General Contract Terms and Conditions (T&C)
Art and community are the two main pillars of our project. But because our service is (for all concerned) also a matter of business, the provision of a set of standard rules with respect to these business transactions is unavoidable. To this end, the following General Contract Terms and Conditions have been drawn up, and shall be agreed between you and us (we are FOTOFOAM LLC, 130 Jane Street, Suite 5K, New York, NY 10014):
Our platform at fotofoamco.com allows you to take advantage of various services provided by us. These services are presented here in a short summary:
- You can upload digital copies of works (e.g. photographs) on to our platform and so offer these for sale (for further information see Point I),
- You can order prints of the work uploaded, also including framing and lamination, to be provided by us for your own use (Point I).
- Alongside private use or presentation on other self-marketed online exhibitions, you can also sell your work in our fotofriends gallery (Point II). Selection for inclusion in this public domain is made by a curatorial board comprised of experienced users from the community and/or our staff. Of all works uploaded on to our platform, the curatorial board shall select those to be presented in the collective. All registered users may view and favorite the works presented in our gallery. The fotofriend gallery also offers a range of further possibilities for use. These are listed onfotofoamco.com.
For reasons of clarity, these General Contract Terms and Conditions are divided into three parts: Part A concerns all general provisions and rules for use of our online service, whereby you as provider have the opportunity to upload works on to the FOTOFOAM site and/or take advantage of our production services. Part B concerns the acquisition of works through FOTOFOAM. Part C contains general concluding provisions.
1. Who can register?
1.1. Registration is restricted to natural persons of full age and legal capacity, legal persons, or partnerships. In particular, minors are not permitted to register. We ask for your understanding in this matter.
1.2. We must ask that all information requested upon registration is entered completely and correctly, e.g. first name and surname, current address (not a post-office box), telephone number, and a valid e-mail address. We shall be entitled, though not obliged, to check the validity of all indications made.
1.3. Where registration is completed with respect to a legal person, registration may only be made by a natural person with necessary authority. This person must be named.
1.4. Should any or all of the information indicated at registration subsequently change, it shall be incumbent upon you to correct the information without delay.
1.5. On registration, a user name and password must be selected. The user name must not infringe the rights - in particular copyright or trademark rights - of third parties. Further, the username must not be misleading and must not be contrary to public policy or break the law. We shall be at liberty to define formal rules and restrictions for new user names and to reject existing user names - including with retrospective effect.
1.6. Passwords must be kept confidential and account access must be safeguarded. You shall be compelled to inform us without delay, should any suspicion arise concerning misuse of the account by third parties.
2. How are our services provided?
We ask for your understanding that we are only able make the FOTOFOAM website and its functions available for use within the limits and scope of current technology. Insofar, our obligation to perform shall be restricted to making all possible effort to ensure the works uploaded are duly posted on the internet and as such are made accessible to the public at large. The works shall be accessible internationally to the extent that usual technological standards allows.
For reasons of further development and security as well as in the interests of an error-free service, we shall undertake regular maintenance work on our system. To this end, and with due regard to your interests, we shall be entitled temporarily to interrupt or restrict the provision of our services. Insofar as possible, such maintenance work shall be carried out in times of minimal use. Should longer periods of interruption or restriction be necessary, we shall notify you of the type, extent, and duration of the impairment provided that this is possible in light of all the circumstances and that such notification does not prejudice or delay necessary repair to any existing interruption of service.
2.3. System interference and breakdown
You will be aware that according to the current state of technology it is not possible for works to be made available for viewing on the internet free of system interference and breakdown. We therefore accept no liability for non-accessibility of works on account of technical problems with communication networks, security breaches by third parties (e.g. denial of service attacks) or incomplete and/or dated offers on proxy servers (temporary caches), where such is beyond our control.
I. Services such as printing, framing and mounting etc.
This section concerns our services with regard to printing, framing and lamination of works carried out by us at your request.
1. What services do we provide?
Where requested through the input assistants on the FOTOFOAM website, we provide the following services: On the basis of the digital submissions we prepare physical prints and copies, that is, the digital data are reproduced on to a material which may then be framed or laminated as desired, e.g. for your personal use.
