These Terms of Service (hereinafter also referred to as “ToS”) govern the contractual relation between our customers and us, fabrique d'images digital media, Herbststraße 4, 87435 Kempten, Germany (hereinafter also referred to as “fdidm”).
1.1. The subject of the following ToS is the use of fdidm’s online services and the accompanying software as well as related websites (hereinafter also uniformly referred to as “Service”). “You” and “your” refer to you, as a user of our Service. “We”, “us”, and “our” refer to fdidm.
1.2. By accessing or using our Service, you are agreeing to these ToS and concluding a legally binding contract with us. Do not access or use our Service if you are unwilling or unable to be bound by the ToS.
1.3. Insofar as we have not explicitly agreed to their application in writing, your possibly deviating business conditions shall not apply. Even though they may be enclosed and the contract may have been supplemented, a reference to your own business conditions does not constitute our acceptance of their applicability.
2.1. The contractual relationship with us is established by signing the contract and by sending the signed contract by fax or email to us.
2.2. We offer our service only to business customers. We are permitted to refuse the conclusion of a contract for objective reasons. If a registration is incomplete, we are entitled to delete the user account within one week.
2.3. We can terminate the contractual relationship within one week if an audit by recognised creditworthiness audit suppliers reveals that the customer is not creditworthy.
2.4. The scope of our services and your remuneration derive from the pricing plans provided to you within our service. Additionally, the pricing plans determine the payment intervals for chargeable plans, which also correspond to the contract term.
3.1. fdidm makes no claims or promises with respect to any third party, such as the businesses or advertisers listed within its Service.
3.2. Accordingly, the fdidm is not liable to you for any loss or damage that might arise from their actions or omissions, including, for example, if another user or business misuses your content, identity or personal information, or if you have a negative experience with one of the businesses or advertisers listed or featured on the site.
3.3. Your purchase and use of products or services offered by third parties through the site is at your own discretion and risk and subject to the terms and conditions of the third party.
4.1. The remuneration currently owed is based on the chosen plan and is quoted net. Statutory VAT applicable at the time of invoicing is charged in addition. The remuneration is due to payment at the beginning of each payment interval.
4.2. We reserve the right to change the scale of remuneration at any time. With regard to current contracts, such change shall take effect only from the beginning of the following contracting period.
4.3. You may settle the remuneration using one of the payment methods we have offered to you. You will be provided with the invoices electronically at the time we book the remuneration or you select a new rate.
4.4. The period for submission of pre-notifications by fdidm to the customer within the SEPA Direct Debit scheme is one day.
4.5. Within the scope of their validity, credit vouchers issued by fdidm can be offset accordingly against the plan's price.
4.6. Should it not be possible to have an invoice paid by direct debit, you shall bear all consequential costs. These include especially bank charges in connection with the return of direct debits and comparable fees to the extent that you are responsible for the event that triggers the costs. We can send you payment reminders electronically.
4.7. Should you fall into arrears with your payments, we have the right to refuse to fulfill payments due to you and to block access to the user account and our service until such default has been rectified. In such cases we will normally notify you of such blocking 10 working days in advance to rectify such default. Our other legal and contractual rights with regard to payment delay shall remain unaffected.
4.8. Should you fall into arrears with your payment, you must expect to be charged 8% interest for late payment above the base interest rate effective for the place of our registered office. Default interest will be charged, even without a written warning, if the payment is not made at the agreed date. We reserve the right to raise a claim for a higher value of compensation for such delay.
4.9. You may offset only uncontested or legally binding debts against our claims, insofar as these are not claims for completion or the rectification of faults. You are entitled to a right of retention only for counterclaims arising from the contract that forms the basis of these ToS.
5.1. You are responsible for ensuring that the information you provide us on your or your company are correct, complete, legally permitted and free from any rights of third parties, and for informing us of any changes to the information you have provided. You must not use pseudonyms and avoid any identity deception.
5.2. You can access and update much of the information you have provided us with, including your account settings, in the your account area.
5.3. In the case of an incomplete registration, fdidm is entitled to delete the customer account within one week.
5.4. You are responsible for informing us of any changes to the information you have provided. The address and contact details of the customers are kept up to date. Disadvantages caused to customers due to incorrect information, go to their risk at expenses. Disadvantages that arise due to incorrect information for fdidm will be charged to the customer if the incorrect information are within their own sphere of responsibility.
5.5. If you use our Service you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and to the extent permitted by applicable law you agree to accept responsibility for all activities that occur under your account or password. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform us immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or is likely to be used in an unauthorised manner.
