2. ELIGIBILITY TO USE ORDERANDFRIENDS BY DRESSANDFRIENDS
2.1 – The registration is exclusively provided to (i) entrepreneurs (Unternehmer) within the meaning of Section 14 of the German Civil Code (BGB), (ii) legal persons constituted under public law (juristische Personen des öffentlichen Rechts) or (iii) public sector funding companies (öffentlich-rechtliche Sondervermögen).
2.2 – User may not use or register to use Orderandfriends for the duration of a suspension if User has been suspended from the Service by Dressandfriends or if User has been terminated from the Service by Dressandfriends.
3. SUBJECT MATTER OF THE SERVICE
3.1 – The scope of the Services and its respective conditions of performance are specified on Plans and Pricing., which is part of the Agreement.
3.2 – The User may via Plans and Pricing. upgrade certain Services at any time. The provision of the upgraded Paid Service and the corresponding Payment Plan Period (as defined in Sec. 7.1) for the upgraded Service starts as soon as the validation for payment of the first payable Payment Plan Period has been made.
3.3 – The User may at any time via Plans and Pricing. cancel or downgrade any Paid Service individually. The cancellation/downgrade will be effective as of the expiration of the current Payment Plan Period (as defined in Sec. 7.1) of the Paid Service to be canceled /downgraded.
4. USER ACCOUNT
4.1 – User is provided with a log in ID and corresponding self elected account password (hereinafter referred to as Login Information) to access the Services
4.2 – User will ensure that the Login Information is kept strictly confidential at all times in order to ensure that unauthorized individuals cannot access the Services. User will bind his employees accordingly in order to ensure that only designated personnel authorized by the User will use the Login Information to access and use the Services. User shall modify its Login Information immediately in case that an unauthorized person has access to its Login Information.
4.3 – User is responsible and liable for all activities occurring under User's Login Information, whether or not authorized by User, except for damages caused by any gross negligent or intentional conduct of Dressandfriends.
4.4 – User can delete its User Account at any time by way of accessing the profile settings. User is solely responsible for the correct cancellation. A telephone request or e-mail from User to cancel the User Account will not be considered a correct cancellation. Upon cancellation of User Account, any and all content of the Secure Showroom(s) (as described on Plans and Pricing.) provided by User will be automatically and irretrievably deleted by Dressandfriends, except data Dressandfriends is obligated to store for a certain period of time in accordance with applicable laws and regulations.
5. ACCESS TO THE SERVICES
In order to access and interact with the respective Service, User must be able to operate and maintain the necessary software and hardware, including, without limitation, web browser software and appropriate communications infrastructure. User acknowledges that the technical access requirements for using the Services are in its sole responsibility. Dressandfriends is in no way responsible or liable for User's access to the internet, including without limitation any connection speed issues, bandwidth or latency-related problems that may affect User's ability to access and use the respective Service.
6. SCOPE OF DRESSANDFRIENDS'S LIABILITY
Dressandfriends will take measures to ensure a high availability of its servers. However, it is not possible to guarantee an uninterrupted availability. Dressandfriends will not be liable for any damages resulting from server downtime which is necessary to maintain the servers and their functionality.
6.2 – Dressandfriends does provide the Free Services, “as is”. Dressandfriends, therefore, does not assume any further liability.
6.3 – Dressandfriends does not ensure the correctness of the information posted by other Users and/or third parties on Orderandfriends. Dressandfriends does not endeavour to check whether the information is current, accurate and complete or fulfil any requirements imposed by law or any professional body.
6.4 – For the avoidance of doubt, Dressandfriends shall be liable for fatal or physical injuries, damage to health and in accordance with the regulations of the law on product liability in the case of deliberate acts or gross negligence.
6.5 – If a fundamental contractual obligation (key obligation, i.e. the provision of Paid Services) has been breached due to slight negligence on behalf of Dressandfriends, Dressandfriends is only liable where and insofar the losses incurred are foreseeable and typical within the context of the business in question.
6.6 – Without prejudice to Sec. 6.4 and 6.5, Dressandfriends shall not be liable for more extensive losses. In particular, Dressandfriends shall not be liable for initial defects.
6.7 – Liability for loss of data is limited to the typical effort required to restore the data which would exist where backup copies had been produced regularly and in line with the risks involved.
6.8 – The limitations to liability set out above shall also apply to personal liability of agents, employees and representatives of Dressandfriends by means of protective effective effect to such third parties.
7. PAYMENT OF PAID SERVICES
7.1 – If not otherwise agreed between the parties, Payment will be due in advance for each account period of thirty (30) days beginning at 12 a.m. (midnight) CET following the registration (hereinafter referred to as Payment Plan Period) and is payable by direct credit card debiting unless otherwise agreed.
