General Terms and Conditions of Use 12designer
Please read through these conditions of use! Yes, you need to plod through them. Of course we would all prefer to create something nice, but nevertheless, everyone needs to know what they are letting themselves in for.
§ 1 General information and definitions
12designer is an intermediation platform for clients and creatives, and intercedes therefore to implement effectively the resolution of creative tasks. This comprehends tasks as copywriting, i.e. naming and claim/slogan development, as graphical, audio and multimedia tasks. Tasks are tendered as competitions on 12designer (hereafter “projects”) and rights of use to the submitted proposals are mediated.
The client enters a project on the creative portal 12designer at www.12designer.com (hereafter “12designer” or “us/we”); the creative enters own proposals as offers to the client. The client receives the rights of use by paying the project price agreed in advance to the creative.
Registered users are described as “members” (hereafter “members” or “you”); if you enter a project, you are described as a “client”, if you enter a creative proposal, you are described as a ”creative”.
§ 2 Platform operator / scope
(1) The Terms and Conditions of Use apply to the utilisation of 12designer, regardless of the accessed domain or sub-domain.
(2) The contracting partner of all members is 12designer GmbH, represented by CEO Eva Missling, headquarters at Schlesische Straße 29-30, 10997 Berlin, Germany (hereafter “12designer” / “we”), which creates and operates 12designer.
(3) The Terms and Conditions of Use also apply if the website or parts of it are accessible from other websites, which entirely or partially enable access to 12designer.
§ 3 General provisions
Upon registration, you acknowledge these Terms and Conditions of Use for all legal transactions within the context of 12designer and declare your consent. With the activation of your access to 12designer via the login section, a corresponding contractual relationship is created between you and 12designer.
Supplemental agreements can apply to specific functions and offers. If such a supplement exists, we explicitly refer you to this supplemental agreement, which you acknowledge as binding for you by usage.
Upon registration, you will become a member of 12designer if you are of full age and do not register as a consumer, but rather, as a merchant for your commercial or professional activity. According to tax laws, you’ll have to be able to provide proven certification of your company registration and/or VAT number certificates needed to comply with VAT regulations. No entitlement exists to membership; we can refuse membership, subject to specific reasons. If membership has been refused or terminated by us, re-registration is prohibited. The member’s data is to be provided truthfully and kept updated in case of any changes. The access data to the platform are to be kept confidential. The user name, which you provide, must not violate prevailing laws and morality.
Only one membership or user access is admissible per person/company/department, which is not transferable.
(3) Content created by members
For the creation of portal content (project entry, uploaded proposal, comments or other types of user contributions), in addition to these Terms and Conditions of Use, you must observe prevailing laws, in particular, no copyright/trademark or other infringements of intellectual property rights may be committed or personal rights injured.
The content of the entered projects, proposals and user communication are exclusively created by the members. We assume no liability for this.
(4) Rights of use of ideas, proposals and other content provided by the user
With the uploading of any content, particularly proposals, you must ensure that you hold the necessary rights of use. As a creative, you must ensure that you are fully authorised and in a position of being able to transfer the respective, contractually agreed rights of use to the client.
Pre-made and third party created templates are not allowed in 12designer. If you use stock material as start material, such as photos, videos, vector graphics, etc., you'll have to inform immediately the client about it (please see "(7) Project"). In logo projects, any use of stock material is completely forbidden.
You acknowledge that 12designer does not check or endorse or assume any liability for content, which is provided by you on 12designer. With the exception of the rights of use regulated in § 3, section 6, we do not claim any ownership to the content that you provide on 12designer.
(5) Transfer of rights of use between client and creatives
The contract concerning the transfer of rights of use of content provided by the creative and the effective contract relationship through payment of the previously established remuneration is exclusively to be solved between the client and the creative, who the client selects as the winner. We assume no liability for this.
The proposal's rights of use are only transferred to the client, to the contractually agreed extent between the client and creative, on fully effective payment of the agreed project price to the creative. In particular, until selection of the winner has taken place, you, as client, shall not be entitled to use them and shall commit to the respective creatives not to use the proposals.
