Terms of Service (Deutsche Fassung)
§ 1 Preamble Test
XIPAX Böck KG, 61 Schönbrunner Straße, Vienna 1050 (hereafter „XIPAX“ or „CS“) operates an online portal for the international advertising industry under creativesociety.com.
The present Terms of Service apply to the use of any service in connection with the website creativesociety.com (as well as any corresponding top-level domain and/or subdomain/alias). These Terms of Service may be downloaded at any time from the website cting parties never become integral to any contract or agreement regardless whether they contain deviating or supplementing terms or conditions from these present Terms of Service.
Deviating or supplementary agreements to these Terms of Service must be in writing.
CS reserves the right to change the present Terms of Service at any time without prior consent of the contracting party and to amend these Terms of Service if any applicable laws change.
§ 2 Scope of Service
The current service provided by CS is the provision of an online portal under the website creativesociety.com (as well as any corresponding top-level domain and/or subdomain/alias) for companies, advertising agencies, advertisers, award organizers, creative individuals and similar (hereafter „User“ or „Contractual Partner“). CS does not provide its own content, but hosts relevant content of its Contractual Partners on the website creativesociety.com. CS is not liable for any provided content, links etc provided by the Contractual Partner.
In order to upload content to the CS portal you must be a registered user. Upon registering, the personal data (hereafter „Portfolio“) of each User will be published on a subdomain of creativesociety.com. This portfolio serves the User as a personal page for the CS platform and can additionally be used for the publishing of an independent website (hereafter „Superfolio“; this applies only for Premium members). CS also offers a job exchange platform that uses information from the Portfolio.
The User can upload, present and describe creative works for which they have the appropriate right of use (e.g. copyright), as well as assigning “Credits” to works, crediting individuals and/or companies. The Credits (i.e. personal data of third parties) will then be published on the respective Portfolio.
Unregistered Users can view, recommend, integrate into third party pages and rate the content on CS. Such Users have however no claim to these service.
As of October 2011 a Job Exchange will also be made available to Users. CS offers a platform whereby Users are pointed towards other Users and provides only the technical applications so that the Users may make contact with one another. CS will not participate in any communications between Users. If Users complete contracts with each other through creativesociety.com, CS is not involved and will not be a contractual party to any such agreement, for which solely the User is responsible. CS is not liable in the event that no User contact is available on creativesociety.com in relation to the job exchange. CS is also not liable for any violations or infringements to agreements made between Users.
The current service description for the individual accounts, which form a part of these Terms of Service, can be found under www.creativesociety.com/accounttypes
The Website creativesociety.com itself as well as all content and trademarks on the Website creativesociety.com, except all User submissions, are owned by CS, subject to copyright and other intellectual property rights. Content on the Website including applicable software is provided to you for your information and personal use only and may not be downloaded, copied, distributed, transmitted, broadcast, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.
§ 3 Contractual Partners, Registration and Contract Completion
Contractual Partners and Users of CS are those natural and legal persons who by registering on creativesociety.com use the services as described in § 2.
The future Contractual Partner assures CS of the validity and accuracy of data given in the registration process. In any event, each User is only entitled to create one User profile. In the event that the given data is false or incorrect or any User creates a profile more than once, this will lead to an immediate termination of the contract.
The contract with the User comes into effect upon confirmation of the offer by CS. The offer of the respective use will be given upon completion of the registration process and acceptance of the present Terms of Service. CS agrees to the offer through the activation of the User account for the services of the online portal creativesociety.com. It should be noted that CS has no obligation to contract. In the case of services requiring payment (e.g. Premium services), the offer of the future User is first given when, in addition to completion of the respective registration process and acceptance of the Terms of Service, a valid payment method, as described in §7, is provided.
In the event that a Contractual Partner is not of legal age at the time of completing the contract, a declaration of consent from the legal guardian is required.
§ 4 Appropriate Service Use
Through completion of the respective contracts of use, CS will make available to the contractual partner the services of the online portal creativesociety.com as chosen upon registration.
The following accounts are available through the creativesociety.com portal:
1. Personal Basic Account
The scope of use of the Basic Account corresponds in essence to the service description in § 2 (excluding Superfolios).
Data uploads for the Basic Account are limited to a total 1 GB per user, with data transfer of the uploaded data limited to 10 GB per month and the length of uploaded videos limited to 20 minutes in length.
