(Version 1.0, status January, 2019)
- Validity of the T&C
- Dugram UG (haftungsbeschränkt), Zum Tiergarten 3, 35708 Haiger, Germany (hereinafter referred to as “Provider“) operates with Dugram.com (“Website”) an online teachingplatform with a focus on photography and videography The online service enables its users, inter alia, to purchase high quality tutorials from their favorite Instagram creators.
- These general terms and conditions (hereinafter referred to as “T&C“) apply to all Services, e.g. web-based functionalities, applications, and services, provided to the User on the Platform by the Provider.
- All arrangements made between the Provider and the User are reflected in these T&C, the price list and other policies applicable to the use of the Platform and/or Services, which are all incorporated by reference to this Contract.
- These T&C apply exclusively. Terms of the User that are contrary or deviating from these T&C do not become a component of this Contract even if the Provider has knowledge of such, unless the Provider has expressly consented in writing to their applicability.
- Key Definitions
- “Contract” shall jointly mean these T&C, the price list and other policies applicable to the use of the Platform and/or Services.
- “Creator” shall mean any Instagram artist who uploads self-created Tutorials on the Platform to offer them to other Users.
- “Services” are the services provided on or around the Platform. The precise service content is conclusively stipulated in the applicable version of the performance specification available on the Provider’s website at dugram.com.
- “Force majeure” is an event which is not foreseeable for either party. Force Majeure exists in this context in particular in case of (i) fire, explosions, or other accidents; (ii) storm, earthquake, tornadoes, flood, volcanic eruptions, or other natural catastrophes; (iii) war, threat of war, terrorism, uprisings, and other unrest; (iv) epidemics, pandemics, quarantine restrictions, or other restrictions based on public health measures; (v) strike or other industrial actions of the parties or their suppliers or respectively their employees, or (vi) sanctions or embargoes.
- “Platform” is the totality of the systems, infrastructure, contents and information of the Provider or the Users, including the standard Platform product, consisting of the access to the websites and Software of the Provider and the possibilities to offer, sell and purchase Tutorials.
- “Software” shall mean the skill-sharing system of the Provider and the underlying software.
- “Student” is a User who purchases one or more Tutorials.
- “Tutorial” is any content created by Creator to upload on the Platform and sell it to Users.
- “User” shall mean both, Students and Creators as well as any other natural person who is visiting the Platform.
- “UserContent” shall mean any texts, photos, graphics, logos, videos, technical plans, drawings or data, or any other material and/or information, in particular Tutorials that Users create, develop, upload, copy, store, distribute and/or make available on or through the Platform.
- Subject Matter of the Agreement
- The aim of the Platform is to offer a skill-sharing marketplace on which users who are interested in photography and Creators who are successful Instagram influencers are brought together, in particular to give Creators the opportunity to earn money by uploading and selling their Tutorials to Users.
- Due to VAT fiscal reasons contractual relations regarding the purchase of Tutorials through the Platform are established exclusively between Provider and Student.
- Conclusion of contract and purchases of Tutorials
- All offers on the Platformare nonbinding and subject to change.
- If a User wishes to purchase any product or service made available through the Service (“Purchase”), User may be asked to supply certain information relevant to his Purchase including, without limitation, credit card number, the expiration date of the credit cardandthe billing address of the User.
- By submitting such information, the User grantsthe Provider the right to provide the information to third parties for purposes of facilitating the completion of Purchases.
- A User must be at least 18 yearsold and able to enter into legally binding contracts to access and use the Platform or purchase Tutorials
- By using the Platform and purchasing a Tutorial the User represents and warrants that (i) the User is 18 or older and has the legal capacity and authority to enter into Purchases, that (ii) the User has the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information the User supplies to the Provider is true, correct and complete.
- To prevent piracy and any form of prohibited distribution of the offered Tutorials, only Users who have paid will receive access to the Tutorials. For that reason, Provider automatically creates an account when the Student purchases a Tutorial, consisting of the provided email address and an automatically created password that can be manually changed by the Student via its account.
- The Contract is concluded upon receipt of the Provider’s order confirmation, at the latest upon provision of the Tutorial by the Provider.
- Provision of Services
- Provider currently operates the Platform and Services under the domain www.dugram.com. Provider reserves the right, in its sole discretion, to rename the Services and/or Platform and/or move to another domain.
- Provider presents on the Platform the Tutorials of Users who are registered as Creators. The layout, design and look & feel, as well as the arrangement of the presentation of the Tutorials is determined by Provider in its sole discretion.
- The Provider shall provide to the User the use of the Services to the extent described on the Website. The User recognizes that a completely interruption-free availability of the Platform and Services is not technically possible, in particular as this depends on factors that are not within the scope of influence of the Provider.
