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General Licence Terms artcover GmbH

Last update: February 2010

1. Conclusion of the Licence Agreement
1.1. These General Licence Terms of the Artcover GmbH regulate the transfer and use of motives, which the holder of the rights of use on the motive (hereinafter referred to as „contracting party") makes available on the community platform of the Artcover GmbH (hereinafter referred to as „Artcover").
1.2. The term „motive" in terms of these General Licence Terms includes all depicted motives for which the contracting party holds the necessary rights of use protected by copyright. This also includes industrial property rights as far as the contracting party is entitled as holder or sole licence holder of the property right.
1.3. An agreement between Artcover and the contracting party regarding the use of a motive is concluded by the contracting party's transmission of a proposal to conclude a motive licence agreement regarding a motive in accordance with these General Licence Terms in the course of the online registration on the Artcover website. Subsequently, the contracting party has the opportunity of sending motives to the community platform via his/her user account.  The licence agreement becomes effective when, after reviewing the respective proposal, Artcover declares its acceptance to the contracting party via email by activating the motives for the marketplace.
 
2. Rights of use
2.1. The contracting party entitles Artcover to use the motive transmitted with a proposal to conclude a licence agreement, in particular to publish, copy or print products from Artcover with the contracting party's motive and to publish, copy, offer and sell products printed in such a manner (hereinafter referred to as "contractual products").
2.2. Furthermore, Artcover is entitled to use the motive and its name on packaging material and in advertisements and to actively promote it.
2.3. Licensed motives can be individualised by Artcover within the technical possibilities.
2.4. The rights of use are not granted exclusively nor in perpetuity throughout the world.
2.5. With the granting of the rights of use according to section 2.1, Artcover is also entitled to issuing sublicenses. In particular, Artcover is entitled to use the contracting party's respective motive on the platform of Artcover itself resp. to allow its other contracting parties and customers the use of the motives or motive products on the basis of these General Licence Terms.
 
3. Usage obligations
With the conclusion of a licence agreement in accordance with these General Licence Terms, the contracting party does not acquire the right to the publication of his/her transmitted motive on the community platform or to the use of the motives by Artcover in any other manner. Artcover is entitled to prevent or prohibit the publication of a motive at its sole discretion at any time. In particular, this applies when there are doubts regarding the contracting party's authorisation to licence the motive or are asserted by third parties with the result that trade mark rights or other third party rights are being violated resp. could be violated by the granted use of the motive. The same applies if the publication or use of the motive could violate other legal requirements.
 
4. Licence fees
4.1. In the event of the conclusion of a licence agreement on the basis of these Licence Terms, Artcover is obligated to pay a regular licence fee for the use of a motive in the amount stipulated with the contracting party before uploading the motive. The calculation of the licence fees is effected on the basis of the amount of contractual products sold and paid for by the customer on whom the licensed motive was applied to. The respective licence fee includes statutory value added tax.
4.2. The settlement and payment of the licence fees to the contracting party is effected quarterly after the end of a calendar quarter. A payment claim does not arise until a minimum commission amount per quarter of EUR 10.00 for contracting parties in Germany and EUR 50.00 for contracting parties abroad has been reached.  If the credit balance exceeds an amount of EUR 100, the contracting party can demand payment at any time however, not more than once per month. Payment is effected via bank transfer to the account specified by the contracting party. In the case of specified bank accounts which are kept abroad, possible fees or bank commissions are to be borne by the contracting party. If a contracting party has acquired claims to licence fees amounting to a lesser amount, these are not paid until after the termination of all licence agreements in compliance with section 8.2 resp. 8.3 and the deletion of his/her user account and that within 6 months at the latest. This does not apply if the contracting party concludes a new agreement with Artcover regarding the use of motives within this time period of 6 months as of the effectiveness of the termination. In this case, a new calculation period pursuant to sentence 1 of this paragraph commences with the newly concluded agreement.
4.3. The contracting party is responsible for specifying his/her respectively valid bank details to Artcover. The contracting party is liable for the transmission of incorrect data. Provided that the contracting party is registered as being liable to tax on sales in Germany, he/she is also responsible for providing Artcover with a valid value added tax identification number resp. tax number and to verify it accordingly.  Without verification, payment of the licence fees will be effected without value added tax. As a basic principle, the payment for contracting parties with residence abroad is effected net. Commercial customers based outside of Germany are also obligated to provide Artcover with a valid value added tax identification number.
4.4. The contracting party's claim for payment of a licence fee (commission) also arises if a customer of the sprd.net AG selects several motives from different contracting parties for one product. In this case, each contracting party of the sprd.net AG receives the licence fee (commission) which he/she is entitled to in each case for the use of his/her motive.
 
