I. Area of applicability and definitions
§ 1 What is the area of applicability of these general terms and conditions of business and use?
1) "artemak+X" is a project of the Hochschule für Bildende Künste, Brühlsche Terrasse 1, 01067 Dresden (hereinafter referred to as HfBK Dresden), with the aim of creating an online database for artist interviews with a special focus on the use of materials and techniques in contemporary art. In order to manage the project, the HfBK Dresden operates an artists' portal on the platform www.artemak.art and offers its visitors the opportunity to use this portal in accordance with the provisions of these general terms and conditions of business and use.
(2) These general terms and conditions of business and use apply to the use of the artists’ portal. Deviating general terms and conditions of business and use of the visitor or of third-parties are hereby being objected to.
§ 2 What is the meaning of the individual terms?
The following terms are used in these general terms and conditions of business and use:
§ 3 What is the purpose of the artists’ portal?
The artists’ portal is an online database for artist interviews with a special focus on material use and the application of technology in contemporary art.
§ 4 What is the registration procedure?
(1) In order to use all of the functions of the artists’ portal, the visitor must register. In order to do so, the visitor enters the necessary data in an online form provided for this purpose. The visitor can pause the registration at any time by clicking the “return” or a comparable button and by closing the browser window. When clicking on the “register now" button, the visitor submits a binding offer to conclude a contract of use in relation to the artists’ portal in the final stage of the registration process.
(2) The registration requires authentication of the visitor. For this purpose, the visitor receives a separate email from the HfBK Dresden with a link which must be confirmed by the visitor within 24 hours of receipt in order to complete the registration process. Otherwise, the data of the visitor is automatically deleted from the HfBK Dresden database and no profile is created.
(3) Only visitors aged 18 and over may register.
(4) A person who has already registered may not register again (no “double membership”).
(5) Even if all requirements for acceptance as an author are met, the HfBK Dresden shall be entitled to reject the registration without the giving of reasons.
(6) The only language available for conclusion of the contract is German.
(7) The information relating to the contract of use for the artists’ portal is available to the author in his or her profile until the profile is deleted.
III. Services of the HfBK Dresden
§ 5 What services does the HfBK Dresden provide?
(1) In accordance with the following provisions, the HfBK Dresden makes the technical requirements for the use of the artists’ portal available.
(2) The specifics relating to the services and procedures are described on the Internet sites of the artists’ portal.
§ 6 Do the users incur any costs in connection with the services of the HfBK Dresden? Does a claim to the continuation of the services of the HfBK Dresden exist?
(1) The services of the HfBK Dresden are free-of-charge.
(2) As long as the services of the HfBK Dresden are free-of-charge, these are merely of a voluntary nature. The visitors shall not have any claim against the HfBK Dresden concerning the performance and continuation of the service. The HfBK Dresden reserves the right to suspend the free-of-charge services at any time without prior notification.
§ 7 May the HfBK Dresden engage third-parties?
The HfBK Dresden is entitled to have its services provided by third-parties.
§ 8 How does the data communication with the artists’ portal take place? How is the artists’ portal available?
(1) The data communication with the servers of the HfBK Dresden takes place by means of online access via the web browser of the visitors.
(2) The artists’ portal is available for an average of 95% over a month. This does not include times in which the use of the artists’ portal is interrupted or impaired due to necessary maintenance work (see § 9) or for technical reasons for which the HfBK Dresden is not responsible.
(3) The obligations of the HfBK Dresden do not include access to the Internet on the part of the visitors or the operation of data lines or data networks as part of the public Internet. Therefore, the HfBK Dresden cannot accept any responsibility for the functional capability of such data lines or data networks in relation to its servers, with the exception of the data lines between its servers and the respective transfer point to the public Internet. In particular, the HfBK Dresden cannot accept any responsibility for energy disruptions or loss of networks or servers in connection with the public Internet.
(4) In addition, the visitor is responsible himself or herself for ensuring that the necessary technical requirements for accessing the artists’ portal (in particular relating to the hardware or software used by him or her) are met or that these are obtained at his or her own expense.
(5) The HfBK Dresden is entitled to carry out updates and extensions to the artists’ portal itself at any time, provided that this is reasonable for the users.