12designer recommends signing a private agreement between parts establishing the width of the rights of use of the winning proposal. If no agreement between client and creative has been signed, by paying the project's prize for a winning proposal, the client receives from the creative the definitive, unlimited in time, regionally unrestricted rights of use, both in content and form, established within the contract relationship, of the creative work in all physical, analogue and digital formats, and therefore free to use it. The rights of use comprehend, among others, the authorization to replicate, to distribute, to lease, to loan, to archive, to modify, to broadcast, to film or to allow any public media its use, specially in printed media, TV and media services, internet, film, radio, video, databanks, networks as telecommunication, mobile, data and broadband infrastructures, and any data storing devices, no matter if these devices are intended for transmitting, sending or storing.
The creative transmits to the client specially these rights:
- Printing rights: The client is allowed to print the work, both partially and fully, by any printing method, as much and often as desired. The rights of use include specially those derived from printing in newspapers, magazines, special printings (including special editions or reprints), and any other printed collections (such as books in all formats, including also e-paper and print-on-demand services).
- Multimedia rights: The client is allowed to replicate and to distribute the work, both partially and fully, in any electronic storing media (interactive publications included). The rights of use comprehend specially cassettes, CD, CD-Rom, Mini-CD, floppy disks, video, DVD, hard drives, flash storing devices, E-Books and any data, image or audio storing device.
- Online rights: The client is allowed to replicate, to distribute, to broadcast, to transmit or make public the work, both partially and fully, regardless of their storing method or format, in any online service. Within this permit is also included the possibility of collecting the work, both partially or fully, either digital or non-digital, store it in a databank and making it accessible to its users, either in digital or analogue formats (regarding data transmission), with or without partial storage and data recording. This access to the work shall be done in any place, at any time, with any mobile device or stationary point (i.E. PC, mobile telephones, E-Readers or similar devices), and should be possible to save this work and/or forward it for its usage, including any interactive use of the work, regardless of any technical definition. The rights of use comprehend specially television and media broadcasts, Internet-based service platforms, electronic press, protected mobile services, electronic press clipping services, and any databank and cross linking products.
- Databank rights: The client is allowed to store, to replicate and make accessible to any third party the work, both partially and fully, including it with other media materials in any desired storing device, in order to achieve a successful storing and use. Third parties, including final user, shall have access to the work, regarding downloading, forwarding and printing possibilities. The rights of use include especially internal publishing houses’ archives, and any electronic or Internet-based data networks, accessible online archives to any third party (including final users).
- Modifying rights: The client is allowed to modify and to edit the work, specially to adapt copywriting, technical or specific details.
Regarding Naming/Claims/Slogans, paragraph 7.3.1 has to be taken into consideration. It regulates the transmission of the rights of use above in 5.3 mentioned, just after successful proof from the client of no colliding right again third parties.
(6) Granting a restricted right of use
As creative, you grant us a restricted, basic right of use to the provided content when entering a proposal, in order to also provide these on 12designer after the end of the project, as well as also using it for marketing campaigns within the context of 12designer in other media (on-line and off-line) as references.
As client, you hereby grant us a basic right of use to the proposals that you acquire from the creative, in order to also provide these on 12designer after the end of the project, as well as also using it for marketing campaigns within the context of 12designer in other media (on-line and off-line) as references.
The client is obligated to prepare the briefing with great care, as well as providing feedback on the proposals during the term of the project without delay, as well as answering questions from the creatives in a maximum time frame of two days.
The briefing must correspond to applicable law. If the briefing should violate prevailing laws, morality or third party rights, we reserve the right to immediately delete the project and reserve the right to claim compensation against the contract violating party, with the same applying to submitted proposals and false contact details.
With submission of the design proposal, the creative declares that he has examined the structure and underlying image, audio and other media with regard to copyrights, ownership rights, trademark rights and personal rights, etc. and excludes violations of third parties. If the creative should use third party materials, to which the client must acquire the rights, upon submitting the proposal, he must clearly inform the client about this circumstance and specify the source of the licensing, as well as the anticipate licence costs. Any omission from the creative about costs and origin of licence will mean that the creative will assume those costs from the end price of the project. With the submission of a proposal, the creative is also issuing the client a binding offer, to transfer/grant the rights of the proposal at the specified conditions. This offer is accepted by client if and by means of him selecting the proposal as the winner.
