Terms and Conditions of Use for www.independent-collectors.com
1. Scope of application of the Terms and Conditions of Use
1.1 Independent Collectors GmbH (hereinafter "Independent Collectors") operates an interactive online business with various services under the domain independent-collectors.com through which collectors of contemporary art throughout the world can present their collections and contact each other and communicate with each other (hereinafter "Independent Collectors Website" or "Website").
1.2 The Terms and Conditions of Use hereinbelow govern the use of the Independent Collectors Website and take effect upon the User's registration and apply to every use of the services offered on the Website.
2. Services of the Independent Collectors website
2.1 On the Independent Collectors Website the User can set up a user profile containing information about the User and his or her collection and interests. The User can also upload and enter image files containing artworks from his or her collection and the associated descriptions in the "Collection" section. Within his or her profile the User can allow a number of images from the "Collection" section to be displayed in a "Showroom". The User can specify whether his or her profile and collection can be opened only by his or her confirmed contacts, by all other users of the Independent Collectors Website, or by all Internet users. The User also has the option of blocking other persons' access to his or her collection by setting up a password of his or her choice.
2.2 The Independent Collectors Website also provides the User with a variety of services with which to contact other users and communicate with them. Independent Collectors is not involved in contact or communication with other users and is not liable for any legal violations or breaches of duty committed by the User in connection therewith.
2.3 Which of the services of the Independent Collectors Website are available to the User depends on whether the User registers for free as a guest or for a charge as a member.
2.4 Independent Collectors can modify, and in particular expand and improve, the services of the Independent Collectors Website as its discretion as long as the services offered as of the time of contracting are not substantially limited.
2.5 The right to use the Independent Collectors Website exists only within the limits of the current state of the art. Independent Collectors endeavors to keep the Website available constantly to the fullest extent possible but does not warrant uninterrupted and faultless availability. Maintenance work, capacity limits and technical or other problems outside the control of Independent Collectors can cause data loss, disturbances, transmission delays, transmission errors and downtime.
3.1 The User is required to register if he or she wants to use the services of the Independent Collectors Website. Solely natural persons with unlimited contractual capability are permitted to register; registration cannot be assigned to others. There is no claim for registration.
3.2 The User is required to state the information specified on the registration form truly and completely when registering. The User is prohibited from registering multiple times under the same or different names. Independent Collectors can review the information provided by the User and reject incomplete, untruthful or frivolous registrations. If it suspects improper registration, Independent Collectors has a right to immediately block access to the Independent Collectors Website and/or delete the user profile. The User is required to update his or her information immediately in accordance with any relevant changes made subsequent to registration.
3.3 During registration the User shall specify his or her access information for accessing the Independent Collectors Website, which consists of his or her e-mail address and a password. The User is required to keep his or her access information confidential and not give it to others. Independent Collectors will not give users' passwords to others, and will never, at any time, ask the User for his or her password by e-mail or telephone. The User is advised that others may be able to modify or delete his or her user profile and the contents entered by the User with the aid of the User's access data. Should the User lose his or her access data or discover that others have gained knowledge of or used his or her access data, the User is required to notify Independent Collectors hereof immediately.
3.4 Registration constitutes an offer by the User to enter into an agreement concerning the use of the contents and services of the Independent Collectors Website. Independent Collectors accepts the offer by activating the User for the services of the Independent Collectors Website. Upon acceptance an agreement is concluded between the User and Independent Collectors.
3.5 The User may register either as a guest free of charge or as a member for a fee in accordance with the following conditions:
3.5.1 Following free registration as a guest, the User can use the basic services of the Independent Collectors Website and set up a user profile, a "Collection" and a "Showroom". The User cannot use all the services of the Independent Collectors Website; particularly the services for contacting and communicating with other users are only available to a limited extent. The User may switch at any time from being registered as a guest to being a paying member by notifying Independent Collectors accordingly.
