General Terms and Conditions of Business for the Supply of Online Services by Artifiction AG

Version dated 01.08.2011

  • Scope of validity
    1. The following provisions shall apply in case a legal transaction relating to Artifiction products is directly concluded between Artifiction AG (hereinafter referred to as "Artifiction") and a Customer. If the customer purchases the product via a third party (e.g. dealer), only the provisions contained below in § 6 a shall apply. These General Terms and Conditions of Business shall also apply to companies pursuant to § 14 BGB (German Civil Code) and consumers pursuant to § 13 BGB (German Civil Code). A consumer, within the meaning of the law, is every natural person who concludes a legal transaction with a purpose that is not related to his/her commercial or self-employed activity. Unless otherwise expressly specified or indicated in bold print, individual provisions in these conditions are only intended for consumers; in all other respects, the scope of validity of these General Terms and Conditions of Business shall remain unaffected both for companies and for consumers.
    2. Within this meaning but without claim to any limitation, products shall comprise printed materials, software, video and sound recordings and other contents on data carriers and/or online applications, electronic access to contents and licenses, license contracts agreed upon separately and/or a combination of the aforementioned products.
    3. The latest valid version of the Artifiction General Terms and Conditions of Business shall apply in all cases. Artifiction reserves the right to change the present General Terms and Conditions of Business at any time, in particular to adapt them to changes in legal or commercial conditions. Such change shall take effect with the next purchase order made by the Customer. Artifiction does not recognise any deviating terms and conditions of business in any way. The deviating conditions of a Customer that are not expressly recognised in writing by Artifiction shall be non-binding for Artifiction, even if they do not expressly contradict them.
    4. On sending your purchase order, you tacitly express your agreement with these General Terms and Conditions of Business.
  • Prices
    1. The agreed price for ordered products and licenses is that price which results from the current information relating to our website or in our brochures, price lists, etc. or in case of a contract arising from license contracts. In the event of writing, printing and/or calculation errors, Artifiction shall be entitled to withdraw from the contract.
    2. On delivery of goods suitable for shipment, the prices are quoted net and postage, packaging and the statutory value added tax shall be additional charges.
    3. All import or export charges (e.g. customs) shall be borne by the Customer.
    4. In the event of a contract for the continuous supply of products, Artifiction shall be entitled to base its contract on the prevailing prices in each case on expiry of each period or delivery.
    5. Artifiction AG has verified fiscal regulations and guidelines thoroughly and considered them in the documents according to the present state of knowledge. The customer commits himself to take into account local regulations of his residence prevailing at the moment of the invoice reception, to tax the services properly and if required to pay the appropriate fees to the local authorities.
  • Conclusion of contract
    1. Delivery of goods
      1. The Customer's purchase order shall be considered as a binding offer in the conclusion of a purchase contract with regard for the ordered product.
      2. The purchase contract shall become effective by Artifiction accepting the said contract either expressly or by shipping the ordered products actually corresponding to the said contract within a period of 21 days from receipt by Artifiction of said contract. On expiry of this period, the Customer shall no longer be bound and the purchase contract shall be considered as null and void.
    2. Online products
      1. The purchase contract shall become effective by Artifiction accepting the said contract either expressly or by creating an access to the ordered products actually corresponding to the said contract within a period of 21 days of Artifiction receiving said contract. On expiry of this period, the Customer shall no longer be bound and the purchase contract shall be considered as null and void.
      2. On conclusion of contract, the Customer shall be granted a non-transferrable and non-exclusive right of use to the online products that are the subject of the contract subject to the limitation of rights of use stipulated in Clause 6.
      3. Customer access to online products shall be over the Internet and protected by password. The Customer shall be obliged to keep the password secret and protect it from misuse by third parties. The Customer shall immediately report to Artifiction the loss of access data or password or if he/she suspects misuse of this data. Otherwise, Artifiction shall be entitled to block access to online products in the event of misuse. The Customer shall be liable for any misuse for which he/she is responsible.