- Granting of utilization rights
- Subject to complete adherence to the stipulations of the Contract, the User reserves the nonexclusive, global, limited in terms of time to the term of the Contract and/or Purchase, not sublicensable, nontransferable right to use the Platform and Services via the Internet to the extent granted in the Contract and/or Purchase. The Provider expressly does not grant to the User any rights in excess of such, in particular rights to the Software and/or Tutorials.
- The User is not authorized to use the Platform, Services or Tutorials beyond the measures of this Contract or to make such accessible to third parties. In particular, the User is not authorized to reproduce and/or dispose the Software and/or Tutorials parts thereof free of charge or against remuneration or to transmit such to third parties in any other form, to allow use or perusal to third parties, or to use the Software for a third party, in particular to not lease or rent such. The utilization right is void upon cancellation of the Contract for any reason whatsoever.
- In the event of an unauthorized surrender of use, the User, at the Provider’s request, must immediately inform the Provider of all information concerning assertion of claims against the unauthorized using third party, in particular name and address of such.
- The User grants to the Provider a nonexclusive, global, sublicensable, transferable, royalty-free, and permanent right to use the User Content. This in particular includes the right to process (e.g. encoding or formatting), copy, alter, modify, store (e.g. for hosting and caching), make publicly available, distribute, send, create derivative works, use for advertisement purposes in all media and/or commercially use the User Content in any other way that is required for provision of the Contractual Services, and to make such publicly accessible. It furthermore also includes the right to use this User Content or other data for internal test purposes of the Platform. The User grants to Provider also the right to use his name in connection with the submitted User Content and other information as well as in connection with all advertising, marketing and promotional material related thereto. The User agrees that he shall have no recourse against Provider for any alleged or actual infringement or misappropriation of any proprietary right in his communications to the Provider.
- User’s utilization requirements
- The use of the Platform and Services requires the existence of the system requirements listed on the Website as well as Internet access with a bandwidth of at least one (1) Mbit/s at the User.
- The Provider does not provide access software to the User. Suitable access software are the following Internet browsers in the respective current version: Firefox, Safari, Google Chrome. The User is itself responsible for installation and procurement of the access software.
- The provision of these requirements as well as Internet access to include transmission services to the devices used by the User are not a subject matter of this Contract but are incumbent upon the User.
- User’s participation
The parties agree that the provision of Services depends to a significant extent on the efficient and successful cooperation of the parties. In light of this, the User shall, among other things, fulfill the following obligations to cooperate at no cost for the Provider. In particular, the User shall
- keep the access data as well as possibly other specified identification and authentication protections allocated to the User secret, protect such against access by third parties, and not transmit such to unauthorized third parties. This data must be protected by suitable and common measures. The User shall immediately inform the Provider if there is suspicion that the access data and/or passwords may have become known to unauthorized persons;
- create the utilization requirements listed in Section 7 as well as others possibly listed in the performance specification;
- comply with the restrictions and obligations concerning utilization rights pursuant to Section 6;
- ensure that all intellectual property rights of third parties are observed within the scope of the utilization of the Platform;
- not improperly use the Services or have such used improperly, in particular not transmit any information containing immoral or illegal content or make reference to such information that promotes sedition, induces criminal offenses, glorifies or trivializes violence, is sexually offensive or pornographic, or suitable to morally endanger children or young adults or interfere with their well-being, or may harm the reputation of the Provider or third parties;
- refrain from attempting to itself retrieve, without authorization, information or other data or have such attempted by unauthorized third parties, or refrain from interfering with the Platform or to have such attempted, or refrain from entering the Provider’s data networks without authorization;
- indemnify the Provider and its vicarious agents from any third-party claims (including costs of necessary legal defense) that are based on an unlawful use of the Services by the User or occurred with its consent or that arise in particular from disputes under data protection laws, copyright laws, or other legal disputes associated with the use of Services. If the User recognizes or should recognize that such a violation is imminent, the User is obligated to immediately inform the Provider.
- In the event of violations against the User’s contractual obligation as well as justified suspicion of a corresponding breach of duty that are not ceased despite warning, the Provider is authorized to block the User’s access to these Services for the duration of the breach of obligations, without hereby waiving the Provider’s claim to compensation.
- For clarification purposes, a User may decide in its own discretion which of its User Content shall be displayed to other users on the Platform.
- Service Fees and payment terms
- Provider may charge fees to Users in consideration for the use of the Platform, including but not limited to fees to Students for Purchases of Tutorials (collectively, “Service Fees“). These Service Fees follow from the Provider’s pricelist (“Pricelist”) which is published at the Provider’s website in the respective most updated version. According to section §19 German VAT Act (“Umsatzsteuergesetz”) Provider is not responsible to generate value-added-taxes for purchases from Germany.
