This is a convenience translation only. The German version prevails.
General Terms and Conditions for Usage of Pixel Talents by Artists
In the following you will find the General Terms and Conditions for the services of Pixel Talents by Artists. Please note our extensive measures for protection of privacy - we place great importance on the protection of personal data.
Preamble
By registering as an artist with Pixel Talents (hereinafter referred to as "Artist"), - in addition to the General Terms and Conditions for use of Pixel Talents when registering as a User ("General Agreement") - you accept the following General Terms and Conditions for Use of the website of Pixel Talents (hereinafter referred to as "Agreement"). Pixel Talents operates under various top level domains as well as under various subdomains and aliases of those domains ("Pixel Talents Websites"), an Internet-based system under which services are provided to Pixel Talents third parties ("Users"). This Agreement governs the contractual relationship between the Artist and Pixel Talents, regardless of with which of the Pixel Talents-Websites the Artist has chosen to register or to log in.
1. Purpose
1.1 Pixel Talents is an Internet marketplace for graphic imaging and similar products, where creative individuals can come together. As customers ("Customers"), Users can have their photos edited or visually enhanced by Artists (both referred to as "Presentation of a Project" or "Project"), which they can retrieve digitally after completion and/or order prints as posters, on canvas, as flyers or other media directly through Pixel Talents. The finished prints are printed and delivered by printing partners of Pixel Talents.
Specifically, Pixel Talents offers Artists the following service options (hereafter "Pixel Talents-Service"):
- Artists may register and establish portfolios on the Pixel Talents-Websites which include digital artwork, graphic design and imaging. The User of the web site can search through these portfolios and tender a request to the Artist to edit the images or accept a contract to create a project. If no satisfactory proposal is made, customers may request a bid. Artists may place bids which are then accepted by the Customers.
- Order a status report regarding the quantity and level of the Artist's sales.
- Handling of payment to Artists (including all additional agreed upon between the Artist and the Customer).
- Return processing of purchase orders as soon as possible.
2. Contractual Relationship between Customers and Artists / Role of Pixel Talents
2.1 The contractual binding in the execution of the graphic work is concluded only between the respective Customer and Artist. The Artist engages to stipulate with the Customer that the contract will become effective subject to the conditions precedent, that the Customer will make the full payment through Pixel Talents' escrow account. The Artist agrees not to make any other agreement with the Customer in this respect.
2.2 As far as Pixel Talents is involved with the contractual relationship between Customer and Artist regarding the Pixel Talents-Websites, for instance regarding technical development, Pixel Talents' involvement is solely as a commercial representative of behalf of and for payment of the Artist. If the Artist is a contractor within the definition of § 14 BGB (German Civil Code), he is required to advise the Customer of any existing cancellation clause - for example, money back guarantee, and to provide all required customer protection rules and regulations regarding such e-commerce information.
2.3 Customers and Artists are solely responsible for the development and execution of their contract; i.e., Pixel Talents maintains no responsibility in that regard. This applies particularly to any disputes due to poor performance, delay, and any other breach of the contracted requirements. Under the agreement between Customer and Artist, their mutual obligations concerning the work concerning the work generally depend on the relevant provisions of the Civil Code (BGB).
3. Prices and Charges
3.1 The Artist determines the base price for the work at his discretion. When establishing the pricing, the Artist may determine whether any additional fees (such as mark-up for express editing) will be appropriate.
3.2 Pixel Talents receives a fee from the Artist for each project which is provided to the Customer through the auspices of the Pixel Talents-Websites ("Project Fee"), after the contract (between Customer and Artist) is concluded and listed upon the Pixel Talents-Websites Remuneration List ("Remuneration List"). The Project Fee will be due immediately upon the conclusion of the contract between Customer and Artist, and is independent from the remainder of the development and execution of the contracted project.
3.3 The Artist is prepared to explain the basis of his compensation requirement arising from the Customer's order for work through Pixel Talents, and Pixel Talents adopts the assignment implicit therein. The assignment becomes effective at the time the contract between Customer and Artist is effectively reached, i.e. when payment has been made to Pixel Talents' escrow account. Once that transaction is complete, the Artist may make no additional charges to the Customer. Pixel Talents will pay the Artist in accordance with paragraph 4, provided the Customer agreed before acceptance of the contract. Pixel Talents may withdraw the Project Fee directly from the Artist's compensation.
