP or Services are accurate, complete, reliable, current or error-free as well as the APP or Services or servers are free of viruses or other harmful components. The User assumes the entire risk as to the quality and performance of the APP and Services.

7. Liability

7.1. The liability of iContest and each of their respective officers, directors, agents and employees irrespective of the legal ground, is – in cases of slight negligence – limited in total for each individual claim/single case of damage to the amount paid, if any, by you to access or use the APP or our Services.

7.2. An individual claim/single case of damage shall be: either the sum of all damage claims asserted by all damaged persons/beneficiaries resulting from one and the same action, i.e. one single act; or: the sum of all claims asserted by one and the same claimant/beneficiary based on different actions but in a legal or economic context therewith; or: the sum of all claims in connection with an uniform damage resulting from one or more actions. For each individual claim/single case of damage, iContest only provides for one singular payment (limited with the above mentioned amount) with respect to all consequences of the wrongful act, also in case of more than one person being liable to pay compensation.

7.3. The above limitation of liability also applies in case that iContest becomes liable towards any other person than the User, for example, in case that the contractual relationship with the User includes third persons into the scope of protection; this limitation of liability especially applies with respect to companies, in which the User holds either directly or indirectly a participation, or which are either direct or indirect shareholders of the User, or which are under joint control with the User, or which are in any other form associated with the User.

7.4. In case that the User is an entrepreneur in the sense of Sec 1 Subsec 2 Austrian Consumer’s Act („Konsumentenschutzgesetz“), which should be the case at hand, the limitation of liability according to above Clause 7.1 applies – in addition to the cases as mentioned in Clause 7.1 – also in cases of simple gross negligence.

7.5. The limitation of liability according to Clauses 7.1 til 7.3, respectively, do not apply in cases of personal injuries.

7.6. Besides, iContest the other Indemnified Parties as defined in Section 5.1. will not be liable to the User for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits.

8. Communication, copyright, data protection

8.1. The User agrees to a communication by electronic media, particularly e-mail, even in non-encrypted form. If another form of correspondence is desired, the User has to expressly notify iContest thereof.

8.2. All evaluations, analysis, other documents or similar remain the intellectual property of iContest. A repeated use, modification or further use is only allowed with the prior written consent of iContest.

8.3. The correspondence generated within the relationship between iContest and the User as well as all evaluations, analysis, other documents or similar, are only intended for the User. Any transfer to a third party requires the prior written consent of iContest. A liability of iContest towards third parties is in any case excluded.

8.4. The User hereby takes notice, that iContest is entitled to process, deliver or transmit personal data relating to the User as far as this is either necessary or appropriate for iContest to fulfil tasks assigned by the User to iContest, or as far as this is based on legal provisions.

8.5. Data collected or provided may include personal data of the User which is subject to specific legislation relating to the processing, storage, transfer and use of such data. iContest will comply with all relevant laws relating to the protection and use of personal data and data privacy. iContest further will take all technical and organizational measures to prevent unauthorized or unlawful processing or accidental loss or destruction of, or damage to, or disclosure of such data.

8.6. In compliance with applicable data security laws (including but not limited to Austrian Data Protection Act, DSG 2000) personal data relating to the User will be processed and used for legal purposes only and will be held on one or more databases in the EU.

9. Lapse / preclusive period / termination

9.1. Unless the law stipulates a shorter term of lapse or preclusion, all claims (excluding, however, warranty claims, in the event that the User is a consumer in the sense of Austrian Consumer’s Act] against iContest shall lapse, unless the User has claimed them in court within six months (in the event that the User is an entrepreneur) or within one year (in the event that the User is a consumer) as of the date at which the User becomes aware of the damage and the damaging party, or of the incident that otherwise gives rise to a claim, but at the latest after the expiry of five years as of the conduct (infringement) causing the damage (giving rise to a claim).

9.2. iContest reserves the right, without notice and in our sole discretion, to terminate your right to access or use the APP or our Services.

10. Information regarding the right of cancellation for consumers

10.1. The consumer has the right to cancel the engagement within 14 days without giving any reasons. The time period of 14 days is counted from the conclusion of this contract. The User has to inform iContest by e-mail (deregistration@iContest.com) about his/her decision to execute his/her right of cancellation.

10.2. If the User cancels this contract, iContest has to return all received payments (e.g. advance on costs) immediately and at the latest 14 days from the date of receipt of his/her statement of cancellation. iContest will use the same currency/instrument of payment for the return of the received payments, which was used for the initial transaction by the User, if it is not agreed otherwise. In no case iContest will charge any fees for returning the received payments. Financial transaction costs are fully covered by the user.

10.3. If the User wishes iContest to start the Services during the period of his/her right of cancellation, his/her right of cancellation is forfeited with completing the fulfilment of the contract through iContest.