2. Personal Premium and Corporate Account
In addition to the scope of use of the Basic Account, the Personal Premium Account also allows for the use of a Superfolio. Individual Portfolios can be used under the CS portal as individual websites (e.g. under individual domain names). The layout of the Superfolio can be created by oneself using the provided tools. Superfolios can also be used in connection with Facebook or mobile devices. The same also applies for the Corporate Account.
Data uploads for the Personal Premium Account are limited to a total 10 GB per User, with data transfer of the uploaded data limited to 25 GB per month and the length of uploaded videos limited to 128 minutes in length.
The use of the online portal creativesociety.com is exclusively permitted according to the agreement with these Terms of Service, in particular according to §§ 2 and 4. Additionally, when using the online portal creativesociety.com (as well as any corresponding top-level domain and/or subdomain/alias), the User agrees to the following:
- The use of this website occurs only with the tools (e.g. CS Videoplayer) provided by CS.
- The tools made available by CS are exclusively only for their intended use.
- By the upload of each contribution no legal, regulatory and/or contractual provisions are violated.
- The Contractual Partner holds the appropriate rights, licenses, agreements, permissions or similar for the contributions to the online portal creativesociety.com.
- The Contractual Partner agrees upon completion of the contract, that CS is able to prevent the access to the Portfolio as well as any content in the event that third party claims must be upheld and/or the Contractual Partner does not without doubt hold the rights for the provided content.
- With each upload the Contractual Partner cites the necessary Credits to the respective work.
- When using the online portal creativesociety.com, the data limitations as set out in § 4 shall not be exceeded.
- The User will only upload that content for which the portal creativesociety.com is intended.
- Should the User discover any instance of misuse (e.g. copyright infringements) he is obliged to report it immediately using the “Report Abuse” facility.
- CS is permitted the use of all User contributions and their associated rights. This allows the User uploads to adhere to the standards of the online portal as well as to these Terms of Service.
- In particular, with each upload CS is guaranteed, for all necessary rights available, a worldwide, nonexclusive, free from license fees, sublicense and transferable license for use, reproduction, editing, broadcast, transmission, performance and being made generally available as well as for distribution of User contributions in connection with the online portal creativesociety.com and its business (as well as its legal successors and related companies) in all media and media forms. This includes but is not limited to co-productions with other publishers, CS' promotional purposes, partner and network sites, existing and yet to be developed technologies, merchandising and rankings as well as to the use of screenshots from User videos. This indefinite license granted to CS applies until written revocation.
In the event that the above named agreements are not honored by the contractual partner, CS reserves the right to immediately annul the contract with the user and block their access to the online portal creativesociety.com.
§ 6 Webhosting and Superfolio
CS offers Webhosting and Superfolio in accordance with § 2. CS makes no guarantee for uninterrupted access to uploaded data for Superfolios and Webhosting (see § 2). CS is not liable for technical failure, data loss, cancelled data transfer or other related problems. CS highlights to its Users that restrictions and disturbances to their service may have causes beyond the control of CS. Hereunder fall in particular actions of third parties who do not act on behalf of CS, technical requirements/conditions of the internet upon which CS has no influence, engineering as well as force majeure. Equally, the hardware and software or the technical infrastructure (e.g. a DSL connection from another provider) used by the User can also affect the service from CS. As far as such conditions have an influence upon the accessibility or functionality of CS' service, they have no effect upon the contractual validity of the services.
The User has, unless specifically stated, no claim upon an IP address, an individual physical server for his content or an assigned bandwidth (performance capacity for data traffic) dedicated to him. The operation functions through capable central processors (hereafter “Server”) an IP address and a bandwidth accessible for the respective Server, whereby fluctuations in the bandwidth available to the User are possible. The User is obliged to inform CS immediately in writing (e.g. by email) within 12 hours of discovering any interruptions to service.
The User ensures to his best knowledge and belief that in relation to his individual domain name and Superfolio, no rights of third parties are infringed and no illegal objective shall be pursued. Equally, the User acknowledges that he alone is responsible for the choice of his domain name and declares that he will not enforce any claims of third parties against CS and will reimburse CS for any damages caused. In the event of a legal dispute CS reserves the right to freeze the relevant domain name or name of the Superfolio until the dispute has been resolved.
§ 7 Payment
For the payment of accounts where it is necessary, the following forms of payment will be accepted:
- Diners, Visa, Mastercard
- Bank transfer (minimum contract length one year)
Before completion of the contract, the authenticity of the provided data will be checked by the respective payment institution. If the provided data does not correspond to that of the payment institution, no contract with CS comes into effect. When the provided data is accepted by the payment institution the registration process shall be complete and a confirmation will be given.
