General Terms and Conditions of Business
Art. 1 Subject of the agreement The subject of this agreement is the use of software by the customer. The software is design software that has been developed by the provider and can be used over the Internet.
Art. 2 Licensing of the software (1) The provider shall provide the customer with the software. The software shall be provided to the customer for use exclusively on the Internet. While being used, the software shall remain on the provider’s servers. The provider is not obliged to establish and maintain the data link between the customer's IT systems and the server operated by the provider and connected to the Internet. (2) The provider shall continually enhance the software. The customer shall not have any claim to new features, unless the latter has been explicitly agreed. The provider shall be entitled to add further features to the software.
Art. 3 Entitlement to apply to use the software (1) The full use of the software requires registration. No claim to use the software exists. The provider shall be entitled to decline any applications for use without giving reasons. (2) The customer may only register if he or she is at least 18 years of age and has unlimited legal capacity. Minors may not register. In the case of a legal entity, the application needs to be made by a natural person with unlimited capacity to act and entitled to represent the legal entity.
Art. 4 Application to use the software (1) The data requested by the provider during the application procedure needs to be given by the customer in full and accurately. (2) Should there be no other concerns from the provider’s perspective, the provider shall activate the account applied for, and shall notify the customer about it by e-mail. The e-mail shall be deemed approval of the application to use the software. Once the customer receives the e-mail, he or she shall be entitled to use the software under these General Terms and Conditions of Business. For this purpose, the customer needs to first confirm such activation, by clicking on the link contained in the e-mail.
Art. 5 The processing of personal details (1) Should the customer process personal data in the course of this contractual relationship, he or she shall be responsible for adhering to the data privacy regulations. (2) The provider shall only gather and use customer-specific data in the scope required for fulfilling this agreement. The customer consents to such data being gathered and used in this scope.
Art. 6 Backing up data Solely the customer shall be responsible for backing up the data.
Art. 7 Rights of use in the software (1) The customer shall receive non-exclusive (non-sub-licensable and non-transferable) rights of use in the software, in accordance with the provisions below. (2) The customer shall use the software on the provider's server. The software shall not be licensed to the customer. (3) Should the provider release new versions or any updates or upgrades, or make any other new deliveries during the term of this agreement, the aforementioned rights shall also apply to the latter. (4) The customer shall not be entitled to assert any rights not expressly granted to the customer above. The customer shall, in particular, not be entitled to use the software beyond the extent of use agreed or have it used by third parties, or make the software available to third parties. The customer shall in particular not be permitted to duplicate the software, sell it on or temporarily license it to another party, and in particular not rent it out or lend it to anyone. (5) The customer shall be liable for seeing to it that the software is not used for any illegitimate purposes, such as racist, discriminatory or pornographic purposes, or any purposes that are harmful to minors, or politically extremist or any other illegal purposes, or any purposes which infringe official regulations or requirements, and that no corresponding data, in particular use data, is created and that such data is not stored on the provider's IT systems. (6) Should the customer infringe the provisions laid down in paragraphs 1-5, for reasons for which he or she is responsible, the provider may, following a prior written notification sent to the customer, block the customer's access to the software if the infringement can verifiably be stopped by the latter. (7) Should the customer illegitimately infringe paragraph 5, the provider shall be entitled to remove the affected data or application data. In the event of an illegitimate infringement by the user, the customer shall, at the provider’s request, provide the provider with all the details required for asserting a claim against the user, in particular the latter’s name and address. Should the customer continue to infringe the provisions laid down in paragraphs 1-5, or do so repeatedly, in spite of receiving a written warning from the provider, and should it be responsible for carrying out such infringing actions, the provider may terminate the agreement extraordinarily without adhering to a period of notice. (8) Should the customer be liable for the breach of duty, the provider may assert damages.
Art. 8 Rights of the customer in emerging works The graphics and graphic elements provided by the provider (“templates”) shall be subject to the copyright applicable in the provider’s jurisdiction. The provider shall grant the customer a respective non-exclusive, global and chronologically unlimited right of use in such templates when using them, as long as the customer purchases from it the logo designed by it. Otherwise it shall not be permitted to use the templates. Any statutory rights permitting use shall not be affected thereby.
Art. 9 Remuneration (1) The remuneration shall be paid for every logo that is downloaded. Before a logo can be used, in return for a fee, the customer shall be informed on the costs, and may then decide whether he or she would like to download the logo for a fee. (2) The logo designed by the customer may only be used if purchased. (3) Should the provider allow the customer to use the logo temporarily free of charge or for a few test months, no payment obligation shall exist for the period in question.
Art. 10 Liability for defects (1) Should the services provided by the provider be defective, because their fitness for their intended purpose in line with the agreement is not only insignificantly impaired, the provider shall be liable for any material defects and defects in title in accordance with the statutory provisions. The minimum services which can be claimed by the customer in regard to the software within the scope of liability for defects on the part of the provider are laid down in the “software specification” appendix. (2) The customer is required to notify the provider in writing of any defects without delay. The claims for defects shall become statute-barred after one year.
Art. 11 Liability/limitations of liability (1) The parties shall, in the case of wilful intent or gross negligence, be liable vis-à-vis one another to an unlimited extent for any losses caused by their legal representatives or vicarious agents. (2) In the case of slight negligence, the parties shall be liable in the event of death or injury to the body or the health. (3) Otherwise, a party shall only be liable if such party has infringed a material contractual obligation. In such cases, the liability shall be limited to providing compensation for the foreseeable losses typically occurring. The provider’s liability to pay compensation for damage, independently of fault (cf. Sec. 536a German Civil Code (BGB)) shall be excluded in the event of any defects existing at the time that the contract is concluded. Paragraphs 1 and 2 shall not be affected thereby. (4) Liability in accordance with the provisions of the Product Liability Act shall not be affected thereby.
Art. 12 Limitation of liability for gratuitous use Should any damage be incurred to the customer through the software being used free of charge (free use; test phase), the provider shall only be liable if the damage has occurred based on the contractually agreed use of the software, and only in the case of wilful intent (including malice) and gross negligence on the part of the provider.
Art. 13 Amendment of the contractual terms In so far as not already regulated separately elsewhere, the provider shall be entitled to amend or supplement these contractual terms as follows. The supplier shall notify the customer of the amendments or additions in text form no later than six weeks prior to their coming into force. Should the customer not be in agreement with the amendments or additions to the contractual terms, he or she may object to such changes by giving four weeks’ notice to the intended date on which the latter are supposed to come into force. The objection shall require to be made in writing. Should the customer not object to the amendments or additions to the contractual terms, they shall be deemed to have been approved by the customer. The provider shall in particular point out to the customer in the notification about the amendments or additions to the contractual terms the significance of its actions as provided for.
Art. 14 Final provisions (1) Receivables may only be assigned with the written consent of the other contracting party. Consent may not be unfairly refused. The provision contained in 354a German Commercial Code (HGB) shall not be affected thereby. (2) Any right of retention may only be asserted based on counterclaims arising from the respective contractual relationship. (3) The contracting parties may only offset any claims against claims that have been established with legal finality or are undisputed. (4) Any amendments, additions and terminations of contractual agreements shall require to be made in writing, as shall the waiver of the requirement for the written form, unless this agreement stipulates text form. (5) Should any individual provisions out of the provisions agreed between the parties be or become invalid, in whole or in part, the validity of the remaining provisions shall not be affected thereby. (6) The law of the Federal Republic of Germany shall apply. The place of jurisdiction shall, in so far as legally admissible, be the registered office of the provider.