10.4. If the User wishes iContest to start the Services during the period of his/her right of cancellation and in the following executes his/her right of cancellation, he/she has to pay iContest proportional fees (fees for Services actually rendered until executing the right of cancellation, compared to the full agreed amount of fees, if any).

11. Choice of law and jurisdiction

11.1. Austrian law is exclusively applicable without giving regard to its conflict rules principles. The place of performance and exclusive legal venue shall be Vienna. Towards Users, who are customers according Austrian Consumer’s Act („Konsumentenschutzgesetz“), the provisions on the legal venue as defined in § 14 Austrian Consumer’s Act („Konsumentenschutzgesetz“) shall apply.

12. Contests / Competition

12.1. iContest is the solely sponsor and promoter of the contest or competition.

12.2. Employees of iContest shall not be permitted to enter the contest.

12.3. Users aged 17+ are eligible to participate at iContest contests.

12.4. There is no entry fee and no purchase necessary to enter a contest.

12.5. Opening and closing date for a contest will be defined by iContest. After the closing date no further entries to the competition will be permitted.

12.6. To ensure fairness and objectiveness a “Rate for Rate” algorithm is used. The more you rate, the more often your item is getting rated. To get ranked you need a minimum of seven rates to participate at a contest.

12.7. No responsibility can be accepted for entries not received for whatever reason.

12.8. iContest reserves the right to cancel or amend the contest and these t&c without notice in the event of a catastrophe, war, civil or military disturbance, act of God or any actual or anticipated breach of any applicable law or regulation or any other event outside of iContest’s control. Any changes to the contest will be notified to entrants as soon as possible by iContest.

12.9. iContest is not responsible for inaccurate prize details supplied to any entrant by any third party connected with this contest.

12.10. Prizes will be basically offered in cash whereby the currency is fixed in EURO at the opening date.

12.11. The winner will be notified by email/on social-media platforms within 28 days of the closing date. If the winner cannot be contacted or do not claim the prize within 14 days of notification, iContest reserves the right to withdraw the prize from the winner.

12.12. Potential bank transaction costs are fully covered by the winner.

12.13. iContest has the right to split the prize money.

12.14. iContest’s decision in respect of all matters to do with the contest will be final and no correspondence will be entered into.

12.15. By entering this contest, an entrant is indicating his/her agreement to be bound by these t&c, as well as the contest details (e.g. prize money, specific terms, duration).

12.16. The winner agrees to the use of his/her name and image in any publicity material.

12.17. Entry into the contest will be deemed as acceptance of these t&c.

12.18. Contests are in no way sponsored, endorsed or administered by, or associated with Social Networks. You are providing your information to RateMyTate GmbH and not to any other party. The information provided will be used in conjunction with the following Privacy Policy found at http://iContest.com/privacy

13. Additional terms for our iOS App

13.1. You acknowledge and agree that (i) these t&c are binding between you and iContest only, and Apple is not a party hereto, and (ii) as between iContest and Apple, it is iContest that is responsible for the app and the content thereof. You must use the iOS app only on an Apple-branded product that runs iOS. Your use of the app must comply with the terms of use applicable to the Apple source from which you obtain it (including the Usage Rules set forth in the Apple App Store Terms of Service). You acknowledge that Apple has no obligation to furnish you with any maintenance and support services with respect to the app.

13.2. You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the app or your possession and use of the app, including, but not limited to (i) product warranty or liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) claims that the app infringes a third party’s intellectual property rights.

13.3. In the event of any failure of the iOS version of the app to conform to any applicable warranty that has not been effectively disclaimed by these t&c, you may notify Apple, and Apple will refund the purchase price for the app (if any) to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app, and, as between Apple and iContest, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be iContest’s responsibility, but only to the extent provided by these Terms. Please read the entire t&c, as other sections of these t&c limit iContest’s liability in this regard.

13.4. Apple, and Apple’s subsidiaries, are third-party beneficiaries of these t&c. Upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the t&c against you as a third party beneficiary thereof. There are no other third-party beneficiaries of the t&c.

13.5. Contests (referred to section 12): No purchase or payment of any kind is necessary to enter or win. A purchase will not increase your chances of winning. Void where prohibited. Apple is not a sponsor nor is involved in any way in this contest. iContest is solely responsible for providing your prize if you win it. The prizes won are not Apple products, nor are they related to Apple in any way. The responsibility of organizing the contest and distributing the prizes are iContest’s responsibilities. Apple does not sponsor this contest in any way.

14. Miscellaneous

14.1. Whenever one or several conditions of the present t&c of engagement or of the contractual relationship governed by the present t&c of engagement become invalid, this shall not affect the validity of the remaining provisions. iContest and the User agree to replace the ineffective provision(s) by another provision that comes closest to the intended economic result