§ 9 What is the procedure regarding maintenance work to the artists’ portal?
(1) The HfBK Dresden will inform the visitors of planned maintenance work and its expected duration in advance via the Internet sites of the artists’ portal, via the email address provided to the HfBK Dresden by the author or by other means.
(2) In case of system breakdowns due to system disruptions, the HfBK Dresden will immediately inform the visitors after becoming aware of such.
IV. Placing of contributions to the artists’ portal, obligations of the visitors
§ 10 How does the placing of contributions to the artists’ portal take place?
Following registration, the authors can upload content data to the artists’ portal themselves. The content data uploaded by the authors is published by an editor. The content data uploaded to the artists’ portal by authors is not generally checked by the HfBK Dresden for lawfulness, correctness and completeness and does not represent the opinions of the HfBK Dresden.
§ 11 What are the obligations of the visitors?
(1) For the purpose of ensuring proper use of the artists' portal, the visitor is subject to duties of conduct, whose non-compliance may lead to disadvantages. In particular, these include blocking of the profile or content data, termination of the contract of use relating to the artists' portal and damages claims.
(2) The visitor must comply with the following requirements:
(3) In particular, the visitor shall be obliged not to use the services of the HfBK Dresden in an unlawful manner and to respect laws and rights of third-parties. This includes the following obligations:
(4) The visitor must reimburse the HfBK Dresden any losses which result from a breach of an obligation set out in Paragraph 3, unless the visitor is not responsible for such. The visitor shall release the HfBK Dresden from all detriments incurred by it as a result of third-parties bringing claims against the HfBK Dresden due to damaging actions on the part of the visitor for which he or she is responsible. The HfBK Dresden shall be entitled to request a reasonable advance payment towards the costs of legal defence and/or legal advice.
V. Rights in relation to content data
§ 12 What rights exist in relation to content data?
Depending on the individual case, content data is subject to protection under copyright laws, naming laws, trademark laws, patent laws, design laws and/or other protection due to the existence of another property right or the protection of business and operating secrets. Therefore, visitors are not permitted to copy, process and/or distribute content data beyond the extent of use granted by the respective legal owner in the individual case.
§ 13 What rights does the HfBK Dresden acquire in relation to the content data?
(1) By creating the content data or uploading the content data to the artists' portal on the part of the author, he or she is hereby granting the HfBK Dresden a simple right of use which shall be unrestricted in terms of time, content and space to publish, alter and process in the artists' portal.
The granting of the rights of use in accordance with Paragraph 1 can be freely revoked by the author at any time vis a vis the HfBK Dresden without the giving of reasons.
VI. Duration and deletion of profiles
§ 14 What is the duration of a profile?
The registration takes place for an indefinite period of time.
§ 15 Under what circumstances can a profile be blocked or deleted?
(1) Authors can request the full and final deletion of the profile at any time. The HfBK Dresden will immediately delete the profile following receipt of the notification from the author. The deletion will lead to termination of the contract relating to use of the artists’ portal.
(2) The HfBK Dresden can delete a profile at any time without the giving of reasons. The deletion shall be preceded by an email notification from the HfBK Dresden.
(3) The HfBK Dresden can temporarily block or fully and finally delete a profile for important reasons. § 314 Paragraphs 2 and 3 of the German Civil Code (BGB) shall apply accordingly to the deletion. An important reason for deletion or blocking by the HfBK Dresden shall be present in the following cases in particular:
In such cases, further claims and rights of the HfBK Dresden, in particular relating to termination and damages, shall remain unaffected.
§ 16 What happens to the content data when the profile is deleted?
(1) The content data is not automatically erased when the profile is deleted.
(2) If the deletion of the profile is also accompanied by an express declaration of revocation of the granting of the right of use in accordance with § 13 Paragraph 2 by the author, the content data will also be erased at the time of deletion of the profile. Therefore, the HfBK Dresden recommends that all content data which is saved in the artists’ portal be backed up elsewhere.
VII. Liability of the HfBK Dresden
§ 17 What is the extent of liability of the HfBK Dresden?
(1) Regardless of the legal reason (for example due to impossibility, delay, defective or incorrect delivery or service, breach of contract and unlawful acts), the liability of the HfBK Dresden to pay damages shall be limited in accordance with the provisions of this § 17 (liability of the HfBK Dresden), should the liability require fault to be present on the part of the HfBK Dresden.
