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Terms & conditions

Preamble

These general terms and conditions apply to the contractual relationship between Picanova GmbH, Hohenzollernring 25, 50672 Cologne, Germany ("Picanova" or "Photo.Club") and its members on Photo.Club ("Member"). In addition to the use of Photo.Club, the ability to create photo products with specially uploaded photos in particular, Picanova offers members a put option. This put option allows members to make their own online photo products available to third parties for sale via a link.

  1. Definitions
    1. "Distribution channel" describes any way a member chooses to promote content stored on the Picanova Online Platform.
    2. "End User" describes any individual to whom the member's content is distributed via social networks or other channels of distribution and who may purchase membership products from United.
    3. "Content" describes all content provided by the member and distributed through the online platform, particularly texts, images and photographs.
    4. "Member" describes the members registered on the online platform Photo.Club.
    5. "Membership products" describe the photo products created online by a member that are made accessible to third parties via a link.
    6. "Net sales" describe sales generated by Picanova based on a sale brokered by the member, less any applicable taxes, packaging and shipping charges applicable to the particular sale. The decisive factor for the sales to be considered is the amount actually paid by the end customer to Picanova, including all discounts and other deductions.
    7. "Online platform" describes the online platform "Photo.Club" provided by Picanova
    8. "Sale" describes the conclusion of purchase agreements between Picanova and end users brokered by the member and technically attributable to them for the supply of member products.
    9. "Social Networks" describes third-party social networks (such as Facebook, Twitter, Instagram) that are supported by the online platform.
  2. General
    1. Users of the online platform must have unlimited legal capacity. By registering, the user confirms that they are at least 18 years old and have unlimited legal capacity. They are not entitled to register and participate in Photo.Club.
    2. The user hereby agrees that Photo.Club uses the email address(es) to send newsletters from Photo.Club and its affiliates regarding photo products and similar services. The user can unsubscribe from the newsletter at any time.
    3. In order to be able to use the online platform, the user needs certain technical system requirements and must have suitable online access to make it technically possible to access the online platform. Resulting connection costs are not part of the contract. The use of the online platform requires the user to use suitable computer hardware and software
  3. Contract
    1. Picanova grants the member access to Picanova's online platform. The online platform makes it possible for members to inexpensively design and order their own photographs as photo products (e.g. as canvas, photo pillows, photo mugs, etc.) and to make these photo products accessible to third parties by means of a link provided by Photo.Club to purchase these photo products.
    2. The online platform allows members to publish and promote their content via links on various social networks or other distribution channels. The link provided will allow end users to purchase affiliate products from Picanova.
    3. Picanova offers the member the possibility to receive a commission for every member product distributed to third parties. For this purpose, Picanova provides a "graphic slider" for each photo product to determine the selling prices and, accordingly, to determine the amount of the commission on the basis of a pre-determined price scale. Each price scale provided by Picanova ranges from a minimum sale price to a maximum retail price. The commission is 70% of the difference between the set minimum selling price and the selling price set by the "graphic slider" in the registration process. The amount of the commission per sale is specified in euros in the selection. Note: Since the amount of the commission depends on the difference between two selling prices, the commission is 0% (zero percent) if the "graphic slider" is set to the minimum selling price!
    4. For each sale of a member product tp an end user, the member receives a share of the individually agreed amount from Picanova in accordance with the provisions of these terms and conditions. A disbursement to the bank account specified by the member is made at the initiative of the member with a minimum of 5 EUR.
  4. Conclusion
    1. The contract is concluded by the member by stating required information in the course of the registration (e.g. email address, personal password, name, first name, etc.) on the online platform, accepting the terms and conditions and clicking the button "Register" (or different wording) and Picanova accepts the request submitted by the member to conclude a contract by email.
  5. Services of Picanova
    1. Picanova will provide the member with access to the online platform with the functionality described in point 2 above.
    2. Picanova will provide the member with a link free of charge for any online photo product that the member makes available on distribution channels chosen by them. Picanova determines the prices of its member products at its own discretion and responsibility. Only a possible markup on the basis of a commission demanded by the member is set by the member via the slider provided on the online platform.
