GENERAL TERMS AND CONDITIONS OF BUSINESS, August 2011
LOOKK is a platform brought to you by:
Garmz GmbH
Karl-Schweighofer-Gasse 12/5
1070 Vienna
AUSTRIA
Telephone: +44 20 33697898
E-mail: support@lookk.com
Last updated 16.11.2011
GENERAL TERMS AND CONDITIONS OF BUSINESS of Garmz GmbH
Preamble
Garmz GmbH operates a web-based design, communications and commerce platform (accessible on the Internet at www.LOOKK.com) for interactive design and selection of fashion articles by registered customers (designers and end customers), both domestically and abroad. By implementing webstores and other social networks and through cooperation with sector-specific retail partners, the LOOKK platform (in addition to facilitating the production of selected goods/designs) is intended to open up sales channels for its customers.
These General Terms and Conditions of Business constitute the legal and commercial framework terms prior to, during and following conclusion of an agreement between LOOKK and the members (designers) as well as other users of LOOKK’s platform.
§ 1 Definitions
The definitions set forth below are used in these GTC repeatedly and are therefore defined below for the sake of better comprehension. The definitions set forth below encompass both the singular and the plural of the terms referenced in each case.
Counterparty: All natural persons and legal entities making legally proper use of the LOOKK Platform, thus encompassing Members and all Users, irrespective of whether they are registered.
GTC: These General Terms and Conditions of Business, which are deemed the exclusive basis for an agreement arising between LOOKK and the User.
GSDT: Means General Sales and Delivery Terms as the exclusive basis for the sale of selected Designs or the pre-order of End Products respectively and which form an integral part of the GTC.
Design: Any and all fashion articles provided by a Designer on the LOOKK platform/via the member account/user interface for review and Selection.
Designer: A member of the LOOKK platform who makes available proprietary fashion articles he or she has developed independently by uploading (publishing) them on the LOOKK platform for comments and possible selection to the other members of the platform who do not fall within the definition of “Designers” within the meaning of these GTC, as well as to non-registered users.
It is noted that a single Designer or multiple Designers may jointly create various labels and make them available on the LOOKK Platform.
Designer Contract: Any additional agreement between LOOKK and a Designer due to any modifications or alterations in the business relation of the contracting parties and relating to the activities and services provided by LOOKK. Designer Contracts may amend but not replace the terms and conditions set out in the GTC or the GSDT unless explicitly provided otherwise.
End Product: Collections or fashionable articles (including Designs) available for purchase on the LOOKK-Plattform. It is understood, that the definition “Designs” as used in this GCT as well as the GSDT is also used as a synonym for the expression “End Product” (as the case may be).
LOOKK: Garmz GmbH, Karl-Schweighofer-Gasse 12/5, 1070 Vienna, Austria
LOOKK Platform: The web-based design, communications and commerce platform operated by LOOKK (accessible on the Internet at www.LOOKK.com) for interactive and design, selection and sale of fashion articles.
Agreement: The legal transaction between LOOKK and its counterparties, which is established exclusively on the basis of these GTC.
Intellectual Property: All proprietary rights of a designer to the designs created and made available via the LOOKK Platform, consisting, inter alia, of (i) copyrights, (ii) patent rights (if any), (iii) utility model and design patent rights, (iv) trade marks and the protectable proprietary knowledge of the designer beyond the foregoing in connection with the relevant fashion article(s).
Member: Any natural person or legal entity located domestically or abroad (including designers, as well), who have properly registered on the LOOKK Platform and who have been issued an individual member account/user interface. In addition to the portfolio of services provided to designers, all registered members are also able to make use of specific functionalities of the LOOKK Platform, most importantly, to order and to purchase selected Designs or pre-order end products (as the case may be).
Member Account: The account which is individually created at the time of any Member’s registration, by which that Member gains access to the User Interface.
Sample: Sample of a Design, cleared for production at LOOKK’ sole discretion.
User: Any natural person or legal entity who accesses LOOKK’s website/the LOOKK Platform on the Internet or causes it to be accessed without themselves becoming Members.
User-Interface: The interface on the LOOKK Platform assigned to the Member for purposes of individually downloading/uploading content (designs).
Pre-Order: Binding declaration by a Member of his/her intention to buy an End Product and/or selected Design.
Selection: Refers to selection of a specific design following expiry of the Selection Phase by a critical number of Users, which LOOKK shall determine in its free discretion. After a Selection has occurred, LOOKK shall be at liberty to initiate production, marketing and sale of the Design in question and induce construction of Samples thereof.
Selection Phase: Period from the date of completed upload (publication) of a design on the LOOKK Platform until such time as the Member(s) or Gamrz make(s) any Selection.
§ 2 Scope
(1) These GTC (as amended from time to time) shall govern the terms for the use of the LOOKK Platform and the associated sub-domains by its counterparties as well as general conditions regarding the Pre-Order of Samples/Designs by the Members and consequential production, marketing or distribution/commercialization of such Samples/Designs by LOOKK. The subject-matter of the Agreement underlying the GTC and the objective of LOOKK is to provide the LOOKK Platform free-of-charge, is to overcome existing market entry and sector barriers in the fashion industry and to facilitate marketing of selected and/or pre-ordered Samples and Designs. Members and Users are bound only by those terms of the Agreement that in fact pertain to them. Individual alterations and modifications of the business relation between LOOKK and a Designer are subject to a separate Designer Contract (as the case may be).
(2) These GTC shall be deemed exclusively binding directly between LOOKK and its counterparties. Absent a provision therein which provides expressly to the contrary, no legal effects and entitlements/claims etc. on the basis of a third-party beneficiary agreement or an agreement with protective effect for third parties shall be deemed to arise. The foregoing shall also apply where these GTC contain provisions that are of significance with respect to the relations of the members or users inter se (e.g. with respect to formation or the substance of contracts).
