General Terms and Conditions / End User License Agreement
1. Scope of application, Definitions of terms
1.1 99artfairs GmbH, Ohmstr. 22, 80802 Munich, Germany (hereinafter referred to as “UNPAINTED”, “Operator” or “we”) operates an App for digital works of art at https://apps.apple.com/us/app/unpainted-app/id1532219907. Digital works of art are artworks that can be displayed or played back digitally on your mobile phone. The App works only in IOS devices.
1.2 For orders placed by the Customer (hereinafter referred to as “Customer” or “You”) in our App, 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 Operator agrees to their validity expressly in writing.
2. User account/registration, conclusion of contract
2.1 To be able to make orders in our App, 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. Registration is possible via Email and password or via Facebook Connect or Google Connect.
2.2 The data provided during registration by the Customer (username, 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 a premium subscription. The current pricing is displayed in the app upon concluding the subscription. There are three pricing options. The premium subscription enables the Customer to perform certain operations, e.g. to create a personal digital collection of artworks.
2.4 By creating a “Personal Collection” in the UNPAINTED App, you do not purchase the artworks. You save a selection of preview images (usufruct) to share with friends. In order to buy an artwork for personal and/or physical possession, the Customer has to switch to the UNPAINTED web version. For purchases on that platform, the respective Terms and Conditions apply.
2.5 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.
3. Prices, 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 Operator default interest at a rate of 5 percentage points above the base interest rate.
5. Retention of title, Offset, Right of retention
5.1 We reserve the ownership of the purchase item until the full payment of the invoice amount.
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 Operator 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 Operator to entrepreneurs is 12 months.
6.2 An additional guarantee exists for the goods delivered by the Operator 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 Operator 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 Operator, (b) under the Product Liability Act, the assumption of a guarantee or fraudulent misrepresentation, (c) if the Operator 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 Operator, 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 Operator 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 Operator’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 Operator.
8. Right of withdrawal for consumers
You may withdraw from the premium subscription at the end of the respective term (1 month, 6 months, or 12 months). You can order the withdrawal within the App menu anytime before the term ends.
You have the right to delete your account anytime. Your personal data will be deleted upon termination of your account.
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 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 Operator 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 by 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 Operator is the Operator’s registered office.
11.3 The contract is concluded in English language.
11.4 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 represents an unreasonable hardship for one of the contracting parties, the contract as a whole shall become ineffective.