§ 1 SCOPE | DEFINITIONS | GENERAL
(1) These General Terms and Conditions (hereinafter referred to as "GTC") govern the use of the website www.designonclick.com and are an integral part of every contract between designenlassen.de - Marktplatz für Kreativdienstleistungen GmbH, Pretzfelder Str. 7-11, 90425 Nuremberg, Germany (hereinafter referred to as "designonclick.com") and the users of the platform.
(2) The services of designonclick.com are only available to entrepreneurs within the meaning of § 14 BGB. These GTC do not apply to consumers within the meaning of § 13 BGB.
(3) "Design project" is any creative service advertised by the client on the website www.designonclick.com (hereinafter referred to as "platform"), for which service providers can apply by submitting work results in the sense of offers for purchase.
(4) "Client" is anyone who opens a design project by requesting creative services described in more detail, e.g. design and/or programming services, on the platform for purchase.
(5) "Service provider" is the user of the platform who, for example, participates in a design project as a designer or programmer by submitting a proposal and thus offers a "work result" or offers a logo in the logo store. The client can accept such offers, thereby selecting a work result that he wishes to purchase from designonclick.com (hereinafter "selected work result"). A service provider is also defined as anyone who submits an offer at a fixed price at the request of a client within the framework of a 1-to-1 project within the meaning of § 6 of these GTC.
(6) Clients and service providers are hereinafter also referred to as "users".
(7) designonclick.com acquires the rights of use to the work results selected by the client for the creative services advertised via the platform from the service providers in accordance with the provisions of these GTC and transfers these to the client in its own name and for its own account. There is therefore no contractual relationship between the client and the service provider. This does not apply insofar as work results submitted by the service provider are not free of third-party rights, which must still be acquired separately by the client.
§ 2 SERVICES | CONCLUSION OF CONTRACT
(1) designonclick.com offers the following services:
(a) Tendering of design projects as a competition (§ 3 "Design competitions")
(b) Sale of logo designs in the logo store (§ 5 "Logo store")
(c) Tendering of design projects as part of the 1to1 project (§ 6 "1to1 project")
(2) A contract between designonclick.com and the users regarding the use of the platform is concluded when the member account is opened.
(3) There is no entitlement to membership vis-à-vis designonclick.com. Membership is not transferable. Only one member account may be set up per person.
(4) When registering as a member, the user must provide the required information completely and truthfully. The user must enter any changes in the member area without delay, but at the latest within two weeks of making the change.
(5) designonclick.com is entitled to advertise with users as references.
§ 3 DESIGN COMPETITIONS
(1) Design projects can be advertised by clients as design competitions via the platform. The invitation to tender is subject to a fee for the client. designonclick.com charges the client a fee in accordance with the separately agreed remuneration rules.
(2) If a service provider has submitted its design proposal (work result) for a design competition, this will only be presented as a preview and cannot yet be used by the client.
(3) The design competition announced by the client will only be published on the platform if the following cumulative requirements are met:
(a) the client has completed the standard design briefing form in full. In addition to the general conditions of the desired work result and the duration of the design competition, the client has also stated the fee that he is obliged to pay to designonclick.com for the transfer of the rights of use to the design.
(b) designonclick.com agrees to the stated fee for the transfer of the rights of use and has made a corresponding declaration in text form. Such a declaration of agreement on the part of designonclick.com shall be deemed to have been submitted at the latest when an invoice for the publication of the design competition is sent to the client.
(c) the client has paid all fees in accordance with § 3 (1).
(4) During the competition period specified by the client, the client may not change or withdraw the basic theme of the tender for a design competition or the service selected for it. Minor updates regarding content information and requirements within the briefing to the designers are permissible as long as this does not lead to a significant change in the tendered subject matter of the design competition.
(5) As part of the competition, the client may select a service provider as the winner (hereinafter referred to as the "winner"). The client selects the service provider whose work result he wishes to purchase. With the selection of the winner, the client is obliged to pay the agreed remuneration to designonclick.com and in return receives the fine data and the rights of use to the design.
