General Terms and Conditions of Business and Services (GTC) of Big Pictury GmbH
1. Scope of application, contractual partner
1.1. The following General Terms and Conditions (GTC) apply to all, including future, business relationships between the contractual partner (hereinafter referred to as “customer”) and Big Pictury GmbH, An der Alster 47, 20099 Hamburg (hereinafter referred to as “we” or “us”).
1.2. These GTC apply only to companies within the meaning of § 14 BGB (German Civil Code). Companies within the meaning of these GTC are therefore natural or legal persons as well as partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent profession. A consumer within the meaning of these GTC is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to their commercial nor to their self-employed professional activity.
1.3. These GTC apply exclusively. Any terms and conditions of the customer that conflict with or deviate from these GTC shall not be accepted unless we have expressly agreed to their validity in a written form. 1.4 Individual agreements made in individual cases (including ancillary agreements, additions and amendments) shall in all cases take priority over these GTC.
2. Conclusion of contract, subject matter of contract
2.1. The conclusion of the contract shall only take place with companies within the meaning of these GTC (cf. section 1.2).
2.2. We offer pre-developed visual media which can be purchased with various licensing options on the website www.big-pictury.com.
2.3. The depiction of the pre-developed visual media on our website does not constitute a binding offer but serves for the submission of a binding contract offer by the customer. The colour representation of the visual media on the website may vary slightly depending on the internet browser used and the customers monitor settings.
2.4. The selection of the visual media, the conclusion of the contract and the execution of the contract shall be in German or English.
2.5. Initially, the customer selects a design and the number of detailed scenes contained therein and informs us of the desired individualisation of content and design. After entering their personal data and the desired method of payment, the customer can use the button “Order” within the order section “Check order” to send us their binding order request with regard to the selected medium and the desired customisation. The customer has the option to review and change the data provided in the order or to cancel the order completely at any time until the order request has been sent.
2.6. By clicking the button concluding the ordering process, the customer submits a legally binding contractual offer with regard to the selected visual media. We can accept the customer’s offer within seven days, – by sending the customer a written order confirmation or an order confirmation in text form (fax or e-mail), in which case the receipt of the order confirmation by the customer is decisive, or – by making the ordered visual media available to the customer, in which case the date on which they are made available to the customer shall be decisive, or – by requesting payment from the customer after the customer has placed the order. If more than one of these alternatives applies, the contract shall be concluded at the time when one of the aforementioned alternatives occurs first. If we do not accept the customer’s offer within the seven-day period, this shall be deemed to be a rejection of the offer with the consequence that the customer is no longer bound to their contractual offer. The period for acceptance of the offer begins on the day after the customer sends the offer and ends at the end of the seventh day after the offer is sent.
2.7. If we are not able to provide the customisation requested by the customer, we reserve the right to reject the customer’s contract offer and to refer the customer to our partner company. 2.8. Order processing and contact also take place via e-mail and automated order processing. The customer must ensure that the e-mail address provided by him for order processing is correct so that the e-mails sent by us can be received from this address.
3. Contractual language and storage of the contractual text
3.1. The languages available for the conclusion of the contract are German and English.
3.2. We do not store the contractual text in our system. However, the customer has the option of printing out the text of the contract before placing the order by using the browser’s print function in the last step of the order process. We also send an order confirmation to the customer with all order data to the e-mail address provided by the customer.
4. Prices and payment
4.1. Unless otherwise agreed, our prices current at the time of conclusion of the contract shall apply, excluding statutory value added tax. The prices are stated in euros (€).
4.2. Unless otherwise agreed in the contract, payments shall be due immediately and payable without delay after invoicing. Payments shall be made in euros (€). The date of validation on our account is decisive for the payment. Contrary to §§ 366, 367 BGB (German Civil Code), payments shall first be credited against the oldest principal claim. Other terms of payment may be agreed in individual cases.
4.3. All judicial and extrajudicial costs in connection with the collection of claims incurred by us due to the customer’s failure to pay on time, including the fees of third parties engaged by us for the collection of the claim, shall be borne by the customer.
4.4. The payment options will be provided to the customer on our website. Shipping costs do not apply to visual media.
4.6. If the payment method credit card via Stripe is selected, the invoice amount is due immediately upon conclusion of the contract. The payment is processed via the payment service provider Stripe Payments Europe Ltd, 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland (hereinafter: “Stripe”). Stripe reserves the right to carry out a credit check and to refuse this payment method in the event of a negative credit check.
5. Shipping and delivery
5.1. There are no additional shipping costs for digital products. For the use of the visual media, access to the Internet as well as common and usual display options that are reasonable for the customer (e.g. a browser or PNG or JPEG display software) are required. We do not bear any responsibility for any hindrances to access to visual media if these are within the customer’s control (this applies in particular to the customer’s access to the Internet).
5.2. Visual Media shall be made available to the customer after adaptation has taken place. Depending on the product, the provision shall be made by providing a download option or sending the visual media or access options to the visual media via e-mail or provision of the visual media in a customer area.
6.1. Subject to the following provisions, the warranty shall be governed by statutory provisions.
6.2. A guarantee only exists if it has been expressly granted. Customers shall be informed of the guarantee conditions before the order process is initiated.