5.6. You agree to indemnify, defend, and hold us, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to user's access to or use of our Service, your violation of the ToS, any products or services purchased or obtained by users in connection with our Service, or the infringement by users, or any third party using user's account, of any intellectual property or other right of any person or entity. We reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6.1. You may use our Service within the limits of these ToS for yourself or your company. You are not entitled to rent, lend, lease, sell or make the service capable of protection wholly or partially accessible in any technical form whatsoever to third parties for remuneration or free of charge without our explicit written approval. Sub-licences must not be issued.
6.2. You must not use our Service in any way that causes, or is likely to cause our Service or any access to it to be interrupted, damaged or impaired in any way, or for fraudulent purposes, or in connection with a criminal offence or other unlawful activity, or to cause annoyance, inconvenience or anxiety.
6.3. Customers may only use the fdidm service via the input masks, templateengine and interfaces provided. In particular, excessive use over and above normal levels of service and interface usage intensity and frequency to be expected is prohibited (e.g. due to the use of software whose technical faults generate constant unnecessary access via our interfaces). It is not permitted to remove or hide the copyright information or other parts of our service not intended for this purpose.
6.4. We reserve the right to refuse service, terminate accounts or remove or edit content if you are in breach of applicable laws, these ToS or any other applicable terms and conditions, guidelines or policies.
7.1. The contract term for the use of our Service is determined for chargeable plans by the selected payment interval. The contract will be prolonged automatically upon the expiry of the contract term by the same period, insofar as it has not been previously terminated giving notice of three months before contract termination to firstname.lastname@example.org.
7.2. A termination of the contract is possible at any time on the free-of-charge plan.
7.3. You may change to a higher plan and take advantage of its service immediately (hereinafter also referred to as “upgrade”) at any time. Insofar as you still have an unused usage quota from the previously existing contractual relationship, this will initially be credited to you or offset against the invoice for the new plan.
7.4. A change to a lower plan (hereinafter also referred to as “downgrade”) is possible only after the expiry of the respective contractual term.
7.5. A termination of contract or a downgrade before the expiry of a payment interval does not entitle you to a reimbursement of any payments made in advance.
7.6. Both contracting parties reserve the right to an early extraordinary termination of the contract for important reasons. An extraordinary termination is permitted in particular where you remain in default with your payment obligations for two months. Where necessary, a written warning concerning the objectionable conduct must precede the extraordinary termination.
7.7. In case of contract termination, you are responsible for saving your data before your contract expires.
8.1. The scope of the services we are offering, the user accounts and their technical design are derived from the current technical status of our Service and the description of services at the time of contract conclusion.
8.2. We reserve the right to extend, change or limit functions where this is in the interests of technical progress, is necessary to prevent misuse, if restrictions of the database and picture supplier require them or where we are legally obliged to do so. Where such change in the scope of functions impairs your contractual use of our Service to a more than negligible degree, you have the right to a fee adjustment or the termination of your contract.
8.3. You must notify us in writing of obvious defects that would be immediately apparent to an average user within seven working days after their materialisation and give a sufficiently detailed reason for their rectification. In case of defects that are not obvious, the grace period for notification begins upon their recognition. Otherwise, claims for such defects cannot be raised. Please use the feedback function or the email address email@example.com for such notifications. Claims for defects shall not be entertained if such defect is insignificant, i.e. does not have a significant effect on the agreed service and its target. Necessary adjustments that we could not have foreseen in the normal course of events do not constitute defects. In particular, these include unforeseeable changes in the legal position at the time of performing our services or technical changes carried out by third parties over which we have no influence.
8.4. We remedy defects by carrying out subsequent improvements. Only if these fail or cannot be carried out can you request a reduction in price or raise a claim for termination after having given us a grace period of at least two weeks. All customer claims for defects expire after one year. The definitive date for a complaint for defects and its expiry is the time when you became aware of that defect or should have become aware of it if you were not grossly negligent.
9.1. You hereby acknowledge that a 100% availability of our Service cannot be technically assured. However, we shall strive to keep our Service available as consistently as possible and assure you of an annual average availability of 98% in accordance with the following limitations in this section.
9.2. We cannot ensure the availability of our Service during times in which it cannot be accessed due to technical or other problems that lie outside our sphere of influence (Force Majeure, third-party culpability, necessary maintenance etc.). Where the safety of the network or the maintenance of network integrity is endangered for reasons beyond our sphere of responsibility, we can temporarily limit access to our Service as required.