    3. End User Purchase Agreements are solely between the End User and Picanova based on Picanova's separate End User Terms and Conditions. The member is not entitled to access to the data collected by Picanova from the end users for the purpose of fulfilling the contract. Picanova endeavors to achieve an availability of the online platform as well as the provided links of 95% on an annual mean. Exceptions to this are losses due to force majeure and planned and announced maintenance work.
    4. Picanova allows members to publish and promote their photo products via links on various social networks or other distribution channels. The content is published by electronic transmission of the contents or links to this content on the respective social networks, on which the content will be published according to the settings made by the member. The publication of the content is the sole responsibility of the member and the respective social networks and is not within Picanova’s sphere of influence.
    5. Picanova is under no obligation to check the member's content for legality. If Picanova nevertheless becomes aware of the contents of the member, Picanova is entitled to delete contents of the member at any time and without prior notice, if these contents violate legal provisions, rights of third parties, terms of use of social networks supported by the online platform or violate good morals. This particularly includes pornographic, infringing, abusive, right-wing or left-wing extremist or violent content.
    6. Picanova is entitled but not obligated to expand and further develop the functional scope of the online platform, as well as to stop functions or to completely discontinue the online platform.
    7. Picanova may change the functionality of the online platform to reasonable extent for the member. A change is particularly reasonable if it becomes necessary for an important reason - for example due to disruptions in the provision of services by subcontractors or for safety-related reasons - and the agreed performance features are essentially retained.
    8. Picanova reserves the right to change and modify the terms and conditions at any time with effect for the future. Picanova will make reference to changes in the Terms and Conditions on the online platform in a suitable place and/or by email to members. If the member does not object to the amendment within three weeks after receipt of the notification, the changes are deemed accepted by the member. Photo.Club will inform the member at the beginning of the deadline that the changes will take effect without their opposition. If the member objects, Photo.Club may terminate the agreement. Before expiry of this period, the member can accept the terms and conditions in the currently valid version by logging in.
  6. Duties of the Member
    1. The member is responsible for the secrecy and security of their access data. In particular, the member must keep their password secret, may not disclose it, may not tolerate or permit third parties to take notice, and must take reasonable measures to ensure confidentiality. If the access data is misused or suspected or the password is lost, the member is obligated to notify Picanova immediately by email.
    2. The member may not bypass or manipulate safety precautions and technical protective measures, unless this is expressly permitted by law. Without prior written consent, the member is prohibited from automatically reading out data from the online platform, for example by means of scripts or macros, or to execute contracts automatedly.
    3. The member is obligated and warrants to comply with all terms and conditions of use of the respective social networks or other channels chosen by the member when using the online platform and in particular publishing content with the help of the online platform and promoting the member products, as well as all applicable legal provisions, particularly those of copyright, trademark, design, competition, telemedia, privacy and data protection laws. In particular, the member guarantees that advertising content, published with the help of the online platform, will be identified as legally compliant at any time.
    4. The duties of the member apply accordingly to their vicarious agents. The member must undertake this accordingly.
    5. The member does not receive any rights of use for the content made available within the online platform. In particular, subject to deviating agreements, the member is not entitled to reproduce, distribute, exhibit the contents or make them publicly available. Something else is only valid if and insofar as a third party allows the download of the content uploaded by the member. In this case, the member is granted a simple, non-transferable and non-sublicensable right to store.
  7. Revenue Shares
    1. Picanova pays the member a share of the member's net sales generated by Picanova (excluding packaging and shipping costs and less applicable tax rates) in the amount selected at the time the photo product was created ("Participation"). Sales are only counted on the net turnover if the sale came about through the mediation of the member between an end user and Picanova and
      1. if the purchase price, including all possible shipping costs and other fees owed by the end customer, hase been paid in full by the end customer to Picanova and has been received by Picanova, and
      2. if the sale was technically logged in favor of the member by Picanova and
      3. if the sale has not been revoked or otherwise reversed within 30 days of receipt of the goods by the end user and
      4. if the sale is not automated or in violation of or a manipulation of security measures within the meaning of paragraph 5.2 has come about.