Paragraph 7.3 of these T&C do not apply for Naming/Claims/Slogans creative field. In those subjects, after choosing a winner the client has to check that no third parties are affected by this election. The creative assumes for these categories no fully binding guarantee, that his/her submission is entirely free from being subject to any limitation.
The creative of the winning proposal, after election and under client's direct request, will be subject to little modifications of his proposal, in order to adjust them to the final result (one correcting period). By submitting a proposal, creative is accepting this and remarking that he/she is capable to communicate orally with the client, and therefore able to resolve the correcting period. If this correction period fails due to an insufficient language level from creative, client will have the right to reject any payment.
The client has to send to the creative his/her corrections in written and electronically within a week after choosing a winner. By fulfilling this condition, the time frame might be extended one more week.
The creative has to fulfil all corrections stated by the client within a week after receiving the written communication, and put at his/her disposal the final archives in the desired format as stated in briefing.
When uploading the final proposal through 12designer's portal, payment will be due to procedure in the initially stated project's price. This payment release will be held up to 7 days after receiving the high-resolution files, and shall be released by clicking the release button option. If the client is not satisfied with the submitted archive, he’ll have to state it clearly within the mentioned 7 days time frame with the hold release button option. Failure to do so within this time frame, will mean that project will be automatically set to a releasable status after the 7 day time frame, and therefore project due to payment.
Payment of project's price stills an obligation even though there are accidental lacks, which do not or do partially block final proposal's functionality.
Likewise, it exists an obligation of payment whenever there's a usage of the proposal.
It will only be possible to reject project’s prize payment whenever creative proposal does not suit the adjustments or corrections stated by the client, or whenever the final archive does not respect the technical specifications mentioned in brief and/or correction round. In this case, according to 7.4.3, the client must make this clear with the hold release button option, and notify the creative in written and electronically which are the desired adjustments, and therefore asked for corrections within seven days since message has been received. The client is obliged to inform 12designer and has to be in the position of sharing a copy of any communication with the creative.
In this case, creative is obliged within 7 days after receiving this communication to correct these flaws and to provide an improved submission to the client by uploading it at 12designer.
If creative fails to accomplish this requirement with no pressing reasons that make impossible its resolution, the client will be entitled to fully reject any payment of the project’s price.
If client rejects to release the payment, even though implementations have been done within the mentioned time frame, 12designer will be entitled to proof the technical aspects of the final submission and to offer an intermediation solution, which will be binding for both parties.
(8) Payment option Prepaid/Guaranteed purchase
When posting a project at 12designer, the client has the possibility of transferring the project’s prize in advance (plus any VAT if applicable), being this possibility named Prepaid. In this case, the whole project prize and the publishing fee, plus any VAT, are immediately subject to payment.
By choosing the “Prepaid” payment option, the client might be able to guarantee the adquisition of at least one proposal (“guaranteed price” function). If so, he commits to the creative that he will acquire one proposal from a creative at the project price.
After project’s end, 12designer will transfer the project’s prize directly to the designer, and will be entitled to deduct any transfer cost or fees from the entire prize. Therefore, 12designer always will try to choose the best matching payment method (either free or affordable). i.E. PayPal.
If the client does not fulfil this obligation (stated in section 8.1) of acquiring a proposal within thirty days after project closure, we will step forward and contact the client to set a limited time frame to choose a winner. If no further action has been taken by him, 12designer will choose directly a winner, which will be the one who has interpreted at its best the client's brief.
In the case mentioned above in 8.2 of these T&C, after choosing a winner 12designer will be liable to to pay the creative up to a 50% of project’s prize as a compensation payment, being the maximal amount limited up to 500 Euros. If this happens, rights of use of the work are still kept by the creative.
12designer will retain a 15% Service Charge of the guaranteed project prize for choosing a winner.
