Shop Owners: Terms & Conditions

General Terms and Conditions of sprd.net AG
for establishing a Partner Shop
(short form: Shop Owner Terms and Conditions)

Preamble

For the establishment of a partner shop according to this online offer sprd.net AG is the contracting party, represented by the managing directors: Philip Rooke and Tobias Schaugg, Gießerstraße 27, 04229 Leipzig, Germany, hereafter referred to as "Spreadshirt".

§ 1 Object of the Agreement

(1) The shop owner provides one or several print designs and embeds the Spreadshirt shop module on his website, including the electronic ad in it placed by Spreadshirt. In return, the shop owner – instead of a fixed remuneration – receives a profit-related variable commission according to § 5 of this agreement which results from the sale of Spreadshirt products via the the shop owner´s published shop module.

(2) Spreadshirt products are products which are offered for sale by Spreadshirt and, as the case may be, are printed with the designs provided by Spreadshirt, the shop owner or the end customer (in the following also referred to as products).

§ 2 Copyrights on Print Designs / Granting of Usage Rights

(1) In each case, the shop owners grants Spreadshirt the right to use the uploaded print design with an offer for a usage agreement according to § 1 (2), in particular to publish, reproduce and/or label products from Spreadshirt with the design of the contracting party and publish, reproduce, offer and distribute such labeled products.

(2) The granting of usage rights to the advantage of Spreadshirt according to § 2 (1) takes place non-exclusively, regionally unlimited and for an unlimited period of time up to the canceling of the agreement by one of the two contracting parties according to § 11.

(3) Possible copyrights or other rights to a print design provided by the shop owner remain with the shop owner. Spreadshirt 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) Spreadshirt is allowed to use the design for advertising purposes on Spreadshirt´s website or for other types of advertisement for Spreadshirt. In such cases, Spreadshirt guarantees the linking of the design with the shop of the author.

§ 3 Third-Party Rights

(1) The shops owner is solely responsible for the contents (in particular print designs, background images, slogans, etc.) uploaded to the shop.

(2) The shop owner guarantees that the design – which he provided for use to Spreadshirt according to these general terms and conditions – was created by him and/or that he is the owner of all usage rights to the design, in particular rights concerning trademark, copyright and design. The shop owner guarantees to be the sole and exclusive holder of the usage rights granted to Spreadshirt 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 design by Spreadshirt according to these general terms and conditions.

(4) The shop owner assures that all contents uploaded to his 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 contracting party assures that the respective design provided for use to Spreadshirt 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, Spreadshirt 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 Spreadshirt, then the parties will jointly decide on the steps to be taken regarding prosecution.

(8) The shop owners are not liable for print designs provided by Spreadshirt or provided on a one-off basis by the end customer to the partner shop (in particular text personalization).

(9) The shop owner is obliged to immediately inform Spreadshirt in writing if claims are made against the shop owner due to the infringement of third-party rights resulting from the contents uploaded to the shop.

(10) If third parties assert claims to Spreadshirt due to infringement of their rights, then it is at the sole discretion of Spreadshirt to remove the contents objected to, partly or completely, from the partner shop.

§ 4 Contact Details and Legal Information (as required by German Law)

(1) The shop owner is obliged to provide a complete and correct mailing address as well as all legal information in the “legal information” of his shop.

(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) Wrong information in the “legal information“ will result in the immediate cancelation of the shop and the withholding of possible existing commissions.

§ 5 Payment of the Shop Owner

(1) The payment of the shop owner for the provision of designs as well as for placing electronic ads is profit-related. The shop owner receives a commission for every product sold on his published shop module.

Commercial shop owners in Germany with furnished proof of the obligation to pay sales tax receive, apart from the commission, also the sales tax incurred from that commission. The shifting of the obligation to pay sales tax ("reverse charge") is valid for commercial shop owners from EU countries other than Germany for electronic services according to the 6th EU Value-Added Tax Directive.

The product price for the end customer consists of a Spreadshirt basic price for product and print as well as the commission of the shop owner.

(2) The amount of the commission varies and can be set freely by the shop owner within his shop module for each individual product offered for sale.

(3) Spreadshirt reserves the right to undertake changes of the basic price of Spreadshirt products.

(4) Settlement and payment of the sales commission to the shop owner will be made quarterly at the end of a calendar quarter. The minimum amount payable is 10.00 € for shop owners from Germany and 50.00 € for owners not resident in Germany. If the commission exceeds an amount of 100.00 €, then the shop owner can demand payment at any time but not more often than once a month. Spreadshirt can decide if payment is made per transfer or cheque. Amounts which lie beneath the minimum amount payable are paid after cancelation of all partner agreements within six months of the cancelation coming into effect, if no new partner agreement is concluded by the shop owner within this period.

(5) The shop owner is responsible for providing Spreadshirt with his current valid bank details. The shop owner will be held liable for providing wrong bank details. The shop owner is also responsible for providing Spreadshirt with his/her VAT identification number if payment of commissions is made including the statutory sales tax. If no tax number is provided then payment of commissions is made without sales tax.

§ 6 Embedding of the Partner Shop by the Shop Owner

(1) The shop owner can publish the shop module offered by Spreadshirt on his website; however, there is no obligation to do so. It is published via an electronic reference (“link”) provided by Spreadshirt, 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 Spreadshirt without changes on his website. 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.