6.3. If the customer is a company or entrepreneur, he must check the purchased visual media immediately after they have been made available to see whether they fulfil the contractually agreed quality (in particular quantity, identity and condition) and are suitable for the intended use. If the visual media supplied has obvious defects, these must be notified in written form immediately after receipt, stating the order date, invoice number and item number. In any case, the notice of defects shall be deemed to be late if it is not received by us within 7 working days, calculated from the date of delivery, including the day of delivery. Hidden defects must be notified in writing without delay, at the latest within 5 working days after their discovery. If the complaint is not made in accordance with section 6.3. of these GTC, the delivery shall be deemed to have been approved and warranty claims shall be excluded.
6.4. Notwithstanding the liability provisions of these General Terms and Conditions, material defects shall become statute-barred one year after the transfer of risk in the case of customers who are companies or entrepreneurs, unless longer periods are prescribed by law. 6.5. We endeavour to keep the digital offers, in particular visual media ordered and made available for download, available without interruption as far as possible. Due to maintenance and repair work as well as system updates or technical faults that are beyond our control, availability may be limited. We do not guarantee availability at all times.
7.1. For claims based on damages caused by us, our legal representatives or vicarious agents, we shall always be liable without limitation – in the event of injury to life, limb or health, – in the event of intentional or grossly negligent breach of duty, – in case of warranty promises, as far as agreed, or – insofar as the scope of application of the Product Liability Act is opened.
7.2. In the event of a breach of essential contractual obligations, whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely (cardinal obligations) due to slight negligence on the part of the seller, on the part of our legal representatives or vicarious agents, the liability is limited to the amount of the damage foreseeable at the time of conclusion of the contract, which may typically be expected to occur.
7.3. In all other cases, claims for damages are excluded.
8. Rights of use (licence conditions)
8.1. If the customer has acquired visual media, he has the right to use these within the framework of the licence model chosen by him (https://www.big-pictury.com/lizenzmodelle/). In this respect, the customer acquires a non-exclusive, non-transferable right of use to the visual media, which is otherwise unrestricted in terms of time and territory. With regard to this, in particular the rights defined in the UrhG (German Copyright Act) for exploitation in physical form (reproduction, distribution, exhibition) as well as in non-physical form (right of demonstration, making available to the public) are granted. Further rights of use require our explicit consent. In particular, the right of use granted does not cover the following forms of use: – the sale or distribution of the acquired visual media – the sale or distribution of products/goods produced by means of the visual media (e.g. as posters, digital prints, music titles or physical products) – the editing and redesign of the visual media – the sale or distribution of edited or transformed visual media or of products/goods produced by means of the edited or transformed visual media. 8.2. Subject to any legal restrictions (e.g. copyright), the provisions of section 8.1 shall apply not only to the visual media n their entirety, but also to all individual components thereof, unless the part does not enjoy any copyright or other legal (e.g. ancillary copyright) protection in itself.
8.3. The rights of use listed under section 8.1 are subject to the condition precedent of full payment of the payment claims arising from the respective contractual relationship.
9. Aufrechnung, Zurückbehaltung, Abtretung
9.1. Wir sind berechtigt, die Ansprüche und Forderungen aus unserer Geschäftsverbindung abzutreten. Sofern eine solche Forderungsabtretung durch uns wahrgenommen wird, wird der Kunde aufgefordert an den Abtretungsempfänger zu zahlen. Eine leistungsbefreiende Zahlung erfolgt dann mit Eingang der Zahlung beim Abtretungsempfänger.
9.2. Der Kunde hat nur ein Aufrechnungsrecht mit von uns unbestrittenen oder rechtskräftig festgestellten Gegenansprüchen.
9. Offsetting, retention, cession
9.1. We are entitled to assign the claims and receivables arising from our business relationship. If such an assignment of claims is perceived by us, the customer shall be requested to pay to the assignee. Payment shall then be deemed to be discharged upon receipt of the payment by the assignee.
9.2. The customer shall only have a right of set-off with counterclaims that are undisputed by us or have been legally established.
10. Place of jurisdiction, place of performance
10.1. The exclusive place of jurisdiction for all disputes arising from this contract shall be our registered office if the customer is a businessman, a legal entity under public law, a special fund under public law or has no place of jurisdiction in Germany. We are furthermore entitled to sue the customer at his general place of jurisdiction.
10.2. The place of performance is our registered office.
11. Other conditions
11.1. The business relations between us and the customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Regarding consumers, this choice of law shall only apply insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence.
11.2. We are entitled to amend these GTC at any time. In the event of a change, the customer will be informed by e-mail at least six weeks before the change comes into force. The customer is then free to deregister or delete his user access (account). If the customer does not make use of this option within four weeks after receipt of the notification, the change shall be deemed to have been approved. The customer shall expressly point out the aforementioned fictitious approval in the notification.
11.3. If individual provisions are or become invalid, this shall not affect the validity of the other provisions. Ineffective provisions shall be replaced by provisions whose economic success corresponds as far as possible to that intended by the ineffective clause.
As of: 11/2021