If none of the proposals submitted by the service providers are acceptable to the client, the client is not obliged to select a winner. In this case, no transfer of the high-resolution data or rights of use shall take place. Upon request, the client shall receive back the prize money awarded within the framework of the provision under § 4, but not the associated fees (cf. § 4 prize money refund guarantee). This provision expressly does not apply if the client has selected the "guaranteed prize money" option for its project (cf. §3 (7)).
(6) Once the client has selected the winner, the winner shall provide the client with the detailed data and all information on the work result. If the work result contains third-party rights, the winner shall consult with the client. The client checks the data and must accept the work result vis-à-vis designonclick.com if there are no significant defects. If the client does not notify designonclick.com of any significant defects in text or written form, the work result shall be deemed accepted at the latest 10 days after transmission of the fine data.
(7) If the client has activated the option "guaranteed prize money", he is obliged to determine a winner at the end of the project period. Irrespective of the determination of a winner, the client is obliged to pay the agreed fee for the transfer of rights to designonclick.com. If the client does not determine a winner within 30 days after the end of the project term, designonclick.com will pay an expense allowance to be determined in accordance with the separately agreed remuneration rules in equal parts to all service providers participating in the project.
§ 4 PRIZE MONEY REFUND GUARANTEE
(1) If none of the proposals (work results) submitted by the service providers are acceptable to the client, the client is not obliged to select a winner. In this case, the client may apply for a refund of the prize money awarded in accordance with § 4 (2), but not the associated fees that are or have been paid to designonclick.com.
(2) The client's claim to reimbursement of the prize money within the meaning of § 4 para. 1 arises if he does not determine a winner within 60 days of publication of the design competition on the platform. The client's claim for reimbursement of the prize money shall expire in accordance with the statutory provisions.
(3) Design competitions for which the client has selected the option "guaranteed prize money" within the meaning of § 3 para. 7 of these GTC are excluded from these provisions of § 4.
§ 5 LOGO-SHOP
(1) In the designonclick.com logo store, service providers can offer their own logo designs online at a fixed price.
(2) Users can view the logos offered in the logo store and find out about the service providers offering them.
(3) If a user accepts the offer to purchase the logo, the service provider will add the user's desired lettering to the logo design; this service is already included in the fixed price quoted. If, in addition to the integration of the lettering into the logo, further changes (e.g. color change, design changes) are to be made, this is subject to a separate direct order to be agreed between the user and the service provider.
(4) If a user accepts the offer to purchase the logo, he/she is obliged to pay designonclick.com a fixed amount in accordance with the separately agreed remuneration rules.
(5) If a contract for the purchase of the logo is concluded, the service provider shall send the fine data for the logo to the user who has accepted the offer to purchase the logo. The user checks the data and must accept the purchased logo vis-à-vis designonclick.com if there are no significant defects. If the client does not notify designonclick.com of any significant defects in text or written form, the work result shall be deemed accepted at the latest 10 days after transmission of the detailed data.
§ 6 1TO1 PROJECT
(1) Clients can publish a call for tenders or requests for quotations for the 1to1 project on the platform by describing the task, duration and price expectations. Service providers can then submit offers at a fixed price in response to the invitation to tender or inquiry.
(2) designonclick.com charges the client a fee for the invitation to tender/request for quotation, which is determined separately in accordance with the remuneration rules to be concluded with the client.
(3) If the client decides in favor of an offer from a service provider and accepts the offer submitted by him on the platform, the client is obliged to pay the fixed price to designonclick.com.
(4) If the client has selected and accepted an offer from a service provider on the platform, the service provider shall send the client the detailed data on the work result on which the offer is based. The client checks the data and must accept the work result vis-à-vis designonclick.com if there are no significant defects. If the client does not notify designonclick.com of any significant defects in text or written form, the work result shall be deemed accepted at the latest 10 days after transmission of the detailed data.
