Last edited on 22.02.2021
General Terms and Conditions
Welcome to WhatsFlirt. The following Terms and Conditions govern the relationship between Hit Performance B.V., Craenakker 3, 5951CC Belfeld, Netherlands (hereinafter "Hit Performance") and the users and customers of its telemedia Services (hereinafter "User"). They define the conditions under which the use of the Services offered by "WhatsFlirt" takes place.
1. Acceptance of the Contract Concerning the General Terms and Conditions
Hit Performance may make changes to this Agreement and the Service from time to time. We may do this for a variety of reasons, such as to reflect changes in laws or regulations, new functions, or changes in business practices. The most current version is always the valid version. If the changes include significant changes that affect your rights or obligations, we will provide you with reasonable notice of those changes, by way of messages via the Service or by e-mail, for example. If you continue to use the Service after the changes take effect, you agree to the revised Agreement.
Access to the Hit Performance database and Services is granted after the User has registered. During registration, a password and pseudonym specified by the User is used. Registration requires the User to enter an e-mail address and completely fill in the registration form.
As an alternative, the User is offered a connect function from third-party providers (e.g. Facebook Connect). When registering via the connect function of a third-party provider, the respective profiles of the User are transferred to the Hit Performance database. When registering via the connect function of a third-party provider, the User must accept the respective terms and conditions of the third-party provider.
3. Scope of Services
Hit Performance enables Users to access a central database system via its mobile application. This database system contains profiles and information about other Users. After registering and creating their own profile, Users have the option of searching for other profiles in the database. Users can view the profiles of other Users and contact them. In addition, Hit Performance offers access to data from a selection of Users as part of its access to the database system. The content, type and duration of the data material provided and transmitted by the respective User is the sole responsibility of the User.
Hit Performance provides both free and paid Services. With the free registration, the User can create a profile, view the profiles of other Users and read messages from other Users. Likewise, a User can tag the profiles of other Users free of charge. If two Users tag each other's profile, this is shown to both Users. This is a so-called match.
In addition to the free Services listed above, the User is offered to contact other Users and write messages to them for a fee. Before these Services are provided, the User is informed of the costs, content and scope of the Services as well as the price and terms of payment.
Minors and persons acting on behalf of a third party are excluded from using Hit Performance's Services. If Hit Performance has reason to suspect that a person is not entitled to participate, Hit Performance shall be entitled to verify the person's personal data by validating their identity by requesting official documents. Users who are not entitled to participate are excluded from using Hit Performance's Services and the database.
By creating an account and by using the Service, the User declares and guarantees that:
- they can enter into a binding contract with Hit Performance;
- they will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations; and
- they have never committed a serious crime or a punishable act (or a similar offence), a sexual crime or a violent offence and is not listed as a sex offender in any state, federal or local sexual offender register.
5. Termination of the Free Membership
- A user is entitled at any time to delete his profile without giving reasons.
- In addition, Hit Performance reserves the right to refuse the registration of a User at any time without stating reasons
- If the User violates these General Terms and Conditions, Hit Performance may terminate the membership at any time without notice
- Upon termination of membership, all obligations of the operator to store data of the User cease, unless statutory retention periods require storage.
6. Modification of the Services
Hit Performance always strives to improve the Service and provide Users with additional functionalities that they find appealing and useful. This means that from time to time Hit Performance will introduce new product features or enhancements and remove some features, and if these measures do not materially affect the rights or obligations of Users, Hit Performance may do so without prior notice to Users. Hit Performance may even suspend the Service altogether, in which case Hit Performance will notify Users in advance unless mitigating circumstances, such as security concerns, prevent this.
In addition to the free Services, Hit Performance offers the User various fee-based Services and benefits. With each individual use of these Services, the User enters a new contractual relationship with Hit Performance. Each use of a Service constitutes a new contractual relationship. These Services are completely detached from the free use of the Hit Performance database system. The individual contracts do not constitute subscriptions. The contract is concluded by the User selecting the chargeable Service and accepting the payment obligation by pressing the "Buy" button (hereinafter: Order Process). The Services subject to charges are also subject to local terms and conditions.
- WhatsFlirt Purchases
If the User chooses to make a purchase through WhatsFlirt, they agree to pay WhatsFlirt all fees at the indicated price for the Services they have selected, as well as any costs or taxes that may be incurred on their payments. In addition, WhatsFlirt is authorized to charge the selected payment provider (the User's "payment method"). WhatsFlirt may correct any billing errors or mistakes even if payment has already been requested or received. If the User reverses a transaction or otherwise reverses a payment via its payment method, Hit Performance may, at its sole discretion, immediately delete the User account.