(3) Alterations or contractual modifications from these GTC shall, in each individual case, require LOOKK’s express written consent. If supplemental rules are intended to apply with respect to certain functions, services or areas of the LOOKK Platform, LOOKK shall separately alert the Counterparty to such terms prior to first-time execution/usage of the function, service or area in question. By executing functions/making use of the services or areas, the Counterparty is deemed to give its express consent to the relevant supplemental terms and to acknowledge them to be binding on him. The supplemental terms shall apply with respect to all use of the same function/same service or area.
(4) When using the LOOKK Platform, the Counterparty shall note and comply with applicable law and the terms of these GTC. The foregoing applies in particular with respect to content Members have uploaded to the LOOKK Platform (Designs).
§ 3 Formation of contract
(1) Contractual relations between the Counterparty and LOOKK shall be deemed to arise on the basis of a written and/or electronic offer by LOOKK and the Counterparty’s express or implied acceptance by his use and/or registration on the LOOKK Platform and subsequent allocation of a Member Account. Counterparties may access the most recent version of these GTC and the underlying GSDT (see § 17) via a transparent link on LOOKK’s website at www.LOOKK.com.
(2) In the event of a registration, the Member shall give his express confirmation of agreement with these GTC by activating/clicking on the field intended for this purpose. Individual (complementary) agreements such as Designer Contracts eventually entered into by and between LOOKK and a Designer and supplementing the terms and conditions set out herein are provided / communicated through the individual User-Interface and shall become effective, once the latter has accepted the conditions set out therein by applying the relevant acceptance button installed.
(3) Consumers within the meaning of § 1 of the Austrian Consumer Protection Act [Konsumentenschutzgesetz (KSchG)] may revoke their declaration of acceptance of contract within 2 (two) weeks from the date of their legally valid registration on the LOOKK Platform without the need to state any reasons therefor. Revocations must be given in written or electronic form (e.g. letter, e-mail). For purposes of complying with the revocation period, timely despatch of the notice of revocation shall suffice.
(4) LOOKK is entitled to refuse to enter into an Agreement with the Counterparty or rescind therefrom at any given time if:
(a) there are well-founded doubts with respect to the identity, legal capacity/legal personality of the Counterparty or of the power of attorney of an individual acting in the Counterparty’s name (whether natural person or legal entity);
(b) there are well-founded suspicions of improper use of the LOOKK Platform or of applications accessible via the Member Account (User Interface) which is exclusively allocated to that Member;
(c) there are other facts and circumstances which render it unreasonable to LOOKK, from its perspective, to enter into or sustain a contractual relationship;
(d) LOOKK, due to non achievement of a critical mass of Pre-Orders (Selections) by the Members decides to discontinue production or distribution of a Design/Sample. In this case LOOKK shall be responsible for rescinded transaction of already existing agreements (see § 4 para 2 below) including in particular re-transfer of (pre-) payments made in the course of a Pre-Order in accordance with the relevant provisions of the GSDT in their current version.
(5) Offers by LOOKK to enter into contracts shall be deemed subject to change. The products and services described or advertised in LOOKK’s website, in its brochures or other advertising materials do not constitute binding offers.
(6) LOOKK is entitled to substantively alter functions and services present, to deactivate them temporarily or permanently, or to introduce new functions and to premise individual functions on satisfaction of certain preconditions.
(7) In the event that discrepancies with respect to the content of IT-related terms and symbols, quality requirements, format requirements or the like exist, the provisions in such version as was applicable at the time the parties’ contract was formed shall be applied at higher rank of priority.
(8) In addition to the foregoing, LOOKK is entitled at any time, where it has given timely prior notice thereof, to modify, extend or limit the substance and scope of its contractual services in a manner which is reasonable to the Counterparty. In particular, LOOKK shall carry out measures of this kind where this is necessitated by technical or legal circumstances or where this is for the purposes of securing LOOKK’s functionality.
§ 4 Pre-Order of End Products/Designs
(1) Each Member is entitled to pre-order particular End Products/Designs available on the LOOKK-Plattform, whereby any such Pre-Order shall be made in writing and/or electronically (per E-Mail), receipt of which by Gamrz shall automatically lead to the effective conclusion of an agreement between such Member and LOOKK on the basis of this GCT and the GSDT respectively (§ 3 para 1).
(2) Pre-Orders are legally binding on both contracting parties. LOOKK, however, reserves the right to rescind from any contract that is based on a Pre-Order if
(a) the total number of Pre-Orders does not meet the expectations of LOOKK wherefore a profitable sale of the underlying Endproduct is unlikely;
(b) unforeseeable problems with the production of a particular End Product/Desgin (Sample) or the delivery of fabrics and accessories occur.
§ 3 para 4 is not affected by this right of withdrawal.
(3) Extensive overrun of the indicated delivery terms entitles a Member to step back from (revoke) a binding Pre-Order (see § 2 para 2 GSDT).
(4) Members are aware that pre-ordered End Products/Designs may be amended during production in a material or creative manner and accept such modification by submitting his/her binding Pre-Order.
(5) Delivery and payment terms for Pre-Orders are outlined in the GSDT in its current version.
§ 5 Subject-matter and scope of services
(1) The subject-matter of the Agreement is limited to the provision of the LOOKK Platform for its intended use within the scope of and pursuant to the present GTC as well as the regulation of some general terms regarding the Pre-Order of End Products/Designs by the Members and consequential production, marketing or distribution/commercialization of such End Products/Designs by LOOKK. The provision of brokerage services by LOOKK in the sense of a broker’s agreement shall not form part of this Agreement, however may be subject to a complementary Designer Contract entered into by and between LOOKK and a Designer from time to time, in the substance and form outlined in this GTC and the respective Designer Contract (as the case may be).
