|
Preamble.
BioniXWallpaper.com provides a multimedia platform on the Internet (the "Platform"), permitting Users to upload and publish information of their own (including files and content). In particular, the services under BioniXWallpaper.com provide users with a virtual storage place, enabling them to store files (such as images or documents) and display them on the Platform.
1. Scope.
1.1
BionixWallpaper renders its services exclusively on the basis of these Terms of Service ("TOS"). By using the BioniXWallpaper.com Platform, the User agrees to the application of these TOS.
1.2
BionixWallpaper hereby reserves the right to modify the substance of these TOS without the User's consent (with prospective effect), provided that, taking account of BionixWallpaper's interests, it is reasonable to the User for BionixWallpaper to do so. BionixWallpaper shall notify Users of amendments of this kind on the Platform. Sec. 11.3 shall remain unaffected hereby.
1.3
The terms and conditions contained in these TOS do not create any third party beneficiary rights.
1.4
The User acknowledges that, as between BionixWallpaper and the User, BionixWallpaper is the exclusive owner of any and all rights to the products and services offered by it, including any intellectual property rights. The foregoing shall not apply to information (including files and content) uploaded by Users. The User is not authorised to make use of these rights belonging to BionixWallpaper without BionixWallpaper's prior express written consent (e.g. to copy BionixWallpaper's website in whole or in part and to use it on other websites) or to remove references to BionixWallpaper's status as right holder.
1.4
Definitions:
User -Any natural person using BionixWallpaper's products and services.
Premium Service Fee-based premium rate service by BionixWallpaper offering the User special functions and options for using BionixWallpaper's services.
Free Account - Free access, with the right to participate in the BionixWallpaper Affiliate Programme.
Affiliate Programme - BionixWallpaper shall structure the BionixWallpaper Affiliate Programme in its free discretion, pursuant to sec. 4 of these TOS. Sponsors Owners or operators of advertisements/websites that are linked on a fee-paying basis in connection with the Affiliate Programme.
Advertising - Advertising by our Sponsors can be overlaid on the BionixWallpaper Platform in any number of variations (sec. 8.1).
Uploader -Any User who has uploaded files to his account and published these on BionixWallpaper's Platform.
2. General services
2.1
BionixWallpaper offers its Users access to its Platform. BionixWallpaper is entitled to permit access to certain services only to registered Users.
2.2
BionixWallpaper shall endeavour to keep the Platform available 24 hours a day. Users shall have no entitlement to uninterrupted availability of the Platform. In particular, BionixWallpaper reserves the right to impose temporary restrictions on its contractual services in view of measures it needs to take for operational or security-relevant reasons (in particular for preventive maintenance). BionixWallpaper shall endeavour to provide reasonable prior notice of such measures, to the extent that they are planned, and in all other respects it shall restore availability within a reasonable time, in view of the cause of disruption. To the extent that BionixWallpaper's Platform should not be available, this shall not give rise to any claims by Users for warranty or compensatory damages or reimbursement of expenditures.
2.3
In the event of interruptions to availability, it is possible that - in exceptional cases - it may not be possible to record/log a small number of queries. Should this occur, this shall not give rise to any claims by Users against BionixWallpaper for warranty or compensatory damages or reimbursement of expenses.
2.4
To the extent and for so long as an event of force majeure is present, BionixWallpaper shall have no obligation to perform its services. In particular, force majeure shall be deemed to include strikes, lock-outs, delays to or failure of supplies by suppliers, where such are caused by an event of force majeure, electrical power outages and disruptions to or destruction of data transmission lines lying outside of the scope of BionixWallpaper's responsibility, orders or dispositions by public authorities or courts, attacks by Users or third parties (e.g. by malicious scripts (such as computer viruses) or DoS attacks) that BionixWallpaper would not have been in a position to prevent, even in the exercise of such care as is reasonable in the circumstances. Circumstances shall not preclude the presence of a force majeure event merely because BionixWallpaper is, as a general matter, obliged to carry out certain security measures.