- Any applicable Service Fees (including any applicable Taxes) will be displayed to a User prior to a Purchase. Provider reserves the right to change the Service Fees at any time and will provide Users adequate notice of any fee changes before they become effective.
- The Provider is authorized to send invoices to the User by email or respectively to make such available to the User online. In the event that the User requests a dispatch of the invoice by postal mail, the Provider is authorized to charge processing fees and postage costs pursuant to the respective valid Pricelist.
- Service Fees shall be due and payable by the User in advance upon conclusive confirmation of the Purchase and can be paid by the User through the payment service provider utilized by the Provider (which terms and conditions are available at [URL terms & conditions payment provider]. Objections against invoices vis-à-vis the Provider must be in writing. The invoices are deemed to be approved by the User if an objection is not submitted within three (3) weeks after receipt of the invoice.
- The User is not entitled to availment of specific payment options not already offered by the Provider. In the event that, due to later cancellation of debit entries or credit card debits, the Provider incurs reverse debits and/or cancellation fees for which the User is at fault or due to a lack of funds that is within the scope of responsibility of the User, the User shall bear the costs incurred in this regard.
- The User is authorized to offset or retain only undisputed, legally ascertained claims of the Provider or claims in a synallagmatic relationship specifically with the respective affected claim of the Provider.
- The guarantee is void insofar as the User itself or by third parties modifies software programs without the Provider’s approval unless the User verifies that the respective defects were not caused by the program modification performed by it or the third party.
- The Provider shall not assume any warranty for the User free of charge test and/or beta versions of the Platform and/or other applications.
- Provider’s liability
- The Provider shall be liable without limitation for damages based on willful or grossly negligent actions, culpable violation of body, life, and/or health, the violation of an assurance expressly designated as “warranty”, and in the event of compulsory statutory liability pursuant to the German Product Liability Act (“Produkthaftungsgesetz”).
- In cases of slight negligence, the Provider is liable for breach of an essential contractual obligation (“Cardinal Obligation“). A Cardinal Obligation within the meaning of this clause is a duty whose fulfillment makes the performance of the contract possible and on whose fulfillment the User may therefore rely on it regulary.
- The liability in accordance with the above clause 10.2 is limited to the typical and foreseeable damage at the time of conclusion of the Contract.
- Liability of the Provider for foreseeable damages typical for such Contracts is limited per damage event to a maximum amount of EUR 1.000.000,- which equals the sum insured by Provider’s business liability insurance.
- In all other cases, especially in the case of indirect damages, lost profit and missed savings the Provider is not liable for slight negligence.
- The Provider does not accept any guarantee as regards for User Content available through the Platform, insofar as such content was uploaded by Users, in particular because advance monitoring of content is not possible and can naturally not be offered by the Provider. The Provider is not liable for the accuracy, topicality, or respectively completeness of such, or for the fact that they are free from third party rights and/or the User has legally acquired such. However, the Provider and its agents have the right at their sole discretion to remove any User Content or other content that, in their judgment, does not comply with these T&C and any other rules of user conduct for the Service, or is otherwise harmful, objectionable, or inaccurate. The Provider is not responsible for any failure or delay in removing any such User Content. The User hereby consents to such removal and waives any claim against Provider arising out of such removal of any User Content, whether it is your own or another user’s.
- The Provider is not liable for malfunctions of quality and/or interruptions of access based on Force Majeure or based on events that are not within the scope of responsibility of the Provider, in particular the loss of communication networks and gateways. Unless stipulated otherwise in the respective applicable version of performance specification, the Provider does not accept any responsibility for an uninterrupted and error-free functionality of the offer.
- The above liability regulations of Sections 10.1 through 10.7 also apply to the benefit of all bodies, employees, representatives, and/or vicarious agents of the Provider.
- User’s liability
- The User indemnifies the Provider upon first request from all claims asserted by other Users and/or other third parties against the Provider for violation of their rights based on User Content or links placed by the User or for any other use of the Platform by the User, unless the User is not responsible for the violation. This indemnity applies in particular to the violation of protective rights under laws of unfair competition, copyright, trademark, labeling, patent, name and/or any other rights.
- This indemnification obligation stipulated above also applies if the Provider is held liable by official authorities, prosecution authorities, and other public entities based on User Content placed on the Platform by the User in violation of the regulations of these T&C. The User is furthermore obligated to reimburse to the Provider all expenditures necessary and incurred by the Provider in connection with third parties’ proceeding against the Provider based on the violation of their rights by User Content placed by the User. This includes in particular the necessary cost of reasonable legal defense.