      4. Artifiction shall endeavour to allow permanent access to online products, i.e. 24 hours a day, 365 days a year. However, availability at all times in not explicitly guaranteed. Access may be temporarily limited, in particular due to technical reasons, such as to perform necessary maintenance and repair work or in the event of technical and other problems that are not within the sphere of influence of Artifiction (force majeur, fault of third parties).
  • Delivery
    1. Delivery of goods
      1. Artifiction shall process purchase orders without any necessary delay. Should the purchase object be unavailable, the Customer shall be informed without delay and Artifiction may withdraw from the contract. Customer claims arising from the impossibility of fulfilment of contract shall be excluded.
      2. The ordered goods ready for shipment shall be delivered from stock by means of a standard mode of shipment selected at the discretion of Artifiction and sent to the shipping address indicated by the Customer. Any risk or accident damages occurring to the object of purchase during the course of delivery shall pass from the Sender to the Customer at the time of delivery of the goods that are in shippable condition.
    2. Online products
      1. In the case of products that are supplied by online applications or electronic access, the performance of Artifiction shall be considered as fulfilled when access to the selected product is permitted.
  • Extension and termination of contract
    1. The duration of contract and the terms of notice of each contract shall be determined according to the stipulations in the ordering process.
  • Scope of use
    1. Delivery of goods
      1. Artifiction shall grant the Customer a non-exclusive right of use to products supplied and only for personal use.
      2. In the case of electronic products in accordance with §1 b, the Customer has the right to copy the supplied product for the purpose of installation on the hardware intended, load the product in the working memory and copy the product for the required backup purposes according to the state of the art. The Customer shall not be entitled to supply the product or products to third parties for evaluation. Public reproduction or other publications, commercial copying and reselling the product or products are expressly excluded. The Customer may not change and / or remove any copyright notices, tradenames or other legal reservations from the product.
      3. A special agreement during the ordering process or at another appropriate occasion shall be required for use in a network or for access by several workplaces. Other provisions within each contract shall be determined according to the stipulations in the ordering process.
      4. A special agreement during the ordering process or at another appropriate occasion shall be required to obtain updates and upgrades. The latter shall be supplied as part of a long-term supply contract as a licensed exchange for the previous version. Accordingly, it shall be prohibited to use the previous version in parallel to the update/upgrade after installation of the update and/or upgrade or to transfer the rights of use to said updates/upgrades to third parties.
    2. Online products
      1. The Customer acquires the right to access the online products from any computer which is suitable for this purpose. The duration of the right of use shall be determined according to the agreement based on the contractual relationship. It shall end at the latest on expiry of the contractual relationship.
      2. The Customer shall undertake to use online products only for his/her own personal purposes and not permit third parties any special access to online products either with or without charge. Online products may only be used by one person (named user) per license. In the event of a contract for a network version/multiple license, the Customer shall be entitled to use online products by the number of persons (named users) corresponding to the number of purchased licenses.
      3. The Customer may not change and / or remove any copyright notices, tradenames or other legal reservations from the product.
  • Payment, payment date and delay
    1. The purchase price without deduction shall be due immediately and shall be paid accordingly.
    2. In case of payment delay of even part of the purchase price, interest for late payment shall be due to the amount of 5% above the prevailing discount rate of the European Central Bank plus compound interest to the same amount. The Seller shall retain the right to claim damages for default above the interest rate.
    3. In the event of a delay, all expenses associated with the collection of payments, such as collection fees or the costs of legal representation in or out of court shall be borne by the Customer. Artifiction shall not be obliged to give reminders of overdue payments.
    4. In the event of delay, Artifiction shall be entitled to block access to online products until final payment is received.
  • Prohibition of setoff
    1. The setoff of Customer claims against claims made by Artifiction shall be excluded unless such claims are undisputed or legally entitled.