9.3. You will be notified of foreseeable downtimes due to maintenance work in good time in advance. Claims in this respect can therefore not be deduced.
10.1.For its service fdidm offers software interfaces (also simply called “interfaces” or “API”) which customers can use to access their data and the functions provided by fdidm using third party software suppliers or to use functions of third party suppliers within our service. fdidm can only ensure the functionality of the API in accordance with the availability provisions of these GTCB insofar as such functionality lies within fdidm’s scope of influence. In particular, no liability can be accepted for the API’s possible lack of compatibility or access capability where the defects lie in the third party supplier’s software
10.2. The same limitations apply where customers combine third party software via its interfaces with fdidm’s service.
11.1. The following exclusions and limitations of liability apply with regard to our liability for damage compensation, notwithstanding the other legal claim requirements.
11.2. Please read this section carefully since it limits the liability of fdidm to you. Each of the subsections below only applies up to the maximum extent permitted under applicable law. Nothing herein is intended to limit any rights you may have which may not be lawfully limited. If you are unsure about this or any other section of these terms, please consult with a legal professional prior to accessing or using our Service. By accessing or using our Service, you represent that you have read, understood, and agree to these terms, including this section. You are giving up substantial legal rights by agreeing to these terms.
11.3. fdidm expressly disclaims all compulsory warranties, whether express or implied, including warranties as to the products or services offered by businesses listed on the site, and implied warranties of merchantability, fitness for a particular purpose, and non-infringement. No oral or written information or advice provided to you by a representative of fdidm shall create a representation or warranty.
11.4. We assume unlimited liability if the cause of the damage is the result of intent or gross negligence. fdi dm is not liable to pay damages for any damage which is created by using our service. This includes unreserved damages through not realised profit, use and occupancy loss, loss of business or other information, loss of data or any other financial loss. This is also valid, if fdi dm was informed about the possibility of such losses.
11.5. Furthermore, we assume liability for the slightly negligent breach of significant duties, whose breach places the achievement of the purpose of the agreement at risk, or for the breach of duties whose fulfillment generally enables the execution of the agreement and on whose compliance they regularly rely. However, in this case, we shall only be liable for the foreseeable damage that might typically occur under the agreement. We are not liable for the slightly negligent breach of duties other than those stated in the above-mentioned sentences.
11.6. The above-mentioned limitations of liability do not apply for loss of life, bodily injury or damages to health for a defect after assumption of a guarantee for the nature of the product and for fraudulent concealment of defects. Liability pursuant to the product liability act remains unaffected.
11.7. If our liability is excluded or limited, this also applies for personal liability of employees, representatives, agents or assistants.
12.1. We reserve the right to change the ToS at any time with effect from a future date. A change in essential provisions which influence your contractual claims shall be made only for valid and objective reasons, especially of a legal, technical and economic nature.
12.2. We shall advise you of the amended ToS, at least in text form, so that you will have at least two weeks time to object to the change. In case of an objection, we can determine whether the previous ToS in our contractual relationship with you shall remain valid or whether you shall receive the right to termination. Should you not object to the amended ToS within the objection period, they shall be considered to have been accepted.
13.1. fdidm gives the highest priority to the protection of customer data and so giving information and customer data to third parties is prevented where legally possible. This applies particularly where answers to enquiries from authorities are optional.
13.2. The contracting parties undertake to treat all information they gain knowledge of during the fulfillment of this contract as confidential and to use it only for contractually agreed purposes.
13.3. The contractual parties shall be obliged to ensure that their employees, freelancers and other companies involved with them (independent and affiliated) will be committed accordingly to the above provisions.
13.4. The rights and obligations in accordance with this section concerning confidentiality shall remain unaffected by a termination of this contract.
14.1. The basic form for all declarations within the framework of this contract is, subject to explicitly deviating provisions, written form as a minimum (for example, email with a recognisable sender). Verbal or conclusive declarations are therefore invalid. Declarations which fulfill higher form requirements, for example the written form, can replace the text form.
14.2. Changes to these ToS must be made in writing to be valid.
15.1. Place of jurisdiction shall be our office in Kempten, Germany and the German law applies exclusively, both unless expressly agreed otherwise or pursuant to consumer protection legislation.
15.2. Any failure on our part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
15.3. If one of the above-mentioned provisions is partially or completely ineffective, this does not affect the effectiveness of the remaining provisions.