Through the conclusion of a payable contractual relationship, the User receives an amount selected in the Order Process, which is credited in the form of a credit account. The credit balance is denominated in so-called "Coins". For a consumption of 50 "Coins" the User can send messages to other Users. If the credit account no longer contains any "Coins", it is not possible to send another message to other Users. The User can add "Coins" to their credit account again through the Order Process, through which a new purchase contract is concluded.
- Virtual Items
The "Coins" are virtual items that the User acquires.
The User is only permitted to purchase virtual items via Hit Performance and by no other means. Virtual items form a limited license subject to this Agreement. Unless otherwise prohibited by applicable law, virtual items purchased by the User will be licensed to the User and the User acknowledges that no title or ownership of the virtual items will be transferred or assigned to the User. This Agreement shall not be construed as a sale of rights of virtual items. No account balance in the User's account with respect to the virtual items represents a real-world account balance or reflects any stored values but represents a measure of the scope of the User's license. There are no fees for virtual items if they are not used, but the license granted to the User for virtual items ends, in accordance with the terms of this contract, if Hit Performance ceases to provide the Service or if the User's account is otherwise closed or terminated. Hit Performance reserves the right, in its sole discretion, to charge fees for the right to access or use virtual items and/or may distribute virtual items for a fee or free of charge. Hit Performance can manage, regulate, control, modify or remove virtual items at any time. If Hit Performance exercises any of these rights, Hit Performance shall not be liable to the User or to third parties. The transfer of virtual items is prohibited, and the User may not sell, accept back or otherwise transfer virtual items to any natural or legal person. Virtual items can only be taken back via the Service. All purchases and returns of virtual items made through the Service are final and non-refundable. The provision of virtual items for use within the Service, is a Service provided by Hit Performance that begins immediately upon the User's acceptance of the purchase of such virtual items.
User acknowledges that Hit Performance is under no obligation to refund for any reason and will not be entitled to any money or other compensation for unused virtual items if an account is closed, whether intentional or unintentional. However, Hit Performance will review each request on a case-by-case basis and has the right to make refunds only as a gesture of goodwill and without acknowledging any legal obligation.
In general, all fees for purchases are non-refundable and there are no refunds or credits for partially used periods.
Purchases of virtual items are final and non-refundable.
8. Terms of Payment
- The fee for paid Services must be paid in advance to Hit Performance and is collected in full by the payment method selected in the Order Process, such as credit card, direct debit, online banking, Paysafe Card or PayPal. After successfully completing the Order Process, the coins will be credited to the customer account immediately, but at the latest after 2 hours. When purchasing by credit card, WhatsFlirt will appear as a descriptor on your statement.
- Hit Performance may have the payments for fee-based Services processed by an external Service provider appointed by Hit Performance.
9. User Obligations
- The User is solely responsible for the content of their registration, further personal data and thus for the information they provide about themselves. The User affirms that the provided data are true and describe themselves personally. Intentional or fraudulent misrepresentations may result in civil and criminal proceedings and entitle Hit Performance to block the User profile without affecting Hit Performance's right to remuneration.
- The User affirms that they do not use Hit Performance's Services for business or commercial purposes, in particular for advertising purposes. The User is not permitted to read out the contents and profiles of other Users manually or with computer programs in order to use the data obtained in this way.
- The User commits themselves to treat their login data confidentially. If the login data is passed on to third parties, the User is responsible for all consequences of the action. If it is suspected that the access data has been forwarded to third parties, the User must inform Hit Performance immediately and take appropriate measures to prevent further misuse (e.g. by changing the password).
- User are prohibited to provide any kind of explicit content.
- Furthermore, the User commits to not abusing Hit Performance's Services, in particular,
- not to use them to disseminate defamatory, racist, inciting or otherwise illegal material or information;
- not to request illegal pornography via the database system or from other Users;
- not to use them to threaten or harass other Users or performers or to violate their rights (including personal rights);
- not to introduce any data into the system or the database which contain a virus, or software or other material which is protected by copyright or other protective rights, unless the User is the owner of the respective rights or has the necessary consent for use;
- not to use them in such a way as to adversely affect the availability of the Services to other Users;
- not to intercept any e-mails or other messages and not to attempt to do so;
- not to send chain letters;
- not to send any e-mails or other messages which serve a commercial purpose;
- not to mention any names, addresses, telephone or fax numbers, messenger addresses, emails or URLs in the profile data;
- not to collect, store or process any personal data about other Users.
