General Terms of Business designonclick.com for clients
§ 1 Field of Application, Definitions
(1) These General Terms and Conditions (to be referred to in the following as "GTC") are a component of each and every Contract between designenlassen.de - Marktplatz für Kreativdienstleistungen GmbH, Pretzfelder Str. 7-11, 90425 Nürnberg, Deutschland (to be referred to in the following as "designonclick.com") - and the Client.
(2) In the following, the Client is the user of the website www.designonclick.com (to be referred to in the following as "platform") who tenders and purchases the design services or programming services from designonclick.com.
(3) In the following, the Service Provider is the platform user that participates in a project by submitting a proposal or by advertising a logo for sale in the Logo Shop.
(4) The services of designonclick.com are solely provided to entrepreneurs (§ 14 BGB).
(5) A design project is every creative service tendered by the Client that the Service Provider can apply for.
(6) designonclick.com acquires the rights of use of the selected designs by the client in accordance with the provisions of these Terms of service from the service providers and sells these in its own name and for its own account to the client. Thus, there is no direct contractual relationship between the client and the service provider.
§ 2 Services, Conclusion of a Contract
(1) designonclick.com offers the following services:
- Tendering of design projects as competition (§ 3 "Design Competitions")
- Sale of logo designs in the Logo Shop (§ 4 "Logo Shop")
- Tendering of design projects as part of the 1to1-projects (§ 5 "1to1-projects").
(2) The Contract between designonclick.com and the Client becomes effective as of the establishment of the member account.
(3) No claim can be made for membership. The membership cannot be transferred to a third party. Only one member account may be set up per person.
(4) While logged in as a member, the Client is to disclose the demanded specifications completely and truthfully. The Client is to conduct alterations in the members area immediately, but no later than two weeks of a change entry, and independently.
(5) The Client consents to the reception of E-mails by designonclick.com. Should the Client object to receiving such e-mails, this is seen as an implied Termination of the Contracts.
(6) (6) designonclick.com can advertise with the Client as a reference and hereby make use of the respective name and design in all media. The exception hereto are projects involving a confidentiality agreement.
§ 3 Design Competitions
(1) Design projects may be tendered as a design competition via the platform.
(2) The Service Provider may submit design proposals for the tendered projects.
The submitted proposals cannot yet be used by the Client.
(3) The tendering of a design project on the platform requires a fee. designonclick.com shall charge the Client a fee in accordance with the separately negotiated Remuneration Regulation.
(4) The design competition shall be published on the platform only once all the following conditions have been met:
- The Client has fully completed the standard question form for the design briefings. As part of this form, the Client has - in addition to the conditions of the desired service results and the length/duration of the competition - specified the fee that he/she shall pay designonclick.com for the transfer of the Rights of Use of the design.
- designonclick.com has agreed to the specified fee for the transfer of the Rights of Use.
- The Client has paid all fees.
(5) The publication of a design project may not be altered or withdrawn by the Client during the period of competition specified by the Client.
(6) On expiry of the competition, the winning Service Provider can be determined by the Client. With the determination of the winning Service Provider, the Client is obligated to pay the negotiated fee for the transfer of the Rights of Use to designonclick.com. The Client shall not be required to determine a winning party if he/she is not satisfied. In this case, a transfer of rights shall not take place and is not to be paid for.
(7) Once the Client has selected the winning Service Provider, the winning Service Provider provides the Client with the high-resolution data for the winning design. The Client shall inspect the data and accept the winning design. Should the Client not accept the winning design, the winning design shall be understood as having been accepted seven (7) days after provision of the high-resolution data. The winning design shall then be understood as having been accepted if and as soon as the Client makes use of it or allows it to be used.
(8) Should the Client have activated the "Guaranteed Prize Money" option, he/she is required to determine a winning Service Provider on completion of the project duration. Regardless of the determination of a winning Service Provider, the Client is obligated to pay the negotiated fee for the transfer of rights to designonclick.com. Should, within 30 days of the completion of the project term, the Client not determine a winning Service Provider, then designonclick.com shall pay out a certain expense allowance in equal parts to all Service Providers who participated in the project in accordance with the separately negotiated Remuneration Regulation.
§ 4 Logo Shop
(1) In the designonclick.com Logo Shop, Service Providers may advertise their own individual logo designs online for a fixed price.
(2) The Client may view the advertised logos in the Logo Shop and inform himself/herself about the advertising Service Provider.
(3) If the Client decides to acquire a logo, he/she is obligated to pay an amount vis-à-vis designonclick.com determined in accordance with the separately agreed Remuneration Regulation for the transfer of the Rights of Use to designonclick.com.
(4) The Service Provider shall add the Customer's desired lettering to the logo design. This service is already paid for as part of the use fee. Should the Client desire any alterations aside from the integration of the company's own name into the logo (i.e. change in color, design alterations, etc.), this must be established in the form of a separately negotiated direct order between the Client and the Service Provider. These further alterations are to be paid for under an individual arrangement between the Client and the Service Provider.