2. Workflow, production clearance, termination
2.1. A contract of sale shall not be concluded until we send the ordered product to you. For the avoidance of doubt, the contract shall not include products included in the same order which were then later not included on the delivery papers. The costs of delivery shall be invoiced. The extent of delivery costs will be indicated on order. Should any taxes or excise duties be incurred in case of delivery to a country outside the US, all such costs shall be borne by you.
2.2. All delivery deadlines indicated by us are non-binding. We shall be entitled to make part delivery.
2.3. We draw your attention here to the fact that for this part of the contract a right of revocation is excluded, as the works are produced in accordance with your own individual specifications and are clearly personalised.
3. What remuneration do we receive for our services?
The remuneration for our services as set down in Point I.1. of these General Contract Terms and Conditions is calculated with respect to the current price list available for viewing at fotofoamco.com as specified within the order process. We shall at all times be entitled to change the price list for future orders without prior notification.
4. How is invoicing made?
4.1 The buyer pays the sale price by credit card, by debit charge procedure or by PayPal on making the order (pre-payment).
4.2 In the case that the buyer's account does not contain sufficient funds or where the buyer opposes the debit charge being taken from its account without good reason, FOTOFOAM reserves the right to charge an administration charge of $12.00.
4.3 Where the buyer defaults on payment, FOTOFOAM shall be entitled to charge default interest on all outstanding sums to the amount of 6% p.a. above the basic interest rate set down by the Federal Reserve. Additionally, a charge of $10.00 per reminder with exception of the first reminder shall be made. Where greater damage arising through the default can be proved, FOTOFOAM shall be entitled to assert this against the defaulting buyer. In the above listed cases, it shall remain open to the buyer to prove that FOTOFOAM has occurred either no damage or else damage to a lesser extent than the above listed fixed sums.
5. Retention of title
Ownership of the works produced shall remain vested in FOTOFOAM until all payments are made in full.
6. Performance of contract and third party rights
We shall assume that you hold all necessary property rights with respect to your works free of all encumbrances from third parties. Point II.6. shall apply mutatis mutandis.
7. Duty to safeguard information
Before communication of your mandate to us, it shall be incumbent upon you to make a backup copy of all sent data contents. Should you fail to make such security backups and damage or loss is incurred within the scope of this mandate, we shall not be liable for any damage which could otherwise have been avoided, had a security backup copy been made.
8. What you should do, if you want to query our services.
8.1. Merchants and traders shall inspect the consignments without delay upon delivery within the proper course of business and shall make written notification to us of any defects without delay.
8.2. In all other cases, notification of all manifest defects must be made within one week. For the calculation of this time limit, the date of delivery and the date of receipt of notification of defect are decisive.
8.3. In case of any objection, all documentation with respect to the contract must be made available to us. Failure to do so may result in delay to the assessment and processing of the notification of defect.
8.4. Defects in part of the delivery do not justify objection to the entire delivery, save in the case that partial delivery is of no interest.
9. What guarantee applies to our services?
9.1. In case of defect, we shall be entitled, at our option and within a reasonable period, to make new delivery or to repair the defect. Should the attempt to deliver a new or to repair the defect be unsuccessful, you shall be entitled your option either to rescind the contract or to demand an appropriate reduction in price.
9.2. The papers, dyes, chemicals and other materials used in our materials and manufacturing processes may, like other dyes, show trivial changes over time. These changes may be different from one production batch to another. Such discrepancies in product characteristics shall not form sufficient basis for defect.
II. FOTOFRIEND gallery
Our website offers various possibilities: You may, for instance, compile your own web profile (fotofriend gallery page). In this case, your work and services are made available for viewing under your own URL (fotofoamco.com/YourName). Alternately, you may collect and present works from several creative figures from your portfolio or works from other users on our website. Our publicly accessible fotofriend gallery also provides the opportunity for you to present your work to a more general audience on fotofoamco.com (without the addition "/YourName"). In addition to this, distribution can also be made by your own or franchise operated retail stores, by direct mail through advertisements, inserts, catalogues or resellers, e.g. specialised retailers and interior designers or other marketing agents. More specifically:
1. What service do we offer?
1.1. Fotofoamco.com is a digital art gallery on which works, which you have had produced by us (see here Point I), can be offered for sale, distributed and acquired. This opportunity is subject to the proviso that the offer, distribution or acquisition of such works is not contrary to public policy, illegal, or in breach of these General Contract Terms and Conditions.