(2) As a general rule, it is open to every User to access the LOOKK Platform for the purposes for which it is intended. In order to use several of its functions/services (“tools”) such as, the upload (publishing) of Designs, the Pre-Order or Selection, prior registration on the LOOKK Platform pursuant to § 6 hereof is required.
(3) During the Selection Phase, the Designers are permitted at any time to communicate with the other Members and Users via the LOOKK Platform and to make corresponding adaptations to their Designs on the basis of the (interactive) communication options facilitated by this collaborative network. In this context, LOOKK shall take care to ensure that the parties are able to communicate freely with one another. Once a Selection has been effected, LOOKK shall, at its sole discretion, be free to start production and initiate a sales process and, without Designer’s consent produce Samples for one or more selected Designs.
(4) If not explicitly provided otherwise in a Designer Contract or any other agreement between LOOKK and a Designer, responsibility for the production of Samples their marketing as well as the marketing and distribution of Designs shall remain exclusively with LOOKK. Hence, any advertising and further marketing measures in excess thereof which are intended to promote sale (holding of fashion events, trade fairs etc.) shall be deemed to lie within LOOKK’s exclusive sphere of responsibility. In the event of successful marketing and sale of one or more Designs (Samples) of a Designer alone, or of multiple Designers jointly, the Designer(s) in question – as the copyright holder of the underlying works(s) – shall participate in the gross revenues per Design sold, the actual amount of such participation to be determined more closely.
(5) Other services to be rendered by LOOKK pursuant to the Agreement may include:
(a) Providing and maintaining the LOOKK Platform for Members and Users;
(b) Converting and implementing generated data on the Member Account/User Interface and granting User-defined access options thereto.
(c) Setting up specific Users by providing individual Member Accounts; Members may independently access the data stored in the system at any time;
(d) Referring/providing contacts (where applicable) and referring potential access in the realm of commercial business, particularly in the fashion industry and the associated reduction of sector-specific barriers to access;
(6) As a pure technical services provider, LOOKK is not involved directly or indirectly in the communications between the Users and the Members taking place via the LOOKK Platform. Any notifications which may be sent via the LOOKK Platform in connection with a query regarding a Design shall only be deemed for purposes of information. Beyond the foregoing, Members and Users shall have no right to demand that LOOKK accept and process complaints against other Members/Users or to mediate or resolve disputes between them, except where the subject-matter of the complaint refers to LOOKK’s performance of its legal or contractual obligations.
(7) LOOKK hereby expressly refers to the provisions of applicable law with respect to combating illegal working and child labour. Any misconduct of this type shall result in immediate deletion of any Member Account/User Interface which may have been set up.
§ 6 Services/Obligations of counterparties
(1) The Counterparty hereby undertakes to use the LOOKK Platform in accordance with its purpose and pursuant to contract. In addition, Members are deemed to warrant that they shall use their Member Account/the User Interface in a legally compliant fashion.
(2) The Counterparty is prohibited from using software, data or (technical) devices that could result in an impairment of the functionality of the LOOKK Platform, irrespective of its type. The same shall apply with respect to the Members’ use of the Member Account/User Interface.
(3) Counterparties shall provide timely notice to LOOKK of changes to the system requirements lying within the sphere of responsibility of the Counterparty prior to rendering the services. Any delays and additional costs which may arise as a result of such changes in carrying out the services shall be for the account of the Counterparty.
(4) Where necessary, the Counterparty shall timely and free of charge provide all such documents, information and devices from its sphere of responsibility as are required to permit LOOKK to render the services it is obliged to perform and shall, in addition, timely procure the performance of obligations of cooperation or of provisions of goods and services by third parties where these constitute a prerequisite to LOOKK’s performance of its services.
(5) In the event that obligations of cooperation or of provision of goods or services have not been rendered in a timely manner or procured in a timely manner by the Counterparty, there may be a delay to or a limitation on LOOKK’s performance of its services; LOOKK shall assume no liability for frustrated expense or damages caused thereby.
(6) Members shall provide LOOKK with written notification of any changes of their corporate name and the legal form of their business entity as well as of their address without delay. Where such change notices are not provided, then documents shall be deemed to have been properly served on such Members if sent to the last address or paying office indicated by that Member.
(7) In the event that LOOKK should decide to proceed with production and subsequent marketing of a selected Design, as of the time of preparation of a Sample of the Design in question, the Designer is deemed to grant an exclusive licence thereto, which shall be unlimited as to territory but limited in time to the term of the contractual relationship underlying these GTC within the meaning of § 11 of these GTC.
(8) As a fundamental matter, uploading of a Design to the LOOKK Platform shall be exclusive. At the time the Designer registers on the LOOKK Platform, the Designer is obliged to give notice of any and all web-based sales and marketing activities with respect to a Design. Any failure to comply with this duty of notification shall entitle LOOKK to immediately terminate performance of its contractual services. If independent web-based sales and marketing of a design (such as through the use of existing communication tools of the LOOKK Platform) has been permitted, then the Designer shall set a corresponding link on its websites to the services of LOOKK (in particular to the LOOKK Platform).
(9) Within 90 (ninety) days from the time of the Designer’s registration on the LOOKK Platform, the Designer shall remove from the internet any web-based publications of Designs which LOOKK has prohibited. Where, for any reason whatsoever, this should be impossible, the Designer shall notify LOOKK thereof immediately.
§ 7 Use of LOOKK Platform
(1) In the course of registration on the LOOKK Platform, each Member shall provide a username in order to facilitate individualised and secure access to the User Interface.
(2) Registration is reserved only for natural persons and legal entities with full legal capacity. Registration of a legal entity may only be undertaken by a representative authorised to do so, who must be identified by name.
(3) The access data provided at the time of registration on the LOOKK Platform and to be forwarded to LOOKK in connection with registration must be provided in a complete and truthful fashion; these access data (in particular address and other contact details) must at all times be kept up-to-date.
