General Terms of Business designonclick.com for service providers
§ 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 designonclick.com - Marktplatz für Kreativdienstleistungen GmbH, Lindengasse 12, 90419 Nuremberg (to be referred to in the following as "designonclick.com") - and the service provider.
(2) In the following, the user of the platform is the Service Provider that participates in a project by submitting a proposal or advertises a logo for sale in the Logo Shop to designonclick.
(3) In the following, the Client is the user of a design briefing of the website www.designonclick.com (to be referred to in the following as "platform") for the publication of a design competition or a programming service, or the purchaser of a logo from 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 service provider 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 service provider is to disclose the demanded specifications completely and truthfully. The service provider is to conduct alterations in the members area immediately, but no later than two weeks of a change entry, and independently.
(5) The service provider consents to the reception of E-mails by designonclick.com. Should the service provider object to receiving such e-mails, this is seen as an implied Termination of the Contracts.
(6) designonclick.com can advertise with the service provider 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) By making use of the platform, design projects from Clients can be tendered as a design competition.
(2) Should the Service Provider be interested in submitting design proposals for the design projects tendered on the platform, he/she may establish a member account, view tendered/advertised design projects, and advertise his/her proposal in the member area.
(3) The Service Provider may submit design proposals at no charge.
(4) Once a Service Provider has submitted his/her design proposal, this shall only be presented as a preview and cannot yet be used by the Client.
(5) Should copyrighted stock images have been used in the design, the Client must be informed by the Service Provider that user fees for this are to still be paid.
(6) Should the Client have activated the "Guaranteed Prize Money" option and have paid all required fees to designonclick.com, and should the Client not have determined a Service Provider within 30 days of the conclusion of the project, then designonclick.com shall, in accordance with the separately negotiated Remuneration Regulation on the expense allowance to be determined, allocate equal amounts of pay to each and every Service Provider involved in the project.
§ 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 Service Provider may present logos free of charge.
(3) 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 1to1-projects
(1) The Service Provider may submit offers for a fixed price via the platform for invitations to bid and for requests for proposals for services from Clients.
(2) Submitting offers is free of charge for the Service Provider.
§ 6 Transfer of Rights of Use and Remuneration
(1) Should the Client have decided on a Service Provider, the Service Provider grants designonclick.com all of the rights 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, designonclick.com 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 choice, 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 independent of whether these are arranged as push or pull services). The granting of the rights listed above also applies to their use as components 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.).
(2) The relinquished designs, logos or services may be altered by designonclick.com in the framework required for their preparation and use in Internet portals.
(3) The service provider hereby waives his/her right to be credited as the originator.
(4) Once the Client has decided on a design, logo or service, the Service Provider shall provide the Client with the high-resolution data for the design, logo or service. The Client shall inspect the data and accept the respective design, logo or service. Should the data not correspond to the requirements of the briefing, the Service Provider shall optimize the data.
(5) designonclick.com assumes the granting of the Rights of Use in (1) under the condition precedent that the Client accepts the design and there is no suspicion that the Service Provider is violating § 8, "Obligations of Conduct".
(6) Should the Client have removed the design, logo or service and should designonclick.com have accepted the transfer of rights, the Service Provider shall receive a use fee for the transfer of rights to the design in accordance with the separately negotiated Remuneration Regulation or the negotiated fixed price for the transfer of rights to the logo or service.
§ 7 Obligations of Conduct
(1) The service provider 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 service provider 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 service provider. At the same time, designonclick.com is authorized to investigate the contents and substance of the projects of the service provider and, if deemed necessary, remove the same from the platform.
(3) The service provider 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) The Service Provider ensures designonclick.com that all rights pursuant to § 7 (1) shall be granted and that all copyrights for the respective designs, logos or the particular service as well as any and all related use and exploitation rights are the sole property of designonclick.com. The Service Provider shall ensure moreover that the texts are free of copyrights belonging to third parties and/or that the Service Provider has obtained all necessary rights to the texts or their contents from third parties in a timely manner for the agreed use and exploitation rights.
(5) 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.
(6) The service provider 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) 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.
(5) 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 and otherwise to the amount of damages average for a typical contract amounting to a maximum of 500 EUR per claim and 1,000 EUR per year. This also applies to indirect damage, especially the loss of profit.
(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.
§ 9 Service Provider Liability
The Service Provider releases designonclick.com from all claims for damages, for liability and for any and all costs to designonclick.com that arise from a breach of duty by the Service Providers.
§ 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 service provider 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.