These General Terms and Conditions of Business and Use (hereinafter: GTC) constitute a legally binding contract (hereinafter: user contract) between you, a natural or legal person in any country in the world, and Diewald Digital GmbH, Webergasse 6, 88131 Lindau, Deutschland (hereinafter: photasky).
These GTC apply by checking the appropriate box during online registration. Please read these GTC carefully and completely before using photasky services (hereinafter: photasky services). Photasky services can be provided via all websites provided by photasky including all subdomains, the use of applications for mobile devices, programming interfaces, by telephone, by post, by fax or in person by a photasky employee. Photasky services and any infrastructure for the provision of photasky services are collectively referred to as the "photasky platform". If you do not agree with these GTC, you may not use any photasky services.
Members do not enter into any joint venture, employment relationship or other partnership with photasky through this user agreement or the use of the photasky platform.
For certain services, additional terms and conditions of business and/or use may apply, about which photasky will inform you in the context of the use of these services. These supplementary terms and conditions and/or terms of use apply to these specific services in addition to the GTC of this document and are included in this contract of use. In the event of a conflict with the GTC of this document, the supplementary provisions shall apply.
Furthermore, the user contract includes our data protection declaration for our website, which explains the collection and use of your personal data by the photasky platform.
These GTC replace all previous general terms and conditions between photasky and you with the exception of any individual additional agreements.
Any assignment, delegation or transfer of your license agreement requires the consent of photasky.
These GTC may be amended by photasky from time to time. In the event of such amendments, the amended GTC will be published on the photasky website, stating the date of amendment. We will also inform you of these changes by e-mail at least one month before they come into effect. If you do not agree with the changes, you have the right to terminate this contract free of charge and without notice. By not exercising this right of termination and continuing to use the photasky services, you agree to these amended GTC.
Photasky offers the following services as part of its photasky services:
Organizers and guests are referred to collectively as "users".
Links to third-party websites and resources may be included in the photasky services (hereinafter: third-party services). These third-party services may be subject to different terms of use and privacy policies. Photasky is not responsible for the availability or accuracy of such third-party services or for any content, services or products offered through such third-party services. Photasky does not make any recommendations through links to such third-party services.
For technical reasons, photasky cannot guarantee the continuous and uninterrupted availability of the photasky platform. Photasky may improve the photasky platform, develop it further and add new services or restrict or delete functions.
Photasky provides its photasky platform "as is". You are entitled to statutory warranty rights with regard to this provision of services. All further express or implied warranties, guarantees or other assurances are excluded.
There is no obligation on the part of photasky to monitor users and the data they generate when using the photasky platform. No data/content provided by members must be checked, edited or blocked. However, photasky is authorized to create and evaluate logs in order to ensure compliance with these GTC as well as the operation and further development of the photasky platform.
Registration as a member, i.e. the creation of a "photasky account", is required for the use of photasky services for the organizer.
If you register a legal entity as a member, you warrant that you have the power of attorney to legally represent and legally bind this legal entity.
Photasky may make the use of photasky services dependent on conditions at its own discretion, such as the successful completion of a verification/identification procedure, the achievement of defined rating values or the fulfillment of other specific criteria. Photasky may refuse to accept members without giving reasons. Photasky is generally not subject to an obligation to verify members.
Registering as a member requires correct and complete information. In addition, your information as a member must always be kept up to date.
You are responsible for keeping your login data secret and not making it accessible to third parties. You are obliged to inform photasky immediately if you have reason to believe that your login data has been stolen, lost or misused or if your photasky account has been accessed in a proven or suspected unauthorized manner. If you fail to do so, you will be responsible for any misuse of your photasky account.
All members are solely responsible for their knowledge of and compliance with all rules, laws, regulations, provisions, tax and duty obligations, data protection guidelines and payments in connection with the use of the photasky platform. In connection with the use of the photasky platform, all members are prohibited from violating or circumventing applicable laws, regulations, other rights of third parties, applicable contracts with third parties or these GTC or supporting third parties in doing so.