2.5
BionixWallpaper is entitled to make changes to its Platform in terms of content and design. In particular, BionixWallpaper is entitled to make further developments to the Platform to maintain or improve its services, and to adapt it to current technical developments.
3. Uploading of information (including files and content) (Upload).
3.1
BionixWallpaper does not assume any warranty or responsibility for the timeliness, completeness and correctness of any information uploaded by Users (including files and content).
3.2
BionixWallpaper is not obliged to monitor the information transmitted or stored by it or to investigate it for facts or circumstances indicating illegal activities. BionixWallpaper's obligations to remove or block the use of information pursuant to the general provisions of law remains unaffected by the foregoing.
3.3
The information uploaded by Users (including data and content), which BionixWallpaper stores for those Users, is third-party information as to BionixWallpaper. BionixWallpaper does not adopt such information as its own.
3.4
To the extent the information uploaded by Users (including files and content) make use of hyperlinks referring to websites of third parties ("external websites"), such references shall likewise be deemed third-party information as to BionixWallpaper. BionixWallpaper does not adopt any such information as its own. BionixWallpaper does not assume any warranty or responsibility for the availability of external websites.
3.5
BionixWallpaper shall, in particular, not be responsible for information which, as to BionixWallpaper, is third- party information where BionixWallpaper (i) has no knowledge of any illegal act or of the information, and in cases involving claims for compensatory damages, BionixWallpaper is unaware of facts or circumstances from which any such illegal act or information would be obvious, or (ii) BionixWallpaper has acted without delay to remove the information or to block access to it as soon as BionixWallpaper gained knowledge thereof. No third-party rights are created by the foregoing.
3.6
By uploading information (including files and content) the User grants BionixWallpaper a simple right of use, free-of-charge and unlimited in geographical scope, to that information, including the right to duplicate it and make it available publicly on BionixWallpaper's Platform for such time as the User has stored this information on BionixWallpaper's Platform. Sec. 8 hereof remains unaffected by the foregoing.
3.7
Unless otherwise agreed, the User shall have no claim for compensation in exchange for uploading information (including files and content). However, BionixWallpaper is entitled to grant benefits to Users in its free discretion for such uploading of information.
3.8
The User shall have no right to store information (including files and content) on BionixWallpaper's website and/or to make such information publicly available where that information is incompatible with these TOS and/or applicable law.
3.9
In particular, all information (including files and content) shall be deemed incompatible with these TOS which:
" can adversely affect, damage or destroy software or hardware and, in particular which contains malicious code such as computer viruses;
" infringes on intellectual property rights, in particular patent, trade mark or copyrights;
" satisfies the elements of libel, slander or defamation;
" publishes personal data without the consent of the affected party or without legal permission;
" is racist, glorifies violence or war, trivialises violence or incites sedition;
" denies or trivialises acts committed under National Socialist rule;
" incites hatred against sections of the population or against a national, racial, religious or ethnic group, invites violent or capricious acts against such groups or attacks human dignity of other persons by insulting, maliciously ridiculing or defaming sections of the population or one of the above-referenced groups;
" offends human dignity, such as by displaying dying or severely physically or mentally ill persons;
" is pornographic, in particular containing depictions involving children or minors in inappropriate, sexually suggestive positions, sexual abuse or displays sexual acts of humans with animals.
" is obviously apt to constitute a grave risk to the development of children and minors or their upbringing as responsible members within the community, taking into account the particular influence of the medium of dissemination.
3.10
BionixWallpaper is entitled, without prior notice and in its free discretion, to block User information (including content and files), in whole or in part, or to delete such information in whole or in part, where it is incompatible with these TOS and/or with applicable law.
3.11
In particular, BionixWallpaper is entitled without prior notice and in its free discretion to block or delete User information (including files and content) in whole or in part or to store information (including files and content) under another link than the one initially indicated in whole or in part
" where third parties assert claims against BionixWallpaper, referring to a breach or an infringement of their rights, in particular infringements of intellectual property rights, demanding that BionixWallpaper cease storing and making such information available to the public, or
" where public authorities or courts direct BionixWallpaper to cease storing and making publicly available such information, referring to an infringement of rights or violation of the law.