The remaining amount will be transferred back to the client.
Guarantee will not be applicable when less than 5 creatives took part in a project.
For design and multimedia contests, in which the client argues in a reasonable way that submissions are under the quality end line, no matter how many have been posted, or that the guidelines marked in the creative brief have not been respected fully or partially, this guarantee shall be removed, but only if 12designer is able to share this opinion and submissions’ rating. The decision here lies only in 12designer’s hands.
No guarantee shall be applicable whenever a project has not been verified by 12designer’s team.
Regarding creative text projects, like naming and others, the client argues in a reasonable way that submissions are under the quality end line, no matter how many have been posted, or that the guidelines marked in the creative brief have not been respected fully or partially, this guarantee shall be removed, but only if 12designer is able to share this opinion and submissions’ rating. The decision here lies only in 12designer’s hands. Nevertheless, a guarantee removal shall not happen if there are at least 50 proposals from at least 10 different creatives.
The buying bond will be revoked aswell by client’s death or severe incapacitation. Same applies if client falls in bankrupt.
In the cases mentioned in 8.4 and 8.5 of these T&C, the client will receive the publishing fee and the whole project prize back. Publishing fee payback obligation will be over after 3 months from project’s publishing date, and project prize payback obligation will be over after 1 year from project’s publishing date.
Section 8.2 will not be applied in these cases.
Fee amounts are stated at “http://www.12designer.com/en/fees.html” and might be downloaded and printed. According to the “Fee system directive”, 12designer will be able to change, reduce or increase the fees.
Fees for creating a project as other functions subject to payment, but those regarding Service Charges, are to be paid at the beginning of the project, plus any applicable VAT.
The Service Charge will be subject to payment in those cases regulated in 7.4.3, phrase 1, of these T&C, whenever a project prize has to be solved or a proposal has been used by the client.
In case regulated in section 8 (“Prepaid”), the project prize plus any applicable VAT has to be paid at the beginning of the project. If client chooses this option, he’ll be paying 12designer with discharging effect. In this case, 12designer will make an invoice of the project prize for a third party.
12designer has the right to send to clients and creatives the corresponding invoices via E-mail.
Payment of fees will be made through an electronic payment system. Client commits him/herself to provide 12designer with his/her actual details during project's extension. If payment is refused, or any mistake happens that lead to an invalid payment, client will be enforced to transfer to 12designer's bank account within 14 days the debted amount plus any other service charges, if any. Without discharge of any other right, 12designer will be entitled to cancel access to any client by not successful payments, if 12designer warns with cancellation in written with 14 days advance. 12designer is also entitled to cancel an account earlier than the 14 days period due to urgent reasons.
Fees are stated as a net price, and VAT and taxes shall be added, if any.
The project price defined by the client is a net price. This does not include any possible transaction turnover taxes, stated in the respective applicable amount.
Client authorizes 12designer by creating a project to withdraw correspondent fees through electronic payment system. If client chooses the Prepaid variant, he authorizes 12designer to withdraw the total amount of the project and/or any applicable transaction taxes with this electronic payment system, if client refuses to accomplish his duty of choosing a winner.
(10) Rejecting / amending / deleting users, projects, content and comments
In case of violations of third party rights or other legal regulations, we reserve the right to block or delete members, project, proposals, comments and other content without prior notice, as well as arranging other measures, in order to prevent misuse of 12designer.
12designer will be entitled to cancel an account if any important reason is provided, and therefore to erase his/her details and data, and to forbid any future usage of the platform to that user. An important reason would be any infringement of conditions stated in section 4. This also applies if a client provides false details. If an account is cancelled, there will be no restoration right for his/her profile. A cancellation shall be also applied if fees are not properly paid.
There will be no entitlement to refund any fee if client's account has to be cancelled without warning period. These fees will be kept by 12designer as a compensating service charge.
If a client/user has the right to cancel his/her account immediately, fees shall be refunded if given important reasons are exclusive responsibility of 12designer.
In order to restore the platform in case of technical problems, we reserve the right to change over to an older content status. The members have no entitlement to have all of their entered content available to an unlimited extent.