7.2 - In case a Paid Service is provided as “Free Trial” for the first Payment Plan Period, payment will be due for the first time after the first Payment Plan Period (hereinafter referred to as Free Trial Period) in advance for the next Payment Plan Period following the Free Trail Period. Any Payment Plan Period (including the Free Trial Period) commences on midnight after successful validation for payment of the first payable Payment Plan Period has been made after ordering the respective Paid Service. Validation and ordering /registration takes usually place on the same day (e.g. in case User registers for a Free Trial of a Paid Service of 30 days on 1 January at 2:00 pm CET the 30 days Free Trial period starts usually on 2 January at midnight CET (start of the day) and will last until the end of 31 January (CET)).
7.3 - Unless pre payment is required or made, invoices shall be payable in full within 14 days after the commencement of each Payment Plan Period. The User shall be in default of payment upon expiry of such payment period. Without prejudice to any damage claims of Dressandfriends (e.g. futile banking fees) due to User's default, claims Interest shall be payable on the fees due for the duration of the default at a rate of 8 percent above the base rate (Basiszinssatz), subject to a minimum of 12 percent p.a. Dressandfriends reserves the right to assert claims in respect of default losses in excess of such interest. This shall be without prejudice to the Dressandfriends's right to claim commercial default interest (kaufmännischer Fälligkeitszins) from business persons (Kaufleute) (Section 353 of the German Commercial Code, HGB).
7.4 – User acknowledges that there will be no refunds for any Paid Services not used but ordered by User.
7.5 – Client is only entitled to offset receivables (if any) due from Dressandfriends against amounts payable to Dressandfriends if these receivables are undisputed or are recognized by a final declaratory judgment. The same shall apply accordingly to the right of retention, which may only be exercised effectively if the Client's counterclaim is based on the same contractual relationship.
8.1 – Any data, pictures, information, etc. that User uploads, stores, transmits or submits to Dressandfriends's website (hereinafter referred to as Content) are generated by the User, but not by Dressandfriends. User's Content therefore remains in User`s sole responsibility. Dressandfriends assumes no responsibility or liability which may arise from the Content of Orderandfriends and the Services, including, but not limited to, claims for libel, slander, defamation, invasion of privacy and publicity rights, pornography, obscenity, fraud, or misrepresentation.
8.2 – User guarantees that the Content comply with the applicable laws. In particular User acknowledges not to send unsolicited e-mail (e.g. as Invitation), including promotions and/or advertising of products or services to third parties or to provide any incomplete, false, inaccurate or misleading information, including‚ but not limited to‚ information for Event Listings and News (as described in the Tour).
8.3 – User agrees not to attempt to interfere with Orderandfriends to any client, host or network, including, without limitation, via means of submitting a virus to Orderandfriends, overloading, “flooding”, “spamming”, “mail bombing” or “crashing” or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment actual or attempted unauthorized use of the Orderandfriends may result in criminal and/or civil prosecution.
8.4 – User acknowledges and agrees that Dressandfriends cannot and does not generally review the Content created or uploaded by any User of the Services. User acknowledges and agrees that Dressandfriends does not undertake or assume any duty to generally monitor Orderandfriends for inappropriate Content.
8.5 – Notwithstanding the foregoing Dressandfriends reserves the right to block, remove or delete any Content, if Dressandfriends, in its own sole and unfettered discretion, has reason to believe that such Content and/or other data or information may infringe the rights of a third party or may violate applicable laws.
8.6 – With regard to Events and News (as described in the Tour), Dressandfriends retains – in its sole discretion – the right whether it publishes the submitted Content or not. User acknowledges that upon deletion of its User Account User will no longer be able to access or delete any Content provided to Dressandfriends for Events and/or News (as described in the Tour). User acknowledges and assumes the risk of the possibility of suspension or termination of its User Account as provided under Sec. 12. Therefore User shall ensure that he is willing to permanently lose access to any Content stored in News and/or Events (as described in the Tour).
8.7 – As far as Dressandfriends may offer a platform for Users to attend communication with other Users, Dressandfriends does not sponsor, oversee or in any way control such communication between Users. DFF-User understands and agrees that DFF-Users organize and participate in communication at own risk and Dressandfriends does not bear any responsibility or liability for the actions of any DFF-Users or any third parties who organize, attend or are otherwise involved in any such communication.
9.2 - Invitations are made at User's own risk. This also applies to Invitations (as described in the Tour) to Secure Showrooms (as described on Plans and Pricing). User is aware that any confidential material he displays on a Secure Showroom may be viewed by third parties which have access to an Invitation.