Discrimination based on gender, religion, origin, disability of any kind, state of health, sexual orientation or age or any other harmful behavior will result in immediate termination of membership.
In connection with the use of the photasky platform, all members are prohibited from harming other persons or infringing their rights, or supporting third parties in doing so.
Members who have behaved inappropriately towards other members, for example through acts of violence, theft or insults, are to be reported to photasky and, in the event of criminally relevant facts, to the criminal prosecution authorities.
Members shall support photasky in investigations regarding misuse of the photasky platform.
Members who use photasky services for third parties are responsible for them to the same extent as if they had booked them for themselves.
These GTC do not constitute a license to use photasky's intellectual property rights.
In connection with the use of the photasky platform, all members are prohibited from storing, copying or otherwise using information, e.g. personal data, from the photasky platform in a way that is incompatible with the privacy policy, these GTC or other data protection rights of members or third parties, or to support third parties in doing so.
The use of the photasky platform for services other than those intended by photasky is not permitted. In particular, members are prohibited from initiating the distribution of commercial messages ("spam") that have not been expressly authorized by photasky via the photasky platform or from supporting third parties in doing so.
Members are prohibited from performing actions themselves or enabling third parties to perform actions that could damage or potentially damage the required functions of the photasky platform in any way. In particular, they may not access the photasky platform by means of automated programs or procedures (e.g. bots, crawlers, etc.). Measures to protect the photasky platform may not be circumvented, deactivated, decrypted, decompiled, reverse engineered or otherwise undermined or disrupted.
The organizers themselves must ensure that all conditions associated with their event are complied with. These are in particular, but not exclusively:
The guests themselves must ensure that they comply with all conditions associated with the provision of their content. These are in particular, but not exclusively:
Photasky allows its members, in particular guests, to upload, create, publish, receive, send and store text, audio, video and/or image content and information on or via the photasky platform (hereinafter: Member Content) or to send it to photasky by e-mail.
The members are responsible for ensuring that no intellectual property rights or personal rights are infringed.
Except for the rights and licenses expressly granted in these Terms, no licenses or intellectual property rights of photasky or its licensors are granted to you by implication or otherwise.
By creating, uploading, posting, publishing, receiving, storing or otherwise making available Member Content through the photasky Platform or submitting such content to photasky, you grant photasky and the organizer a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sublicensable and transferable license to such Member Content to access, store, use, modify, copy, create derivative works from, distribute, transmit, publish, stream, broadcast and otherwise exploit such Member Content.
No Member Content may be posted that is fraudulent, misleading, offensive, obscene, defamatory, pornographic, violent, mean, unlawful, vulgar or otherwise objectionable. Photasky may, at its sole discretion, delete or block access to such Member Content or Member Content that violates other terms and conditions, but is under no legal obligation to do so.
Membership can be terminated by any member without notice. This can be done either by deleting the account or by sending an e-mail to leave@photasky.net.
For certain reasons, it may be necessary for photasky to block or delete individual photo task cards, complete photo task sets or digital guestbooks, for example to prevent damage or to react to content-related violations (see chapter "Member content"). Photasky may terminate or temporarily or permanently block memberships for which the last photo task set or digital guestbook was created more than three months ago at any time without giving a reason. If the member (i) violates the obligations under this contract or applicable regulations/laws, (ii) photasky has reasonable grounds to believe that the property, safety or rights of photasky, members or third parties are at risk, (iii) there is a corresponding request from a law enforcement agency or other official body, (iv) there are payment arrears to photasky, (v) repeated complaints about the member are received by photasky, (vi) the member has repeatedly received bad ratings or comments or (vii) false information was provided when registering as a photasky member, photasky may terminate or temporarily or permanently block the membership even if the last photo task set or digital guestbooks was created less than three months ago. In this case, photasky may delete the accrued data.
There is no entitlement to compensation from photasky if photo task sets, digital guestbooks or memberships are blocked or deleted by photasky for a valid reason.
In the event of termination of the user contract by photasky, the member has no right to further use of his/her photasky account, may not register a new photasky account or use photasky via the account of another member.
After termination, the clauses of this contract of use remain in force.