(4) The Member Account/User Interface is accessible to Members at all times by means of User-defined access features (username). When selecting a username, Users may not use names which breach applicable law, which violate social mores or infringe on the rights of third parties. Furthermore, the username may not contain either the term “LOOKK Platform” or any similar designation (which is capable of confusion) or any e-mail or website address or other contact information such as telephone numbers. The username must be kept secret, except where it is necessary to disclose it to others in order to use the LOOKK Platform. This is, for example, the case where individual functions or services on the LOOKK Platform are provided by third parties and a registration is necessary in order to make use of them. When Users or Members are asked to transmit or enter their usernames, Members shall in all cases check to see – to the extent it is possible and reasonable for them to do so – whether this request is from LOOKK or from a third party with authorisation to do so in order to prevent phishing of access data and misuse of the Member Account/User Interfaces.
(5) The Member shall exclusively bear responsibility for keeping his or her username secret and for the proper use thereof. Members are not permitted to use usernames and passwords of third parties nor are they permitted to grant permission to a third party to do so. In the event of a violation hereof, LOOKK shall, in its own discretion, be entitled to delete the user data of the Member in question, although the latter shall remain solely responsible for any usage of the LOOKK Platform by third parties which occurs in the interim.
(6) Each Member shall notify LOOKK immediately of unauthorised use of the LOOKK Platform/of its username as well as any and every other breach of the duties of confidentiality and data security coming to that Member’s knowledge.
(7) Use/exploitation of electronic or automated applications (e.g. webcrawler, robots, spiders etc.) is not permitted, irrespective of the configuration or the usefulness thereof.
(8) Members are entitled at any time to terminate the Agreement underlying these GTC by deleting their individual Member Account. It is exclusively within the purview of the Member to properly delete his or her Member Account. After the Agreement has been terminated, any and all data (inter alia consisting of Designs, graphics, images, commentary, communication or other content in that User’s member Account/User Interface as of the time of deletion shall be immediately and irrevocably deleted. Excepted from the foregoing is such data/information as LOOKK is legally required to store for a particular period of time. Even following termination of the Agreement, LOOKK shall be entitled to exercise a simple right of use, right of duplication and exploitation to the Designs uploaded (published) via the LOOKK Platform and released for production.
(9) Members and Users who wish to use the LOOKK Platform as part of a commercial activity on their part are obliged to furnish LOOKK with a copy of their trade licence (confirmation of registration of a trade) within 5 (five) working days of their registration. The same shall apply mutatis mutandis with respect to other information as to special qualifications, licenses, memberships and similar details which may be relevant in connection with a tender offer / with the provision of a bid and which must be evidenced by suitable documentation. The documents shall be forwarded to LOOKK – where possible – in a single mailing. Where Members/Users fail to comply with this obligation, LOOKK reserves the right not to activate the Member’s Account, or to delete it irrevocably.
(10) It is not permitted to create multiple Member Accounts for the same natural person or legal entity.
(11) Subject to LOOKK’s express written consent, Member Accounts are not transferable.
(12) Where no contractual relationship with a Member arises, all such documents, proposals, test programs, etc as may have already been provided shall be returned or deleted and may no longer be used.
(13) Subject to the proviso of the grant of rights pursuant to § 11 hereof, LOOKK shall not assert any entitlements to Intellectual Property underlying content (Designs) which have been uploaded to or downloaded from the site by a Designer on his/her Member Account/User-Interface.
§ 8 Rules for Users
(1) Users are permitted to visit the LOOKK Platform without registering. In order to make use of specific functions such as publishing, submission of Pre-Orders (see § 4), ordering and finally purchasing a produced Design, resistration on the LOOKK-Plattform is required. Users shall have no entitlement to be registered or to have their accounts on the LOOKK Platform activated.
(2) With respect to registration of Users and the use of the LOOKK Platform, the access and use requirements / conditions pursuant to § 4 hereof for Members shall apply mutatis mutandis.
§ 9 Liability
(1) LOOKK shall bear liability within the scope of applicable law for damages caused by executive officers, employees, vicarious agents or other persons engaged to provide services to counterparties only where this is evidenced to be due to intent or gross negligence. LOOKK hereby disclaims liability for slight negligence, except in the cases of harm to life and limb.
(2) The parties are in agreement that in the course of its performance of the contractual services LOOKK is reliant inter alia on services by third parties (e.g. web designers, network operators, providers, producers, marketing companies etc.) which are not deemed vicarious agents and/or independent contractors within the meaning of §§ 1313a or 1315 of the Austrian Civil Code and upon which it is unable to exercise direct control. LOOKK hereby disclaims liability vis-à-vis its Counterparties for losses resulting from the utilisation of such services (whether such losses arise with or without fault).
(3) LOOKK shall bear no liability for losses attributable to improper or contractually non– compliant use of the LOOKK Platform / of the Member Account/User-Interface. LOOKK shall likewise bear no liability for the success/Selection of a Design by Members/Users. Likewise, no claims may be made against LOOKK for any interventions in the sphere of a Designer’s rights by third parties. The uploads (publication) of a Design via the LOOKK Platform shall be at the Designer’s cost and risk.
(4) LOOKK’s actions in connection with its provision of the LOOKK Platform are exclusively as an “Application Service Provider”. The operation, hosting, security and further development of the (User) data located in its Member Account/User-Interface shall remain in that Member’s sole sphere of responsibility (see § 4). Accordingly, the Member shall bear sole liability for all such content (the Designs) as it has made available via the LOOKK Platform. Any losses and/or disadvantages of the Member as a result of the illegality/infringement of competition law by such content (Designs) shall be exclusively for that Member’s account. Wrongful use of a Member Account/User-Interface may, in addition to potential obligation to pay compensatory damages – result in temporary or permanent blocking of contractual access rights of a Member to its Member Account/User-Interface.