  • Reservation of title
    1. Artifiction shall retain ownership of its products until complete payment of the invoice for the associated deliveries.
    2. If the Customer is a dealer, he shall be entitled within the scope of proper business to sell the products to third parties (with the exception of services supplied online and licenses). The dealer shall assign to Artifiction the purchase price claims arising from reselling up to the amount of the gross cost price invoiced by Artifiction.
  • Right of revocation (for consumers only)
    1. The Customer may revoke his purchase contract in writing (e.g. by letter, e-mail) within one month stating any reason or - if the goods are placed at the Customer's disposal prior to the expiry of this period - by returning the goods. The revocation period shall not start prior to notification of this right of revocation in writing pursuant to §§ 312d, 355 II 1 BGB (German Civil Code), but not before receipt of the goods at the receiver's premises and not before fulfilment of the obligations by Artifiction to provide information pursuant to § 312 c Sec. 2 BGB (German Civil Code) in conjunction with § 1 Sec. 1, 2 and 4 BGB-InfoV (Information Order to German Civil Code).
    2. In the case of products which are supplied by means of online applications or by electronic access, Artifiction shall be considered to have fulfilled its performance on setting up access. Withdrawal from this point of time shall be excluded.
    3. Pursuant to § 312d Section 4 Cl. 2 BGB (German Civil Code), the right of cancellation shall not apply to distance contracts for the supply of audio or video recordings or of software, provided the supplied data carriers were unsealed by the consumer. Similarly, the right of cancellation shall also apply to products which were produced to customer specifications or are obviously tailored to the personal requirements of the Customer.
    4. The timely despatch of the revocation or the item shall be deemed sufficient to meet the revocation deadline. The revocation shall be addressed to:

      Artifiction AG
      Neureuter Str. 37b
      76185 Karlsruhe
      Fax: 0721 49 03 111
      e-Mail: support@artifiction.de

    5. Consequences of revocation
      In case of a revocation in good time, the mutually received benefits, or the drawn benefits, (e.g. interest) shall be returned. Should the Customer be unable to return the received services or goods to Artifiction in full, in part or only in poor condition, he/she shall be liable to pay compensation in this respect if the revoked goods have suffered a loss of value that does not arise from proper utilisation. Items that can be shipped by parcel post shall be returned at the risk of Artifiction. The Customer shall bear the costs of return shipment if the delivered goods correspond to the ordered goods and if the price of the item returned does not exceed 40 Euro or, should the item have a higher price, if the Customer has not performed a consideration or a contractually agreed partial payment at the time of revocation. Otherwise, return shipment shall be free of charge for the Customer. The goods shall be shipped with sufficient postage. Shipments sent postage unpaid shall not be accepted. The Customer shall fulfil all obligations to refund payments within 30 days after sending the declaration of revocation.
  • Warranty / liability
    1. Artifiction and the producer of the contents shall make every effort to manufacture the products according to the latest state of the art. Their correctness, the faultlessness of the content and freedom from technical defects shall not be expressly assured.
    2. Despite all circumspection and care, when using the products, attention should always be paid to the fact that changing laws or changes in jurisdiction make modifications to the contents necessary.
    3. Artifiction shall not assure the applicability or fitness of its products for a given purpose. The Customer shall be solely responsible for the selection of a product, its application and use.
    4. The Customer may demand the elimination of defects or the delivery of substitute goods within the statutory warranty period. Insofar as Artifiction is unwilling or unable to rectify defects or deliver substitute goods or should this fail for any other reasons, the Customer shall be entitled at his discretion to withdraw from the contract or to demand a reasonable reduction in the purchase price (reduction). Additional claims on the part of the Customer, in particular claims for damages due to delayed delivery or non-delivery, shall be excluded. Otherwise, Artifiction shall warrant that the product at the time of handover is free from defects that would impair its value or suitability for normal or presumed use according to the terms of the contract or would diminish such more than by merely a negligible extent. Artifiction cannot grant a warrant for defects that are caused by improper use or by non-compliance with the documentation. Furthermore, the right of warranty shall expire should the Customer or a third party commissioned by him/her undertake any intervention on the product or any other kind of manipulation.
    5. Unless otherwise stated below, the liability of Artifiction shall be excluded - no matter on which legal grounds - (e.g. for loss of profit, loss of data or interruptions or fault in product operation). Insofar as the liability of Artifiction is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents. The aforementioned limits of liability shall not apply if damage is caused by intent or gross negligence. Moreover, it shall not apply to claims under the Product Liability Act or for claims from initial inability or justifiable impossibility. Should Artifiction negligently breach an essential contractual duty or obligation, the obligation to pay compensation shall be limited to the typically resulting damage.
  • Rights of third parties
    1. The Customer shall acknowledge the possible existence of third party rights on the purchase item, in particular copyrights and other intellectual property rights.
  • Data protection and data security
    1. Artifiction collects, transfers, stores and processes the Customer's personal information on its computer systems. Artifiction guarantees to use personal information within the framework of statutory regulations.
    2. Should Artifiction receive data from the customer for processing, Artifiction shall undertake to maintain strict secrecy concerning such data and in particular only to process such data according to the Customer's instructions. The Customer commissions Artifiction to take all the necessary organisational and technical measures to achieve the rational processing of personal information within the meaning of this contract. Should external computer centre service providers actively support the fulfilment of the performance, Artifiction shall observe the basic principles of proper data processing in fulfilling the performance and shall supervise compliance continuously. Artifiction shall undertake to obligate its employees and third parties, by whom the orders are executed, in writing to maintain secrecy and preserve data confidentiality pursuant to § 5 BDSG (German Data Protection Act).
    3. Artifiction shall warrant that the system and the data transferred by the Customer are adequately protected according to the latest state of the art. In the case of products that are provided online or electronically, the impact of third parties on the system environment at Artifiction cannot be excluded. For this reason, the limitation of liability in Clause 11 shall apply to the loss and destruction of data.
    4. Otherwise, the current version of the provisions in our separate data protection declaration shall apply.
  • Blockage / termination of contractual relationship
    1. Artifiction shall be entitled to block access to products that are provided online or electronically in case of serious breaches of contract by the Customer and/or delayed payment.
    2. At the time of termination of the contractual relationship, Artifiction shall be entitled to delete all data saved by the Customer on the system in the case of products provided online or electronically. Artifiction explicitly states that no claim exists to further storage of saved data. It is therefore the Customer's duty to conduct migration of such data in good time or execute an adequate backup.
  • Access data/passwords
    1. The Customer shall undertake to treat the access data to the system as supplied by the Customer and the entered passwords with strict confidentiality and with extreme care for products provided online or electronically.
    2. Artifiction shall not be liable for damage that the Customer incurs through misuse or loss of the access data and/or passwords assigned to him/her.
  • Data maintenance
    1. The Customer shall bear responsibility for the content and maintenance of the data supplied by him/her in the case of products provided online.
    2. In this respect, there is no obligation on the part of Artifiction to examine the Customer's data for consistency or correctness. Any liability for content is expressly excluded.
  • Final provision
    1. German law shall apply exclusively to the exclusion of the UN trade law. The place of jurisdiction shall be Karlsruhe for all disputes arising from the contractual relationship, provided the Customer is a registered merchant or a public law entity or a federal special fund under public law. Modifications to the contract shall be made in writing. All verbal agreements including exclusion of the written form shall be made in writing before it acquires validity.
    2. If any provisions of this agreement are held to be or become invalid in full or in part, nothing in this shall prejudice the validity of the remaining provisions of this agreement. In such a case, the parties to the contract shall undertake to replace the invalid provision by such a provision that best approximates to the commercial intention of the invalid provision and is itself valid.