(11) Availability and enhancement of the 12designer platform
We make 12designer available in the type and with the functionalities, which are currently available. There is no entitlement to availability or retention of functionalities and content.
No warranty is assumed for the availability of 12designer. Liability for the consequences and losses incurred due to reduced availability is excluded.
§ 4 Liability
(1) Liability by the member
You shall be obligated to exempt and hold us harmless from any types of legal actions, damages, losses or claims that could arise through your registration and/or participation in projects. You are particularly obligated to exempt us from any liability and claims, which arise from losses incurred due to defamation, libel, infringement of personal rights, due to stoppage of services for other members, an infringement of these rights of use, violation of intangible goods or other rights.
You are obligated not to abuse 12designer, particularly:
- maintaining a respectful communication style when communicating with other members, even with differing opinions;
- not disseminating defamatory, objectionable or otherwise illegal materials or such information through 12designer
- not threatening or harassing other persons or infringing the rights (including personal rights) of third parties;
- not using any data or content to 12designer,
a) which could damage or impair the computer of another user, which contain a virus (infected software) or would enable you or another person to illegally access software or bypass the security on websites or servers, or
b) for which you do not hold the necessary rights of use;
- not using the service in a manner that negatively influences the availability of the services for other members;
- not contacting other 12designer members to self-promotion purposes, including here and above all not contacting clients to suggest alternative offers to existing projects;
- providing links to other websites, which violate this code of conduct.
The non-observance of one of the previously mentioned duties can result in immediate cancellation of the usage agreement, as well as civil law and criminal law consequences for you personally. We particularly reserve the right to exclude you from 12designer with immediate effect if, in the opinion of the operator, immoral, obscene, or political right/left radical content or images were intended to be disseminated upon registration or use of the service.
(2) Our liability
The liability for the offered rights of use lies exclusively with the user.
We assume no liability for the trustworthiness of the user data provided; the liability for all consequences of violations against third party right or other legal regulations from participating in the project by submitting proposals lies exclusively and fully with the participating members.
If the user data is used abusively by, for example, being passed on in an unauthorised manner or not sufficiently protected, the respective member shall be held liable for the loss incurred.
Furthermore, our liability against users for damages is limited as follows:
Our liability for losses arising from the contract or prohibited acts is limited to premeditated misconduct and gross negligence. This does not apply to the case of death or injury to persons, infringement of cardinal obligations, i.e. obligations, the fulfilment of which only enable implementation of the contract in the first place and the observance of which the members can rely upon and for compensation claims arising from default. In such cases, we shall also be held liable in the case of simple negligence.
To the extent that our liability is excluded or limited, this will also apply to the personal liability of our employees and authorised representatives.
Our liability is limited to the anticipated damages or loss typically anticipated within the contest of this contract. This limitation shall not apply to compensation claims on the basis of premeditated misconduct or fraud on our part, to liability cases in relation to explicitly guarantee quality characteristics, to claims within the context of product liability law or to losses arising from death or personal injury.
We shall not be held liable for data loss or damage to data, to the extent that a loss would not have occurred in the case of proper data backup, unless we have failed to properly inform the members about data backup measures.
§ 5 Data protection
In order to provide the agency service, we must enter, process and use data. The data entered on 12designer is saved in accordance with the data protection provisions that are valid in Germany and not disclosed to third parties, unless it is necessary for the provision of the agency service or a legal obligation exists for disclosure. You declare your agreement to the saving and processing of your data in accordance with the legal data protection principles.
Members are notified by e-mail regarding certain project events and invoice information. We point out that e-mail sent in a non-encrypted form may represent a certain security risk regarding confidentiality.
§ 6 Cancellation and deletion
The contractual relationship between the members and ourselves can be cancelled properly in written form by both parties subject to a notice period of one week. During the term of the cancellation notice period, we are entitled to block members and remove entered projects or submitted proposals within the cancellation period.
We are entitled to fully or partially transfer all rights and duties arising from the utilisation relationship to third parties, after an information period of four weeks. If a member should object to this, he shall only have the option of terminating his membership by deleting the access.