1.2. We advertise the fotofriends gallery at fotofoamco.com, which may also be available through other URLs. To this end, access to data and information with respect to the works there presented will also be made available to third parties, so that these may in turn advertise the works on the art market, on their own websites, in software applications, in e-mails or in other forms of communication.
1.3. FOTOFOAM provides you the opportunity to use the FOTOFOAM website, within the limits set by us, to publish your own contents. The contents published by you on the FOTOFOAM website are generally not checked with regard to content itself. Any curatorial board assessment made will follow on the basis of artistic quality alone. Nevertheless, we reserve the right to prohibit the publication of works, either on initial posting or at any later time, at our discretion and without indication of reason, in particular in cases where we feel such publication could prejudice or jeopardise the general strategy and concept of fotofoamco.com. Any such decision is final and is not open to legal challenge.
1.4. The posting, saving, and presentation of art work on FOTOFOAM media is currently free of charge. However, we reserve the right to restrict the number of works presented per user, to set data limits, and to change such limits. We reserve the right to introduce charges for the saving and presentation of works on FOTOFOAM in the fotofriend gallery generally or on a gallery page specifically, or to introduce other charges given appropriate notice. Should you object to the introduction of any such charge as may be made in future, you shall be entitled to terminate all business relations with immediate effect.
2. Your works and your rights.
2.1. You are the owner of rights to photographic and/or digitally compiled or processed creations or other digitalised contents ("works"). These works are to be expertly manufactured and/or advertised and distributed by us (see Point I) as digital copies (hereinafter "edition") of at least standard market quality.
2.2. A distinction shall be drawn between editions not limited in the number produced ("open edition"), produced by us on a sales/demand basis, and editions limited in the number produced ("limited edition"), which will only be produced to the extent expressly agreed with you.
2.3. If you are a member of any collecting society, please inform this collecting society of the conclusion of this contract.
3. Which of your works are subject to this contract? What rules apply to limited editions?
3.1. The subject of the contract concluded between you and us comprises the works posted by you on FOTOFOAM through our input refers to people.
3.2. With respect to limited editions, independently of whether these are offered on the fotofriend gallery generally or a gallery page specifically, you shall make separate assurances both to us and to end consumers that the editions offered on FOTOFOAM and through other platforms and/or media exist only in the quantity indicated to the end consumer as determined by you with respect to the particular size. You shall refrain from offering editions both on FOTOFOAM and through other media of any size 20% smaller or larger than the editions offered on FOTOFOAM. Accordingly, the data file shall be posted only once on FOTOFOAM; this shall apply also to all variations or modifications of the data file or motif as may be capable of confusion with the original. Should you fail to adhere to this rule, we reserve the right to offer all affected buyers a right of revocation. All damage resulting from the breach shall fall to be compensated by you. All other activities outside of this art market, e.g. activities of a journalistic or marketing nature, remain unaffected by this provision.
3.3. We have the right to issue a certificate to third parties, that is, make confirmation of the edition details, in your name and/or in the name of FOTOFOAM, either in electronic or in printed form. You may cooperate in the compilation of the edition certificate by means of scanned signature saved into our system, which will then be automatically integrated into the certificate.
4. What rights do you concede to us?
Insofar as you require physical prints and reproductions, not only for personal use (Point I) but for sale of your works to third parties through FOTOFOAM, the following provisions shall apply:
4.1. In accordance with Point II.2.1. - and except where the rule in Point II.4.3. for limited editions applies - you shall grant us for the purpose of advertising (Point II. 10) and distribution of editions the following non-exclusive transferable exploitation right with respect to your works: the right of reproduction, distribution including broadcast, transmission including satellite and cable transmission, reproduction through picture, sound and multimedia, radio broadcast and the right of public disclosure. The concession of rights shall apply with respect to all modes of use required by the purpose of this contract (cf. summary), in particular use on the internet including push and pull technology, mobile applications, print usage in all media, digital offline usage on data carriers as well as use on television and radio. The right of use shall include the right to copy and distribute the works either in whole or in part for the purpose of advertising in all print and electronic media, as well as to make works available to the public. This includes the possibility of editorial reporting on you, the works and us.
