General Terms and Conditions of Deep Art Effects GmbH

1. Scope

1.1. These general terms and conditions („GTC“) shall apply to all services described or referenced herein (including the provision of the App as defined herein, the “Service(s)”) provided by Deep Art Effects GmbH („Deep Art Effects“) to customer (“User”).

1.2. Deep Art Effects will provide all Services exclusively based on the GTC. Other terms and conditions, in particular other general terms and conditions of the User, shall not apply.

2. Prerequisite for the Utilization of the Services

2.1. Prerequisite for use of the Services is the download and the installation of the Deep Art Effects-App (“App”) from the App-Store available to the User.

2.2. For using the App-Store further general terms and conditions of the App-Store-Operator (“App-Store-GTC”) have to be accepted and observed if necessary. The App-Store-GTC shall apply solely between the App-Store-Operator and the User and do not affect the GTC as in effect between Deep Art Effects and the User.

3. Conclusion of Agreement

3.1. An agreement is concluded with downloading and installation of the App and the thereby electronically declared confirmation of these GTC.

3.2. The Services to be provided by Deep Art Effects are defined exclusively in the Service-description in the App (as available in the App-Store) and by the GTC. In case of discrepancies between the Service-description and the GTC, the provisions of the GTC prevail.

4. Scope of Services

Deep Art Effects provides User with the possibility to edit photos software-based in an artistic way. For this purpose, various templates are available to User which can be applied to the uploaded photos in order to make them appear in a certain art form (e.g., impressionism). The User can upload its photo into the Service via the App and receives the edited photo (the edited photo(s) hereafter referred to as “Photo(s)”) back shortly afterwards (it will be loaded into the App). Furthermore, User has the possibility to buy from Deep Art Effects against payment (i) a digital high-definition copy of the Photo and/or (ii) printed versions of the digital high-definition copy of the Photo.

5. Granting of Rights

5.1. Deep Art Effects grants User a non-exclusive, non-perpetual, non-transferable, non-sub licensable, terminable und revocable right to download and to install the App in object-code-format on its smartphone or tablet computer and to use the App (and the available updates) and the Service for its purposes.

5.2. User can use the Photos without any restrictions (in relation to Deep Art Effects).

6. Obligations of Users

6.1. User ensures that it has the necessary rights to edit the photos through the Service.

6.2. User shall be solely responsible for photos uploaded by it into the Service (and for the edited Photos). Deep Art Effects will not perform any check with respect to the photos.

6.3. User will indemnify Deep Art Effects in each case where a third party takes legal action against Deep Art Effects with the allegation that a Photos or the edition of a photo infringes such third party’s rights.

7. Change of GTC

7.1. Deep Art Effects can change the GTC as follows: if the proposed change is reasonable and is not materially detrimental to User, Deep Art Effects can inform User at least six (6) weeks before the change shall take effect. This information is provided either in the App or per email. The change is deemed to be accepted if User does not object to it per e-mail within four (4) weeks after the information was sent. Deep Art Effects will make User aware of this consequence again in the information about the intended change. In the event that User objects, Deep Art Effects is entitled to terminate the Agreement for cause.

7.2. If a change cannot be agreed pursuant to Section 7.1, the parties can agree on it by way of a change agreement in text form.

8. Remuneration and Terms of Payment

8.1. The purchase of a digital high-definition copy of the Photo and the purchase of a printed version of a digital high-definition copy is subject to the payment of charges; apart from that, the download, the installation and the use of the App and of the Services are free of charge. The current charges for the payable part of the Services and the payment options will be displayed in the App.

8.2. The invoicing and payment for payable Services takes place either by mobile phone bill or through the App-Store.

8.3. In case of late payments, Deep Art Effects is – without prejudice to any other rights – entitled to charge interest at the statutory rate and to suspend or to prohibit the use of the App and the Service by the User.

8.4. The payable part of the Services covers goods which are created individually for the User; for this reason, User has no revocation right.

9. Warranty

9.1. To the extent that the Service (including the provision of the App) is provided free of charge, Deep Art Effects assumes no warranty for the quality of the Service.

9.2. In the other cases, the legal warranty rights shall apply with a period of twelve (12) months starting when the Photo bought by User has been sent.

10. Liability

10.1. Subject to the provisions of this Section 10, the parties are each liable pursuant to statutory provisions. The following provisions shall apply to all claims for damages and reimbursement of expenses, irrespective of their legal grounds.

10.2. For damage caused intentionally or through gross negligence by Deep Art Effects as well as for damage resulting from injury to life, limb or health and for damage within the scope of mandatory product liability law which does not allow a contractual limitation of liability, Deep Art Effects shall be liable pursuant to the statutory provisions.

10.3. To the extent that Deep Art Effects provides the Services free of charge, Deep Art Effects’ other liability is excluded.

10.4. In the other cases the following applies: For damage caused by Deep Art Effects through a slightly negligent breach of a material contractual obligation, Deep Art Effects’ liability is limited to the foreseeable and typical damage. Material contractual obligations are obligations which enable the fulfilment of the proper performance of the agreement in the first place and in the compliance of which the User can regularly rely on. Subject to Section 10.2, the liability of Deep Art Effects in case of a slightly negligent breach of obligations other than material contractual obligations shall be excluded.

11. Data Protection

Deep Art Effects will collect, process and utilize personal data exclusively for the purpose of the performance of the agreement with User.

12. Termination

12.1. User may terminate the agreement at any time by uninstalling the App.

12.2. The right to terminate for cause remains untouched for both parties. Deep Art Effects may terminate the agreement for cause, by way of example, if User has not paid an invoice after receiving a warning notice with a grace period, after the grace period has expired without User having paid the amount due.

12.3. A termination right must be exercised in writing or per e-mail or, if Deep Art Effects terminates– through a notification in the App.

13. Miscellaneous

13.1. Changes to the agreement including side agreements must be made in text form in order to be effective, subject to Section 7. Oral agreements are invalid.

13.2. User is not entitled to offset against claims of Deep Art Effects or to exercise a retention right unless undisputed or recognized claims are concerned.

13.3. To the extent not expressly agreed in text form, User is not entitled to transfer claims from the agreement.

13.4. The agreement is subject to German law without its conflict-of-laws-rules. The courts at the registered seats of Deep Art Effects in Germany shall have exclusive jurisdiction.

13.5. Should one or more of the provisions in the GTC become invalid, the effectiveness of the remaining provisions will not be affected. The ineffective provision shall be replaced by an effective provision, which will be as close as possible to the original provision in meaning and purpose.