General Terms and Conditions of STARMAZING® Service
A) Scope of Application
- The present General Terms and Conditions shall apply to the rendering of services (adaptation of pictures) through Lidia Nicklaus, Herzogstr. 33, 41238 Moenchengladbach, Germany, E-Mail: info@STARMAZING.com, Tel.: +49 2166 – 9400-174 (hereinafter referred to as „we“ or „us“) to the customer (hereinafter referred to as „Customer“ or „You“) through our online shop.
- Contradicting or additional terms and conditions of the Customer shall not become part of the contract.
B) Distinction between Entrepreneurs and Consumers
- Some of the provisions of the present T&C do not apply in relation to any and all customers but only in relation to consumers or only in relation to entrepreneurs. Where the scope of application of the present T&C is limited in such aforesaid manner it will be specially indicated hereinafter.
- „Consumer“ shall, for purposes of the present T&C and in accordance with the statutory definition in section 13 of the German Civil Code (“Bürgerliches Gesetzbuch”, abbr. “BGB”), be each natural person who enters into the legal transaction for a purpose which is, predominantly, outside its trade, business or profession.
- „Entrepreneur“ shall, for purposes of the present T&C and in accordance with the statutory definition in section 14 of the German Civil Code (“Bürgerliches Gesetzbuch”, abbr. “BGB”), be each natural person who enters into the business relationship with us for a purpose which is outside its trade, business or profession.
C) User Account (Registration)
- Registrants shall enter complete and correct information. No information concerning third persons may be used without such persons’ consent.
- You shall treat your access data like e.g. your password confidentially and shall notify us promptly in case of loss or unauthorized use of your access data.
D) Conclusion of Contract, Contract Languages
- Only if and once you order services on our website, such purchase order of yours shall constitute a binding offer to conclude the respective contract. You can submit a purchase order in that you run through the order process on the website, enter the data as requested in such context and upload the photo to be adapted. Prior to sending off your purchase order, you will have the opportunity to check and modify your purchase data. Only if and once you send off your order, you submit a binding offer for conclusion of a contract with us.
- We may accept your offer within two days by
- submission of a confirmation of order by post, fax or email
- delivery of the goods
- request to make payment.
Customer’s receipt of our confirmation of order, delivery or request of payment shall be the relevant point of time for ComVISTEC’s compliance with the aforesaid time period.
3. Languages made available for conclusion of the contract shall be English and German.
E) Storage of the Provisions of the Contract
We will store the provisions of the contract, including the order information and the present T&C. You can print out the provisions of the contract by using the respective functionality of your browser (usually “print” respectively “file” > “save as”). The order information is contained in the order overview presented within the last step of the order process. The provisions of the contract including the present Terms and Conditions are also contained in the email message with the order confirmation which you receive from us in case of our acceptance of your purchase order.
F) Customer’s Duties of Cooperation and Incidental Duties
- Where there is a requirement of Customer’s cooperation in respect of a given service (e.g. upload of picture data file), Customer shall comply with any and all respective requirements (e.g. resolution of picture file) as such may be indicated in the services description on our website.
- Our services may not be misused or otherwise used in an unethical or unlawful manner and/or under violation of any 3rd party rights. This shall include the following obligations:
- You warrant and represent that the files uploaded by you do not violate any applicable laws on youth protection, general rights of personality and/or the right in one’s own likeness and/or any other property rights of 3rd parties like e.g. rights in trademarks, business names, other names and/or copyrights. Therefore you shall verify, prior to the entry of any texts or uploading of any files (e.g. the pictures to be adapted) whether or not you control the required rights therein (e.g. in a text, photography, picture, graphics, video, song, sample). In case of photographies and/or videos you shall furthermore verify whether or not their required consent (to the taking, use and exploitation of the picture) has been granted.
- You shall not upload any data with unethical, discriminating or racist content or with content hurting religious feelings and
- You shall – from your end – comply with data protection and data security requirements under the applicable laws.
3. If and to the extent – and as is the case in our opinion– through our services a copyright of our own is created, then we grant the Customer a non-exclusive, worldwide right in the adapted and/or transformed work for the duration of copyright protection under the applicable laws. A sub-license shall be permitted to the extent required for the fulfillment of the contractual purpose (e.g. use of a press foto of oneself in social networks).
G) Claims arising from Defects/ Warranty
Customer’s mere dislike of the result of our services does not trigger any warranty claims or other legal claims, as long as contractually agreed design requirements were complied with. Notwithstanding the immediately aforesaid we warrant, in case of Customer’s dislike of the adapted photography provided by us, up to one time retouching free of cost, subject to technical feasibility.
The warranty period for Customer’s claims regarding defects shall be one year from acceptance of same by the Customer. This shall not apply to customer’s claims (i) for damages directed at a compensation for a bodily injury or for an injury to health, and where such claims are based on a defect for which we are responsible, or (ii) based on gross negligence of us or of a person assisting us in the performance of our obligations; the aforesaid claims defined under the aforesaid subsections (i) and (ii) of this sentence shall be subject to the applicable limitation period provided for under the applicable laws.
Otherwise, our warranty obligations shall be such as provided for under the applicable laws.
H) Liability Limitation
Our liability for damages shall be subject to the following:
- In case of intention or gross negligence, also on part of any persons assisting us in the performance of our obligations, we shall be liable in accordance with the applicable laws. The same shall apply in case of a damage caused by negligent violation of life, body or health.
- In case of a damage to property or a financial damage, we ourselves as well as any persons assisting us in the performance of our obligations, shall only be liable in case of breach of an essential contractual obligation, subject, however, to a maximum amount equal to the damage which was foreseeable at the time of conclusion of the contract and typical for the contract; essential contractual obligations within the aforesaid meaning are such obligations the fulfillment of which is a prerequisite for performance of the contract and which the other party may generally expect to be complied with.
- Otherwise, any liability for damages of any kind, regardless of the respective underlying cause of action, shall be excluded, except if and to the extent that we are liable under mandatory applicable laws, including without limitation because of the acceptance of a guarantee or under the German Product Liability Act (“Produkthaftungsgesetz”).
I) Choice of Law, Jurisdiction
1. Applicable Laws
The laws of Germany shall apply. The Convention on the International Sale of Goods shall not apply.
Where the customer is a Consumer, such choice of law shall only apply to the extent that it does not affect mandatory provisions of the country where the customer has its habitual place of abode.
2. Court of Jurisdiction
For dealings with merchants, legal persons under public law or separate estates under public law, the courts of our place of business shall have jurisdiction over all conflicts arising hereunder. However, we shall remain entitled, at our choice, to file a lawsuit at Producer’s location instead.