§ 7 TRANSFER OF THE RIGHTS OF USE TO THE CLIENT
(1) Upon payment of the agreed remuneration by the client to designonclick.com, designonclick.com grants the client the rights of use necessary for the execution of the contract exclusively, spatially and temporally unlimited to the work result selected by the client. This includes in particular the right to use and exploit the work result comprehensively, also with the aim of commercial marketing, as well as the possibility of integrating or storing the work result on websites on the Internet and the right to make it publicly accessible, distribute and reproduce it, as well as the right to edit it while preserving the moral rights of the author. The granting of rights is subject to the condition precedent that designonclick.com itself has effectively transferred the rights to the respective work result from the service provider. The client does not receive an exclusive right of use insofar as designonclick.com remains entitled to use the work results for advertising purposes digitally and in printed form for an unlimited period of time and to edit them as desired for preview purposes.
(2) In the "Naming" project category, designonclick.com does not grant any rights to the winning proposal to the client. However, if these work results contain copyrighted rights in individual cases, these rights will be transferred to the client in accordance with § 7 para. 1. designonclick.com does not check and does not guarantee that the contents of the "naming" project violate the rights of third parties and/or that the proposed name is marketable and/or trademarkable.
§ 8 INDEMNIFICATION
(1) The client indemnifies designonclick.com against all claims asserted by other users or other third parties against designonclick.com due to infringement of their rights by content posted on the platform by the client or due to other infringing use of the platform by the client. designonclick.com will inform the client immediately of the claim. designonclick.com is entitled to take appropriate measures to defend itself against claims by third parties or to pursue its rights; the client must provide all information necessary for the examination of the claims and the defense. This indemnification also includes the reimbursement of the costs incurred by designonclick.com through legal prosecution/defense.
(2) The indemnifications mentioned in § 8 para. 1 shall not apply if the client is not responsible for the infringement.
§ 9 DUTIES OF CONDUCT OF USERS | REPORTING OF CONTENT
(1) Users are solely responsible for all content that they post on the platform. They undertake to refrain from depictions of violence, sexual or pornographic content or discriminatory content or depictions with regard to race, gender, religion, nationality, disability, sexual orientation or age.
(2) Users undertake to comply with the applicable laws. Only content that does not violate legal regulations, third-party rights or these General Terms and Conditions may be presented on the platform. The obligation to check this is the sole responsibility of the users who publish the content. designonclick.com is generally not obliged to proactively check the content posted by users. Nevertheless, designonclick.com is authorized to investigate content on the platform and, if necessary, to take measures in accordance with § 10 of these GTC.
(3) designonclick.com gives users the opportunity to report allegedly illegal content on the platform published by other users to designonclick.com. Users can report such content from other users to designonclick.com using an electronic form. This form can be accessed via the "Report violation" button. If a comment is to be reported in the communication field between the service provider and the client, the aforementioned form can be accessed via the exclamation mark symbol next to the comment.
(4) The user guarantees that he/she will not store or forward any data that could damage the technical infrastructure and operating processes of designonclick.com (e.g. viruses, Trojans, etc.).
(5) During the term of this contract, service providers and clients are not permitted to directly or indirectly conclude contracts with each other about the work results uploaded on the platform or to conduct negotiations aimed at this, bypassing designonclick.com.
(6) Users undertake to treat the access data selected for the members' area confidentially, not to disclose it to third parties and to store it in such a way that third parties cannot gain knowledge of it. No third party may be allowed to use the member area via these access data. If there is reason to suspect that third parties have knowledge of the access data, designonclick.com must be informed immediately in writing or by e-mail at [email protected].