5. Third party trade mark rights
5.1. The contracting party ensures that he/she has designed the motive, which he/she relinquishes to Artcover in accordance with these General Licence Terms, him-/herself or that he/she is the holder of the rights of use for the motive, which are necessary for the granting of the rights to Artcover.
5.2. The contracting party ensures, regarding the rights he/she grants in favour of Artcover in accordance with these General Licence Terms, to be the sole and exclusive person authorised to dispose of them.
5.3. The contracting party ensures that he/she is not aware of third party rights, which conflict with or could conflict with the use of the motive by Artcover in accordance with these General Licence Terms.
5.4. The contracting party ensures that the respective motive, which he/she relinquishes to Artcover for usage, is also in accord with other legal requirements, in particular legal regulations regarding the protection of minors and does not violate penal prohibitions.
5.5. Artcover reserves the right to retain the licence fees until the final clarification of a legal dispute, in the event that third parties assert claims based on an infringement through the use of a contracting party's motive.
 
6. Liability/Indemnity
6.1. The contracting party is liable for all damages, which result for Artcover because the use of the licensed motive from the contracting party in accordance with these General Licence Terms, in particular the publication and duplication, violates third party rights or other legal requirements.
6.2. The contracting party's liability includes all damages to Artcover in the form of costs for asserting legal rights as well as costs and sums of indemnity which are imposed on Artcover by a court of law because of the use of the contracting party's motive or which are included in an amicable settlement. The contracting party is obligated to indemnify Artcover from all aforementioned costs and claims for indemnification.
6.3. Artcover is liable, provided that the contracting party asserts claims, which are based on fraudulent intent, intent, gross negligence or the breach of an essential contractual obligation by Artcover, its executive employees or vicarious agents. Furthermore, Artcover does not assume liability for slightly negligent conduct.
6.4. Should the contracting party be a entrepreneur, i.e. a natural or juristic person or a partnership having legal capacity, who/which is exercising its/his/her commercial or freelance occupational activity when concluding a legal transaction, in addition to section 6.3. of this agreement it applies that in the event of negligence, the liability of Artcover is limited to the foreseeable, typically resulting damage.  Further liability by Artcover due to personal injury or according to the Product Liability Act remains unaffected.
 
7. Duration/Termination
7.1. The licence agreement between Artcover and the contracting party on the basis of these General Licence Terms is concluded indefinitely.
7.2. This agreement ends in the event that one of the parties terminates it in writing without stating reasons by two weeks' notice to the end of the respective calendar month. Regardless of the aforementioned period of notice, both parties have the right to delete motives from the Artcover community platform at any time. As far as the respective motive has been transferred to partners of Artcover in line with sublicenses, the deletion of the respective motive is effected in the respective online shops within the aforementioned period of notice.
7.3. The right of both parties to terminate this agreement for cause, also when indicated without notice, remains unaffected. Good cause, in particular, is if a party violates obligations, which are incumbent on him/her according to these General Licence Terms and does not remedy this violation after having been given an appropriate time-limit and having been requested to do so by the other party. Furthermore, good cause is if the contracting party transmits a motive to Artcover whose use violates third party rights, in particular personal rights and industrial property rights as well as other legal requirements for the protection of third parties, e.g. laws for the protection of the youth according to the provisions of these General Licence Terms.
7.4. In the event of a termination, Artcover will delete the contracting party's motive from the marketplace within three work days. As far as the motive has been transferred to partners of Artcover, the deletion is effected within the two-week period of notice. The orders received by Artcover for which the use of the motive is required will be carried out in full until the expiration of the period of notice. Artcover provides the contracting party with a final revision for all licence fees which have accrued until the agreement expires.
 
8. Set-off and retention
Artcover is permitted to set a contracting party's claims off against its own counterclaims provided that the counterclaim is established as final and absolute, acknowledged or undisputed. Setting claims from Artcover off against the contracting party's counterclaims is only permitted after prior consultation with Artcover and only insofar that the counterclaim is established as final and absolute, acknowledged or undisputed. This also applies correspondingly for the assertion of rights of retention by the contracting party.
 
9. Final Clauses
9.1. Deliveries and services from Artcover are solely subject to the General Business Terms of Artcover as well as these General Licence Terms. Artcover explicitly objects to the validity of licence or other business terms of the contracting party.
9.2. Amendments of this agreement require the written form.  Artcover will announce possible amendments of these General Licence Terms on its website and inform the contracting parties via email. Provided that a contracting party continues to make motives available for use on the community platform after receiving such information, the amendments are presumed to be accepted.
9.3. In terms of these General Licence Terms, statements via fax, letter and email are regarded as the written form.
9.4. All rights and duties resulting from these General Licence Terms are subject to the laws of the Federal Republic of Germany excluding the CISG.
9.5. Provided that the contracting party is a merchant or a company in terms of § 14 German Civil Code based outside of the Federal Republic of German, solely the District Court of Offenbach is responsible for disputes resulting from or in conjunction with these General Licence Terms.
9.6. Should individual or several provisions of these General Licence Terms be ineffective, the effectiveness of the remaining provisions is unaffected thereby.