(5) The Counterparties are aware of the fact that the content uploaded to the LOOKK Platform may constitute legally protected Intellectual Property. Against this background, Counterparties are not permitted to upload content to the LOOKK Platform the use of which infringes Intellectual Property rights of third parties (irrespective of the type thereof) and which is apt to give rise to criminal or civil prosecution.
(6) LOOKK is unable to rule out the possibility that Members registering and/or communicating on the LOOKK Platform do not in fact exist or that they are making improper use of the platform for illegal or immoral actions. Counterparties using the LOOKK Platform and who may upload/download content/Designs to or from the Platform are thus deemed to act at their own risk.
(7) Events of force majeure which render the provision of the contractual services significantly more difficult or impossible shall entitle LOOKK to defer its performance of the contractual obligations by a period of time equal to the period of the impediment plus a reasonable preparation period. The following events are the equivalent of force majeure: strikes, lock-outs, interventions of public authorities for which LOOKK bears no responsibility, and similar circumstances, provided that they are unforeseeable, not susceptible to LOOKK’s control, of material scope and not due to LOOKK’s fault. In such cases, LOOKK likewise disclaims all liability.
(8) LOOKK shall not assume any liability whatsoever for unauthorised duplication or use of the graphics, texts, brands and trademarks the rights to which are protected by third parties. In addition, LOOKK’s liability under this contract in connection with the <www.LOOKK.com> website shall, in all cases, be limited exclusively to LOOKK’s own content. In the absence of relevant controls on the websites of other (sector-specific) businesses, LOOKK shall likewise be deemed to have no liability where it makes a corresponding reference (link) from its own website to that of another provider.
§ 10 Availability and warranty
(1) The services of LOOKK are affected on the basis of generally valid industry sector norms and practises. However, the parties are aware that pursuant to the current state of the art, it is not possible to render web-based services which are completely free of faults or errors.
(2) Irrespective of the foregoing, LOOKK hereby warrants that the services offered shall have such features and characteristics as are identified to the Counterparties in advance of their entry into the Agreement and that they shall comport with the usual state of the art as of that point in time. LOOKK does not warrant that it will be able to provide the LOOKK Platform at all times without interruptions and free of faults.
(3) LOOKK assumes no liability or warranty whatsoever for the correctness of the data forwarded to it by Counterparties, in particular by Members, such as details regarding their identity, addresses, qualifications, references or creditworthiness. Members are thus required to scrutinise such data of other Members/Users as is relevant to them as needed. LOOKK shall follow up any notice it receives as to incorrect details and shall request the Member in question, where applicable, to make a correction or shall block/delete the details.
(4) Network outages, disruptions, maintenance work or other events which are unavoidable and for which LOOKK bears no responsibility may give rise to interruptions of service. In such case, LOOKK shall exert reasonable efforts to the best of its knowledge and ability to eliminate faults and disruptions as quickly as is possible in technical and economic terms.
(5) LOOKK assumes no warranty with respect to errors or other outages on the LOOKK Platform / the Member Account/User-Interface
(a) based on errors of the hardware, the operating system or software of other manufacturers or wireless telephony providers;
(b) caused by errors of use by the customer, irrespective of the type thereof, and which could have been avoided if proper and careful use had been made;
(c) due to infection with computer viruses or other external influences for which LOOKK bears no responsibility, such as fire, accidents, power outages etc.;
(d) on the basis of an unauthorised modification by the Counterparty or third parties to the system environment for which the LOOKK Platform or the Member Account/User-Interface was configured.
(6) Counterparties (however in particular Members) warrant that content uploaded to and communicated by them via the LOOKK Platform shall
(a) be free of rights of third parties, in particular of Intellectual Property rights;
(b) be their own (intellectual) property or be subject to proper authorisation by a third Party with entitlement to give such authorisation to use the content in question via the LOOKK Platform;
(c) not breach applicable law or other applicable binding statutes and in addition
(d) not be apt in any manner to give rise to legal obligations (liability) on the part of LOOKK.
§ 11 Grant of rights and use
(1) All copyrights and the Intellectual Property on the LOOKK Platform shall remain in LOOKK’s unlimited ownership. The foregoing shall also apply to all content and information uploaded to the LOOKK Platform (e.g. documents, proposals, texts, graphics, photos, trademarks, test programs, etc.) in each case in such form as was valid at the time the contract was concluded. Excepted from the foregoing, however, shall be all content (Designs) uploaded by Members or other Users, to which LOOKK shall be deemed granted contractual rights of use (see § 12).
(2) All specifications, further developments and modifications of the LOOKK Platform resulting from LOOKK’s contractual relationship with the customer (User, Member) shall, at such time as they arise, pass to LOOKK’s ownership. The foregoing shall also be deemed to include all such rights as may arise world-wide as a result of provisions of copyright or other Intellectual Property law.
(3) LOOKK herewith grants the Counterparties a non-exclusive permit to use the LOOKK Platform, which is non-transferable and subject to limitations in content and in time. In addition, Members are granted a right of use to the interfaces associated with the LOOKK Platform (in particular to the Member Account/User-Interface).
(4) Counterparties are not permitted to process, alter or otherwise model the LOOKK Platform or the Member Account/User-Interface provided to them individually, or to disclose them to third parties, to link them to other programs in any manner other than via the interfaces intended for this purpose, to translate it to another display format (decompile), to remove, circumvent or alter any copy protection or other protective mechanisms, program elements intended to support digital rights management (DRM) security codes or features or characteristics intended to identify the LOOKK Platform / the User-Interfaces (ownership notices, trademarks, copyright registers).
(5) Counterparties are exclusively authorised to use the LOOKK Platform and their Member Account/the User-Interfaces for the agreed purposes and only within the scope of the usage permits granted. Counterparties shall indemnify and hold LOOKK harmless against any and all damages as a result of their non-compliance with the contractual terms of use. The foregoing shall apply in particular to the infringement of any copyright or other Intellectual Property rights of LOOKK or third parties.