4.2. At our request, you shall supply us with a photograph of yourself, alternatively of the artist - where you are not the artist - which we shall be entitled to use for all printing and online advertising purposes in connection with the relevant works. The photograph shall be supplied free of charge and must be free of third party rights. To the same end, and at our request, you shall supply us with a short biography and directory of collections and exhibitions in which you are or were represented which we shall be entitled to use either in full or in part and where necessary in abridged form.
4.3 With respect to limited editions, the concession of rights in accordance with Point II.4.1. shall apply exclusively and for the duration of contract. This shall not exclude the possibility of personal use of these works outside the scope of this contract (e.g. purely editorial usage). With respect to these limited editions, you shall further undertake not to exceed use as described in Point II.3.2. even after termination of this contract.
4.4. We will indicate you as author of the works only on the artist sites of fotofoamco.com and then only in connection with the listing of edition details to the usual extent. We accept no further duty to make indication of name with respect to other forms of use, e.g. summaries, collections, collages or "intros".
5. What specifications must your work meet? What rights does the curatorial board have?
5.1. You shall make the works available to us in the form required by FOTOFOAM input assistants and in accordance with the technical specifications there.
5.2. Names of works, their description and categorisation, as well as the names of work groups must not infringe the rights of third parties - in particular personal rights, rights of copyright or trademark - and may not be misleading. Names may not include superlatives ("the most beautiful", "the best" etc) or special characters and must not be contrary public policy or otherwise infringe the law.
5.3. We shall be entitled at our own discretion to use a curatorial board and to change the composition for such at any time as we see fit. In accordance with a procedure determined and at all times changeable by us, the curatorial board will select works to be presented in the fotofriend gallery atfotofoamco.com. The decisions of the curatorial board, of authorised individual board members capable of voting alone, or of members of our company are final and are subject to no requirement of justification. The decisions are not open to legal challenge.
6. What happens where third parties assert rights on your work or where these infringe your rights?
6.1. You hereby affirm that you are the unrestricted owner of all rights conceded with this contract with respect to works and to any provided photographs (Point II.4.2). You shall guarantee that neither your works nor any provided photograph infringe third party rights, in particular rights of copyright or personality.
6.2. You shall indemnify us against all third party claims asserted contrary to Point 6.1; this shall include appropriate costs of all necessary law suits or legal defence.
6.3 In case of infringement of any right conceded to us under Point II.4., you hereby grant us the right to assert a legal claim against third parties both in and out of court, in our own name and on our own account.
7. In whose name is the offer made?
Where we have produced works on the basis of digital plans compiled by you, we will offer these for sale in our own name. This shall apply for the fotofriend gallery generally and your gallery page specifically. We shall be entitled to include the buyer of your work in our general communication and to treat it as a regular buyer. After successful completion of sale, remuneration to you shall be made in accordance with the rules set down in Point II.8.
8. What remuneration will you receive?
You shall receive a sales fee as remuneration for every piece sold, paid and not returned in accordance with Point II of these General Contract Terms and Conditions. Remuneration shall be made on the basis of the following scale and end sale prices excluding sales tax. Remuneration is not due so long as the work remains unsold.
The end sale price is a dynamic price and is set by you on the basis of dimensions and editions outstanding. The end sale price used in the calculation of remuneration is to be understood exclusive of any charge for framing, lamination, other forms of finishing, dispatch and other service charges not giving rise to a right of remuneration. From this net end sale price, you shall receive the following remuneration calculated with respect to the particular sale price valid at time of sale:
8.1 When a piece produced on the basis of digital plans made available by you is sold via the gallery at fotofoamco.com remuneration fee (author remuneration) is made as follows:
50% of profits after deducting normal printing costs as specified on our website for that specific paper type and dimension
8.2 In the case that you are liable to pay value added tax, FOTOFOAM will pay statutory sales tax on remuneration in addition.
