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General Terms and Conditions of Sales and Delivery
As of June 2017
§1 General information
Your contractual partner for all orders within the scope of this online offer is FINEART FACTORY GmbH, represented by its executive Kai van Pham, Naumburger Str. 28, 04229 Leipzig. For the sake of better understanding, this will be hereafter referred to as "ARTFLAKES", even though the FINEART FACTORY GmbH, with its product ARTFLAKES, is the legal representative. These GTCs apply exclusively for all orders over ARTFLAKES. You will hereafter be referred to as "client" or "customer".
§2 Responsibility for Online Offer
(1) Within the online offer of ARTFLAKES, there are exclusive galleries that are designed and operated by independent "partners". The respective partner is solely responsible for the design of their gallery, for offered (image) rights, content, and prices. This is regulated in separate terms and conditions for partners. ARTFLAKES has the obligation to regularly check the image material that partner offers for sale. These audits are carried out at close intervals and include, in particular, the examination of Right offenses in any kinds. In addition, ARTFLAKES undertakes the obligation to provide information to its partners and informs them in a preventive manner and in the event of suspected infringements of the rights of third parties. If ARTFLAKES is guilty of infringements of ARTFLAKES 'rights by ARTFLAKES, the offers of the partners are immediately removed by ARTFLAKES or rejected after their order / acceptance, if known or suspected that the contents of the partner rights of third parties are infringed.
(2) ARTFLAKES reserves the right to make known, or suspect that the contents of the partner's rights are infringed, to establish contact with the partner, to provide the e-mail address and postal availability of the partner as well as previous sales statistics of the partner And remove the offer with possible legal deficiencies. The partner is immediately informed.
(3) As the service provider, ARTFLAKES processes the content of the partner or gallery operators in the style and manner configured or ordered by the client. Additionally, ARTFLAKES assumes the administrative tasks that accompany customer orders as well as the customer support.
(4) ARTFLAKES is entitled to transfer its rights and obligations towards the customer, wholly or partially, to third parties e.g. to payment, collection, or support providers. This also relates to its legal succession.
§3 Submission and Acceptance of the Offer, Conclusion of the Contract
(1) The "offers" contained on the ARTFLAKES website represent a non-binding invitation for the customer to place an order at ARTFLAKES.
(2) By filling in and sending off the order form on the Internet, the customer makes a binding offer on a purchase contract or a contract for work and materials. ARTFLAKES can accept this offer by sending an order confirmation via email.
(3) In connection with §2 (2), ARTFLAKES cannot pre-examine all content offered by gallery owners for possible infringement. Due to this, ARTFLAKES reserves the right to reject incoming orders within the legal period of acceptance, even after their acceptance, if, during the ordering process, it becomes known or it is suspected that third-party rights will be violated with the used content.
§4 Delivery and Shipping
(1) ARTFLAKES delivers within Germany, the EU, and a few other countries, to all ages and businesses. An exact delivery list can be found at www.artflakes.com/de/facade/prices
(2) Delivery is conducted by a shipment service provider chosen by ARTFLAKES. The customer has to pay shipping and handling charges, which may depend on the order value, the size (bulky items), the chosen payment option, and the shipping destination. Current shipping prices can also be found at www.artflakes.com/de/facade/prices
(3) Maximum duration for delivery is 14 days after payment receipt. In the case of payment by invoice or debit, the maximum duration for delivery is 14 days after receipt of the order. Usually the order is processed and dispatched within 5 working days.
(4) In case the delivery is not possible within the delivery period mentioned in (3), the customer is entitled to a free right of withdrawal, which must be exercised in writing via email. ARTFLAKES does not need to represent a delay of delivery by the shipment service provider. The day of the handover to the service provider applies. The customer will be informed about the course and status of their delivery through the shipment tracking option provided by ARTFLAKES.
(5) The conclusion of contract is made under the condition of complete and timely self-delivery. This is only valid in case ARTFLAKES is not responsible for the failure to deliver. ARTFLAKES shall promptly inform the customer about the unavailability of the product. Any return service already made shall be fully refunded.
(6) A claim for compensation by the customer due to delay of shipping (§ 280 para. 2, 286 BGB German law) or non-delivery (5) is excluded.
(1) The stated prices are to be understood as final prices for customers (invoice recipients) from the European Union and include German value-added tax.
(2) Companies in the EU with a valid VAT ID number can receive a net invoice, without the German value-added tax. For this, the entry of the VAT ID number into customer information and a positive result to the checking of the ID number are required. The EU business is then the tax debtor.
(3) For customers (invoice recipients) from outside the European Union, all stated prices are net prices. That implies that value-added tax must be paid additionally upon receipt of the goods if the legal regulations of the country the item is shipped to requires it.