- If the Provider is held liable by third parties based on a possible violation of their rights by User Content placed by the User, the User shall support the Provider to the best of its abilities in the defense against the claims asserted by the third parties. This includes in particular that the User provides to the Provider, upon corresponding written request by the Provider, copies of all documents available to the User with regard to the allegedly violating contents.
- Engagement of subcontractors
The Provider is authorized to have individual or the totality of its service obligations provided with the assistance of third parties (e.g. subcontractors). The Provider shall be liable for the provision of services of subcontractors as for its own actions.
- Contract term and termination
- The User may terminate its account at any time by termination notice or deleting its account via the respective function.
- The Provider may terminate any User account by giving two weeks written notice.
- The right to extraordinary termination for good cause remains unaffected. The statutory provisions apply in this regard. A sale of individual business areas of the Provider or a change of shareholders does not give rise to a special termination right of the User. Good cause exists for the Provider in particular if the User violates its obligations arising from Section 8 even after warning.
- Any termination must at a minimum be in text form („Textform“).
- Force Majeure
In the event that provision of contractual obligations is obstructed based on a Force Majeure event, the affected party is released from the duty to fulfill the affected obligations for the duration of the Force Majeure event. The affected party must immediately inform the other party in writing of the circumstances that resulted in the occurrence of Force Majeure. The User is exempt from its payment obligations for as long as the Provider is obstructed from providing the Contractual Services due to Force Majeure.
- Right of withdrawal and instruction
In the event that the User is a natural person and concludes a Contract with the Provider for the provision of services here in the form of the purchase of a Tutorial for a purpose that is predominantly neither his commercial nor his independent professional activity can be attributed and he thus is a consumer in the sense of section 13 German Civil Code (BGB), he is entitled to a statutory right of withdrawal. Details on the right of withdrawal, instruction and cancellation form can be found below.
- Dispute resolution
- The Provider does not participate in a dispute settlement procedure before a consumer arbitration board. The Provider is rather interested in solving disputes with Users For this end Userscan always turn to the customer serviceof the Provider.
- Reference to online dispute resolution pursuant to Art. 14 para. 1 ODR-VO (EU No. 524/2013): The European Commission provides a platform for online dispute resolution (OS), which can be found here http://europa.eu/consumers/odr/.
- Choice of law, venue, closing provisions
- The law of the Federal Republic of Germany applies, to the exclusion of the UN Convention on the International Sale of Goods (CISG) and the provisions of private international law.
- In the event that User is a business man, venue for any and all disputes arising from or in connection with this contractual relationship is the business seat of Provider, subject to other compulsory statutory venues. The Provider reserves the right to file actions before other statutory competent courts. Arbitration proceedings are not stipulated.
- Ancillary provisions outside of this Contract and its appendixes do not exist. Amendments or modifications of this Contract require the written form to be valid. The same applies for a waiver of the requirement of written form.
- In the event that individual provisions of these T&C should be invalid, this does not affect the validity of the remaining provisions of this Contract.
Haiger, January12, 2019.
Upon conclusion of a purchase of a Tutorial, you have the following right of withdrawal:
You have the right to withdraw from this contract within fourteen days without giving any reason.
The revocation period is fourteen days from the date of the contract.
To exercise your right of withdrawal, you must inform us (Dugram UG (haftungsbeschränkt), Zum Tiergarten 3, 35708 Haiger, Germany) by means of a clear statement (e.g. a letter sent by post, by e-mail: [Email adress] or via our contact form) about your decision to withdraw from this contract. You can use the attached model withdrawal form, which is not required.
In order to maintain the cancellation period, it is sufficient for you to send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.
- Consequences of the cancellation
If you withdraw from this agreement, we have selected all payments we have received from you, including delivery charges (except for the additional costs arising from choosing a different delivery method than the most favorable standard delivery we offer have to repay immediately and at the latest within fourteen days from the date on which the notification of your revocation of this contract has reached us. For this repayment, we use the same means of payment that you used in the original transaction, unless otherwise agreed with you; In no case will you be charged for this repayment fees.
- Early termination of the right of withdrawal
Your right of revocation expires prematurely in the case of a contract for the delivery of digital content that is not on a physical data carrier, if you have expressly consented to us starting to execute the contract before the expiry of the revocation period and you have confirmed your knowledge that by giving your consent to start with the execution of the contract lose your right of withdrawal.
END OF REVOCATION
Notice of Cancellation
Complete and return this form only if you wish to withdraw from the contract.
To: Dugram UG (haftungsbeschränkt), Zum Tiergarten 3, 35708 Haiger, Germany
Fax: [please fill in]
e-mail: [please fill in]
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods:
Ordered on (*)/received on (*): ______________________________________________
Name of consumer(s): ______________________________________________
Address of consumer(s): ______________________________________________
Signature of consumer(s) (only if this form is notified on paper)
(*) Delete as appropriate