The User authorizes CS to charge open amounts at any time for the entirety of any interest, costs and charges of the respective payment institution.
In the event of default, a default interest rate of 8% applies to compensate for dunning and collection costs. In the event of single liability or of cancelation of a contract without notice, all outstanding monies must be paid to CS immediately.
The compensation of counter claims made by the User is precluded.
§ 8 Guaranteed Value
The following Adjustment Index for compensation applies to the use of respective accounts. As a measure for calculating stable value, the monthly disclosed Consumer Price Index 2005 of the Statistik Austria or – if the Consumer Price Index 2005 of the Statistik Austria ceases to exist – such index following the Consumer Price Index 2005 of the Statistik Austria will apply.
The established index figure provided for the month of completion of the contract serves as a reference value for adjustments. Fluctuations of the index figure up to 5% are disregarded. This fluctuation margin is newly calculated with each exceeding, whereby invariably the first index figure lying outside of the respective applicable margin constitutes the basis for both the adjustment of the amount of debits and the calculation of the new margin. All rates of change are calculated to a rounded decimal point.
§ 9 Data Protection
The Contractual Partner hereby expressly agrees that the data provided may be processed by CS for a specific EDP-supported purpose in relation to the online portal creativesociety.com.
Further, the Contractual Partner acknowledges that CS uses services from third parties (e.g. Google Analytics, Facebook, Ogone etc) and he expressly agrees in this context to the use of his data by these third parties. It should be noted that cookies, IP addresses or similar of the Contractual Partner may be used for statistical purposes (e.g. analyzing the website creativesociety.com) as well as passed on for statistical purposes. If personal data is used or passed on by third parties in this respect, CS is no longer the principal within the meaning of the Datenschutzgesetz 2000 (hereafter “DSG 2000”).
Registered Users expressly agree that other Users of CS may follow them. In this sense, following consists of receiving information on the Dashboard about the activities of another User with regard to the website creativesociety.com.
The use of data with regard to the online portal creativesociety.com will adhere to the data protection regulations within the meaning of DSG 2000 as well as all other relevant Austrian legal provisions. Email addresses of Contractual Partners obtained by CS in the context of completion of contracts may be used by CS for the purpose of promoting their services. The User agrees to receiving system updates and Newsletters. These messages and Newsletters are a part of CS' service and cannot be cancelled during the contracted period.
Should the User provide personal data (e.g. name, email address etc) of third parties in respective Credits, then CS is no longer the principal within the meaning of DSG 2000. The User hereby states that he has the permission from all concerned third parties for all personal data he provides.
§ 10 Guarantee and Compensation
Except as otherwise provided under these Terms of Services, CS undertakes to carry out the conveyed endeavours with professional and commercial diligence to the best of its knowledge. Should any discrepancy occur however, the User must make and provide the grounds for a potential claim in writing within 7 working days of knowledge of the discrepancy.
Compensation claims by the Contractual Partner of every sort are precluded as far as they do not concern willful misconduct or gross negligence on the part of CS and can exclusively be based on the scope of service within the meaning of § 2 of these Terms of Service, although then only up to the value of the respective contract.
§ 11 Disclaimer
The use of the CS online portal is entirely at the User's risk. CS, its officers, employees and representatives preclude any liability in relation to the website creativesociety.com (as well as any corresponding Top-Level Domain and/or Subdomain/Alias) and its use. CS does not assure the specific quality of content of the online portal creativesociety.com nor of any linked site and precludes in particular every responsibility and liability for
- content of the contributions provided by the Contractual Partner of any sort;
- the safety or saving of the provided contributions and information of any sort;
- damages of any kind resulting from the loss of data or any theft of data provided by the Users (e.g. articles)
- content of linked pages of any kind to the website creativesociety.com
- errors, mistakes and inaccuracies of the website creativesociety.com;
- personal or property damage of any sort due to the use of the online portal creativesociety.com;
- any unauthorized access or use of the secure CS server and/or personal and/or financial data saved thereon;
- every interruption or ending to transfer in relation to the online portal creativesociety.com;
- any computer infection, virus, Trojan or similar transferred by third parties from or through the online portal creativesociety.com;
- all errors or incompleteness of content or loss or damage of all types resulting from the use of that content, which is made available over the online portal creativesociety.com;
- damages caused by third parties or subcontractors
- the non-conclusion of a contract via the job exchange
- violations by the Users of any contracts concluded in connection with the job exchange at creativesociety.com.