(2) Liability on the part of the HfBK Dresden shall be excluded in case of simple negligence, unless an essential contractual obligation whose fulfilment is essential for the proper performance of the contract and on whose compliance the visitor may rely and whose non-fulfilment endangers the attainment of the contractual purpose (a so-called “cardinal obligation”) has been breached. In case of a breach of such an essential contractual obligation, the liability of the HfBK Dresden shall be limited to losses which were foreseeable at the time of conclusion of the agreement and which are typical of the contract, should simple negligence be present.
(3) In case of gross negligence, the liability of the HfBK Dresden vis a vis entrepreneurs, legal persons under public law and public law special funds shall be limited to losses which were foreseeable at the time of conclusion of the agreement and which are typical of the contract. In case of gross negligence, the liability of the HfBK Dresden vis a vis consumers shall be unlimited.
(4) Should the breach of obligation on the part of the HfBK Dresden relate to services which it voluntarily provides to the visitor free-of-charge (for example as a gift, loan, cost-free agency and in case of simple favours), liability in case of simple negligence shall be fully excluded.
(5) The exclusions and restrictions of liability set out in this § 17 (liability of the HfBK Dresden) shall apply accordingly to claims for the reimbursement of futile expenses.
(6) The exclusions and restrictions of liability set out in this § 17 (liability of the HfBK Dresden) shall apply to the same extent in favour of its organs, legal representatives, employees and other vicarious agents.
(7) The restrictions set out in this § 17 (liability of the HfBK Dresden) shall not apply to liability of the HfBK Dresden due to intentional behaviour, due to an injury to life, body or health, in case of fraudulent intent, in case of the assumption of a guarantee or to claims under the German Product Liability Act (Produkthaftungsgesetz).
VIII. General provisions
§ 18 When can the HfBK Dresden alter these general terms and conditions of business and use?
(1) The HfBK Dresden is entitled to alter the content of these general terms and conditions of business and use, should an important reason be present for such. An important reason shall be deemed to be present in particular if unforeseeable events for which the HfBK Dresden is not responsible and over which it had no control, as well as changes to law or legislation require an alteration in order to maintain the service.
(2) The HfBK will inform the author of alterations to these general terms and conditions of business and use in text form (for example by email), stating the concrete scope. The alterations shall be deemed to have been accepted if the author does not raise an objection in writing. The HfBK Dresden shall inform the author of this consequence separately in the notification.. The objection must be received by the HfBK Dresden within six weeks of receipt of the notification. Should the author exercise his or her right of objection, the alteration request shall be deemed to have been rejected. The contact will then be continued without the proposed alterations. However, it can be terminated by both parties without notice at any time.
(3) The further rights of contractual adjustment in accordance with § 313 of the German Civil Code (BGB) shall remain unaffected.
§ 19 What law applies?
These general terms and conditions of business and use shall be subject exclusively to the law of the Federal Republic of Germany. Mandatory consumer protection provisions which apply in the country where the consumer maintains his or her usual whereabouts shall remain unaffected.
§ 20 Where is the place of jurisdiction?
(1) Should the visitor be a merchant, legal person under public law or a public law special fund or should the visitor not have a general place of jurisdiction in Germany, the exclusive place of jurisdiction for all disputes in connection with the individual contracts concluded under these general terms and conditions of use shall be Dresden, Germany. The HfBK Dresden can also bring a lawsuit against the visitor at any other legal place of jurisdiction. Mandatory statutory provisions concerning exclusive places of jurisdiction shall remain unaffected by this clause.
(2) The place of jurisdiction agreements in accordance with Paragraph 1 shall be determined exclusively in accordance with the law of the Federal Republic of Germany.
§ 21 How does the HfBK observe data protection exactly?
The HfBK Dresden will comply with all requirements under data protection laws, in particular the provisions of the GDPR and the German Federal Data Protection Act (BDSG), as well as other data protection regulations under the law of the Federal Republic of Germany. The HfBK Dresden provides comprehensive information relating to the processing of personal data in its data protection policy.
© esb Rechtsanwälte Dresden