General Terms and Conditions of FDG Entertainment GmbH & Co.KG
– Version: 1st October 2012 –
The following General Terms and Conditions shall exclusively govern the business relationship between FDG Entertainment GmbH & Co.KG, hereafter “FDG”, Romanstr. 7/9, D-80639 Munich, and the customer, and in the version effective upon signature of the contract. By using the software you are implicitly accepting the following General Terms and Conditions.
We reserve the right to change these GTCs at any time and without stating the grounds for such change. You will be notified of any amended provisions within four weeks prior to such amendment coming into effect in the relevant software and/or on the FDG website. Your use of the relevant software implies your acceptance of the amended General Terms and Conditions.
§ 1. Object of the contract and exclusivity of the GTCs
These general terms and conditions govern the use of the software. The customer is able to pay a fee to download the software from the internet, mobile platforms, i.e. Apple iTunes, Google Play, Amazon Appstore or other sources.
This software allows the customer to integrate his own photos and images (hereafter graphic material) into the software. FDG has no control over the type and content of the graphic material, nor does it carry out any examination of the graphic material. The software only integrates the graphic material supplied by the customer, places the graphic material on a server operated by FDG and then creates a link that allows the customer to send the graphic material to third parties. The customer shall be solely liable for any infringements of copyright or licence arising from the graphic material supplied by the customer and imported into the software.
The GTCs of FDG shall apply exclusively, and we shall not acknowledge any provisions of the customer that conflict with or deviate from our GTCs unless we have expressly agreed to such in writing. Our GTCs shall apply even if we are aware of any conflicting conditions of the customer or conditions that deviate from our terms of business that fulfil the legally contracted services unconditionally. Our GTCs apply both to consumers and to contractors unless expressly stated otherwise in any of the relevant clauses.
FDG reserves the right to amend these GTCs. If the customer does not object to the GTCs within three weeks of notification of such amendment, the customer shall be considered in agreement with such. You can view the GTCs of FDG online at: http://www.fdg-entertainment.com/eula/ .
§ 2. Contract and use of services
By purchasing the software on one of the available sales platforms and by agreeing to these GTCs in the software, the customer accepts these GTCs.
FDG reserves the right to modify, cease or provide new services.
It is not technically possible to provide unlimited availability of the products to the customer, as access to FDG products is subject to the telecommunications networks and connections of other network operators whose services are beyond the control of FDG. Should FDG be responsible for any interruptions owing to essential measures (i.e. repair or maintenance work to software and hardware), FDG shall use its best endeavours to restore product availability as quickly as possible.
The processing of the customer’s image files is carried out as part of a technologically automated process, and FDG shall neither inspect nor view the files prior to processing, even though FDG would be authorised to do so in the scope of its relationship with the customer.
When uploading or sending image files, the customer confirms that he is the originator of the files and is therefore entitled to reproduce and distribute such image files. The customer guarantees that the content and materials of any files sent do not infringe applicable laws. In particular, the customer undertakes to comply with the obligations set out in § 3.
Customers may often be required to use technical systems such as end devices, software programs, transmission paths, telecommunications and other services owned by third parties to be able to use FDG’s products which may incur additional costs for the customer, in particular connection fees. These shall be borne solely by the customer, and the incurrence and amount of such costs are beyond the control of FDG. FDG does not supply such end devices, software programs, transmission paths, telecommunication and other services, and can therefore provide no warranty, responsibility or other guarantees for such.
§ 3. Duties of the customer as a user of the software and the legal consequences of violations
The following provisions form the basis of use, and contain the customer’s basic contractual obligations:
The following acts or content are prohibited:
Content or acts that are unlawful, in particular offensive, pornographic acts or acts that contravene youth protection legislation or which glorify such acts, and any content or acts that degrade the honour or commercial status of natural or legal entities, or which would harm their commercial or other reputation,
Infringement of copyright, trademarks or other proprietary rights and of general personal rights or other third party rights,
Uploading of any software, scripts, files and other mechanisms/techniques that could spy on, attack, shut down or in any other way impair or assist to impair FDG, its users, its computers, FDG’s servers or software used on users’ computers or on FDG’s servers.