The provisions set forth in sections 8.5, 11.1.7 and 11.2.5 shall, supplementally, apply.
3.12
The User shall indemnify and hold BionixWallpaper harmless against all claims which third parties assert against BionixWallpaper for infringement of their rights by the User or due to violations of applicable law by the User.
4. Affiliate Programme.
4.1
Any registered User is authorised to participate in BionixWallpaper's Affiliate Programme. BionixWallpaper is entitled to design the substance of the Affiliate Programme and the remuneration models in its free discretion, and to modify such at any time with prospective effect. Sec. 11.3 shall not apply in respect thereof. In particular, BionixWallpaper shall be entitled to restrict the validity of benefits in time and to specify a period at the end of which such benefits shall lapse. No interest shall be payable on any benefits, in particular on the BionixWallpaper credit account
4.2
BionixWallpaper publishes the current and updated contents of its Affiliate Programme at BioniXWallpaper.com.
4.3
Users are not permitted:
" To procure or cause BionixWallpaper to grant benefits under BionixWallpaper's Affiliate Programme by violating applicable law or breaching these TOS, or
" to obtain the grant of benefits under the Affiliate Programme by fraud or
" to circumvent the terms and conditions of the Affiliate Programme.
4.4
In the event of a breach of sec. 4.3 hereof, BionixWallpaper is entitled to withdraw benefits which have been granted and - to the extent necessary and appropriate - to temporarily block that User's access or to exercise extraordinary termination of its agreement with the User in cases of repeated breach and after having given a warning to no avail.
5. Affiliate TOS
Affiliates may have their own TOS. Please read those specific TOS for details.
6. Deletion of information (including files and content).
6.1
Subject to any amendment to these TOS (sec. 11.3), BionixWallpaper is authorised:
" to delete files uploaded by a Free Account User which have not been downloaded for more than 90 days since the last download thereof, and
" to delete files uploaded by a Registered Account User which have not been downloaded for more than 360 days since the last download thereof.
6.2
When a User acquires a Registered Account, he or she is entitled to unlimited download volume from such time as the Registered Account is activated.
6.3
Notwithstanding what is set forth under sec. 6.1 and 6.2 hereof, BionixWallpaper is entitled to decline to upload information (including content and files) to block or to delete information or to store information under another link than the one initially indicated where the information uploaded by the User (including content and files) breaches applicable law or these TOS. In particular, this shall apply in respect of files which glorify violence, contain discriminatory, racist or copyrighted content, or in cases in which a demand has been made or an obligation imposed on BionixWallpaper to block, delete or store in a different manner such information, or where a User or a third party forwards information to BionixWallpaper which is relevant under sec. 6.5 hereof.
6.4
Where the User violates applicable law or breaches these TOS and BionixWallpaper or one of its Sponsors incurs financial losses or expenses, the User shall be liable to pay compensation for such losses and expenses.
6.5
BionixWallpaper strives to protect third-party rights to intellectual property. Where a User suspects or gains knowledge of information (including files and content) which breaches these TOS or violates applicable law or infringes third-party intellectual property rights, BionixWallpaper requests Users to notify it of the links to such illegal information (including files and content) by e-mail to the our address indicating the exact location (file name, web address, etc) of infringed work. BionixWallpaper is authorised to remove the illegal information (including files and content) or to place it in BionixWallpaper's data filter list.
7. No index of stored information (including files and content).
7.1
BionixWallpaper has no control over who download/upload information (including files and content) which a User has uploaded to BionixWallpaper's Platform. BionixWallpaper does not provide information to third parties as to the web address under which information (including files and content) are stored on BionixWallpaper.'s Platform, except where BionixWallpaper is obliged to do so. These TOS do not give rise to any duty on the part of BionixWallpaper to provide or make available an index of information (including files and content) available on BionixWallpaper's Platform.