    2. Picanova provides the member with an overview of the net sales attributed to the member and of the participations attributable to the member. Participations are credited to the member without interest. A disbursement to the bank account specified by the member is made at the initiative of the member with a minimum of 5 EUR.
    3. For transfers to bank accounts from countries outside the European Union, Picanova is entitled to withhold the actual bank charges from the amount to be paid.
    4. Any notifiable participation is understood, unless otherwise expressly agreed, as gross amount including value added tax applicable for each member.
  8. Intellectual Property Rights
    1. The member grants Picanova a single, non-exclusive, unlimited, transferable, sublicensable and free of charge right to use any content uploaded by the member to the servers of Picanova or published via the online platform to use the contens within the framework of the online platform.
    2. The member acknowledges that the display and production of member products may result in the content provided by the member not being faithfully reproduced. In particular, the display and production of member products may require that content be changed in size, color, exposure or resolution or rendered in partial or distorted form.
    3. The member guarantees that they have all the required rights for the above rights, that their products are credited and that it fully complies with any license terms for the use of third party content and terms of use of social networks or other distribution channels chosen by the member.
    4. Picanova is not obligated to exercise the rights granted.
  9. Exemption
    1. The member indemnifies Picanova at the first request of all claims by third parties as well as the expenses required for the defense, which they assert against Picanova due to a culpable violation of a guarantee declared by the member. The necessary expenses include, in particular, the customary legal fees, which are not limited to statutory fees, for the defense.
    2. If third parties make claims against Picanova, Picanova will inform the member about the claims asserted without delay and leave the defense in its sole discretion to the member or in agreement with the member.
    3. In the event of such third party claims, Picanova shall be entitled to demand from the member a reasonable advance for the likely costs of the legal defense.
    4. The exemption applies accordingly to fines as well as other official or judicial orders and demands.
  10. Terms and Termination
    1. The contract is concluded for a term of 12 months. It ends automatically after expiry of this term, unless an extension is agreed upon.
    2. The member can terminate their membership at any time via their member account.
    3. Termination for good cause remains unaffected. A good reason is, in particular, a violation of the member against a guarantee within this contract.
    4. Terminations, for whatever reason, require to be in text or written form.
    5. In any case, Picanova is authorized to terminate the membership completely or partially delete the content posted by the member at the discretion of Picanova. Upon termination of the membership, all stored user data will be deleted. For the use of personal data, please refer to the privacy policy.
    6. In the event of termination, Picanova will pay the member their remaining balance to the bank account the member has disclosed to Picanova. Paragraph 6.4 applies accordingly.
    7. Picanova may suspend a member's access to the online platform if the Member violates these terms or if there is reason to believe that a member's access is being misused. In the event of suspension, Picanova will notify the member by email of the ban and give them the opportunity to comment.
  11. Warranty and Liability
    1. The member is responsible for the content uploaded by them. Photo.Club does not endorse the content and is not obligated to check them for legality.
    2. The member guarantees that the content uploaded by them is lawful and, in particular, does not violate the rights of third parties. In terms of content, the member undertakes to refrain from uploading pornographic, right-wing or left-wing extremist, racist, discriminatory, liable to corrupt the young, violence-glorifying or violating the constitution of the Federal Republic of Germany.
    3. The member is obligated to carefully check whether the content meets the above requirements uploaded by them before submitting to Photo.Club. Insofar as Photo.Club is used by third parties or government agencies because of a violation of their rights by the content uploaded by the user, the user indemnifies Photo.Club against all claims based on infringement of third party rights, insofar as this is legally possible - for whatever legal reason and no matter what is addressed - to indemnify and to bear any reasonable costs incurred by Photo.Club by the use or the elimination of the illegal condition.