8.3 We shall at all times be entitled to change all (end sale) prices relevant to invoice or to amend the method of calculation of sale price via special discounts for one-time offers or special customers. Appropriate notification of any such change shall be made. Should you determine individual sale prices different from those you originally set then you may update those prices at any time.
8.4 We shall be entitled to change the above mentioned remuneration rates or invoice structure and method with at least 30 days notice prior to begin of the next calendar quarter, which of course will be made clear. In case of such change, you shall have the right to terminate all contractual relations to the end of the current quarter.
8.5 Determinable inventory differences, in particular as a result of theft, are exempt from fee up to a limit of 2% of the total quantity commissioned and duly licensed.
8.6 Each year, we submit our accounts to be assessed and attested for their correctness to a reputable company of accountants. You may demand confirmation of this (after the 30th September of each year for the previous year) once per year.
9. When and how is remuneration paid?
9.1 Licences and commissions are submitted at the end of each calendar quarter. The official rate of exchange valid at the time of order shall apply. We reserve the right to compile invoices for part-quarters (where quarter has already begun) together with the first full quarter. Returned debits, (partial) cancellations and returns from accompanying sales procedures will be taken into account. For invoice sums in excess of $150, we shall retain the right to make invoice per month. Payment shall be made within 30 days of the date of invoice.
9.2 As soon as invoice is made, we shall inform you by mail to your indicated email address. The invoice compiled by FOTOFOAM contains only the amount; an itemised invoice shall be made available on your password protected fotofriend account page.
9.3 Within the US, payment shall be made by means of PayPal, US bank transfer or check; outside the US by means of PayPal, foreign bank transfer or check. Payment shall be made in accordance with the payment details and address data indicated by you through the FOTOFOAM input assistants. Where such occur, all bank charges or transfer costs are born by you, we transfer with the status "charges payable by recipient". To minimise all possible charges, we reserve the right to postpone transfer of all sums less than $150 to countries outside the US to the next quarter.
9.4 In the case that payment cannot be made on account of incomplete or incorrect information or technical problems, we shall contact you within an appropriate period.
9.5 Duty to pay tax on any and all transferred sums rests with you.
10. Over what period does this part of the contract apply? And what happens on termination of contract?
10.1. This part of the contract applies for the duration of the copyright term on works posted by you. This part of contract may be terminated on notice of 30 days to the end of the month. Our rights of use extinguish on termination of contract save as regulated by Point II.10.2.
10.2. Even after termination of contract - irrespective of the reason for the termination- we shall remain entitled to use the works within the framework of exploitation rights set out above for a further period of 3 months. With respect to prints, with or without framing/lamination, already compiled by us on the basis of digital plans made available by you, for instance for sale through retail stores, this period of extended right of use shall be 2 years following termination of contract.
10.3. In all other cases, this part of contract may be terminated by either party without notice only for good reason.
10.4. Termination of contract shall be made in writing.
10.5. The rule in Point 3.2 shall remain unaffected even after termination of contract. Nevertheless, on receipt of the last invoice from us you shall be free, independently of us, to have all missing editions produced and to offer these for sale.
Should a third party post a contest on FOTOFOAM (e.g. a specialist magazine), you may take part in this contest in accordance with the rules of the contest and the provisions of these General Contract Terms and Conditions. A right to participate does not exist. Access restrictions in the form of passwords may be defined or the circle of possible participants restricted "by invitation only". The decision as to participation is final and is not open to legal challenge.
You are a buyer and acquire works through FOTOFOAM
1. How and with whom is the contract concluded?
1.1 The works presented on for sale on FOTOFOAM are offered either in the name and on the account of FOTOFOAM, or in the name and on the account of one of our fotofriend members. With respect to the latter, this will be made clear on the offer pages as well as within the order process. In this case the member is solely responsible for the offers posted. The member alone will become contract partner with respect to any sale.
1.2 Your order shall represent an offer to contract. When you make an order, you shall receive an e-mail confirming receipt of order and all particulars (order confirmation). This order confirmation does not represent the acceptance of your offer, but is intended only to inform you that your order has been received.