- Non-compliance with the above obligations or a violation of other obligations regulated in these General Terms and Conditions shall entitle Hit Performance to immediately block the User's access to the database and to terminate the contract without notice for compelling reasons.
- If the User connects commercial or business interests with the conclusion of the contractual relationship or uses the data made available to them for business or commercial purposes or for purposes not expressly approved by Hit Performance, they commit themselves to pay Hit Performance a contractual penalty of € 1,000 for each proven infringement. Further claims for damages remain unaffected by this.
- The User is also obliged to follow Hit Performance's photo/picture policy.
10. Violation of User Obligations
If the User violates these General Terms and Conditions, Hit Performance may terminate the membership at any time without notice and the User's account will be deleted.
- Hit Performance sets up an electronic mailbox for the User under their account/profile. This serves to contact other Users and to transmit Service messages from Hit Performance. Further communications from Hit Performance to the User shall be made via the e-mail address provided by the User.
- The Users of the Hit Performance database are provided with a chat for the mutual exchange of information in text form, as well as gifts and kisses for making contact. The Users themselves are responsible for managing the communication among each other and for ensuring an appropriate way of expression. Sexually objectionable statements at the start and hints during communication should be avoided.
- A chat can be started by the User at any time. Users who have a predefined number of "Coins" can write to other Users for a fee.
- A User receives push notifications by default. Notifications include notices of received chat messages, visits to the profile by other Users, tags of the profile by other Users, and matches. The notifications can be turned off in the settings of the app.
- Hit Performance uses professional animators and operators for the entertainment of the Users, who are not identified separately in the system. This Service is provided in the highest quality. Real meetings are not possible with these operators. Users can only send them messages within the portal.
12. Advertising and Newsletters
By registering with Hit Performance, the User expressly agrees that messages with information about WhatsFlirt as well as information about other Users may be sent to them. The User is entitled to stop the mailing at any time.
13. Bans on Commercial or Business Use, Ban on Spamming
- The User assures that they are not pursuing any commercial and / or business interests in connection with their use. They commit themselves to not using the WhatsFlirt website and the mobile app for commercial or business purposes.
- Advertising for commercial or business Internet pages or apps, in particular those that:
- Offering of goods or services for monetary value, the solicitation of an equivalent offer or the reference to an equivalent offer which can be obtained elsewhere
- Advertising for commercial or business websites or apps, in particular those
- offer goods or services against payment,
- are used for the presentation or advertising of companies, or
- advertise other commercial portals.
- This applies in particular to the advertising of companies in the form of pop-ups, banner advertising or through specially highlighted or conspicuous links. An internet page is considered commercial if it links directly or indirectly to the commercial internet portal of another operator.
- Establishing contact for the purpose of making a subsequent profit, in particular through subsequent references to 0900 numbers or premium rate SMS numbers.
- The User commits themselves not to advertise commercial offers to other Users of the Service offered here or to other Users in any form and not to send messages that serve a commercial or business purpose. This also refers to setting or naming links in publicly accessible profiles or sending messages with the internal message exchange systems (e.g. message posting, forums and profile data).
- A User who pursues or uses WhatsFlirt for commercial or business purposes within the meaning of point 13 without the permission of Hit Performance is obliged to pay a flat-rate compensation of € 5,100. In this case, the User is permitted to prove that no damage has been caused at all or that it is significantly less than the lump sum. Hit Performance reserves the right to prove that it has suffered higher damages as a result.
- In the event of an intentional or grossly negligent breach of the User obligations mentioned under point 9, the User commits to pay damages to Hit Performance, unless the breach already constitutes a lump-sum compensation according to paragraph 1 of this point. In this case, the User is permitted to prove that damage has occurred at all.
15. Third-party Services
The Service may contain advertisements and promotions offered by third parties as well as links to other websites or internet resources. Hit Performance is not responsible for the availability (or lack of availability) of such external websites or internet resources. If the User decides to interact with third parties through Hit Performance's Services, the relationship between them and the User is subject to the terms and conditions of these third parties. Hit Performance is not responsible or liable for the terms or actions of such third parties.