(4) Country-specific import taxes, customs, or other duties/fees are to be paid by the customer.
(5) The customer shall pay a postage fee (see §4, section (2)), and, if necessary, surcharges and fees e.g. for cash on delivery or bulky items.
(6) Product prices and additional costs will be displayed individually in an order overview before submitting the order and will be sent to the customer by email as confirmation after the binding order is submitted.
§6 Payment and Default
(1) The customer can choose between making a payment by credit card, direct debit, or PayPal and sometimes by invoice, debit, or cash on delivery. ARTFLAKES reserves the right to limit or expand the options of payment dependent on different criterions.
(2) The purchase price is to be paid immediately, without deduction.
(3) The term of payment is determined by calendar. The customer defaults (without warning) on all existing claims after 7 days have passed since their binding order was placed. In the case of invoice or debit, the customer defaults (without warning) on all existing claims 14 days invoice dispatch.
(4) ARTFLAKES is explicitly allowed to use trusted third parties for carrying out the transaction.
(5) In case direct debit from the customer's account is not possible due to the revenue share of wrong information, lack of funds, or unjustified objection of the customer, the customer shall reimburse any additional costs incurred by ARTFLAKES or any third party entrusted by ARTFLAKES to carry out the transaction.
(6) ARTFLAKES or third parties charged with the transaction shall check, in consideration of data protection, the transmitted information for the sake of the purchasing agreement and the acceptance of the requested payment method. Information on creditworthiness and identity from external credit agencies may be included here. The decision of the acceptance of the payment option lies with ARTFLAKES or the third party charged with the transaction. If the payment option is not accepted, the customer will receive an email. The customer can then decide to pay with a different payment option or cancel the purchase free of charge.
(8) In the case of payment by debit:
- the delivered goods remain the sole property of ARTFLAKES or the third party tasked with the payment transaction until all claims from the contract are fulfilled.
- the assertion of offsetting or retention by the customer only exists in the case of written or legal acknowledgement by ARTFLAKES.
- the goods are subject to a non-assignment clause on the side of the customer.
(8) In the case of a default of payment of the customer, ARTFLAKES is allowed to assign its claims and the personal data required for debt collection to third parties. The costs shall be carried by the customer. ARTFLAKES will only consider the payment complete when the amount is fully and unrestrictedly available to the appointed third party.
§7 Right of Cancellation and Customer Satisfaction
(1) In principle, the client has a legal right of cancellation for distance contracts. They can terminate or cancel the purchase contract within 14 days.
(2) The right of cancellation begins from the day on which the customer, or a designated third party that is not a carrier, takes the last goods into their possession.
(3) In order to exercise their right of cancellation, the customer must inform ARTFLAKES about their decision to cancel the contract in an unequivocal statement (a letter sent by post or an email). To meet the cancellation deadline, it is sufficient that the notice about exercising the right of cancellation is sent before expiration of the cancellation period.
(4) The customer shall then be refunded the entire purchase price.
(5) The product is immediately, and in any case no later than 14 days after the customer has notified ARTFLAKES
about the cancellation of the contract, to be sent back in the original packaging to:
FINEART FACTORY GmbH
Naumburger Str. 28
Haus B, Tor 11
(6) The reimbursement will occur via PayPal or credit to a German bank account when the return has been completed or if, upon request, the customer provides evidence that they have sent the product.
(7) If the product has diminished in value within the cancellation or a rescinded transaction, the customer must only pay for this if the loss of value indicates misuse or carelessness on the part of the customer.
(8) If the manufacture of the product is essential by the revenue share of the customer and if an individual selection of the size, finishing, or copies of the product is made by the customer for the manufacturing, then according to § 312 g para. 2 no. 1 BGB (German law) no legal right of cancellation exists. The client then receives the opportunity from ARTFLAKES to rescind the transaction by email within 14 days of receiving the delivery. Here, the reason for return is required. If the reason for return lies within the area of influence of the gallery owner or ARTFLAKES, ARTFLAKES will cancel the order and refund the full purchase price, including return shipping costs. If the reason for return lies outside of the area of influence of the gallery owner, ARTFLAKES, and the shipping service provider, ARTFLAKES will refund at least 80% of the purchase price. Furthermore, paragraphs 5, 6, 7, and 10 of these GTCs apply.
(1) Regarding the type and scope of delivery, only the information contained in the order confirmation are decisive.
(2) ARTFLAKES assumes no liability for the correctness of any information, images, figures, technical data, or specifications on performance, measurements, or weight contained in advertisements, catalogues, newsletters, and price lists.