1.3 A contract of sale shall arise first with dispatch of the product ordered. Products from one and the same order not listed in the dispatch documents are not subject to contract. Please note that all products are sold only in standard amounts.
1.4 The contract will be concluded in English.
2. Mode and time of payment, default
2.1 The purchase price - including all delivery charges as indicated on the offer page - shall be paid in advance by debit charge or credit card, as your order is made with respect to a product to be individually produced for you. In individual cases, sale on invoice may be possible for state authorities and corporate clients following assessment by us.
2.2 Payment shall always be made to FOTOFOAM as beneficiary; insofar as the offer is made by one of our members, FOTOFOAM will forward the payment to the vendor.
2.3 In the case that the buyer's account does not contain sufficient funds or where the buyer opposes the debit charge being taken from its account without good reason, we reserve the right to charge an administration charge of $12.00.
2.4 Where the buyer defaults on payment, FOTOFOAM shall be entitled to charge default interest on all outstanding sums to the amount of 6% p.a. above the basic interest rate set down by the Federal Reserve. Additionally, a charge of $10.00 per reminder with exception of the first reminder shall be made. Where greater damage arising through the default can be proved, FOTOFOAM shall be entitled to assert this against the defaulting buyer. In the above listed cases, it shall remain open to the buyer to prove that FOTOFOAM has occurred either no damage or else damage to a lesser extent than the above listed fixed sums.
3. How will delivery of the work ordered be made?
3.1 In absence of any agreement to the contrary, delivery will be made ex warehouse to your indicated delivery address. In the absence of express indication to the contrary, all indications as to the delivery date are subject to change.
3.2 A confirmation e-mail will be sent following delivery.
4. How high are the dispatch costs?
Dispatch costs are listed in the offer and summary of order.
5. Retention of title
Ownership of works produced shall remain vested in FOTOFOAM, alternately the vendor, until all payments are made in full.
6. What may I do with the works bought?
6.1 Please note that the purchase of works entails the purchase of real property only. The sale vests no further exploitation rights in respect of the work in the buyer. Reproduction (copying), distribution, leasing, public disclosure or other analogue or digital use is prohibited.
6.2 Even the presentation of acquired works at public exhibitions may require consent from the artist.
6.3 You may sell works on at your discretion.
7.1 Right of revocation
You have the right to revoke your contractual statement within 2 weeks, without stating reasons, either in writing or in another durable medium (e.g. letter, e-mail, fax) or, if the goods are dispatched to the customer within the revocation period, as well as by returning them. The revocation period begins after receipt of these instructions in writing or in another durable medium, but not before receipt of goods by the customer (for repeat deliveries of similar goods, not before receipt of the first partial delivery). In order to observe the revocation period, you must give notice of revocation, or return the goods, within the revocation period. Please address notice of revocation to: FOTOFOAM 130 Jane Street, Suite 5K New York, NY 10014 USA Fax: +1-844-368-6362 E-Mail: firstname.lastname@example.org Please note that we have excluded the right of revocation for works from the FOTOFOAM photo laboratory as well as works from the fotofriend art gallery. This is because these works are individually finished according to your preferences and are cut according to your needs.
7.2 Consequences of revocation
In the case of valid revocation, all considerations received by either party and, where applicable, any utilization (such as interest) shall be returned. If you are unable to return the goods provided in full or in part, or only in an impaired state, you may be required to provide compensation for the loss in value. This does not apply in case of goods provided if the deterioration of the goods is exclusively due to testing the goods, as could occur in a shop. You can avoid being held liable to provide compensation for lost value in case of orderly use of an item, by not using the item as if it were your own property and avoiding any actions that could impair the item's value. Goods that can be returned as packages must be returned at our risk. Please ensure the work is packaged appropriately and that it is will protected. Ideally, use the original packaging in which the item was delivered, including all protective material. You are responsible for covering the regular cost of return postage if the goods delivered are as ordered and if the price of the goods to be returned is less than $50, or in case of a higher price you have not provided consideration or a partial payment agreed under the terms of the contract. Return mail is otherwise free of charge. Goods that cannot be returned as packages will be picked up from your address. Obligations to refund payments must be fulfilled within 30 days. This period commences for you when you issue notice of revocation, or dispatch the goods, and for us on their receipt. End of revocation instructions To ensure quick processing, please call our hotline in advance. This is not obligatory.