Photasky only provides the services described under "Description of services" and is therefore not liable for any damages arising from the member content provided.
Members shall bear the entire risk associated with the use of the photasky platform and its content to the fullest extent permitted by law. Photasky and no other party involved in the production, creation or publication of the photasky platform or its content shall be liable for any incidental, special, exemplary or consequential damages, including, but not limited to, service interruption, loss of goodwill, damage to systems or computers, loss of data, loss of profits or compensation. This applies in connection with (i) these T&Cs, (ii) the use or inability to use the photasky platform (including content), (iii) interaction with other members or other persons in relation to the use of the photasky platform, (iv) the distribution of QR code cards, regardless of whether based on contract, tort including negligence, warranty, product liability or other legal theories, and (v) criminal prosecution.
The limitations and exclusions of liability set out in these GTC do not result in a general limitation or exclusion of your consumer protection rights, the exclusion of which is unlawful.
Excluded from the above limitations of liability are claims for damages by the user that are based on an intentional or grossly negligent breach of duty by photasky or its legal representatives and vicarious agents.
Photasky and its officers, employees, agents and contractors shall be indemnified by you against all damages, claims, demands, liabilities, losses and expenses (including legal and/or accounting fees) arising out of or in any way connected with (i) the use of the photasky platform in an improper manner, (ii) the violation of these T&Cs or any other of our policies, (iii) the distribution of QR code cards, in particular for any loss or damage (whether direct, compensatory, indirect, consequential or otherwise) of any kind arising out of or in connection with a distribution action, (iv) violations of applicable law, third party regulations or (v) the infringement of third party rights.
The law of the Federal Republic of Germany shall apply to legal relationships between the parties, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The statutory provisions restricting the choice of law and the applicability of mandatory provisions, in particular of the country in which you as a consumer have your habitual residence, remain unaffected. Place of jurisdiction and place of fulfillment is the registered office of photasky in Herford.
Alternatively, the parties may choose ICC arbitration. In this case, a final decision will be made in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC) without recourse to the ordinary courts of law. The arbitral tribunal shall consist of a sole arbitrator. The place of arbitration is Zurich. The language of the proceedings shall be German or English. The applicable law in the matter is German law.
If consumers are involved in the dispute, the parties can also use the EU platform for out-of-court online dispute resolution(https://ec.europa.eu/consumers/odr).
For disputes between members, the parties can turn to photasky's free dispute resolution service(mediation@photasky.net). The parties will each receive an arbitration agreement, which they must agree to. They are also given the opportunity to comment on the dispute. The procedure is purely written; witness hearings are excluded. Evidence must be submitted as files. Photasky decides on the basis of the available documents and notifies the parties of its decision in writing by e-mail. The parties may refer the decision to the ordinary courts. However, Photasky is entitled to block the photasky account of one or both parties until the proceedings have been concluded.
You agree to the storage of personal data within the scope of the legal relationship with photasky, in compliance with data protection laws, in particular the BDSG and the GDPR. Data will not be passed on to third parties unless this is necessary for the execution of the contractual relationship or consent has been given.
If you transmit personal data of third parties, you assure that the consent of the third parties has been obtained. If you receive personal data from third parties from photasky, this data must be handled with care in accordance with data protection regulations. You hereby indemnify photasky from any claims of third parties in this regard.
Your rights or those of the data subject affected by the data processing arise in particular from the following standards of the GDPR:
To exercise your rights, you or the data subject are requested to contact the provider by e-mail or, in the event of a complaint, the competent supervisory authority.
Please also refer to the privacy policy on the photasky website.
These GTC, supplemented by all relevant standards and guidelines (e.g. data protection guidelines), represent the agreement concluded between you and photasky on the subject matter of the contract.
No rights or remedies shall be transferred to other parties or persons via these GTC.
The validity of the remaining provisions of these GTC shall not be affected by the full or partial invalidity of individual provisions. Provisions that have become invalid shall be replaced by statutory provisions.
If photasky does not make use of a provision or a right of these GTC, this shall not constitute a waiver of this provision or this right, unless this has been confirmed in writing.