3.4 All services agreed to and provided by Artist to Customer through the Pixel-Talents Websites will be reflected in the statement provided by Pixel. Pixel Talents can include both the work and the prints in the invoice; that is, the Artist has no entitlement to issue a separate invoice for the work.
3.5 Unless otherwise stated, the above fees include any currently valid sales tax. Pixel Talents reserves the right to adjust the costs of any increases in applicable sales tax.
4. Acceptance / Share / Payment
4.1 Immediately upon receipt of payment, Pixel Talents will inform the Artist of the payment and the establishment of the contract with the Customer. The Artist agrees to create the work within the period agreed upon with the Customer. The Artist will place the result on the Pixel Talents-Website in the Customer's secure personal area for viewing and disposition, and notifies him as well as Pixel Talents through the Pixel-Talents Website.
4.2 The Artist agrees to the following stipulations at the time of the order: The Customer has 3 days from the date of notification of completion of the work within which to accept the work. After this period, the work will automatically be considered accepted. Should the Customer require revisions, it is understood that appropriate communications will be conducted and the appropriate revisions made prior to final completion. Any further claims or warranties made between Artist and Customer are considered to be made outside the Pixel Talents Websites and without the participation of Pixel Talents.
4.3 After acceptance, depending on the purchase order, the project is shipped to the Customer as a finished print and / or released for download.
4.4 The Customer may not refuse the work in the event of insignificant shortcomings. In the event of such refusal by the Customer, Pixel Talents will perform a quality review of the work, for instance, in what it lacks, and make a mediating recommendation how the parties should proceed. If the Customer still refuses acceptance, or if there are graphical editing issues, which Pixel Talents does not have to represent, which prevent satisfactory accomplishment, then Pixel Talent will pay out the escrowed funds under paragraph 5. In this case, the Artist agrees to pay the Project Fee regardless. The original claim for payment of the Artist is conceded back to Pixel Talents at the time of repayment. Herewith the Artist accepts the return transfer for this case. Any other processing of the contractual relationship remains exclusively between the Customer and the Artist.
4.5 Pixel Talents accepts payment by Customer for the work and manages the money collected thus far in a separate escrow account.
4.6 The fee paid by Customer for the work is paid to the Artist upon acceptance of the work by the Customer or the acceptance period has elapsed. Accordingly, the Artist may access in his personal account the payments from projects which the Customer has already made. Pixel Talents may transfer payments made in connection with works under paragraph 4.5 to pay the corresponding fees on either the first or the fifteenth of the month. Transfer of the forwarded amounts in the name of the Artist will be made to a designated domestic Bank or to a PayPal account. For each payment under 50 € a fee of 1 € will be deducted automatically.
4.7 The Artist is obliged to make any objections to Pixel Talents' statements immediately, and no later than two weeks following the statement. Otherwise, the statement is considered approved.
5. Cancelled Transactions
5.1 If the graphic editing (a) is not performed, for instance, if work is returned for cause by the Customer; or (b) the Customer denies acceptance, Pixel Talents will refund any sums already paid for the work, including any additional fees under paragraph 3.1, to the Customer within 14 days. The Artist agrees that Pixel Talents will refund these sums to the Customer in the name and under the account of the Artist.
5.2 In order to process a refund under paragraph 5.1, the Artist is required to pay an extra cancellation fee to Pixel Talents according to the Remuneration List. Following the completion, the Artist will receive a statement with regard to the fee to be paid.
6. Fraud- / Abuse Protection
6.1 Pixel Talents retains the right, if improper use of the Pixel Talents-Websites by the Artist is suspected, to deactivate the Artist and block the Artist from receiving any offers. Suspected misuse may occur particularly if
(i) prior to the graphic editing, the image cannot legitimately be used by or used on behalf of the Customer;
(ii) unlawful or immoral graphic imaging is submitted or proposed.