3.5.2 Following paid registration as a member, the User can use all the services of the Independent Collectors Website without limitation. For registration as a member, the usage fee stated during registration will be charged for the usage period or an extension period. The usage fee for the entire usage period is due and payable immediately upon invoicing. Independent Collectors can send the User the invoice for the usage fee by e-mail to the e-mail address the User gives during registration or deposit it in an electronic mailbox of the User on the Independent Collectors Website. Invoices will be saved in the mailbox for 18 months. The User is required to check his or her mailbox on a regular basis. The User can settle his or her account using one of the methods stated during registration, specifically credit cards or online payment methods. If the usage fee cannot be collected, the User is liable for all resulting costs, particularly bank charges related to the return of the debit advices and similar charges, to the extent the User is responsible for the event giving rise to the costs.
4. Consumer's right of revocation
If the User registers for the Independent Collectors Website for a purpose which cannot be attributed to his or her pursuit of a trade or carrying on a profession or occupation, the following provisions apply to the User as a consumer within the meaning of the law (§ 13 of the German Civil Code (BGB)):
4.1 Right of revocation: The User may revoke his or her registration within two (2) weeks without stating the grounds in writing (e.g. letter, fax, e-mail). The deadline commences upon the receipt of the written notice, but not before the User is activated for the services of the Independent Collectors Website and not before the fulfillment of Independent Collectors' notice duties under § 312c section 2 BGB in conjunction with § 1 section 1, 2, and 4 BGB-InfoV and Independent Collectors' duties under § 312e section 1 clause 1 BGB in conjunction with § 3 BGB-InfoV. The timely sending of the revocation is sufficient for purposes of the revocation period. Revocation must be addressed to:
Independent Collectors GmbH
Zossener Str. 55, D-10961 Berlin, Germany
4.2 Consequences of revocation: In the event of effective revocation, the benefit received by each side shall be returned, and any profits therefrom (e.g. interest) surrendered. If the User is unable to return all or part of the performances he or she has received to Independent Collectors, or the User can return it only in a degraded or deteriorated condition, he or she must pay Independent Collectors the replacement value accordingly. Obligations to refund payments must be met within thirty (30) days. The period commences for the User with the sending of his or her revocation, for Independent Collectors upon the receipt thereof. For services, the User's right of revocation expires early if Independent Collectors commences the performance of the service before the end of the revocation period with the User's express consent, or if the User initiates it himself or herself.
5. User's general duties
5.1 The User shall use the contents and services of the Independent Collectors Website exclusively for his or her own purposes and shall observe these Terms and Conditions of Use, the applicable laws, and all third-party rights. The following are specifically prohibited to the User:
5.1.1 allowing third parties to use his or her user profile,
5.1.2 using the contents and services of the Independent Collectors Website in conjunction with other websites, application programs and scripts, or reading out these contents and services automatically, integrating them with other services, storing them, making them publicly available, or distributing them,
5.1.3 distributing viruses, worms, or trojans, collecting private data and e-mail addresses of other users, or performing other acts which can impair the operability or continued existence of the Independent Collectors Website or the security of other users,
5.1.4 making references to the commercial offers and websites of third parties, especially by means of links, in user profiles and in the contents entered, stored, made publicly available, or distributed by User,
5.1.5 entering, storing, making publicly available, or distributing the private information of third parties, particularly images, names, addresses, telephone numbers, Internet addresses or e-mail addresses,
5.1.6 entering, storing, making publicly available, or distributing contents which violate third-party rights, particularly copyrights or ancillary copyrights as well as patent rights, trademark rights, design patent rights, utility model rights, or personal rights,
5.1.7 entering, storing, making publicly available or distributing contents which are illegal, wrongful, threatening, offensive, libelous, racist, pornographic, dangerous to youth, indecent, political or ideological or which glorify violence,
5.1.8 performing anticompetitive acts and unreasonably disturbing other users, particularly through unsolicited ads and spamming.
5.2 If the User violates the foregoing duties, he or she is liable to Independent Collectors for the compensation of all resulting losses and expenses including any legal costs.
5.3 The User is responsible for taking reasonable precautions to back up and save the contents the User enters so that he or she is able to enjoy unlimited access to those contents even independent of the Independent Collectors Website.