§ 12 Licence
With regard to the service obligations of LOOKK towards a Designer, including the production, marketing and exploitation of a Design in particular, LOOKK shall be granted an exclusive, royalty free license (right to use) to the Sample/Design in question, unlimited as to territory but limited in time to the term of the contractual relationship underlying these GTC or a Designer Contract as the case may be. Granting of the Licnese within the meaning of this § 12 is in each case subject to a Designer Contract to be executed between LOOKK and the respective Designer. Such Designer Contract shall among other things indiciate whether a license (right to use) is being granted to LOOKK and if so, to what extend and for which purpose (manufacturing, distribution etc) such license might be used. In addition, the respective Designer Contract will further cover for the warranties to be given by the Designer (as rights holder) as well as corresponding rights of LOOKK as to the efficient security of the objective license and/or enforcement thereof towards a third-party (infringer).
§ 13 Data protection
(1) Under certain circumstances, it may be necessary in order to enable LOOKK to properly perform its contractual services to store and process Members’ personal data. LOOKK shall ensure that these data are treated in confidence pursuant to the provisions of the Austrian Data Protection Act 2000 (“DSG 2000″).
(2) LOOKK hereby alerts Counterparties that there is no assurance of confidentiality with respect to data, information etc. transmitted in unencoded format via the Internet.
(3) The Member shall bear sole responsibility for any and all personal data transferred, used or processed in the course of the use of the LOOKK Platform whether these data are sensitive data within the meaning of § 4 DSG 2000 or are non-sensitive data.
(4) Members shall procure the consent of the affected individuals prior to editing or processing (personal) data and shall indemnify and hold LOOKK harmless in the event of any breach against any potential claims of third parties.
§ 14 Communications
(1) Any and all notices relating to the licensor/licensee relationship on the basis of these GTC must be provided in written or electronic (e-mail) form. LOOKK’s contact information may be found on its website <www.LOOKK.com>. The information entered in the Member Account/User-Interface shall be deemed the Member’s contact information. Notices sent by LOOKK to these contact details by e-mail shall be deemed to have been received at the time they were dispatched, notices sent by post shall be deemed to have been received two days from the time they were dispatched, except where the Member furnishes proof that it received them at a later point in time.
(2) Where notices are transmitted as between LOOKK and a Member or between Members inter se by e-mail and thus in electronic form, the Member is deemed to acknowledge the unrestricted effectiveness of statements of intent transmitted by this means. The e-mail must contain the name and e-mail address of the sender as well as the time of dispatch (date and time).
(3) Any e-mail received pursuant to the foregoing provisions shall, subject to proof of the contrary, be deemed to originate from the owner of the address of the sender. The legally binding effect of the e-mail and that of its electronic form shall apply with respect to all notices and declarations attendant on the usual performance of contract.
§ 15 Prohibition on assignment
The transfer of the Agreement and the assignment of rights and delegation of obligations under the Agreement by the Counterparties are not permitted without LOOKK’s written consent.
§ 16 Term
(1) Subject to any agreement to the contrary, the parties’ contractual relationship is being made for an unlimited period and may be terminated by either Party at any time in writing (by fax or e-mail). With respect to the date of termination, the postmark shall be deemed determinative.
§ 17 Sale of Designs
Any order of a selected Design or pre-ordered End Product via the LOOKK Platform for which a production run was commissioned by LOOKK pursuant to these GTC and the subsequent sale thereof to a Member shall be subject to the GSDT pursuant to Annex ./1 which apply in supplementation to these GTC. The GSDT shall be deemed to cover the legal relations between LOOKK and the Members in question arising out of the sale of the Design. The applicability of these GTC, which constitute and integral part of the GSDT, shall remain unaffected by the GSDT.
§ 18 Final provisions
(1) This Agreement is governed by Austrian law. The parties hereby agree that the United Nations CISG shall have no application.
(2) To the extent permitted by law, the parties hereby agree that jurisdiction and venue for all disputes resulting out of this Agreement (including disputes in connection with potential modifications or addenda to contract) shall lie with the court located within the 1st Vienna Municipal District with subject-matter jurisdiction thereof.
(3) No amendments or addenda to these GTC or any other agreements of the parties shall be valid unless they are confirmed by LOOKK in writing.
(4) If any term of these GTC should be or become invalid or unenforceable, the validity or enforceability of the remaining provisions hereof shall not be affected hereby. The invalid or unenforceable provision shall be deemed replaced by a valid and enforceable provision, the commercial purpose and commercial outcome of which shall come as close as possible to the provision being replaced and which shall comport with the original intent. The parties hereby undertake to memorialise this replacement term without delay in writing and to execute the same.
Annex ./1
GENERAL SALES AND DELIVERY TERMS, August 2011
Garmz GmbH
Karl-Schweighofer-Gasse 12/5
1070 Vienna
AUSTRIA
Telephone: +44 20 33697898
E-mail: support@LOOKK.com
In the event of the sale of a selected, ordered and/or pre-ordered End Product via the LOOKK Platform, by way of supplementation to the GTC, the following shall be deemed to have been agreed between LOOKK and the Member in question:
§ 1 Scope
(1) These General Sales and Delivery Terms (“GSDT“) shall exclusively govern the legal terms and conditions surrounding performance/completion of the sale and delivery by LOOKK of End Products to a Member.
(2) Selections and/or pre-orders that have been cleared for production at LOOKK’ sole discretion, slightly modification of which might occur in the course of the production process, shall in each case form the basis for a delivery by LOOKK
(3) Unless a special provision is made herein to the contrary, the GTC shall remain fully applicable. Definitions used therein shall apply (subject to any explicit exceptions) shall apply to these GSDT as well.