(3) All guarantee claims for delivered goods will expire by limitation 2 years after receipt of the goods at the latest.
(4) If the customer is an entrepreneur, the limitation period is 1 year. If the customer is a merchant, it is a prerequisite for any guarantee claims that they have met their due obligations of examination and censure according to § 377 of the German Commercial Code (HGB).
§9 Limitation of Liability and Availability
(1) ARTFLAKES is not liable for an uninterrupted availability of its online offer. An error-free availability is technically not possible.
(2) ARTFLAKES is liable for damages concerning the body, life, and health of the customer, only if these are due to the culpable breach of essential contractual obligations or deliberate or gross negligent behaviour of ARTFLAKES or their partners. A liability in excess of this is excluded. The regulations of the product liability act remain unaffected.
(3) In the case of unforeseeable events, such as force majeure, war, strikes, lockout, etc., which ARTFLAKES cannot also avert with reasonable care according to the circumstances, ARTFLAKES is freed from its obligation to perform for the duration of the respective event. A claim for damages does not exist.
§10 Technical and Design Deviations
When fulfilling the contract, ARTFLAKES reserves the right to deviate from the information, descriptions, and depictions in catalogues, brochures, and all other documents, whether they are of written or electronic nature. This refers in particular to deviations in colour, weight, design, structure, measurements, and similar features, as long as these do not substantially affect/deform/alter the final product. The customer has the right to cancel or rescind the purchase contract, see section §7 of these GTCs.
(1) If a customer provides their own content to be incorporated into the product, the customer must assure ARTFLAKES that this content is free from the rights of third parties. The customer also assures that no other rights of third parties are violated through the provided content.
(2) In regard to images and content, which are made available to ARTFLAKES by third parties, the customer may not
- use images in an obscene or otherwise illegal manner,
- use images for logos, trademarks, or service brands,
- assume that the image of a model or an object is a lifelike depiction of the model or object,
- make the image available for separate download in a format that allows permanent storing or reuse,
- edit the image,
- sublicense the image, resell it, or otherwise process it.
Upon first request, the customer is obligated to release ARTFLAKES from all requests and demands claimed on grounds of a breach of third party rights.
§13 Data Protection
(1) ARTFLAKES has the right to electronically save and process all data concerning the customer and the business relationship which are used for the performance of the contract. In Germany, the archiving period prescribed by law is 10 years. When saving, processing, and archiving personal data, the terms of the Federal Data Protection Act (in Germany) are to be observed.
(2) This website uses Google Analytics, an analysis service of Google Inc. ("Google"). Google Analytics uses so-called "cookies" which are data files that are saved on the customers’ computers and allow an analysis of the customers’ use of the website. Information that is produced by these cookies (including the customer IP address) is forwarded to a Google server in the USA and saved there. Google will use this information to evaluate the use of our website, to write reports about website activities for website owners (us), and to provide further services related to the use of websites and the Internet. Google may also forward this information to third parties in cases where this is required by law or where third parties process them on behalf of Google. The visitor of the website can block the storing of cookies through a setting within their browser software. However, we would like to point out that in this case the use of our website and its functions will not be possible in full. By using this website, you accept that your personal data are handled by Google as is described above and for the purpose mentioned above.
(3) Provided that ARTFLAKES or assigned payment service providers undertake payment in advance, they may obtain a credit check on the customer to protect their rightful interests. The interests of the customer worth being protected will be respected according to the legal regulations.
(4) According to the Federal Data Protection Act (in Germany), the customer has the right to receive information on their saved data free of charge as well as the right to amend, block, or delete these data. We will save the text of the contract and send the customer their order information and our GTCs via email. The GTC can be seen at any time at www.artflakes.com/en/tos
(5) When subscribing to our newsletter, the email address (with consent of the interested party) will be used by ARTFLAKES for advertising purposes up to the point of unsubscribing. It is possible to unsubscribe at any time.
§16 Place of Jurisdiction
(1) Disputes are initially to be settled amicably and in a friendly understanding, even in the presence of a mediator.
(2) If an amicable agreement has failed on multiple occasions, then the place of jurisdiction for all disputes from this contract is agreed upon to be Leipzig and the legal language is German. German law applies, under exclusion of the UN sales law and the rules of the international private law.
§17 Partial Invalidity
If single regulations of the GTCs of ARTFLAKES become invalid, the remaining regulations remain unaffected and valid. Invalid regulations are replaced by the legal regulations or regulations which come closest in economic discretion.
§ 18 Online Dispute Resolution
Online dispute resolution according to section 14 para. 1 ODR-VO:
The European Commission provides a platform for online dispute resolution (ODR), which can be found at http://ec.europa.eu/consumers/odr/index_en.htm.