9.3 - Any personal data which User receives by third parties (including but not limited to names and e-mail addresses submitted for Event Listing guest lists (as described in the Tour) must be treated in accordance with applicable data protection law. When in doubt, personal data must be deleted without delay after the intended use of their submission has expired.
10. GRANT OF LICENSE
10.1 – By submitting/uploading Content (including but not limited to trademarks, images, photos or information for Secure Showrooms (as described on Plans and Pricing), Events or News (as described in the Tour) User grants Dressandfriends the non-royalty-bearing, non-exclusive, worldwide right to use, change and make the Content publicly available (in particular to copy, store, to format as may be required for its use). This includes the right to make screen shots for the functionalities of Orderandfriends (unless the images in question are exclusively intended for a Secure Showroom).
10.2 – Subject to the approval of Dressandfriends User can embed the Stream (as described in the Tour) into the User's look and feel (e.g. Stream in the look and feel of User's company). User grants Dressandfriends for the duration of the display of the Embedded Site and/or the Widget the non-royalty-bearing, non-exclusive, worldwide and sub-licensable right to use, change and make the User's materials which are used for the Embedded Site and/or the Widget publicly available (in particular to copy, store, to format as may be required for its use).
10.3 – The license under this Sec. 10 is granted by User for up until one month after termination/expiration of the Agreement. However, if User does not delete Content posted by him (or on his behalf) which is publicly available to any User, this is deemed as a licensing for the time the Content has not been deleted by User. User acknowledges that this deletion is only possible as long as User Account is active.
11. USER'S REPRESENTATIONS AND WARRANTIES / INDEMNIFICATION
11.2 – The DFF-User is responsible for ensuring that all Content which is provided to Dressandfriends is current, accurate and complete and will bind its personnel accordingly. This applies also to the information submitted by DFF-Users receiving Invitations.
11.3 – DFF-User further represents and warrants that the Content which is uploaded or submitted otherwise by DFF-User (and DFF-User's personnel) to Orderandfriends or which is used for his Embedded Site
is correct and not misleading, and
does not infringe any third party rights or applicable laws or regulations, including, without limitation, any copyrights, privacy rights or other third party rights of any nature.
11.4 – User further represents and warrants that neither he nor his personnel will copy or misappropriate any trade secrets of others, including but not limited to non-public information displayed in the Secure Showrooms.
11.5 – User agrees to fully and effectively indemnify, defend, and hold harmless Dressandfriends and Dressandfriends's representatives, employees or vicarious agents from any and all claims asserted in relation to the Content upload/submitted by User including reasonable legal fees.
12. SUSPENSION OF SERVICES
Dressandfriends may at any time suspend the provision of any Service to User with immediate effect by giving notice to User if there is (in Dressandfriends's reasonable discretion) an indication for a breach of third party rights by the User.
13. TERM AND TERMINATION
13.1 – The term of the Agreement commences upon User's registration.
13.2 – Without prejudice to Sec. 13.4, the Payment Plan Period for each ordered Paid Service renews automatically. User may cancel Paid Services in accordance with Sec. 3.3 at any time taking effect with the expiration of the current Payment Plan Period. User has to cancel each Paid Service individually using the profile settings.
13.3 - User may terminate the Agreement entirely by deleting User Account according to Sec. 4.4 at any time.
13.4 – Dressandfriends can suspend or terminate the provision of any Free Service at any time without giving notice.
13.5 – Dressandfriends is entitled to cancel the provision of any Paid Service without giving reason with a 30 days notice to the end of the current Payment Plan Period relating to a specific Paid Service.
13.7 – User acknowledges that there will be no refunds for any Paid Services in case of deleting User Account during the Payment Plan Period.
13.8 – In case of termination Dressandfriends is entitled but not obliged to deactivate User's settings and all data received (if any) on the public space of Orderandfriends. User may deactivate its settings and all data provided to public spaces (e.g. News, Events as described in Tour etc.) as long as User is in possession of a User Account. Content which is exclusively intended for a Secure Showroom (as described under Plans and Pricing) will be deleted automatically by deleting the User Account.
14. CHANGES OR DISCONTINUATION OF DRESSANDFRIENDS AND SERVICES
14.1 – Dressandfriends reserves the right at any time to change, modify, suspend, discontinue, terminate or close down its website and/or Services (or any part thereof).
14.2 – User agrees that Dressandfriends shall not be liable to User or to any third party for any changes, modifications, suspension, discontinuance, termination or close down of the Website and/or Services and/or User's possibility to use or access Orderandfriends and/or the Services.
15. GENERAL PROVISIONS
15.3 - The sole venue for all disputes arising directly or indirectly out of or in connection with the contract shall be Dressandfriends's place of business. However, Dressandfriends may also bring an action at the general place of jurisdiction of the User.