§ 2 Delivery
(1) Unless otherwise agreed, LOOKK shall effect delivery ex stocks to the delivery address indicated. Depending on whether orders are being filled within or outside the European Union, the delivery time shall be between 3 (three) and 5 (five) days from completion of the production process. Depending on the relevant Design (Sample) subject to production, the production process might take approximately 4 (four) to 6 (six) weeks given that the there are no complication whatsoever. However, longer production phases are not excluded.
(2) If an End Product or underyling material(s) (accessories) is/are temporary not available and delivery dates that have been tentatively announced to a Member are therefore delayed for more than 4 (four) weeks, the relevan Member shall be entitled to revoke the underlying order or Pre-Order.
(3) Deliveries shall be effected immediately following contractually compliant receipt of payment by LOOKK (see § 4).
(4) The current availability of selected and/or pre-ordered Designs/End Products (based on Samples as the basis of a purchase decision) is shown on the website of LOOKK <www.LOOKK.com>. LOOKK hereby expressly alerts Users to the fact that all details with respect to availability, shipping or delivery of a Design/End Product shall merely be deemed tentative and constitute approximate guideline values. They shall not constitute binding/guaranteed shipping or delivery dates except where they are expressly designated as binding dates in the shipping options for the Design/End Product in question. If, during the processing of an order, it should be determined that a Design/End Product is not (or no longer) available, LOOKK shall inform the Member immediately by E-Mail. Where, without fault on the part of LOOKK, LOOKK is unable to deliver the ordered/reserved goods because the producer of the Design or one of LOOKK’s suppliers is in contractual breach or may not perform its obligations (production issues, lack of materials or accessories etc), LOOKK may at any time rescind from the contract with the Member. In this case the affected Member will be informed about the difficulties in contract processing without undue delay.
(5) Where delivery is not possible because the Member could not be found at the delivery address indicated by him, although the reasonable advance notice of the date of delivery was provided, the Member shall bear the costs of the unsuccessful attempt to deliver.
(6) Members may return deliveries to LOOKK within 14 (fourteen) days. Within this return period, Members shall have the option to request refunding of the amount paid for the Design/End Product, without regard to any shipping charges which may have been paid (and which are not refundable) or to request an exchange of the Design they have returned. In lieu of a refund of the charge Member may also claim to receive a credit in the amount of the refund in their Member Accounts which is unlimited in time. It is only possible to exchange a Design where the Design was returned to LOOKK in its original condition (i.e. unused and unwashed). Where it is no longer possible to exchange a returned Design due to lack of availability, LOOKK shall inform the Member immediately by e-mail and shall alert the Member to the remaining return options.
§ 3 Charges, payment terms
(1) The prices applicable from time to time with respect to a Design which has been selected and for which LOOKK has given approval for commencement of production are shown directly on its website at <www.LOOKK.com> and are available to Members as a download also as a price list.
(2) All prices of Designs referenced by LOOKK are quoted inclusive of VAT, unless otherwise expressly noted. Any shipping charges shall be charged separately and shall apply only with respect to the order in question. Where more than two Designs are ordered and purchased, LOOKK shall effect the delivery free of shipping charges. Any custom fees shall, however, be borne by the Member in every case.
(3) LOOKK’s claims for its fees shall arise once a binding order or Pre-Order for a Design/End Product has been submitted. LOOKK shall confirm a successful completion of the order (Pre-Order) by electronically forwarding (by e-mail) an order confirmation, together with the underlying invoice. Unless otherwise expressly agreed, payments shall be due and payable within seven calendar days from the date the order confirmation has been received bythe Member. The amount of the invoice must be credited to the account stated in the invoice by no later than the due date referenced. Until such time as complete payment is made for the complete fees falling due from time to time, LOOKK may defer delivery of the Designs ordered by the Members. In the event of a failure to make two instalment payments (in the case of an agreed partial payment) LOOKK shall be entitled to call in the entire open amount (default).
(4) In terms of the date payment is received, this shall be the date on which LOOKK has received the amount or it is credited to the bank account of LOOKK indicated on its invoice. In the event of belated payment by the Member, LOOKK shall charge default interest at a rate of 12% p.a. (provided that it has not incurred higher costs), beginning on the 15th day from the date of the invoice. With respect to transactions with consumers, the general statutory default interest rate of 4% p.a. shall apply. The Member shall bear the reminder, informational and other costs of recovery of the open invoice amount. LOOKK’s right to assert claims for damages beyond the foregoing shall remain unaffected hereby.
(5) When paying LOOKK’s fees, the Member shall either use a pre-printed transfer form or an electronic transfer (online banking) or shall grant LOOKK authority to effect a direct debit of its claims for fees under the direct debit authority procedure. The Member shall bear all costs and charges associated with banking transfers.
(6) Payments of Members are to be made by credit- or debit cards or by using an online payment provider such as Paypal for exemple. In case of a valid and binding Pre-Order, payment through credit- or debitcard becomes obligatory. Each payment is conditional upon LOOKK’ decision (upon expiry of the Selection Phase) to clear a selected Design/End Product(based on a Sample) for production and distribution. In case of a credit card payment, the amount to be paid is going to be blocked at first and will only be collected once actual production of the (pre-) ordered Design/End Product has been initiated. Payments per debit card will be reimbursed if production of the Design/End Product in question is not performed or stopped for some reason.
(7) The Member hereby waives the right to exercise a right of set-off for any counterclaims against LOOKK’s claims for its fees, except where LOOKK has acknowledged these counterclaims in writing or they have been determined by judicial decision. Furthermore, the Member shall not be entitled to withhold payments due to incomplete total deliveries, warranty or guarantee claims or claims for defects.
(8) The Member shall solely bear all tax obligations arising out of its contractual relationship with LOOKK, with the exception of income tax. The Member shall indemnify LOOKK and hold it harmless against any unjustified claims against LOOKK for such taxes and duties.