(5) If the Client has selected a logo, the Service Provider shall provide the Client with the high-resolution data for the logo. The Client shall inspect the data and accept the logo. Should the Client not submit any written correction requests, yet also not have accepted the logo, then the logo shall be understood as having been accepted seven (7) days after provision of the high-resolution data. The logo shall also be understood to have been accepted if and as soon as the Client makes use of it or allows it to be used.
§ 5 1to1-projects
(1) Through invitations to bid and requests for proposals for 1to1-projects, the Client can tender services via designonclick.com, compare Service Providers, submit order offers and evaluate Service Providers.
(2) For this, the platform charges the Client a fee that has been determined separately according to the Remuneration Regulation.
(3) The Client may publish a tender or requests for proposals for 1to1-projects on the platform by describing the conceptual task, duration and price quote. The Service Provider may then submit offers at a fixed price.
(4) Should the Client decide on the service from a Service Provider, the Client is obligated vis-à-vis designonclick.com to pay the fixed price for the transfer of the Rights of Use to designonclick.com.
(5) Once the Client has selected a service, the Service Provider shall provide the Client with the high-resolution data for the service. The Client shall inspect the data and accept the service. Should the Client not submit any written correction requests, yet also not have accepted the service, then the service shall be understood as having been accepted seven (7) days after provision of the high-resolution data. The service shall then be understood as having been accepted if and as soon as the Client makes use of it or allows it to be used.
§ 6 Transfer of the Rights of Use
(1) With the acceptance of the designs, logos or service, and with the payment of the negotiated fee, designonclick.com shall grant the Client the Rights of Use to the design, logo or the service. The granting of rights takes place under the condition precedent that designonclick.com has been effectively transferred these Rights of Use to the design, logo or the service by the Service Provider itself. The Client shall receive a special "license" for the transfer of the Rights of Use.
(2) With regard to the "Naming" project category, no rights are granted to the winning proposal. It is the sole responsibility of the Client to verify whether the selected name violates any rights of third parties, in particular trademark rights.
(3) As part of the License Agreement, designonclick.com grants the Client the copyrights necessary to execute the Contract exclusively, spatially and in a temporally unlimited manner, most especially all usage and exploitation rights in accordance with the German Copyright Law as well as all other rights for reproduction, distribution, transmission, reproduction and making available of his/her design, logo or the service. In particular, the Client is granted the right to make the designs, logos or services available to third parties and available for use, regardless of whether these third parties are granted access to the contents offline (consecutively or simultaneously) or online and can use them, can call the contents up of their own accord at the sites and at times of their choosing, and whether the contents are freely accessible or accessible only under certain conditions. This granting of the rights stated above applies to the use of fixed and mobile communication networks and means, including all digital and analogous transmission and retrieval methods, especially by cable, remote control, fixed and mobile satellite networks and microwaves including all known and future transmission processes (especially WAN, LAN, WLAN, broadband, USW, GSM, GPRS, EDGE, UMTS, HSDPA, HSUPA, DVB-T and DVB-H), protocols and languages (especially TCP/IP, IP, HTTP, WAP, HTML, c-HTML and XML) and including playbacks on all forms of receivers such as, in particular, stationary, mobile and ultra-mobile computers, televisions, set-top boxes, (hard disk) video recorders, mobile telephones, Mobile Digital Assistants (MDA), Personal Digital Assistants (PDA) and Mobile Internet Devices (MID) and includes the use as part of telecommunications, telemedia and radio services (i.e. web and mobile portals, RSS, SMS, MMS, E-mail, Messenger and news services and independently of whether these are arranged as push or pull services). The granting of the rights listed above also applies to their use as part of any form of advertising and/or public relations (even under use of the contents as an integral component of online advertising, for example, as components of banners, videos, screenshots, audio samples, teasers, newsletters, etc.).
§ 7 Obligations of Conduct
(1) The Client is hereby obligated to forego all forms of violence, sexual or pornographic or discriminatory content, or representations with respect to race, sex, religion, nationality, disability, sexual orientation or age.
(2) The Client hereby agrees to comply with all applicable laws. Only projects and design proposals, whose content does not violate the law of the Federal Republic of Germany and/or is contra bonos mores, may be presented on the platform. The audit and inspection requirement for this is the responsibility solely of the Client. At the same time, designonclick.com is authorized to investigate the contents and substance of the projects of the Client and, if deemed necessary, remove the same from the platform.
(3) The Client guarantees that he/she is not saving or passing along any information that could damage the technical infrastructure and operational processes of designonclick.com (for example, viruses, Trojans, etc.).
(4) During the term of this Contract the Contractual Partners are not permitted directly or indirectly to conclude with each other contracts for the presented projects, so circumventing designonclick.com, or to conduct negotiations to this end. Cases of direct commissioning remain unaffected by this clause.
