General Terms and Conditions of sprd.net AG for the use of designs
§ 1 Object and Realization of the Usage Agreement
(1) These general terms and conditions of sprd.net AG regulate the submission and usage of designs, which the owner of the usage rights to the design (referred to below as the "contracting party") makes available to the design network (marketplace) of sprd.net AG.
The term "design" as defined by these general terms and conditions comprises all visually presentable designs for which the contracting party has the required copyright usage. These can also include pictorial trademarks registered with the German Patent and Trademark Office or other trademark authorities, insofar as the contracting party is entitled as trademark owner and/or exclusive licensee of the trademark owner (for legal ownership see 5.1). Pure text drafts, i.e. worded trademarks as defined by the trademark law, do not constitute a design and cannot be the object of usage by sprd.net AG on the basis of these general terms and conditions.
(2) An agreement concerning the use of a design is made between sprd.net AG and the contracting party in the following manner: As part of the online registration on the website of Spreadshirt, the contracting party offers to conclude a usage agreement for a design in accordance with these general terms and conditions. This enables the contracting party to send designs to the marketplace via his/her user account. The usage agreement takes effect once sprd.net AG has reviewed the offer in question and declared its acceptance to the contracting party via e-Mail by releasing the design for the marketplace.
§ 2 License
(1) The contracting party grants sprd.net AG the right to use the design submitted with an offer to conclude a usage agreement according to 1.2 in each case, in particular to publish, to reproduce and/or to label products of sprd.net AG with the design of the contracting party, and to publish, reproduce, offer and distribute such labelled products (referred to below as "contractual products").
sprd.net AG is furthermore entitled to use the design and its designations on packaging material and in advertising and to actively promote it.
Licensed designed can be individualised within the framework of the technical options open to sprd.net AG; in particular, the size and colour of the design can be changed. Clauses 1 and 2 apply accordingly to individualised designs.
(2) The granting of usage rights to the advantage of sprd.net AG according to 2.1 takes place “non exclusively”, regionally unlimited and for an unlimited period of time up to the canceling of the usage agreement by one of the two contracting parties according to point 8.
(3) With the granting of usage rights in accordance with 2.1, sprd.net AG also obtains the right to issue sub-licenses in each case. sprd.net AG is thus particularly entitled to use the contracting party's design on the platform of sprd.net AG itself or to allow its other contracting parties and customers to use the design or design products on the basis of these general terms and conditions.
§ 3 Provisions for the Exercise of the License
The realization of a usage agreement in accordance with these general terms and conditions does not mean that the contracting party acquires a claim to have the submitted design published on the marketplace and/or in a shop of a partner of sprd.net AG. sprd.net AG is entitled at any time to prevent and/or prohibit the publication of a design at its own discretion. This applies in particular if there are doubts concerning the authorization of the contracting party to license the design, and/or claims are pursued by third parties with the consequence that protected rights or other rights of third parties are or could be infringed by the granted usage of the design. The same applies if the publication and/or usage of the design could violate other statutory regulations.
§ 4 License fees (Commission) / Payment Procedures
(1) In its capacity as the licensee of the contracting party, sprd.net AG is obliged to pay an on-going licensee fee for the use of a design amounting to the commission determined by the contracting party itself. The commission is calculated on the basis of the earnings made by sprd.net AG from selling each contractual product with a design of the contracting party. The commission includes value-added tax at the prevailing rate (see also 4.5).
(2) Sales are determined by the net selling price which is invoiced by sprd.net AG to its customers after deducting separately stated discounts and the costs incurred for packaging, freight, and insurance, as well as other statutory taxes but before deduction of any cash discount. Legitimately returned goods or goods for which no payment is received will be deducted from sales.
(3) At any time, sprd.net AG is entitled to redefine the basic price for the respective contractual product at its sole discretion as well as the partner commission for the shop partners according to the contractual agreement with the respective shop partner.
(4) The licensee fees (commission) are calculated and paid out to the contracting party every three months after the end of a calendar quarter. A claim to payment first arises from a minimum commission per quarter of € 10.00 for contracting parties in Germany and € 50.00 for contracting parties abroad. If the credit amount exceeds € 100.00, the shop operator can request payment at any time, although not more frequently than once per month. The payment is made by bank remittance of by cheque at the discretion of Spreadshirt.
If a contracting party has acquired commission claims to a lower amount, these are only remunerated to the contracting party after all license contracts have been terminated in accordance with 8.2 and/or 8.3 and its user account deleted, this settlement is made at the latest within 6 months. This does not apply if the contracting party concludes a new contract with sprd.net AG concerning use of the design and/or as partner within this period of 6 months from the date that the termination comes into effect. In such a case, a new accounting period as per clause 1 of this paragraph starts with the newly concluded contract.
(5) The contracting party is responsible for informing sprd.net AG of its valid bank details. The contracting party is liable for any transmission of false data. If the contracting party is subject to the duty of paying value-added tax in Germany, it is also responsible for nominating a valid value-added tax ID number or tax number to sprd.net AG and for providing appropriate evidence of such. If such evidence is not submitted, the license fees are paid without value-added tax. In the case of contracting parties based outside Germany, payments are net as a matter of principle. Commercial customers based outside Germany are likewise obliged to submit a valid value-added tax ID number to sprd.net AG.
(6) The contracting party´s entitlement to receive payment of a royalty (commission) also arises if a customer of sprd.net AG chooses several designs from different contracting parties for one product. In this case each contracting party of sprd.net AG receives the royalty (commission) he is entitled to for the use of his design.
§ 5 Protected Rights of Third Parties
(1) The contracting party guarantees that the design – which they provided for use to sprd.net AG according to these general terms and conditions – was created by them and/or that they are the owner of all usage rights to the design, particularly rights concerning trademarks, copyright and design. The contracting party assures that they alone have the usage rights they granted to sprd.net AG according to these general terms and conditions.
(2) The contracting party assures that it does not know of any third party rights which contradict or could contradict use of the design by sprd.net AG in accordance with these general terms and conditions.
(3) The contracting party assures that the respective design provided to sprd.net AG for use also accords to other statutory regulations, in particular legal provisions concerning the protection of minors, and does not violate penal law.
(4) If third parties assert claims due to infringement of their rights resulting from the use of a design of the contracting party, sprd.net AG reserves the right to withhold royalties (commission) up to the final clarification of the legal dispute.
(5) If the design, which was licensed by the contracting parties, is wrongfully used or obviously misappropriated, in opinion of sprd.net AG, then the parties will jointly decide on the steps to be taken regarding prosecution.
§ 6 Liability/Release
(1) The contracting party is liable towards sprd.net AG for all damages suffered by sprd.net AG for the use of the design which was licensed by the contracting party according to these general terms and conditions, in particular the publication and reproduction, when this violates the rights of third parties and/or infringes on other legal regulations.
(2) This liability of the contracting party includes all costs incurred by sprd.net AG in the form of legal costs as well as costs and compensation payments which a court awarded against sprd.net AG resulting from the use of the design of the contracting party, or in so far as sprd.net AG is included in any settlement. The contracting party obligates itself to release sprd.net AG of all aforementioned costs and damage claims.
(3) A liability of sprd.net AG towards the contracting party, no matter what the legal grounds, in particular – but not conclusively – according to §§ 280 et sqq. of the German Civil Code, 323 et sqq. of the German Civil Code or due to unlawful acts according to § 823 sqq. of the German Civil Code, is defined as follows:
sprd.net AG is liable provided that the contracting party asserts claims which are based on malice, intent, gross negligence or the breach of a contractual duty of sprd.net AG, its executive employees or agents. However, sprd.net AG cannot be held liable in cases of mild negligence.
If the contracting party is an entrepreneur, i.e. a natural or legal person, or an incorporated partnership who/which in conclusion of a legal transaction acts in exercise of their commercial or freelance professional occupation, then the following is also valid:
As far as sprd.net AG has been accused of a negligent behavior, liability is limited to the foreseeable, typically occurring damage. Further liability of sprd.net AG due to personal damage or according to the German Product Liability Act remains unaffected.
§ 7 Data Protection
sprd.net AG obligates itself to only use the personal data of the contracting party which were given for registration and conclusion of the contract, for the purpose of the usage rights which were granted according to these general terms and conditions. sprd.net AG undertakes to observe the applicable data protection laws.
§ 8 Duration/Notice of Termination
(1) The usage agreement between sprd.net AG and the contracting party has been concluded based on these general terms and conditions for an unlimited period of time.
(2) This agreement ends after one of the parties has served notice of two weeks in writing, without needing to state reasons, to the end of a calendar month (see 10.3). Without regard to the aforesaid period of notice, both parties have the right to delete designs from the marketplace of sprd.net AG at any time. Insofar as the design in question has been taken over by other partners of sprd.net AG in the form of sub-licenses (see 2.3), the design in question shall be deleted in the respective online shops within the aforesaid period of notice.
(3) The right of either party to terminate this agreement for an important reason, if necessary with immediate effect, remains unaffected. An important reason exists, in particular, if one of the parties breaches the obligations entered into under these general terms and conditions and does not rectify the infringement after being requested to do so by the other party within a reasonable deadline. Furthermore, an important reasons exists if the contracting party of sprd.net AG submits a design whose usage in accordance with the regulations of these general terms and conditions violates third party rights, in particular personal rights and protected commercial rights, although also other legal regulations for the protection of third parties, e.g. laws for the protection of minors.
(4) In case notice of termination is served, sprd.net AG shall delete the design of the contracting party from the marketplace within three working days. Insofar as the design has been taken over by partners of sprd.net AG, it shall be deleted within the 14-day period of notice (see 8.2). Orders involving use of the design which are received by sprd.net AG before the period of notice has expired will be fully executed. sprd.net AG will present a final account to the contracting party for all commission claims in accordance with 4 up to the termination date of the contract.
§ 9 Modregning og tilbageholdelse
It is permitted for sprd.net AG to offset claims of the contracting party with own counterclaims, as far as the counterclaim has been assessed as being legally effective, is accepted or uncontested. An offset to claims of sprd.net AG with counterclaims of the contracting party is only admissible after prior consultation with sprd.net AG and as far as the counterclaim has been assessed absolute, is accepted or uncontested. This also applies analogously for the assertion of rights of retention by the contracting party.
§ 10 Concluding Provisions
(1) Delivery and services of sprd.net AG are exclusively subject to the general terms and conditions of sprd.net AG. The application of general terms and conditions by the contracting party is explicitly opposed.
(2) Amendments to this agreement require the written form. sprd.net AG will publish any amendments to these general terms and conditions on the website of Spreadshirt and inform the contracting parties by e-Mail. Insofar as a contracting party continues to provide designs for use on the marketplace of sprd.net after having received such notification, the amendments are then considered as being tacitly approved.
(3) According to these general terms and conditions, a written form is a declaration by facsimile, letter and e-mail. If such a declaration shall be addressed to Spreadshirt via e-mail, please send it to: service@spreadshirt.net
(4) Both parties agree that all rights and duties of these general terms and conditions are subject to the law of the Federal Republic of Germany – excluding recourse to the UN Convention on Contracts for the International Sale of Goods.
(5) If disputes arise from or in connection with these general terms and conditions, then the Leipzig courts, Federal Republic of Germany, will be the exclusive courts of competent jurisdiction, as far as the contracting party is a merchant according to the Commercial Code of Germany (HGB) or a company according to § 14 German Civil Code based outside of the Federal Republic of Germany.
(6) If one or several provisions of these general terms and conditions are invalid, this shall not affect the validity of the remaining provisions.