8. Rights to use information (including files and content).
8.1
The Uploader grants BionixWallpaper the right to overlay advertising (the style and content of which BionixWallpaper may determine in its free discretion) on the BionixWallpaper Platform, in particular in connection with the downloading of information (including files and content) which the Uploader has uploaded to the BionixWallpaper Platform. Within the meaning of this section, 'Advertising', in particular, includes banners, links, buttons, videos and pop-ups.
8.2
The Uploader grants BionixWallpaper the right to create scaled-down images (thumbnails) of files containing images and videos to enable easier use of BionixWallpaper's website and to integrate such thumbnails within a search function or otherwise into BionixWallpaper's Platform.
8.3
The Uploader grants BionixWallpaper the right to make such changes to the information (including content and files) as are necessary due to technical processing and transmission, in particular to perform transmission of the information (including content and files) via various networks and to make technical modifications in order to comply with the technical requirements of linked networks, SEO, or other technical facilities.
8.4
The Uploader warrants to BionixWallpaper that the Uploader holds all necessary rights with respect to the uploaded information (including content and files) and, in particular, that it holds the right to store, sell, process, publish and/or transmit the information (including content and files), whether as the copyright holder or as the holder of a right of use, and that such rights are of the scope and extent required under these TOS. The Uploader further warrants that by uploading the information (including content and files), and in particular in the associated processes of storing, processing, publishing or transmitting the information (including content and files), no third-party rights and no laws which may be applicable have been breached or violated. In the event of a breach of the foregoing warranties by the Uploader, as between the Uploader and BionixWallpaper, the Uploader shall indemnify and hold BionixWallpaper harmless against any and all liability to third parties.
8.5
In the event of a serious violation of applicable law or a serious breach of these TOS, BionixWallpaper is entitled to block the User's access to BionixWallpaper's Platform, to exercise extraordinary termination of the agreement with the User and to deprive the User in whole or in part of any benefits granted under the Affiliate Programme, including any credit balances.
9. Liability.
9.1
BionixWallpaper is making its website available on a worldwide basis. With the exception of Users referenced in sec. 9.2 hereof, the following applies with respect to all Users: BionixWallpaper hereby excludes any liability for reimbursement of expenses or for compensatory damages or other claims for recourse against BionixWallpaper, including claims for compensation of lost profits, compensation of consequential damages and indirect damages. The foregoing shall not apply with respect to BionixWallpaper's liability on the basis of mandatory provisions of law, nor shall it apply to damage or losses which BionixWallpaper or its legal representatives or vicarious agents cause by intentional act or omission or gross negligence.
9.2
9.2.1
BionixWallpaper shall in each case bear unlimited liability for losses:
" due to injury to life, limb or health, which are based on an intentional or negligent breach of duty and/or which are otherwise based on intentional or negligent conduct of BionixWallpaper or one of its legal representatives or vicarious agents;
" due to the lack of or the cessation of a characteristic warranted by BionixWallpaper and/or in the event of a failure to satisfy a warranty granted by BionixWallpaper;
" based on an intentional or grossly negligent breach of duty and/or based otherwise on intentional or grossly negligent conduct of BionixWallpaper or one of its legal representatives or vicarious agents;
" based on the fact that BionixWallpaper has fraudulently concealed a defect.
9.2.2
Unless otherwise agreed in secs. 9.2.1 and 9.2.4 hereof, BionixWallpaper shall in all further and other respects bear liability to Registered Account Users for losses caused by slightly negligent breach of material obligations ("Cardinal Duties") or other contractual obligations by BionixWallpaper or one of its legal representatives or vicarious agents, and only subject to a limitation on its liability to losses which are typical for the contract and foreseeable. Cardinal Duties are obligations without the satisfaction of which it is not possible to properly perform the contract at all and as to which the User may rely on BionixWallpaper's compliance. BionixWallpaper hereby excludes no-fault liability of the Civil Code for defects which were already present at the time the agreement was entered into.
9.2.3
Unless otherwise provided in secs. 9.2.1 and 9.2.4, BionixWallpaper's liability to Free Account Users is hereby excluded in cases of simple negligent conduct by BionixWallpaper or its legal representatives or vicarious agents.