(5) The Client is hereby obligated to treat as confidential the login data selected for the members area, not to make it available to any third party and to store it in such a manner that no third party can gain knowledge of it. No third party may be granted use access to the members area via this login data. Should there be reason to believe that a third party has gained knowledge of the access data, designonclick.com is to be informed immediately in writing or by e-mail at [email protected]
§ 8 designonclick.com Liability
(1) designonclick.com shall take the necessary steps common to the Internet industry to ensure that the platform remains available 24 hours a day. Exceptions to this are interruptions that are common for necessary maintenance or interruptions caused by third parties unaffiliated with designonclick.com. Should the platform not, however, be accessible, designonclick.com shall immediately seek to restore access to the best of its capability.
(2) designonclick.com is not liable for acts of force majeure and for events beyond the control of designonclick.com (i.e. force of nature, acts of God, war, viruses, etc.). designonclick.com is also not liable for the interruption or destruction of data that results thereof. It is the responsibility and duty of the Contractual Partner to create and safeguard the appropriate backup copies.
(3) designonclick.com shall not be held liable for the accuracy and thoroughness of the third-party content on the platform,according to the legal regulations of §§ 7 ff. Telemediendienstgesetz (TMG).
(4) With regard to the project category "Naming", designonclick.com shall not be held liable if and when the proposals should violate rights - including trademark rights - of third parties.
(5) designonclick.com is liable for damages - other than the loss of life, limb and health - only if these are based on intentional or grossly negligent acts or culpable violation of an essential contractual obligation by designonclick.com, its employees or its agents. This also applies to damages resulting from the breach of obligations during contract negotiations and from engaging in impermissible actions. Any further liability for damages is excluded.
(6) The liability is limited - with the exception of deliberate or gross negligence, breach of a cardinal obligation or loss of life, limb and impaired health by designonclick.com, its employees or its agents - to the foreseeable damages for a contract concluded in a typical manner.
(7) The provisions of the German Product Liability Act remain unaffected.
(8) Should damage be caused to the Client due to misconduct of the Service Provider, the Client is not entitled to make a claim for compensation from designonclick.com. Instead, the Client is to lodge its claim for compensation directly with the Service Provider. designonclick.com is hereby obligated to cede the necessary rights for this to the Client. This applies in particular in the event of shortcomings in the transfer of rights from the Service Provider to designonclick.com.
§ 9 Client Liability
(1) The Client is liable vis-à-vis designonclick.com most particularly for the contents that the Client presents on the designonclick.com platform.
(2) The Client releases designonclick.com from any and all claims for damages, liability claims and any possible costs that may arise for designonclick.com from a claim asserted against designonclick.com that declares that Client content violates any laws or regulations.
§ 10 Blocking, Termination
(1) Should there be any indication that a Contractual Partner has violated government regulations, the rights of a third party or the General Terms and Conditions, or when it must be assumed that a fraudulent activity is taking place, designonclick.com is permitted to take the following measures:
- Deletion of projects, design proposals and all other contents
- Blocking the member account
(2) In the case where blocking is necessary, the Contractual Partner shall no longer use the platform with other member accounts and shall not log in with a new account.
(3) The Contract is concluded for a indefinite period of time and can be terminated by designonclick.com and the Contractual Partners at any time.
(4) The termination by a Contractual Partner is valid in written form only.
(5) designonclick.com is entitled to an extraordinary right to terminate when an "important cause" for this can be presented. An important cause is established and most especially present should the Client not maintain the regulations in § 8, "Obligations of Conduct". Claims for damages and Contract-related penalties remain unaffected by this.
(6) Contracts that are concluded by designonclick.com with the Client for the transfer of Rights of Use by the point in time of the termination shall be processed upon notice of the termination.
§ 11 Alterations
(1) designenlassen.de is entitled to amend the Terms and Conditions for valid reasons, particularly in legislative changes, changes in the law or changes in economic conditions and will announce this with a notice period of two weeks. Notification will be sent by e-mail.
(2) If no explicit written contradiction is submitted within four weeks of when the e-mail is received, the new General Terms and Conditions will be deemed to have been accepted.
(3) Should an explicit written contradiction be made, the contractual relationship will be deemed to have been terminated as per § 11 (5).
§ 12 Final Provisions
(1) There are no ancillary verbal agreements. Any changes, alterations and/or additions or enhancements to this agreement must be in written form. Employees of designonclick.com are not authorized to make verbal amendments or supplements or give verbal warranties.
(2) The law of the Federal Republic of Germany shall apply under exclusion of the UN Convention on the International Sale of Goods.
(3) Should the Contractual Partner be a businessperson, a legal entity under public law, or a separate estate or fund under public law, or should the Contractual Partner have no general jurisdiction in Germany or has moved its residence abroad after the conclusion of this Contract, or should the Contractual Partner's place of residence at the time the action is filed not be known, then the City of Nuremberg shall serve as the place of fulfillment and jurisdiction for any disputes arising from this Contract.
(4) Should one or more of these provisions be or become partially or entirely invalid, the validity of the remaining provisions shall not be affected. An ineffective regulation shall be replaced with retroactive effect by a provision that best fulfills the desired purpose of the invalid provision.