The links generated by the software via which the customer’s created content (images or photos) can be made digitally available to others using the software and servers of FDG (and the servers of third party providers) and the images and photos used for this purpose are exclusively provided by the customer. The customer is responsible for ensuring that any content he uses or makes publicly available can be legally used and published. If in any doubt, content should not be uploaded or used under any circumstances if the customer cannot ascertain that the copyright situation is not explicitly in its own favour or that of FDG.
Should the electronic reproduction or distribution of, or access to, content uploaded by a customer through FDG in accordance with § 19a UrhG (German Copyright Act) or content made available to us by a customer result in justifiable compensation claims for injunctive relief, access and cancellation by third parties, the customer shall indemnify FDG and its legal representatives of any such claims immediately, and bear the costs of any extra-judicial and judicial defence. This shall apply in particular to cases where the customer had culpably omitted to notify FDG of any restrictions of use, or used content that it knew or could have known was in breach of third party rights.
FDG reserves the right to remove any prohibited content received from the customer from the FDG server when it becomes aware of such, and without prior notice, and therefore to render invalid the link sent to the customer and to withdraw all the customer’s rights to use FDG’s services. In the event of graphic material that is punishable by law, FDG reserves the right to notify the appropriate law enforcement authorities.
§ 4. Rights of use
FDG is the owner of the software and grants the customer a non-exclusive right of use.
The customer hereby agrees that the modified images resulting from the application of FDG’s software to the graphic material the customer supplied to FDG may be used by the company for marketing purposes, and that such use extends both to the software under this contract and to any future similar software developed by FDG. By accepting these GTCs, the customer is agreeing to the free, worldwide and temporally unlimited use of the graphic material used by the customer. The customer may withdraw his consent to such use at any time.
§ 5. Limitation of liability
The liability of FDG for any contractual violations and for tort is limited to malicious intent and gross negligence. This does not apply to injury to the life, limb or health of the customer, to claims arising from product liability legislation and regarding infringements of cardinal obligations. Cardinal obligations are understood as obligations that enable the proper execution of the contract in the first instance, and which both parties do and shall undertake to uphold. In this regard, FDG is liable for any degree of culpability. Liability in the case of a breach of cardinal obligations will be limited to the normal, foreseeable damages in such cases. Statutory regulations shall apply regarding assertions of claims arising from warranty legislation relating to defects. The aforementioned liability provisions apply to any actions on the part of FDG, FDG’s authorised bodies and to its legal representatives or agents.
If the customer is a contractor, the following provisions shall apply in the event of any deviation from the preceding paragraph (1): in the event of delayed delivery, liability shall be limited to a compounded interest rate of 0.5% of the value of the goods for each full week of delay, but shall not exceed 5% of the total value of the goods. Regarding damage that does not result from an injury to the customer’s life, limb and health, FDG shall be liable to contractors solely for damage directly arising from use. Indirect or consequential damage shall be excluded. Claims under warranty law for defects shall elapse after one year from the date the risk is transferred. The obligations of notification of inspection and complaint in accordance with §§ 377 ff. HGB (German Commercial Code) shall apply to contractors. In all other respects, paragraph (1) above shall apply.
§ 6. Form of statements
Any legally relevant declarations and notifications made by the customer to us or a third party must be made in writing.
§ 7. Place of fulfilment, applicable law and jurisdiction
Fulfilment: the place of fulfilment for any transactions with contractors shall be the registered offices of FDG. The relevant legislation regarding the place of fulfilment shall apply to contracts with consumers.
Applicable law: if the customer is a consumer, any disputes arising from this contract shall be subject to the laws of Germany, unless any specific consumer protection regulations in home country of the customer are more favourable. If the customer is a contractor, any disputes arising from this contract shall be subject to the laws of Germany, and the application of the UN Convention on the International Sale of Goods is excluded.
Jurisdiction: Should the customer who has signed the contract as a consumer have no general place of jurisdiction in Germany or in any other EU member state, the exclusive jurisdiction for all disputes arising from this contract shall be the registered offices of FDG. If the customer is a trader, a legal entity under public law or a special fund under public law, jurisdiction shall be the competent court of the registered offices of FDG. FDG is also entitled to bring an action against the customer in its general place of jurisdiction. Moreover, any other general and specific jurisdictions are excluded.