§ 7 Use of Google Analytics and Google Conversions
This website uses Google Analytics, a web analytic service provided by Google Inc. (“Google"). Google Analytics uses "cookies", which are text files placed on your computer, to help the website analyse how users use the site. The information generated by the cookie about your use of the website (including your IP address) will be transmitted to and stored by Google on servers in the United States.
Google will use this information with evaluating purposes of your use of the website, compiling reports on website activity for website operators and providing other services relating relating to website activity and internet usage. Google may also transfer this information to third parties where required to do so by law, or where such third parties process the information on Google's behalf.
12designer uses Google Conversion with statistic purposes of Google Ads. Therefore cookies will be placed at user's computer when he clicks a Google ad. By creating a project at 12designer, user will arrive to our conversion page, and user's browser will send the cookie to a Google server for the above stated statistic purpose. Users personal data will never be transmitted.
§ 8 Right of Revocation
If you're not using the service for your commercial or freelancer professional activity, you're entitled to this right of revocation.
Power of revocation
Right of revocation:
You're entitled to revoke your contractual statement without further reason within 14 days in written format ( i.E. by letter, fax or E-mail). The respite begins after receiving this instructions in written, but it will never be applicable before the termination of the contract (by supply of service), neither before you get a contractual document, your written request or a copy or an application of the mentioned contractual document (in written binding contracts), neither before completing the mandatory contact information fields according to the Introductory Law to the German Civil Code, Art. 246, #2, related to #1, paragraph 1 and 2, and also our obligations according to the German Civil Code, Art. 312g, paragraph 1, phrase 1, related to the Art. 246, #3, from the Introductory Law to the German Civil Code. To ensure this cancelation period it will be enough to send it within this revoking period. The revocation has to be sent to: email@example.com
Consequences of the revocation:
In the event of a valid revocation, any services or products received, and any profit derived therefrom, if any (ist zwar etwas frei übersetzt, scheint aber den Sinn zu erfassen), such as interest, shall be returned. In the event that you are unable to return the services or products received in their entirety or at all, or where you can only return them in a deteriorated state, then you will be liable to pay compensation to us accordingly.
This could imply that you still have to comply to your contractual duties regarding your payment obligations within the time frame until the effective cancellation. Obligations for payment refunds have to be fulfilled within 30 days. The time frame starts for you from the sending date of your cancellation request, for us it starts with its receipt.
Your revocation right will be prematurely expired if the contract has been fulfilled from both parties at your specific request, before you have used your revoking right.
§ 9 Final provision
(1) Applicable law and legal jurisdiction
The exclusive legal jurisdiction for all legal disputes arising from or in connection with the utilisation relationship between you and 12designer is Berlin.
The law of the Federal Republic of Germany exclusively applies to the contractual relationship between you and us. The application of German International Private Law and the UN Convention on the International Sale of Goods is excluded.
(2) Written form, declarations
Changes or amendments to the contract concluded between you and us are only valid if they have been agreed in writing. This also applies to a change to this written form clause. All declarations issued by us can be sent to you electronically.
(3) Change to the Terms and Conditions of Use
We reserve the right to change these Terms and Conditions of Use at any time and without specifying reasons. Such changes will be notified to you by e-mail. You will be provided with the opportunity of saving or printing out the changes in a readable form. These changes shall be regarded as approved, if you do not object in writing or by e-mail. We shall specifically point this consequence out to you upon notification. You must send the objection to us within four days after notification of the changes.
(4) Severability clause
If a provision of these Terms and Conditions of Use should be invalid, this shall not affect the remaining provisions. The invalid provision shall be regarded as replaced by one which comes closest to the commercial purpose of the invalid provision in a legally valid manner. The same shall apply to possible regulatory holes.
(5) Saving of the contract text
Within the context of concluding the contract, we do not save the contract text with the General Terms and Conditions. You are therefore advised to save the contract text that is valid at the time of concluding the contract and accessible on our website on your hard disk, or to archive it in another manner.
Terms and Conditions' version 1.4, valid from 23.01.2012