6. Responsibility for contents
6.1 The User is permitted to enter, store, make publicly available, and distribute contents, particularly his or her user profile and image files of artworks with descriptions, on the Independent Collectors Website only if the User observes the duties described under Section 5. The User alone bears sole and unlimited responsibility for the contents he or she enters.
6.2 Independent Collectors gives no guarantee as to the truthfulness, appropriateness or quality of the contents of the User. Regardless thereof, Independent Collectors reserves the right to block, delete, or remove the contents of the User or exclude the User from the future use of the services of the Independent Collectors Website at any time and without stating its grounds.
6.3 The User expressly guarantees that he or she owns all rights to the contents he or she enters and that the entry, storage, publication, and distribution of those contents do not violate these Terms and Conditions of Use, applicable laws or third-party rights.
7. Assignment of rights
7.1 The User grants Independent Collectors the gratuitous, unlimited, irrevocable and non-exclusive right
7.1.1 to reproduce, distribute, hold ready for retrieval, and make publicly available the contents the User enters, particularly to store the contents on its own computers (web servers), make backup copies, and enable an unlimited number of users to access, retrieve and use the contents by means of all the public network services currently known (Internet, WWW, e-mail, and similar networks and services).
7.1.2 to modify, abridge or amend the contents the User enters in order to make them comply with these Terms and Conditions of Use, adapt them to the format of the Website, improve the display quality, or if necessary in order to perform the acts of use described above, and
7.1.3 to advertise in connection with the contents the User enters, particularly by inserting banner advertisements.
7.2 Independent Collectors can employ third parties to perform the acts of use described hereinabove and assign part or all of its right to use the contents to third parties or grant sublicenses.
8. Term and termination of the agreement
8.1 In the case of free registration as a guest, the agreement between Independent Collectors and the User runs indefinitely upon the User's activation for the Independent Collectors Website and can be terminated by the customer at any time and by Independent Collectors on two (2) weeks' notice at end of the month without stating a cause.
8.2 In the case of paid registration as a member, the agreement between Independent Collectors and the User initially runs for the usage period stated at registration commencing with the User's activation for the Independent Collectors Website. The agreement extends automatically for the extension period stated at registration if not terminated in writing by one of the parties on two (2) weeks' notice prior to the expiry of the usage period stated at registration or a subsequent extension period. If the User switches his or her registration from guest to member, the usage period commences upon Independent Collectors' receipt of the corresponding notice from the User.
8.3 Nothing herein shall be construed to affect the right of either party to terminate for cause. Independent Collector has cause to terminate when, in consideration of the totality of circumstances and the balance of the interests of both parties, the continuation of the agreement would be unreasonable because the User
8.3.1 is in violation of these Terms and Conditions of Use, applicable laws, or third-party rights,
8.3.2 has affected the Independent Collector Website's good reputation, its operability, or its continued existence,
8.3.3 has used the contents and services of the Independent Collectors Website inappropriately and in a manner inconsistent with its proper function or
8.3.4 has interfered with or prevented the use of the services of the Independent Collectors Website by other users or harmed other users.
8.4 The User can announce a termination by e-mail sent to the address email@example.com, fax or letter. The termination must contain the e-mail address stated by the User at registration. Independent Collectors can announce a termination by e-mail sent to the e-mail address given by the User at registration, or by fax or letter.
8.5 When cause for termination exists under Section 8.3, Independent collectors may instead of termination warn the User, delete some or all of the contents entered by the User, and/or exclude the User temporarily or permanently from the Independent Collectors Website.
8.6 The user's right to the refund of usage fees already paid is excluded if Independent Collectors terminates the agreement pursuant to Section 8.3 or takes action pursuant to Section 8.5. Upon termination of the agreement pursuant to Section 8.3 the User cannot reregister at the Independent Collectors Website without the prior written consent of Independent Collectors.
8.7 After the end of the agreement, Independent Collectors is entitled to delete the User profile and all the contents entered by the User. The User may not demand the return or any surrender of the contents.