For the establishment and on-going operation of an online, custom merchandise shop (“Shop”), the Shirtinator AG (“Shirtinator”) and the party opening, maintaining and/or promoting that shop (the “Shop Owner”) are the contracting parties.
2. Subject of the contract
(1) The Shop owner can choose between two different Shirtinator shop modules: a) the Shirtinator Affiliate Shop Module; and b) the Shirtinator Affiliate Creator module.
The two modules (hereinafter shop modules) can be combined with each other.
(2) The Shop owner integrates the shop module into his website, whereby the shop module may contain electronic advertisements such as banners. In exchange, the shop owner receives a performance-related, variable commission. The commission results from the sale of products through the shop module integrated by the affiliate.
(3) All products that are being sold by Shirtinator are referred to as Shirtinator products. These products will eventually be customised by the shop owner or customer, using his/her own designs or the design assortment offered by Shirtinator.
3. Granting of Usage Rights
(1) The Shop Owner grants Shirtinator the right to use the print designs. This right to use includes, but is not limited to, printing, publishing, reproducing and/or labelling Shirtinator products with the print design of the Shop Owner and print, publish, reproduce, offer and/or distribute such labelled products (hereafter referred to as “contractual products”) for the purposes of fulfilling the contracted services for a Shop.
(2) The granting of usage rights to Shirtinator takes place non-exclusively and for an unlimited period of time up to the canceling of the agreement by either. Any products on order, in the process of manufacturing, or in shipping before such cancellation will continue to be fulfilled.
(3) Copyrights or other rights to a print design provided by the Shop Owner remain with the Shop Owner. Shirtinator is not entitled to distribute designs of the owner either in its own shops, in shops of third parties or via other channels of distribution if the shop owner has not expressly agreed to this.
(4) Shirtinator is allowed to use the Shop Owner’s print design for advertising purposes on Shirtinator’s website or for other types of advertisement for Shirtinator.
4. Usage and Third-Party Rights
(1) The Shop Owner is solely responsible for the content (in particular print designs, background images, slogans, etc.) uploaded, or otherwise added through the Shirtinator interface, to the Shop.
(2) The Shop Owner guarantees that the content and/or print designs – which he provided for use to Shirtinator according to these general terms and conditions – was created by him and/or that he is the owner of all usage rights to the content and/or design, in particular rights concerning trademark, copyrights, patents, licenses and or other usage rights. The shop owner guarantees to be the sole and exclusive holder of the usage rights granted to Shirtinator according to these general terms and conditions.
(3) The Shop Owner guarantees that he does not know of any third-party rights which oppose or could oppose the use of the content and/or print design by Shirtinator according to these general terms and conditions.
(4) The Shop Owner assures that all content and print designs uploaded to the Shop are free of third-party rights and that their usage does not infringe upon patents, licenses, trademark rights or other third-party rights.
(5) The Shop Owners assures that the respective print design provided for use to Shirtinator is also in accordance with other statutory regulations, in particular legal regulations concerning protection of minors and does not violate any penal prohibitions.
(6) If third parties assert claims due to infringement of their rights resulting from the use of a design of the shop owner, Shirtinator reserves the right to withhold royalties (commissions) up to the final clarification of the legal dispute.
(7) If the design, which was licensed by the shop owners, is wrongfully used or obviously misappropriated, in opinion of Shirtinator, then the parties will jointly decide on the steps to be taken regarding prosecution.
(8) The Shop Owners is not liable for print designs provided by Shirtinator or provided on a one-off basis by the end customer to the Shop (in particular text personalization).
(9) The Shop Owner is obliged to immediately inform Shirtinator in writing if claims are made against the Shop Owner due to the infringement of third-party rights resulting from the content and/or print designs in the Shop.
(10) If third parties assert claims to Shirtinator due to infringement of their rights, then it is at the sole discretion of Shirtinator to remove the content and/or print design objected to, partly or completely, from the Shop.
5. Contact Details and Legal Information
(1) The Shop Owner must provide a complete and correct mailing address, as well as all legal information in the “legal information” of his Shop via the provided Shop Administration interface.
(2) If the Shop Owner fails to provide complete contact details and legal information, then the products of his shop will not be released for viewing to the end customer and cannot be ordered.
(3) Incorrect information in the “legal information” will result in the immediate cancelation of the shop and the withholding of possible existing commissions.
