General Terms and Conditions
1. Scope of application, Definitions of terms
1.1 99artfairs GmbH, Ohmstr. 22, 80802 Munich, Germany (hereinafter referred to as “Seller” or “we”) operates an online shop for digital and physical works of art at http://www.unpainted.net/artstore. Digital works of art are artworks that can only be displayed or played back digitally on electric devices (e.g. PC/laptop, mobile terminals such as smartphone/tablet) and are not stored on a physical data carrier. Physical works of art are sent to the buyer by post.
1.2 For orders placed by the Customer (hereinafter referred to as “Customer” or “You”) in our online shop, the following General Terms and Conditions shall apply exclusively in the version valid at the time of order. Deviating terms and conditions of the Customer are not recognized, unless the Seller agrees to their validity expressly in writing.
1.3 Customers within the meaning of Clause 1.2 are both consumers and entrepreneurs. The Customer is a consumer insofar as the purpose of the ordered deliveries and services cannot be predominantly attributed to their commercial or self-employed professional activity. On the other hand, an entrepreneur is any natural or legal person or a legally qualified partnership who, when concluding the contract, acts in the exercise of its commercial or independent professional activity.
2. User account/registration, conclusion of contract
2.1 To be able to make orders in our online shop, the Customer’s prior registration and the creation of a user account is required. To be able to register, the Customer must be fully contractually capable of business and at least 18 years old. The user account is personal and non-transferable. The Customer undertakes to provide true and complete information during registration.
2.2 The data provided during registration by the Customer (user name, password, etc.) must be kept confidential by the Customer and not made accessible to unauthorized third parties. The Customer must ensure that access to and use of the user account is exclusive to the Customer.
2.3 The Customer can select digital and/or physical art works from our online offer and collect them in a so-called shopping basket by clicking on the “add to shopping basket” button. The Customer makes a binding offer to purchase the goods in the shopping basket by clicking on the button “order subject to payment”.
2.4 Prior to the binding order being placed, all entries can be corrected continuously via the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window before the binding submission of the order.
2.5 The Seller shall immediately confirm receipt of the Customer’s offer by electronic means (fax or email). This confirmation of receipt does not yet constitute acceptance of the Customer’s contract offer. The Seller may accept the offer of the Customer by means of a written (letter) or electronically transmitted (fax or e-mail) order confirmation or by enabling access (for digital works of art) or by delivery (in physical art works).
2.6 The order processing and the establishment of contact is carried out by e-mail and automated order processing. The Customer must ensure that the e-mail address specified by the Customer for order processing is correct, so that the e-mails sent by the Seller can be received at this address. In particular, when using SPAM filters, the Customer must ensure that all e-mails sent by the Seller or by third parties commissioned by the Seller to process the order can be delivered.
2.7 The text of the contract is made available to the Customer according to the statutory requirements; however, the text of the contract is not stored for the Customer beyond this.
2.8 The contract is concluded in German language.
3. Access to digital works of art/use, delivery of physical art works
3.1 Digital art works: Access to or use of digital art works purchased by the Customer is only possible via the Customer’s user account in the dedicated member area and allows the display or playback of the respective purchased artwork from different Customer terminals (PC, Laptop, Smartphone, Tablet, Smart TV). There is no storage of the digital artwork on a physical data carrier and no physical shipment to the Customer. By paying the purchase price, the buyer acquires a non-exclusive, non-transferable right to use the digital works of art for their own exclusive use in accordance with these General Terms and Conditions. It is not permitted to copy digital works of art for third parties and to distribute, resell or disseminate such illegally produced copies, to make the digital artworks publicly accessible or forward them, to place them on the Internet or other networks against payment or free of charge, to license them to third parties or to use them for commercial purposes without the prior written consent of the Seller. A resale exclusively of the digitally certified original artwork is permitted to the Customer.
3.2 Physical artworks: Physical goods are delivered regularly on the dispatch routes and to the delivery address specified by the Customer. The delivery address stated in the Seller’s order processing is exclusively decisive for the processing of the transaction. The shipping risk is borne by the Seller if the Customer is a consumer.
4. Prices, Shipping costs for physical artworks, payment
4.1 Our indicated prices are final prices, i.e. they contain all price components, including statutory German VAT. Any additional delivery and shipping costs incurred for physical artworks will be indicated separately in the respective product presentation in the offer.