    4. This applies in particular to the infringement of copyrights, trademark rights, competition rights or other proprietary rights of third parties and in particular includes the reasonable legal defense costs of Photo.Club. The indemnity also works - as a contract in favor of third parties - for the vicarious agents of Photo.Club engaged in the course of the contract. All further rights and claims for damages of Photo.Club remain unaffected. The user has the right to prove that Photo.Club actually has no or only minor
    5. Liability and warranty of Picanova take place according to the legal regulations.
    6. Liability and warranty of Picanova take place according to the legal regulations.
      1. Picanova is liable for intent and gross negligence as well as for damages resulting from injury to life, body or health.
      2. In cases of slight negligence, Picanova is liable for breach of a material contractual obligation. An essential contractual obligation within the meaning of this clause is a duty whose fulfillment makes the execution of the contract possible and on whose fulfillment the contracting party may usually rely.
      3. According to Paragraph 10.2.2, Picanova is not liable for lack of economic success, lost profits and indirect damages.
      4. Liability according to Paragraph 10.2.2 is limited to the typical and foreseeable damage at the time of the conclusion of the contract.
      5. The member is obligated to regularly backup the data stored at Picanova. The liability of Picanova according to Paragraph 10.2.2, in the event of loss of data, is limited to the costs that would have accrued even if the member had properly backed up the data.
      6. The limitations of liability apply in favor of the employees, agents and vicarious agents of Picanova.
      7. Any liability of Picanova for malice, expressly designated as such guarantees and claims under the Product Liability Act remain unaffected.
    7. Other than that, liability of Picanova is excluded.
  12. Confidentiality
    1. The parties are to treat the contents and conditions of this contract as confidential and to use them exclusively for the purpose of the respective service provision under this contract. The will protect the contents and terms of this agreement from unauthorized access and treat it with the same care as they would with their own equally confidential information, but at least with the care of a proper businessperson.
    2. Subject to further confidentiality obligations, this confidentiality obligation shall continue up until 5 years after termination of this contract.
    3. Unless stipulated otherwise in the contract form, both parties are entitled to name the other party as a reference and to promote cooperation during the term of this contract. The parties are authorized to use the names and trademarks of the other party for these purposes and to use corresponding logos and illustrations.
    4. Picanova processes the member's data electronically. Picanova observes the data protection legal regulations. Members' data will only be used by Picanova for the purpose of facilitating the purchase and use of content from the online platform in accordance with the applicable Terms and Conditions. In addition, the data collected will be stored, processed and used to provide the online platform's offer including the display of custom content and advertising, statistical analysis and management, development of new online platform offerings and billing.
  13. Other
    1. These general terms and conditions govern the contractual relationship exclusively.
    2. Picanova reserves the right to change the services offered via the online platform at any time and to discontinue individual contents - in whole or in part - without prior notice.
    3. Picanova has the right to transfer - in whole or in part - the member’s registration with the online platform as well as all the contracts of the member concluded with Picanova to third parties with the member’s consent. The member’s consent shall be deemed granted if the member has not objected within one month and in writing to Picanova’s notice. The member is informed in advance of the effect of the silence. For the above explanations, a notification by email is sufficient.
    4. The buyer's terms and conditions apply to the purchase of photo products from Picanova.
    5. The contract language is German. Translations into other languages ​​are not binding and are for the convenience of better understanding only.
    6. The member can only set off or assert a right of retention against claims of Picanova if the member’s counterclaim is undisputed, has a final legal title or if the counterclaim is in a synallagmatic relationship with the claim in question.
    7. The law of the Federal Republic of Germany applies excluding the UN sales law as well as conflict of laws regulations.
    8. The exclusive place of jurisdiction for all disputes arising out of or in connection with this contract is Cologne, provided that the member is a merchant or has no exclusive place of jurisdiction in Germany or in another EU member state, has moved their permanent residence abroad after the effective date of these general Terms and Conditions or their domicile or habitual residence is not known at the time the complaint is filed.
    9. Should individual provisions of these terms and conditions or parts thereof be ineffective, does this not affect the validity of the remaining terms and conditions.

As of: March 29, 2018