6. Payment of the Shop Owner
(1) The Shop Owner receives a commission for every product, for which he has set a commission, sold in his Shop, excluding returns.
(2) The amount of the commission is set by the Shop Owner via the Shop Administration interface for each individual product offered for sale.
(3) The product price is the Shirtinator base price, plus design fees, plus Shop Owner added commission. Shirtinator reserves the right to change of the base price of Shirtinators products at any time.
(4) Settlement and payment of the commission to the Shop Owner will be made monthly. The reference period for the commission payment is the month before. The minimum net amount payable is € 50,00.
(5) The Shop Owner is responsible for providing Shirtinator with his current, required, valid payment details. The Shop Owner will be held liable for providing incorrect payment details.
7. Embedding of the Partner Shop by the Shop Owner
(1) The Shop Owner can publish the Shop on his website; however, there is no obligation to do so. It is published via an electronic reference (“link”) provided by Shirtinator, which the Shop Owner embeds in his website and which refers to the Shop of the Shop Owner. If it is published, the Shop Owner is committed to include the link generated by Shirtinator without changes. In particular, the Shop Owner is not permitted to carry out changes which are related to the electronic advertisement linked to the shop or the publishing of general terms and conditions for the end customer.
8. Privity of Contract with End Customers; Rights to Change Service
(1) Customers purchasing products via the Shop are customers of Shirtinator. An independent privity of contract is created between customers and Shirtinator, which is independent of a possible privity of contract between the Shop Owner and the customer who visits the non-shop pages of the Shop Owner. Thus, only the rules, guidelines and business practices of Shirtinator regarding customer's orders, customer service and product sales apply to the customer.
(2) Shirtinator can change Shop Administration, shop offerings, product offerings, guidelines, pricing, availability, business operations, and order processing at any time, and temporarily.
(3) Shirtinator takes full responsibility for the whole fulfillment including payments, cancellations, returns and managing the customer care.
9. Sales Reports
Shirtinator registers the sales made through the Shop and provides the Shop Owner with a summary of the statistics. Form and content of the statistics can be modified by Shirtinator at any time.
10. Restriction of Liability, Exclusion of Liability and Release
(1) The Shop Owner is liable towards Shirtinator for all damages suffered by Shirtinator resulting from the use of the content and/or print design provided by the Shop Owner according to these general terms and conditions, in particular publishing and reproduction, when this violates third-party rights and/or infringes upon other statutory regulations.
(2) This liability of the Shop Owner includes all costs incurred by Shirtinator in the form of legal costs, as well as any costs and compensation payment which a court may award against Shirtinator, resulting from the usage of the content and/or print design of the Shop Owner, or in so far as Shirtinator is included in any settlement. The Shop Owner obligates himself to release Shirtinator of all aforementioned costs and damage claims. In such cases, Shirtinator is entitled to receive an advance payment from the Shop Owner to the amount of the estimated defense costs.
(3) A liability of Shirtinator towards the Shop Owner, no matter what the legal grounds is defined as follows:
Shirtinator is liable provided that the Shop Owner proves claims which are based on malice, willful intent, gross negligence or the breach of contractual duty on the part of Shirtinator, its executive employees or agents.
(4) Shirtinator’s liability in the case of negligent behaviour, as proven in above, is limited only to foreseeable, direct, consequential damage.
11. Period of Validity / Cancellation
This agreement is considered valid – for an unlimited amount of time – until it is cancelled by either party. Shop Owners cancel a Shop by deactivating it via the Shop Administration provided online by Shirtinator. Shirtinator cancels this agreement by notification to the Shop Partner via the email address provided in the Shop Administration.
12. Modifications of Provisions
(1) Shirtinator will publish any modifications of these general terms and conditions on its website “www.shirtinator.co.uk”. Shop Owners are bound to any modifications as long as this agreement or parts of it are considered valid.
(2) It is agreed that such a change affects neither other rights and duties articled in this agreement. If the shop owner does not agree with a modification made, a cancellation without notice is possible at any time.
13. Place of Jurisdiction – Place of Fulfillment – Choice of Law
(1) Place of fulfillment for all services is the place of business of Shirtinator in Munich, Germany.
(2) Munich, Germany is the place of general jurisdiction.
(3) If individual provisions of these general terms and conditions are ineffective or against any statutory regulations, the rest of the agreement remains in full effect.
Version 03/2013