9.2.4
The foregoing rules shall apply irrespective of whether the claims are contractual or statutory in nature and shall also apply mutatis mutandis with respect to liability for compensation of futile expenditures. The above-referenced exclusions of liability and limitations on liability shall not apply with respect to liability under the law. In all cases, the right to raise the defence of contributory fault shall remain unaffected by the foregoing.
10. Data protection.
10.1
In accordance with the provisions of law and the terms and conditions of contract, BionixWallpaper strives to protect its Users' personal data. For purposes of information, BionixWallpaper makes a data protection notice available on its web site.
11. Special rules with respect to registered Users.
11.1
General duties of Users.
11.1.1
The User is responsible for correctly supplying the information necessary in order to perform this agreement and/or to use BionixWallpaper's services. The User shall inform BionixWallpaper without delay of any changes to such information.
11.1.2
The User shall ensure that he or she regularly checks his e-mail account, that the storage space in that e-mail account shall at all times suffice to receive incoming e-mail and that he or she is able to obtain timely knowledge of the contents of any incoming e-mail. The User shall not use an e-mail account to which other individuals have access (including e-mail accounts from which others have the right to send e-mail.
11.1.3
The User shall ensure that he or she meets the necessary preconditions in order to properly use BionixWallpaper's services, in particular with respect to hardware, operating system software, necessary application software and Internet connection deployed by the User. The User shall bear the costs of his or her own hardware and software and Internet connection.
11.1.4
The User shall not impair BionixWallpaper's ability to perform its services by using BionixWallpaper's Platform or by making use of BionixWallpaper's services.
11.1.5
The User shall take such precautions as are necessary to secure his or her own system. The User shall secure his or her data at reasonable intervals and shall make use of software which affords protection from malicious software such as computer viruses. BionixWallpaper shall not be responsible for any losses caused by malicious software.
11.1.6
The User shall inform BionixWallpaper without delay of any complaints with respect to BionixWallpaper's services.
11.1.7
BionixWallpaper is authorized to block the access of a User to BionixWallpaper's Platform in whole or in part. In particular, BionixWallpaper is authorised to block a User's access in whole or in part to secure IT security, e.g. after the User has incorrectly entered his or her access data three times in succession, and for purposes of enforcing intellectual property rights. BionixWallpaper shall, furthermore, be authorised to issue a warning to the User in the event of a breach of contractual obligations or duties owed by the User ("Warning"), to block the User's access or to extraordinarily terminate the agreement with the User. BionixWallpaper's right to demand compensatory damages and compensation of expenses shall remain unaffected hereby.
11.2
Special duties of User with respect to User's access data.
11.2.1
User membership requires the User to register. Following registration, the User shall receive his or her access data.
11.2.2
The User is responsible for handling his or her access data in a confidential fashion. The User may not provide his or her access data to third parties and shall keep the same secure from access by third parties.
11.2.3
The User shall inform BionixWallpaper without delay if there are grounds to suspect that unauthorised persons have gained knowledge of the User's access data.
11.2.4
The User is not authorised to grant a third party the right to use his or her Free Account or Registered Account, whether on a gratuitous basis or for consideration (e.g. "Sale").
11.2.5
If BionixWallpaper learns of facts or circumstances which, upon consideration by a person with the appropriate knowledge and skill, suggest that there has been misuse of the User's access data or a breach by the User of these TOS, BionixWallpaper shall be entitled to temporarily block the User's access.
11.2.6
BionixWallpaper is entitled to charge the User with the costs of all measures which may be necessary and which BionixWallpaper incurs in pursuing misuse or in prosecuting a breach of these TOS.
11.3
Amendment of registration agreement.
11.3.1
BionixWallpaper hereby reserves the right to amend its registration agreement, including these TOS, provided that such amendment is reasonable to the User (Contractual Amendment).
11.3.2
BionixWallpaper shall notify the User of its intent to amend the agreement and the date upon which such amendment is to become effective (Date of Amendment) at least eight weeks prior to the Date of Amendment (Notification of Amendment) and shall alert the User that he or she is entitled to object to the Contractual Amendment within six weeks of receiving the Notification of Amendment, by forwarding a declaration of objection by letter, facsimile or e-mail.