CS expressly distances itself from and makes no guarantee for any third party product/service advertised or offered on the online portal creativesociety.com or any linked websites. CS is neither a contractual party of nor responsible for the supervision of business transactions between Users and third party suppliers of products or services.
CS operates its website out of Austria and takes no responsibility for whether its use is permitted or possible elsewhere. Anyone who gains access to the CS website from other jurisdictions does so of their own freewill and is responsible for their adherence to the local legal situation.
The Contractual Partner is liable for all damages he inflicts upon CS in relation to the respective contractual relationship.
§ 12 Indemnity
Irrespective of the (further) validity of these Terms of Service and for any duration of use of the online portal creativesociety.com, every User irrevocably undertakes to indemnify CS, its officers, employees, associated companies and representatives for all damages, in particular for claims and damages including legal costs due to
- the User's access and use of the online portal creativesociety.com;
- the infringement of any part of these Terms of Service;
- the infringement of third party rights, in particular of (intellectual) property or personality rights;
- any third party claims based on User contributions.
Should third party claims due to infringements by the User be made against CS, the User expressly undertakes to indemnify and hold harmless CS.
§ 13 Term of Contract
A contract can be signed between CS and the respective User for a duration of one or of 12 months, whereby the contractual relationship can be terminated in writing by CS at the end of each month. The Personal Basic Account can be terminated at any time by either party. If the User enters into a contract with CS for 1 month, this contract may only be terminated up until two working days before the end of the contract period at www.creativesociety.com⁄kuendigung. For a contract period of 12 months, the User can terminate the contract for the end of the month after one month has passed up until 2 days before the end of the month (at www.creativesociety.com⁄kuendigung). Users that pay for CS’ services by method of transfer can terminate the contract in the last month up to 2 days before the contract expires. Should a termination not occur seasonably then the contract will be extended by the original contract period.
Payments that have already been made by the User may not be refunded after the contract has been terminated.
The right of termination for due cause remains unaffected for both contractual parties. In addition, CS can prematurely (with immediate effect) terminate respective contracts particularly and irrespective of other clauses in these Terms of Service due to the following causes:
Without adhering to a (further) grace, if• insolvency proceedings are instituted for the assets of the Contractual Partner, or a claim of instituting such proceedings lacking cost-covering assets is dismissed; • the Contractual Partner is more than one week in default with a payment according to these Terms of Service; • the Contractual Partner infringes the provisions of these Terms of Service, the rights of third parties, the law or morality.
Upon termination of this contract, all outstanding monies owed by the Contractual Partner will be due and payable, as far as they are not already due.
§ 14 Final Provisions
CS is able to transfer its rights and obligations arising from contracts or agreements with the Contractual Partner at any time and without the Contractual Partner's consent, to its respective single or universal successor. The transfer of rights and obligations of the Contractual Partner arising from contracts or agreements between him and CS to his respective single or universal successor requires the express written consent of CS.
Provisions, which are scheduled in these Terms of Service or in the law, apply on the day as received at the last address given in writing by the Contractual Partner. A change of address must be expressly made known in writing to the other contractual party and will become effective two weeks after arriving at the address of the other contractual party.
Austrian law is to be applied to all legal issues arising from or in connection with these Terms of Service under exclusion of their reference norms (in particular under exclusion of the UN- Kaufrecht and the IPRG).
The place of fulfillment is Vienna. The contractual parties agree that the exclusive authority of the appropriate court in Vienna applies to all disputes arising from a contractual relationship within the meaning of these Terms of Service.
In the event of a dispute, the Contractual Partner is not able to abandon their obligations in the meaning of these Terms of Service.
The Contractual Partner waives the right to dispute an agreed contract according to these Terms of Service due to errors.
In the event that there is a subsequent change or supplement or any provision in these Terms of Service shall be invalid or unenforceable, they shall not affect the remainder of these Terms of Service or render them invalid or unenforceable as a whole. In the event of ineffectualness, invalidity or unenforceability of any such provision then it will be replaced with one that is valid and enforceable and to the greatest extent possible achieves the original objectives and intent of the original provision. Thereby the specific commercial interests of the contractual parties, particularly from null, unenforceable or unlawful provisions, are ascertainable.
This English version of the Terms of Service for the website creativesociety.com is a free and uncertified translation of the original German Terms of Service. In the event of any dispute, the original Terms of Service in German are applicable and are in no way affected by this English translation.