6.2 If improper use of the Pixel Talents-Websites by the Artist is suspected, Pixel Talents reserves the right to delay payment of the sums paid by the Customer under Paragraph 4.2 an additional 60 days ("Test Period"). This Test Period will be utilized by Pixel Talents to investigate whether a misuse of the Pixel Talents-Websites and / or the Pixel Talents-Services exists. Suspicion of misuse exists in particular if
(i) it becomes known that the the image cannot legitimately be used by or used on behalf of the Customer; or
(ii) unlawful or immoral graphic imaging has been processed.
If the suspicion is not resolved within another 14 days, Pixel Talents reserves the right, under paragraph 5, to refund the Customer's payment for the respective work.
7. Liability of Pixel Talents
7.1 Pixel Talents is liable without restriction for any damages arising from injury to life, body or health, which are the result of any breach of duty by Pixel Talents, its legal representatives or agents, as well as for any damages arising out of any errors in quality guaranteed by Pixel Talents.
7.2 Pixel Talents is liable without restriction for any damages arising from any willful or gross acts of negligence by Pixel Talents, its legal representatives or agents.
7.3 Pixel Talent is liable for minor breach of fundamental contractual obligations, limited to typical foreseeable damages except in cases under paragraphs 7.1 and 7.4. Fundamental contractual obligations are those abstract obligations, fulfillment of which are made possible by the orderly implementation of the contract, and on compliance with which both parties may rely.
7.4 Liability under the product liability law remains unaffected.
7.5 If the Artist is an entrepreneur in accordance with § 14 BGB (German Civil Code), except under paragraphs 7.1 and 7.2, the maximum allowable period for claims against Pixel Talents is one year.
7.6. The limitation period for other warrant claims is also one year, if the artist is an entrepreneur within the meaning of § 14 BGB (German Civil Code).
8. Responsibility of the Artist
8.1 The Artist agrees to inform Pixel Talents immediately regarding any non-availability or faulty functions of the Pixel Talents-Websites.
8.2 The Artist agrees not to violate any German laws or infringe on the rights of third parties in connection with the use of Pixel Talents-Services. The Artist particularly agrees to comply with copyright law, data protection and consumer protection provisions as well as third-party intellectual property law. If a third party makes any claims against Pixel Talents and/or its employees in connection with the unlawful use of Pixel Talents-Services by the artist for which the provider is not liable, or because of any illegal contract or conduct by the Artist, the Artist is required to hold Pixel Talents and/or its employees harmless from such liability, and also to pay any costs associated with such activity, including legal fees and costs.
8.3 The Artist will promptly advise Pixel Talents of any change to his name, company name, place of residence or head office, his billing address, his organizational documentation or his bank account. This notification shall be done either in writing or by e-mail.
8.4 The Artist is prohibited from using Pixel Talents-Services for illegal or immoral graphical imaging. "Immoral" is understood to include, without being limited to, extremist, extremist right wing, pornographic or violent graphic images.
8.5 Upon entry of a request by a Customer, the Artist agrees either to accept the request within 48 hours or to reject it with an explanation of the reasons for rejection. Reasons for rejection include particularly an unsuitable source image supplied by the Customer or the temporary unavailability of the Artist. After this 48-hour period, all bids of the Artist will be deactivated, and reliability points will be deducted from his score. In the event of repeated such time lapses, Pixel Talents reserves the right to suspend the Artist's account.
8.6 The Artist agrees to produce a result as agreed upon with the Customer and within the time specified by the Customer on the Pixel Talents-Website for the Customer to review. The Customer has the right within the parameters of the warranty agreement to have the result revised once. The Artist must complete the revision with 48 hours of receipt of notification and make the revised result available on the Pixel Talents Website.
8.7 Unless otherwise agreed between Customer and Artist, the Artist agrees to grant the Customer unlimited usage rights between the right to change the image for their own purposes and the right to negotiate with third parties to use the finished work.
8.8 The Artist agrees not to make the work available for public distribution or reproduction without the consent of the Customer and/or any individuals depicted on the image.
9. Duration
9.1 This contract is indefinite and may be terminated at any time by the parties. If at the time of cancellation by Pixel Talents any purchase orders assigned to any Artists are not yet completed, the rights and duties of the parties to the contract endure until the conclusion of the order.