4.2 For payment, you may use only the payment modalities agreed and specified at the time of ordering.
4.3 Payment of the purchase price is due immediately upon conclusion of the contract. If the due date of payment is determined according to the calendar, then the Customer is already in default by missing the date. In this case, they must pay the Seller default interest at a rate of 5 percentage points above the base interest rate.
5. Retention of title, Offset, Right of retention
5.1 For consumers, we reserve the ownership of the purchase item until the full payment of the invoice amount. If you are an entrepreneur, we reserve the title to the object of purchase until all outstanding claims arising from the business relationship with the Customer have been settled. The corresponding security rights are transferable to third parties.
5.2 You only have a right to offset if your counterclaims have been legally established, are undisputed by us or are ready for decision. In addition, you have a right of retention only if and insofar as your counterclaim is based on the same contractual relationship. In the case of defects in the delivery, the counter rights of the Customer shall remain unaffected in particular in accordance with clause 7.
6. Warranty for material defects, Guarantee
6.1 The Seller shall be liable for material defects according to the applicable statutory provisions, in particular §§ 434 et seq. BGB (Bürgerliches Gesetzbuch) [German Civil Code] The warranty period for goods delivered by the Seller to entrepreneurs is 12 months.
6.2 An additional guarantee exists for the goods delivered by the Seller only if this has been expressly given in the order confirmation for the respective article.
6.3 Customary or minor deviations in quality, size, shape and/or color remain reserved within the framework of reasonable conditions.
7.1 The Seller shall be liable in the event of damage to the Customer (a) from the injury to life, body or health caused by a breach of duty of the Seller, (b) under the Product Liability Act, the assumption of a guarantee or fraudulent misrepresentation, (c) if the Seller has caused the damage intentionally or by gross negligence, and/or (d) if the damage is caused by the breach of an obligation on the part of the Seller, the fulfillment of which enables the proper execution of the contract at all and the observance of which the Customer regularly relies on and may rely on (cardinal obligation).
7.2 The Seller shall have unlimited liability in the cases referred to in paragraph 1, letters (a), (b) and/or (c) above. Otherwise, the damage shall be limited to the foreseeable damage typical of the contract.
7.3 In cases other than those mentioned in paragraph 1, the Seller’s liability is excluded irrespective of the legal basis.
7.4 The liability provisions in the aforementioned paragraphs also apply to personal liability of the legal representatives, employees and vicarious agents of the Seller.
8. Right of withdrawal for consumers
Please note the following information on the legal right of withdrawal for consumers.
9. Data protection
10. EU website for online dispute resolution / alternative dispute resolution under the Consumer Dispute Resolution Act
The EU website for online dispute resolution can be found here: http://ec.europa.eu/consumers/odr/.
Please note that we are not willing or obligated to participate in dispute resolution proceedings before a consumer arbitration body.
11. Final provisions
11.1 The law of the Federal Republic of Germany applies to contracts between the Seller and the Customer, with the exception of the UN Convention on the International Sale of Goods. The statutory regulations on limiting the choice of law and for the applicability of mandatory regulations in particular of the state, in which the Customer has their habitual residence as a consumer, remain unaffected.
11.2 If the Customer is a merchant, a legal entity under public law or a public-law special fund, the place of jurisdiction for all disputes arising from contractual relationships between the Customer and the Seller is the Seller’s registered office.
11.3 The contract remains binding in its remaining parts even if individual points are legally ineffective. The ineffective points shall be replaced, if any, by the statutory provisions. If this would represent an unreasonable hardship for one of the contracting parties, the contract as a whole shall become ineffective.
Withdrawal policy for consumers
Below, we inform you in accordance with the legal requirements concerning the right of withdrawal for consumers. Please also note the exceptions of the withdrawal right and the sample withdrawal form (both below the cancellation instructions).
a) Withdrawal policy for the delivery of digital content not on a physical data carrier
End of withdrawal policy
Expiry of the right of withdrawal:
The right of withdrawal expires prematurely in accordance with § 356 para. 5 BGB (German Civil Code) for the delivery of digital content not available on a physical data carrier if we have begun with the execution of the contract only after you have given your express consent and at the same time confirmed your knowledge that you lose your right of withdrawal with the commencement of contract performance on our part.
b) Withdrawal policy for physical goods
End of withdrawal policy
c) Model withdrawal form
We inform you about the model withdrawal form in accordance with the statutory regulations as follows: