Printess GmbH & Co. KG
(Version: April 1, 2021)
General Terms and Conditions
1.
General, definitions
If these terms and conditions are
made available in other languages, the German version is the only authoritative
one.
These General
Terms and Conditions (hereinafter also referred to as “these terms”) regulate
the relationship between you (hereinafter also referred to as “customers”)
and Printess GmbH & Co. KG (hereinafter also referred to as “Printess”).
We have tried to formulate these regulations as clearly and understandably as
possible; please read them carefully and contact us if you have any questions.
Printess
provides its customers with internet-based services for editing, customizing,
and producing documents, graphics, and print templates (hereinafter also
referred to as our “service” or “services”).
2.
Contract conclusion
(1) A contract is concluded between Printess and the customer as soon as
·
the customer selects a Printess product and
·
has accepted these terms and the Printess privacy
policy and
·
has used the Printess product (e.g. by editing
or creating an output file).
(2) Printess is not obliged to accept customer offers.
(3) Customers must be legal persons, partnerships, or natural persons at
least 18 years of age with unlimited legal capacity in the country in which
they are domiciled and from which they are using the service.
(4) Customers may only use the service for the purpose of carrying out a
business activity and not for personal, household, or family purposes.
(5) By providing their email address, customers agree that Printess may
use it to send service-related messages, including messages required by law,
instead of sending these messages by written letter. Printess may also use
customer email addresses to send other messages, such as notices of changes to
service features. Customers cannot unsubscribe from these messages unless they
terminate their account.
(6) If customers or their authorized representative are not the ones who
have registered with Printess, the person completing the registration shall be
deemed to have acted on the customer’s behalf as an employee of the customer.
In this case, those who register must use an email address provided by the
customer and declare that they are authorized to bind the customer to these
terms.
(7) If customers purchase additional services, they can create one or
more employee accounts and thus grant third parties access to the service and
its administration. Customers are responsible and liable for the acts and
failures to comply with these terms resulting from the use of employee accounts
as if they were their own acts or failures to comply. Customers and users of
employee accounts will nevertheless be jointly referred to as “customers”
below.
3.
Purpose of the contract
(1)
Printess makes its services available to
customers from time to time and on a case-by-case basis in accordance with the
following licensing and other conditions and in accordance with the
availability of the Printess server infrastructure.
(2)
The scope of the service is described in more
detail in the relevant documentation. By concluding a contract, customers
confirm that this was made available beforehand.
(3)
Printess grants customers a simple, temporary,
objectively restricted, non-transferable, restricted sub-licensable and
revocable right to use its services and their results (hereinafter also
referred to as “license”).
(4)
The license is limited to a period of twelve
(12) months from the date of payment. If the service is used without payment of
a fee, the license is limited to one (1) month from registration.
(5)
Geographically, the license is limited to the
country in which the customer acquired the license and in which the customer’s
place of business is located.
(6)
In terms of content, the license is limited as
follows:
(a)
Customers may not deploy or use the services as
their own product and/or service of the same type. They may only use the
services for advertising purposes and for the production of their own,
different products and/or services;
(b)
Customers may only use the services if they
intends to produce documents and graphics via the service. The utilization of
intermediate service results such as document formats and editor configuration
data is expressly prohibited.
(c)
Customers may not sub-license the services to
third parties (e.g. their customers) or transfer their license. This does not
apply to the customer granting of simple rights of use to their customers with
regard to the editor. When granting these rights of use to their customers,
customers shall pass on all obligations towards Printess incumbent upon them
and ensure that their customers comply with the same.
(d)
Customers may not use the services to produce,
process, or circulate documents, graphics and/or texts, that
·
violate the rights of third parties or violate
other provisions under civil or criminal law or other regulatory provisions;
·
contain information or content that Printess
deems to be unlawful, harmful, abusive, racially or ethnically offensive,
defamatory, hurtful, harassing or otherwise objectionable;
·
contain information or content that is illegal
(including, but not limited to, disclosure of inside information under
securities law or any other party’s trade secrets);
·
contain information or content that customers
know is not accurate, up-to-date, or suitable for minors, such as nudity in a
sexual context, exposed genitals, or content with adult topics.
(e) Customers may not decompile or reverse engineer the services or
parts thereof (e.g. the editor).
(7)
Printess reserves the right to revoke licenses
of customers who violate any of these restrictions. Further rights and claims
of Printess remain unaffected by such a revocation.
(8)
The monthly mean availability of the services
shall be 99.5%. Planned downtime of the services (in particular due to
maintenance work), force majeure, or failure of essential internet
infrastructure or service providers (e.g. Google, AWS, MS Azure) are not
considered downtime for these purposes.
(9)
Printess may update the service and its software
from time to time, but customers have no right to demand such updates. These
updates serve to improve, expand, and further develop the service and can take
the form of error corrections, extended functions, new software modules, and
completely new versions. Customers agree to receive such updates and allow us
to deliver them. Printess will announce the removal of existing essential
functions of the service in order to give customers the opportunity to identify
any problems or necessary changes in their test environment in advance.
Customers expressly agree that Printess may also carry out changes in the
interests of technical progress that may require customers to make changes to
their data, configuration, interfaces, and documents.
(10)If
customers host parts of the software/service on one of their servers, they are
responsible for maintaining any such updates as may be made available on a
regular basis. Error corrections are generally only made in the current version
of the software/service; there is no right to corrections of errors in older program
versions.
(11)The
software implements components that are licensed under open source licenses (“OSS
components”), as well as other software components and content data (fonts,
stickers, stock images, etc.) that are made available by third parties under
the applicable license conditions (“third-party components”). The use of these
OSS and third-party components is subject to the respectively applicable
separate license conditions. A list of the OSS and third-party components with
links to the applicable license conditions is available online at
https://www.printess.com or in the product manual. The licensor does not act as
a sub-licensor or representative in this context and does not accept or accept
any warranty or liability for said components.
4.
Fees, credits, offsetting
(1)
The amount of the Printess license fee varies
and depends on the number of prints made by customers and/or their customers,
as well as the additional services used. In exchange for paying the fees,
customers receive the right to use the services offered by Printess.
(2)
The fee amount is based on the price list for
credits, credit packages, and additional services that was in place at the time
of the order. All amounts stated there exclude the applicable VAT (currently
19%), if required.
(3)
Printess reserves the right to change the fees
and/or introduce new fee models. Printess will notify customers of such a
change in text form (email is sufficient). The use of the service after such
notification is deemed to be consent to all future fee changes (including, for
clarification, a monthly or annual payment plan for each extension), unless
customers expressly reject these changes in writing within five (5) working
days.
(4)
The fees for credits and credit packages already
purchased but not used are non-refundable. If customers do not use credits
either in whole or in part within the usage period granted, they are not
entitled to a refund of the fees paid. Customers are solely responsible for
using the credits purchased within the usage period granted.
(5)
If customers have acquired or have been granted
different types of credits by Printess, those with the soonest expiration date
will be applied first to the use of Printess services.
(6)
If customers use more Printess services than
their existing credit balance can cover, each uncovered service must be paid
for according to the currently applicable price list.
(7)
With monthly payment plans, the service is
billed monthly in advance. For annual payment plans, the service will be billed
in advance for a period of one (1) year. An annual plan will be automatically
extended by one (1) year and the corresponding fees charged on each anniversary
of the original purchase, unless the customer gives notice of termination
before the current term.
(8)
The fees do not include all taxes, duties, or
customs duties that may be collected by tax authorities and customers remain
responsible for payment of the same. Printess is entitled, if necessary, to use
the so-called reverse charge procedure for invoicing.
(9)
When agreeing to a monthly or annual payment
plan, customers must provide a valid payment account. Printess is free to
choose the means of payment and payment services offered. The payment account
must be kept up-to-date during the term of any monthly and annual payment plans
and provided with sufficient funds. Printess may allocate the foreseeable fees
for the next term prior to invoicing.
5.
Printess warranty and liability
(1)
Printess is only liable to customers for damage
caused by intentional misconduct or through grossly negligent actions. This
does not apply in the case of damage to life, body, or health or in the event
of a breach of essential contractual obligations, i.e. those obligations which
must be fulfilled in order to achieve the purpose of the contract (such as
maintaining an internet platform to make the service available). Printess is
not liable for immaterial, indirect, or consequential damage.
(2)
Printess is not liable for the loss of customer
or third-party data. Customers are solely responsible for backing up their
data, especially graphics and/or texts, and protecting them against loss.
(3)
Printess’ liability is limited to the amount of
foreseeable damage that can typically be expected to occur; the maximum amount
of damages is capped at the amount the customer has paid in fees.
(4)
Printess does not warrant that the quality of
products, services, information or other materials purchased or acquired by
customers through the services will meet their expectations or that
insignificant errors in the services will have been corrected.
(5)
Printess is not liable for damage caused by
using the service in regions for which no license was obtained.
(6)
The above regulations also apply to board
members, vicarious agents, and other persons used by Printess to provide its
services.
6.
Customer duties and obligations; legal
consequences
(1)
Customers must notify Printess by email (e.g. by
using the contact form) of any defects or problems when using the services
immediately. If they fails to provide timely notice, all existing warranty
rights are forfeited.
(2)
By uploading images and data, customers agree:
(a) that other internet users are permitted to view and access the images and
data; (b) that Printess may store their images and data and, if they have
publicly posted materials, display and use them; and (c) that Printess can
review and delete all images and data submitted to its service at any time,
although Printess is under no obligation to do so.
(3)
Customers are responsible for taking all steps
to ensure that no unauthorized person has access to their account, password, or
API tokens. Printess recommends the use of “strong” passwords (passwords that
use a combination of upper and lower case letters, numbers, and symbols).
Customers are solely responsible for (i) controlling the distribution and use
of their account and password and (ii) notifying Printess immediately if an
account or password must be deactivated. Printess is not liable for damage
associated with the theft or customer disclosure of passwords. Customers are
obliged to notify Printess immediately of any unauthorized use of their account,
password, api-tokens or any breach of confidentiality. Customers are solely
responsible for all damage caused by such use.
(4)
To secure their account, customers may also be
required to provide their mobile phone number or, at Printess’ option, to use
another two-factor authentication mechanism.
(5)
Customers must strictly adhere to all
restrictions of the license they acquire. When using Printess services or
products, customers may not
·
use them for graphics and/or texts for which
they do not hold the copyright or related rights or which violate civil,
criminal, or regulatory provisions (e.g. insults, hate speech, terrorist
content);
·
use a “robot,” “spider” or other automatic
device, program, algorithm or methodology or manual process to obtain documents
or information that is not intentionally made available by the service;
·
attempt to gain unauthorized access to any part
of the service or to any content or systems or networks connected to the
service by hacking, password mining or other improper means;
·
probe, scan or test the vulnerability of the
service or any content or any system or network connected to the service;
·
create spam, chain letters, or other unsolicited
or fraudulent communications;
·
take any action that, at Printess’ sole
discretion, represents or may place an unreasonable or disproportionately large
load on Printess infrastructure;
·
distribute invalid data, viruses, worms, or
other software agents through the service;
·
impersonate another person or otherwise
misrepresent their affiliation with a natural or legal person, commit fraud,
conceal one’s identity or attempt to conceal it;
·
disclose information that they do not have
permission to disclose (e.g. confidential information of others, including
their personal data);
·
use any device, software, or process to
interfere with or attempt to interfere with the proper functioning of the
service or any content or systems or networks connected to the service, or any
other person’s use of the service;
·
use or otherwise unlawfully process information
or data from end users to analyze individuals or groups of natural persons for
unlawful or discriminatory purposes;
·
use, store or collect personal and/or
confidential data that is considered sensitive or require special protection
under applicable law, e.g. social security numbers, passwords, credit card
information, and medical information.
·
Users may not attack or otherwise impair the
brand, other company logos, or other business terms used by Printess. In
particular, they agree not to acquire search engine or other pay-per-click
keywords (such as Google Ads) or domain names that contain “Printess” or other
Printess brands and/or variants or spelling errors thereof.
(6)
If customers are in breach of these obligations,
they shall be liable for all damages incurred by Printess. This applies in
particular, but not only, to damage that Printess incurs as a result of claims
by third parties whose rights have been violated by the customer. The customer’s
liability extends to the indirect and immaterial damage suffered by Printess as
a result of the customer’s breach of obligations (e.g. legal costs, damage due
to reputational damage, loss of image, etc.).
(7)
Customers shall pass on their existing
obligations towards Printess regarding Printess licenses and products to their
customers. They are also liable to Printess for violations that their customers
commit against the aforementioned obligations. At the discretion of Printess,
customers must either compensate Printess for all damage incurred or that will
be incurred or to name their customers known to Printess in a form suitable for
summons and assign their claims against the same to Printess. Customers shall
notify their customers of this legal situation.
(8)
The main focus of the services provided by
Printess is the editing and adaptation of documents and graphics. Printess is
therefore not a data processor within the meaning of Art. 28 of the EU General
Data Protection Regulation (GDPR).
(9)
Customers must ensure that they, their
employees, representatives, and vicarious agents will comply with all
applicable local, national or international laws or regulations as well as
guidelines from regulatory authorities or agencies on data protection.
7.
Disclosure and deletion of data
(1) Images, fonts, and
other data as well as output files (process data) uploaded by third parties as
part of the use of the service may be deleted by Printess after one month.
Customers must inform third parties accordingly and, if necessary. ensure that
any data that needs to be preserved is backed up.
(2) After the end of
the contract, Printess will make the extant data created by customers available
for download within three weeks without any request being necessary. The data
will be provided in a structured, common, and machine-readable format.
(3) Within one week
after customers have downloaded the data, but no later than three months after
the end of the contract, Printess will completely delete all customer data
stored on its servers.
8.
Limitation period
(1) Customer claims are forfeited if not asserted within one year from
their occurrence.
9.
Feedback
(1) If customers provide comments, ideas, or suggestions for the
services either at Printess’ request or on their initiative, they declare that
this feedback can be used or published by Printess free of charge without
restriction and without no further permission required. Customers further
acknowledge that by accepting their submissions, Printess is not waiving its
rights to use similar or related ideas or methods that Printess was previously
aware of, or its employees were developing, or were known from other sources.
In addition, customers acknowledge that all emails and other messages transmitted
to Printess become the latter’s sole and exclusive property.
10.
Other provisions
(1) These terms contain all applicable regulations concerning the
relationship between Printess and its customers. Any deviating regulations,
including a deviation from this clause, are only effective if agreed and
confirmed in writing by both Printess and the customer.
(2) Customer terms and conditions are not recognized and do not apply.
Customers cannot base any claims on said terms.
(3) Printess reserves the right to change these terms. If customers wish
to use Printess services after such a change, they must first take note of and
accept the amended version of the same.
(4) Should one of the provisions of these General Terms and Conditions
of be or become invalid, this shall not affect the validity of the remaining
provisions. Printess and customers agree to replace the ineffective provision
with an (effective) one that corresponds as closely as possible to the economic
intention of the original. The same applies to unclear or supplementary
provisions.
(5) The place of performance and, if customers are businesses, the place
of jurisdiction for both parties is Berlin, Germany.