9.2 Notwithstanding the above, Pixel Talents may terminate the contract for provision of Pixel Talents-Services for cause. Reasons for termination may include in particular,
(i) The Artist has failed to fulfill essential provisions of these conditions, in particular paragraph 8, or
(ii) if insolvency proceedings have been initiated by a Court of competent jurisdiction over the assets of the Artist, or default is declared, or
(iii) Circumstances exist under which Pixel Talents may reasonably presume that, due to insufficient liquid assets, the Artist can no longer meet his contractual obligations to Pixel Talents or third parties, and the Artist succeeds in proving the opposite to Pixel Talents within 30 days.
10. Copyright, Exemption from Liability
10.1 Any and all copyright or other rights granted by the Artist to Pixel Talents or Pixel Talents Websites for the presentation of content ("Content") shall remain that of the Artist. The Artist grants Pixel Talents the right to use such content for the necessary performance of services by Pixel Talents Services. This right of usage includes in any event the presentation, reproduction, and public creation of the content on the Pixel Talents-Websites. Pixel Talents has the right to make the content user-friendly, including transfer to other data formats. In addition, Pixel Talents is granted the right to edit content in its optical appearance in the setting, layout, scaling, etc., and place it in close proximity to advertisements on the Platform. With regard to such content, the Customer waives any individual copyright rights with regard to the exercise of legal rights, particularly regarding any adverse effects in hindsight by changes to the content by a provider or a third party, or through the placement of such content on the Platform in connection with or close proximity to advertising.
10.2 Pixel Talents additionally retains the right to use the Artist's content for advertising of individual proposals.
10.3 By delivery of content to Pixel Talents, the Artist represents expressly that the content is free of any third party rights. Any damages to unknown third parties as a result of submitted content are the responsibility of the Artist. Additionally, the Artist represents that the transmitted content, its reproduction and creation violate no rights or laws.
10.4 The Artist agrees to hold Pixel Talents harmless from the first instance of all claims and demands by third parties which are made as a result of damages to third party rights in the utilization of the content. In such case, the Artist will refund Pixel Talents any costs of defense and other damages. In such case, Pixel Talents is entitled to a deposit from the Artist in the amount of estimated costs of defense.
10.5 Should any claims be asserted against the Artist in connection with damages to third parties regarding content transmitted by Pixel Talents, the Artist is obliged to promptly inform Pixel Talents in writing.
10.6 In the event any claims are asserted against Pixel Talents for damages or when reasonable risk exists that such assertions may be made, Pixel Talents at its discretion may remove the specific content from the Artist's portfolio in part or in total.
11. Final Provisions
11.1 Amendments to or revocations of this agreement between Artist and Pixel Talents must be in writing. Pixel Talents nevertheless reserves the right to alter this Agreement at any time without designation of reasons (and without being bound to the written form), unless this is not reasonable for the Artist. Pixel Talents will inform the Artist of changes of the Agreement in a timely fashion. If neither party challenges the validity of the new Agreement within two weeks after the notification, the changed Agreement will be assumed to be accepted by the Artist. Pixel Talents will inform the Artist within said notification of the Artist's right of opposition and the significance thereof, particularly of the consequences of any failure to respond. Should the Artist challenge the proposed alterations, Pixel Talents has the right to cancel the contract.
11.2 Contradictory terms by the Artist to these general terms and conditions shall not apply.
11.3 Compensation by the Artist are allowed only with undisputed or legally valid demands. This applies to any liens against the Artist.
11.4 Unless otherwise agreed herein, the Artist may provide all communications with Pixel Talents via e-mail through any of the accessible contact forms on the Pixel Talent-Websites or through facsimile or mail to Pixel Talents. Pixel Talents may communicate with the Artist via the e-mail address provided by the Artist in his user account.
11.5 Should any individual provisions of this Agreement become unenforceable, the remaining provisions shall remain effective. The parties hereto agree to replace any ineffective provisions with a equivalent and enforceable provision as close to the meaning and purpose of the prior provision. This will apply equally to any contractual loopholes which may develop.
11.6 In the event of any conflict between the Agreement and the "General Agreement", this Agreement shall take precedence.
11.7 Jurisdiction and place of performance are - insofar as supported by law - Munich.
11.8 German law applies under the exclusions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