16. Amendment of the General Terms and Conditions
Hit Performance reserves the right to amend these General Terms and Conditions at any time, insofar as this does not affect essential provisions of the contractual relationship and it is necessary in order to adapt to developments which were not foreseeable for Hit Performance at the time of conclusion of the contract and the non-observance of which would noticeably disturb the balance of the contractual relationship. Essential provisions are, in particular, those relating to the type and scope of the agreed Services as well as the term, including the provisions on termination. Hit Performance is entitled to make changes to close any gaps in the contract, in particular due to legal changes and changes in case law.
17. Liability of Hit Performance
- Hit Performance assumes no responsibility or liability for the accuracy and security of the data and content published or transmitted by other Users. Hit Performance also assumes no liability for the correctness of the contents of the User profiles. Although this is not permitted, Users may enter incorrect or illegal information and content or use Hit Performance's Services for inappropriate or illegal purposes.
- Hit Performance provides an IT service with access to the database and does not guarantee success. As Hit Performance has no influence on the transmission of data via the internet outside its own IT infrastructure, and due to the characteristics and uncertainties of the internet, Hit Performance cannot accept any liability for such external data losses and/or errors in data transmission. Hit Performance is not liable for any failure of the offer which is beyond its control (e.g. due to force majeure or technical malfunctions of the internet).
- Hit Performance assumes no liability for the misuse of information provided by the User to third parties. Hit Performance is also not liable for the unauthorized access of third parties to the personal data of Users (for example through unauthorized access to the central database), unless Hit Performance has deliberately or grossly negligently made the unauthorized access by third parties possible.
- Hit Performance is only liable - except in the case of breach of essential contractual obligations, in the case of injury to life, body or health or in the case of claims arising from the Product Liability Act - for intent and gross negligence. Essential contractual obligations are those whose fulfilment is necessary to achieve the purpose of the contract.
- In the event of a minor negligent breach of an obligation which is essential for achieving the purpose of the contract (cardinal obligation), Hit Performance's liability shall be limited in amount to the damage which is foreseeable and typical for the type of activity in question.
- The above limitation of liability also applies to the personal liability of Hit Performance's employees, representatives and agents.
- The User grants Hit Performance a non-exclusive, transferable, geographically unlimited and temporally limited right of use to the contents created or uploaded by them on the database, including pictures, texts and videos.
- The User assures that the contents posted or created by them and their use do not infringe the rights of third parties, in particular copyrights or other property rights.
19. Data Protection
20. Cancellation Instruction
- Right of Cancellation
The User has the right to cancel the created contracts within fourteen days without stating reasons. The revocation period is fourteen days from the day of the individual conclusion of the contract. In order to exercise the right of cancellation, the User must inform us (Hit Performance B.V., Craenakker 3 5951CC Belfeld, Netherlands) by means of an unambiguous statement (e.g. a letter or e-mail sent by post) of their decision to cancel this contract. In order to comply with the withdrawal period, it is sufficient for them to send notification of the exercise of the right of cancellation before this cancellation period expires.
- Consequences of Cancellation
If the User cancels this Agreement, we shall reimburse them all payments we have received from them, including delivery costs (with the exception of additional costs resulting from the User having chosen a method of delivery other than the low-cost standard delivery offered by us) without undue delay and at the latest within fourteen days of the date on which we received notification of the User's cancellation of this Agreement. We shall use the same means of payment for this reimbursement as they used for the original transaction, unless expressly agreed otherwise with them; in no event shall they be charged for this reimbursement.
If the User has requested that the Service commence during the cancellation period, the User shall pay us a reasonable amount equal to the proportion of the Services already provided up to the time when the User notifies us of the exercise of the right of cancellation with respect to this Agreement in relation to the total scope of the Services provided for in the Agreement.
- Sample cancellation form
If you want to cancel the contract, please fill out this form and send it back to us
Hit Performance B.V.
I/we (*) hereby cancel the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following services (*)
Ordered on (*)/received on (*)
Name(s) of customer(s)
Address of customer(s)
Signature of customer(s) (only for written correspondence)
(*) Delete as appropriate.
- If the User has given their express consent, the right of cancellation expires prematurely if the Service requested by the User has been completely provided by Hit Performance before the User has exercised their right of cancellation.
21. Final Provisions
- The legal relationship between Hit Performance and the User shall be governed by the laws of Netherlands, subject to any mandatory provisions. The place of jurisdiction for all claims arising from this contract is Belfeld, insofar as the User is not a customer. The applicability of mandatory regulations of the state in which the User has their habitual residence or domicile at the time of conclusion of the contract remains unaffected.
- Should individual provisions of these General Terms and Conditions be invalid or incomplete, the validity of the remaining General Terms and Conditions shall remain unaffected.