(2) On request, a shop free of advertisement can be acquired in return for a monthly fee.

§ 7 Privity of Contract with End Customers

(1) Customers purchasing products via the shop module are customers of Spreadshirt. An independent privity of contract is created between customers and Spreadshirt, which is independent of a possible privity of contract between the shop owner and the customer who visits the page of the shop owner. Thus, only the rules, guidelines and business practices of Spreadshirt regarding customer´s orders, customer service and product sales apply to the customer.

(2) Spreadshirt can change guidelines and business operations as well as order processing at any time. Product prices and availability can change temporarily.

§ 8 Enquiries / Purchase Order Processing

(1) Spreadshirt reserves the right to reject enquiries and orders which do not meet the respective requirements set by Spreadshirt.

(2) Furthermore, Spreadshirt reserves the right to reject orders from customers who are known for not being credit-worthy or do not grant direct debit authorization.

(3) Spreadshirt is responsible for all processing and execution of orders. In this respect, Spreadshirt creates i.e. order forms, books payments, executes cancelation and returns and is responsible for the customer service.

§ 9 Sales Reports / Spreadshirt-Newsletter

(1) Spreadshirt will make a record of the sales made via the online shop and will make a summary of the statistics available to the Shop Operator.

(2) In addition, Spreadshirt will send the Shop Partner information by e-mail at irregular intervals. This will include information relating to Partner Shops about changes to articles and services within the Spreadshirt range, service reports, tips and ideas related to the Spreadshirt services as well as other information (including information about the services and products offered by third parties). The Partner agrees to receive this.

(3) Spreadshirt will comply with the requirements of the German Data Protection Act. In particular, none of the Shop Partner’s personal data will be passed on to third parties unless the Shop Partner has consented to this or the transfer of data is permissible or necessary in law. The Data Protection Statement of Spreadshirt shall also apply.

§ 10 Restriction of Liability, Exclusion of Liability and Release

(1) The shop owner is liable towards Spreadshirt for all damages suffered by Spreadshirt resulting from the use of the 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 Spreadshirt in the form of legal costs as well as any costs and compensation payment which a court may award against Spreadshirt, resulting from the usage of the design of the shop owner, or in so far as Spreadshirt is included in any settlement. The shop owner obligates himself to release Spreadshirt of all aforementioned costs and damage claims. In such cases, Spreadshirt is entitled to receive an advance payment from the shop owner to the amount of the estimated defense costs.

(3) A liability of Spreadshirt towards the shop owner, no matter what the legal grounds, in particular – but not finally – according to §§ 280 et seq. of the German Civil Code, 323 et seq. of the German Civil Code or due to unlawful acts according to § 823 et seq. of the German Civil Code, is defined as follows:
Spreadshirt is liable provided that the shop owner asserts claims which are based on malice, intent, gross negligence or the breach of contractual duty on the part of Spreadshirt, its executive employees or agents. However, Spreadshirt cannot be held liable in cases of mild negligence.

(4) If the shop owner is an entrepreneur, i.e. a natural or legal person, or an incorporated partnership who/which in conclusion of a legal transaction acts in exercise of his commercial or freelance professional occupation, then the following is also valid: As far as Spreadshirt has been accused of negligent behavior, liability is limited to the foreseeable, typically occurring damage.

(5) Further liability of Spreadshirt due to personal damage or according to the German Product Liability Act remains unaffected.

§ 11 Period of Validity / Cancelation

This agreement has been concluded for an unlimited period of time and can be canceled by one of the parties at any time without adherence to the cancelation period.

§ 12 Modifications of Provisions

(1) Modifications of this agreement need to be in writing. Spreadshirt will publish possible modifications of these general terms and conditions on its website www.spreadshirt.net , and inform the shop owners via e-mail. As far as a shop owner continues to provide designs for usage after such notice then the modifications are considered as tacitly approved.

(2) According to these general terms and conditions, a written form is a declaration by facsimile, letter and e-mail. If such a declaration shall be addressed to Spreadshirt via e-mail, please send it to: service@spreadshirt.net .

(3) To clarify, it is agreed that such a change affects neither other rights and duties articled in this agreement, nor does it affect agreed fee tables for running periods to the disadvantage of the shop owner. If the shop owner does not agree with a modification made, a cancelation 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 Spreadshirt in Leipzig.

(2) As far as the shop owner is a merchant according to the Commercial Code of Germany (HGB), a legal entity under public law or special fund under public law, then Leipzig is the place of general jurisdiction. In such case, Spreadshirt is also entitled to sue the shop owner according to the opinion of Spreadshirt at their resident court. The same applies if the shop owner does not have his place of general jurisdiction in Germany, relocates his place of residence or habitual residence abroad after conclusion of the agreement, or his place of residence or habitual residence is unknown at the time of filing of an action.

(3) According to these general terms and conditions the agreement is exclusively subject to the law of the Federal Republic of Germany. Recourse to the UN Convention on Contracts for the International Sale of Goods is excluded. As far as the shop owner is a consumer in terms of § 13 of the German Civil Code and is generally not resident in Germany, the mandatory regulations of this country remain unaffected.

(4) If individual provisions of these general terms and conditions are ineffective or oppose the statutory regulations, the rest of the agreement remains unaffected.

Version 06/2009