8. Agreement on liability for costs if revocation of consent is exercised
You are responsible for covering the regular cost of return postage if the goods delivered are as ordered and if the price of the goods to be returned is less than $50, or in case of a higher price you have not provided consideration or a partial payment agreed under the terms of the contract.
9. Procedure if unavailable
In the unlikely event that the material needed for the production of your order is unavailable we will contact you immediately and, if possible, give an approximate delivery date.
General concluding provisions
1. What happens on breach or infringement of third party rights?
1.1. Should there exist concrete reasons to believe that you have contravened legal provisions, infringed third party rights or breached these General Contract Terms and Conditions, or should we have any other legitimate interest, in particular the protection of other users from deception or fraud, the following measures shall be open to us:
Deletion of offers or other contents User caution Limitation/restriction of use of the online service provided by FOTOFOAM Temporary blockage Definitive blockage
In the choice of measure applied, we shall take into account your legitimate interests wherever possible, in particular, whether concrete reasons exist to believe that the breach occurred without fault.
1.2. We shall be entitled to ban all further use of the FOTOFOAM website (definitive blockage), where
you have entered incorrect contact details, in particular an incorrect or invalid e-mail address; you cause considerable damage to use, in particular where our services are abused; you breach these General Contract Terms and Conditions; any other good reason exists.
1.3. Following definitive blockage, no right of restoration of access to our service shall exist. Any further use of the FOTOFOAM website, including through other member accounts, shall be prohibited. Re-registration is not allowed.
2. System integrity and disruption of the FOTOFOAM website
2.1 All use of mechanisms, software or other scripts capable of disrupting the function of the FOTOFOAM website when used in conjunction with this website shall be prohibited.
2.2 All use which may result in an unreasonable or excessive burden on FOTOFOAM infrastructure is prohibited. It shall be forbidden to block, overwrite or modify any contents generated by us, or otherwise cause disruption to the functioning of the FOTOFOAM website.
2.3 Contents held on the FOTOFOAM website may not be copied or disseminated, nor may they be used or reproduced in any other form, without prior consent from the right holder. This shall apply also with respect to copying by "Robot/Crawler" search engine technology or by other automatic mechanisms.
3. What is the extent of our liability?
3.1. Liability for damage resulting from defects in title and absence of warranty shall be unrestricted.
3.2. In all other cases, liability shall be unrestricted only with respect to damage caused through malice or gross negligence, including in respect of our legal representatives, managerial staff and vicarious agents.
3.3. With respect to damage arising though negligence, liability shall be accepted only insofar as a duty is breached, the adherence to which is of particular significance for the attainment of the purpose of contract (cardinal duty). Liability is restricted to double the value of contract and shall exist only with respect to typically foreseeable damage within the framework of the contract.
3.4. Liability for injury to life, body or health shall remain unaffected.
4. What is the place of jurisdiction for this contract and what law will be applied?
4.1. Where you are not permanently or habitually resident in the USA, these General Contract Terms and Conditions shall be governed by the substantive law of the USA to the exclusion of UN trade law.
4.2. Where you are a merchant/trader, a special public fund or a legal person under public law, exclusive place of jurisdiction for any and all dispute arising in connection with these General Contract Terms and Conditions as well as with any individual contracts concluded on the basis of such shall be New York.
5. What happens with my personal data?
6. For what term will the General Terms and Conditions apply?
The General Terms and Conditions shall apply for the entire term of the contractual relationship between you and FOTOFOAM LLC. They will also apply for all future transactions and other business matters, without requiring a renewed confirmation in each individual case, until they are amended or the contractual relationship has been terminated by deleting the user’s data.
7. How can we amend the General Terms and Conditions?
We reserve the right to amend the General Terms and Conditions at any time without further explanation. In such case, we will explicitly notify you on our webpage of the amended General Terms and Conditions. Your agreement will be required before any amendments are to take effect.