§ 10 BLOCKING | TERMINATION
(1) designonclick.com can take the following measures if content posted by a user violates legal regulations, the rights of third parties or these General Terms and Conditions:
(a) Warning the user
(b) Deletion of projects, design proposals and other content
(c) Temporary blocking of the user's member account
(d) Permanent blocking of the user's member account
(2) Before temporarily or permanently blocking a user, designonclick.com will warn the user if it is to be expected that this will be sufficient to encourage the user to comply with his obligations and the violation is not so significant that the legitimate interests of third parties or designonclick.com require direct blocking, i.e. there is an important reason that entitles designonclick.com to block the user immediately.
(3) When taking a measure in accordance with § 10 para. 1, designonclick.com will always take into account the legitimate interests of the user concerned, other users, any rights holders and other third parties as well as its own interests as platform operator. In doing so, designonclick.com will take into account the severity of the infringement, any fault and the severity of the impairment of the rights of third parties. If designonclick.com takes a measure in accordance with § 10 para. 1, it will inform the user concerned and, in the case of a blocking, justify the measure.
(4) In the event of blocking, the user may no longer use the platform with other member accounts or register with a new account.
(5) The contract for the use of the platform is concluded for an indefinite period and can be terminated by the users at any time.
(6) designonclick.com can terminate the contract for the use of the platform at any time with a notice period of 30 days to the end of the month. The right to blocking (§ 10 para. 1) and extraordinary termination is not affected by this.
(7) Notice of termination must be given in writing or text form.
(8) Blocking or termination has no effect on the validity of contracts already concluded on the platform. Contracts that designonclick.com concludes with the service provider for the transfer of usage rights up to the time of termination will be processed after receipt of the termination.
§ 11 LIABILITY OF DESIGNONCLICK.COM
(1) The liability of designonclick.com for damages, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this § 11, insofar as fault is involved.
(2)designonclick.com is not liable in the case of simple negligence, insofar as it is not a breach of essential contractual obligations. Essential contractual obligations are those that grant the contracting parties the right that the contract has to grant according to its content and purpose, in particular the obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely.
(3) Insofar as designonclick.com is liable for damages on the merits in accordance with § 11, this liability is limited to damages that designonclick.com foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or should have foreseen if due care had been exercised. Indirect damages and consequential damages resulting from defects in the delivered work results are also only eligible for compensation if such damages are typically to be expected when used as intended.
(4) The above exclusions and limitations of liability apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of designonclick.com.
(5) Insofar as designonclick.com provides technical information or acts in an advisory capacity and this information or advice is not expressly part of the contractually agreed scope of services owed by designonclick.com, this is done free of charge and to the exclusion of any liability.
(6) The limitations of liability of this § 11 do not apply with regard to the liability of designonclick.com due to (i) intentional and grossly negligent behavior, (ii) guaranteed characteristics, (iii) injury to life, body or health or (iv) under the Product Liability Act.
§ 12 CHANGES
(1) designonclick.com may propose an amendment to these GTC to users for valid reasons, in particular in the event of changes in the law, changes in jurisdiction or changes in economic circumstances, subject to a lead time of at least 15 days before the proposed date of entry into force of the amendment. If the changes result in necessary technical or business adjustments for commercial users, designonclick.com will determine a longer lead time that sufficiently takes into account the interests of the commercial user. If the proposal to amend the GTC is made due to legal or official obligations, designonclick.com does not have to adhere to the aforementioned minimum lead times. Users will be informed of proposed changes to the GTC by e-mail.
(2) The proposed amendment to the GTC comes into force when the user accepts it. Acceptance by the user also exists if the user does not raise an objection to the proposed amendment to the GTC with designonclick.com, at least in text form, before the proposed date of entry into force. In this case, the new GTC shall be deemed accepted and shall enter into force after the expiry of the lead time.
§ 13 FINAL PROVISIONS
(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) If the user is a merchant, a legal entity under public law or a special fund under public law, Nuremberg shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the user is domiciled abroad.
(3) Should one or more provisions of these GTC be ineffective, this shall not result in the ineffectiveness of the entire contract.
Our GTC apply with regard to the technical terms in the original German version and the translation serves only for better understanding.