(9) With respect to partial invoices, the terms of payment stipulated for entire orders shall apply analogously.
§ 4 Special rules for purchases on account
(1) Purchases on account are permitted only by consumers aged 18 and over. The delivery address, home address and invoice address must be identical. Payment on account is not possible for the purchase of coupons. The amount of the invoice shall be due and payable at such time as the invoice is received.
(2) Where payment on account is applicable, in addition to any shipping charges for the overall shipment, a one-time fee of EUR 1.50 plus VAT shall be charged per delivery. Prior to concluding a contract, LOOKK shall in all cases inform the Member separately as to whether this fee will apply.
§ 5 Right of rescission
(1) LOOKK shall be entitled to resile from the contract for good cause, specifically in case of (i) the opening of insolvency proceedings over a Member, (ii) the dismissal of insolvency proceedings over the Member due to a lack of assets in the estate or (iii) non-payment or only partial payment of invoices which are due and payable by the Member despite a written warning setting a grace period of at least 14 days. In the event of rescission, LOOKK shall – in the event of fault of the Member – be entitled, at its option, to apply lump-sum damages of 15% of the gross invoice amount or compensation of the amount of its actual damages. In the event of a default of payment by the Member, LOOKK shall in any event be relieved of all further obligations to perform the contract and effect deliveries and shall be entitled to retain any goods or services then outstanding and to demand repayment/securities or, after setting a reasonable grace period, to resile from the contract. Where, without entitlement to do so, a Member resiles from the contract or requests the cancellation thereof, LOOKK shall, at its option, be entitled to either insist on performance of the Agreement or to consent to cancellation thereof; in the latter case, the Member shall be obliged to pay lump-sum damages of 15% of the gross invoice amount or LOOKK’s actual damages, at our option.
(2) In the case of contracts concluded by distance sales (§§ 5a ff Austrian Consumer Protection Act), the consumer may resile from the contract within 7 working days, not counting Saturdays as working days. The period shall begin to run from the date the gods are received (the Design) by the consumer / in the case of services, from the date the contract was concluded. It shall suffice to send the notice of rescission / cancellation within such period. Where the consumer resiles from the contract pursuant to this provision, he shall bear the costs of returning the goods (of the Design); where a loan has been taken out for the contract, the consumer shall, in addition, bear the costs of any necessary notarisation of signatures as well as the taxes (fees) for the grant of a loan. The letter of rescission / cancellation shall be directed to the following e-mail address: shipping@LOOKK.com.
§ 6 Liability for defects
(1) Where the goods purchased are defective, the provisions of applicable law shall apply. The Member is not permitted to assign these claims.
(2) Where supplemental performance has been made by way of a delivery of replacement goods, the Member shall be obliged to return the defective Design which was originally delivered within 14 (fourteen) days to LOOKK, at LOOKK’s cost and expense. The Member’s return of the defective goods shall be effected in accordance with the provisions of applicable law. LOOKK reserves the right to assert damages, subject to the prerequisites thereto stipulated by statute.
(3) The limitations period shall be twenty-four months, calculated from the date of delivery.
(4) LOOKK shall bear unlimited liability where the cause of the damage is based on intentional acts or gross negligence.
(5) Furthermore, LOOKK shall bear liability for slight negligent breach of material obligations, the breach of which would place the achievement of the purpose of the contract at risk, or for the breach of obligations the performance of which is an absolute prerequisite to proper performance of the contract and as to which Members may ordinarily rely on their being adhered to. In such case, however, LOOKK shall only bear liability for such damages as are foreseeable and typical for the contract. LOOKK shall not bear liability for slight negligent breaches of obligations other than those set forth in the foregoing sentences.
(6) The limitations on liability set forth above shall not apply with respect to injuries to life, limb and health, with respect to damages following assumption of a guarantee as to characteristics of the Design and with respect to fraudulently concealed defects. Liability under the Austrian Products Liability Act shall remain unaffected by the foregoing.
(7) To the extent of any disclaimers or limitations on LOOKK’s liability, these shall also apply with respect to the personal liability of executives, employees, vicarious agents or independent contractors as well as other agents of LOOKK.
§ 7 Retention of title
All Designs are delivered subject to retention of title and shall remain LOOKK’s property until such time as full payment for them has been made. In the event of the return of a Design, LOOKK shall be entitled to charge the Member for any shipping and handling charges which it has incurred. In the event of interference by third parties with the reservation of title goods (in particular as a result of attachments), the Member undertakes to make reference to LOOKK’s ownership thereof and to inform us without delay. If the Member is a consumer or is not an entrepreneur whose regular course of business includes trading in Designs acquired from us, the Member may not make dispositions over the reservation-of-title goods until such time as the open invoice has been completely paid, in particular, may not sell the goods, pledge them, give them as gifts or lend them. The Member shall bear the full scope of risk with respect to the reservation-of-title goods, in particular as to the risk of destruction, loss or deterioration.
§ 8 Assignment of claims
In the case of deliveries made subject to reservation of title, the Member is deemed to assign on account of payment to us now and in advance its claims vis-à-vis third parties to the extent such claims arise through the sale or processing of our Designs and until such time as our claims have been finally paid. Upon our request, the Member shall identify its customers to us and shall alert them in a timely fashion as to the assignment. The Member shall make a notation in its business records, in particular in its open items list, with respect to the assignment and shall draw its customers’ attention thereto on its consignment notes, invoices etc. Where the Member is in default with respect to its payments to us, it shall segregate sales proceeds it received and shall only hold them in our name. Any claims a Member may have against an insurer shall be deemed assigned to us now and in advance subject to the limits imposed by the Austrian Insurance Contracts Act.
Where the transaction in question is not a consumer transaction, claims against us may not be assigned without our express consent.
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