11.3.3
Where the User raises an objection in the proper form and within the proper time, or if BionixWallpaper has failed to properly refer in its Notification of Amendment to legal consequences of the User's failure to object, or if the Contractual Amendment is unreasonable to the User, then the Contractual Amendment shall not take effect. In such case, either party shall be entitled on or before the Date of Amendment to exercise a special right of termination effective as of the Date of Amendment.
11.3.4
Where the User fails to object in the proper form and within the proper time, and where BionixWallpaper has properly advised the User in its Notification of the Amendment to the legal consequence of the User's failure to object, and if the Contractual Amendment is reasonable to the User, then the Contractual Amendment shall take effect on the Date of Amendment.
11.4
Change of counterparty.
11.4.1
BionixWallpaper reserves the right to transfer and assign the rights and duties arising out of these TOS and from agreements concluded on the basis of these TOS to a third party (Contractual Assignment).
11.4.2
BionixWallpaper shall inform the User of its intention to transfer and assign the agreement and of the date upon which the amendment is to take effect (Date of Amendment) at least eight weeks prior to the Date of Amendment (Notification of Amendment) and shall advise the User that he or she is entitled to object to the Contractual Assignment within six weeks of receiving Notification of Amendment by sending a statement of objection by letter, facsimile or e-mail.
11.4.3
Where the User raises an objection in the proper form and within the proper time, or if BionixWallpaper has failed to properly refer in its Notification of Amendment to legal consequences of the User's failure to object, then the transfer and assignment shall not take effect. In such case, either party shall be entitled on or before the Date of Amendment to exercise a special right of termination effective as of the Date of Amendment.
11.4.4
Where the User fails to object in the proper form and in the proper time, and where BionixWallpaper has properly advised the User in its Notification of the Amendment to the legal consequence of the User's failure to object, then the Contractual Assignment shall take effect on the Date of Amendment.
11.4.5
In the event of a Contractual Assignment, the User consents to BionixWallpaper's transmission of the User's stored personal data to the assignee. If the User refuses to give consent to such transmission of data, BionixWallpaper shall be entitled to refuse to enter into the registration agreement with such User. The User is entitled to revoke consent with prospective effect. In the event of a revocation of the consent by the User, BionixWallpaper shall have a special right of termination with immediate effect.
11.5
Termination.
11.5.1
Registration agreements are made for an indefinite term, except where a fixed contractual term (e.g. 3 days, 1 month, 3 months, 6 months, 1 year) has been agreed.
11.5.2
Where the parties have not agreed to a fixed contractual term, the User may exercise an ordinary right of termination at any time, without any notice period. If no fixed contractual term has been agreed, BionixWallpaper shall have no right of ordinary termination. Where a fixed contractual term has been agreed, the registration agreement shall terminate upon the expiry of such fixed term.
11.5.3
The parties' right to exercise extraordinary termination, their right of special termination, and BionixWallpaper's right to block the User's access remain unaffected by the foregoing. This applies even if a fixed term has been agreed.
11.5.4
Termination of the agreement by notice shall be deemed to authorise BionixWallpaper to deactivate that User's profile on BionixWallpaper's Platform. After the agreement comes to an end, BionixWallpaper shall be entitled to delete any and all of the User's data without any prior notice to the User. Statutory duties of storage or archiving shall remain unaffected hereby. The User shall have no right to demand that BionixWallpaper surrender his or her data.
12. Terms of Service.
12.1
Jurisdiction and venue for all disputes on the basis of these TOS shall lie (to the extent permitted by law) with the courts located at BionixWallpaper owner's home country. However, BionixWallpaper is entitled to assert legal remedies against Users at Users' domicile, and in particular to bring actions against Users in the courts of their domicile.
12.2
If any provision of this agreement should be or become invalid or impracticable in whole or in part, the validity of performance of the remaining provisions of this agreement shall remain unaffected thereby.
12.3
These English TOS are a convenience translation only.{jcomments off}
|
