Terms of Service
These Terms of Service (“Terms”) govern:
- (i) your use of this Website and any accompanying applications (as further defined below), and
- (ii) the legal and contractual relationship between you (as further defined below) and the owner of this Website (hereinafter the “Owner” as further identified below) arising out of your use of this Website and any Services provided through this Website, whether paid or unpaid.
The individual accessing this Website (as further defined below), for personal, professional, or any other relevant use, and/or receiving free or paid for services through this Website and any software provided herein (hereinafter the “User(s)” or “you”) must read these Terms carefully, to make sure they are fully aware of their rights and obligations, associated with accessing this Website, and all services or software provided on this Website.
Softailed provides comparative tools for various software services such as email, web hosting, software, database management, development, digital marketing, SEO, email marketing, web design and other services, so that Users are able to compare the benefits and drawbacks of various software available for sale online, and make the best decisions in terms of the software they choose to purchase or use. Softailed provides information available on the internet for third-party software also available for purchase over the internet or otherwise.
2. Definitions and Commercial Imprint
2.1 This Website is provided by Fenger Digital GmbH, the contact email of which is [email protected], the business address of which is Wiesenstraße 6, 49074 Osnabrück, Germany, the incorporation/business number of which is HRB 216152, being a legal entity registered as GmbH, in the commercial register and registration court of Osnabrück, the VAT registration number of which is DE343212970 and the legal representatives and directors of which is Denis Fenger (the “Owner”).
2.2 "This Website" refers to a) this website, located at www.softailed.com, including its subdomains and any other website through which the Owner makes Services advertised, displayed or accessed through this Website available; b) applications for mobile, tablet and other smart device systems developed or accessed through this Website, or otherwise associated with the name, branding or Services of this Website; c) the Application Program Interfaces (API) accessed through this Website; d) any and all services accessed through this Website by a User (the “Services”); e) any applications, sample and content files, source code, scripts, instruction sets or software included as part of a service offered through this Website or otherwise accessed via this Website, as well as any related documentation; f) Any and all paid or unpaid services, physical products, or information about services or physical products of any kind, purchased, accessed or obtained through this Website.
2.3 Hereinafter, the information, services, and all other items mentioned in Section 2.2a)-f) are referred to as the “Content” in some sections.
3. Application of The Terms to the Users
3.1 In compliance with the General Data Protection Regulations in effect in the European Union (GDPR), the right of withdrawal (as defined below) is provided only to European Consumers. The right of withdrawal, also commonly called the right of cancellation in the UK, is consistently referred to as “the right of withdrawal” within this document.
3.2 Please note that some provisions in these Terms may only apply to certain categories of Users. In particular, certain provisions may only apply to Consumers or to those Users that do not qualify as Consumers. Such limitations are always explicitly mentioned within each affected clause. In the absence of any such mention, all clauses apply to all Users.
3.3 Unless otherwise specified, the present Terms apply generally to all Users when using this Website.
3.4 Single or additional conditions of use or access may apply in specific scenarios and in such cases are additionally indicated within this document
4. Requirements with which Users must comply
4.1 By using this Website, each User confirms that they will meet the following requirements:
a) The User is not restricted in any way from making use of or accessing the Content through any contractual, legal or other restrictions of any kind on the Users activity, whether such use is professional, personal, commercial or otherwise; b) User is not located in a country that is subject to a U.S. or European Union (including individual member states) (“EU”) Government embargo, or that is subject to any US sanctions, whether financial or otherwise; c) User is not listed on any U.S. or EU Government list of sanctioned parties; and d) The User shall not make any use of the Content on this Website for the purpose of any illegal or unlawful activities in the United States, the EU or its member states, or pursuant to the laws of any applicable jurisdiction to which the User and the Owner are subject to.
5. Account registration
5.1 To use and access some or all of the Content, Users may be required to register or create a User account (“account”), providing all required data or information in a complete and truthful manner. The Owner shall not be responsible for assuring or verifying the validity or truthfulness of any information provided by the User, related to their account or access to Content on this Website, and the User hereby agrees that they are fully liable and responsible for this information. Users may also be permitted to use the Services without registering or creating a User account, however, this may cause limited availability of certain features or functions, at the sole discretion of the Owner.
5.2 Users are responsible for keeping their login credentials confidential and safe. For this reason, Users are also required to choose passwords that meet the highest standards of strength permitted by this Website.
5.3 By registering, Users agree to be fully responsible for all activities that occur under their username and password. The Owner shall not be held responsible for any liabilities, damages, costs, sanctions or claims of any kind (“liabilities”), arising out of the Users creation of an account, provision of information related to such an account, or the use of the Content and this Website, and the User agrees that they shall defend, indemnify and hold harmless the Owner of this Website for all liabilities arising out of their use of their account, on demand, and such liabilities shall include any reasonable attorney fees or legal expenses.
5.4 Users are required to immediately and unambiguously inform the Owner via the contact details indicated in this document, if they think their personal information, including but not limited to User accounts, access credentials or personal data, have been violated, unduly disclosed or stolen.
6. Conditions for account registration
6.1 Registration of User accounts on this Website is subject to the conditions outlined below. By registering, Users agree to meet the following conditions:
a. Accounts registered by bots or any other automated methods are not permitted. b. Unless otherwise specified, each User must register only one account. c. Unless explicitly permitted, a User account may not be shared with other persons, and the User, and not the Website, is responsible for all consequences and liabilities associated with the sharing of an account and its related details with third parties or additional users. d. Users registering accounts must be at least eighteen (18) years of age or above.
7. Account termination
7.1 Users can terminate their account and stop using the Content at any time by doing the following:
a. By using the tools provided for account termination on this Website. b. By directly contacting the Owner at the contact details provided in this document, only in the event that the steps in Section 7.a of these Terms described above do not lead to the successful termination of a User’s account.
8. Account suspension and deletion
8.1 The Owner reserves the right, at its sole discretion, to suspend or delete at any time and without notice, User accounts which it deems inappropriate, offensive or in violation of these Terms.
8.2 The suspension or deletion of User accounts shall not entitle Users to any claims for compensation, damages or reimbursement, and the User agrees that the Owner shall not be liable for any losses, liabilities, loss of data, economic damages, loss of information, or costs of any kind incurred by the User, when the Owner decides to exercise any of its powers described in this Section 8 or elsewhere in these Terms.
8.3 The suspension or deletion of accounts due to causes attributable to the User does not exempt the User from paying any applicable fees or prices.
9. Content on this Website and Intellectual Property
9.1 Unless where otherwise specified or clearly recognizable, all Content available on this Website is owned or provided by the Owner or its licensors. The Owner undertakes its utmost effort to ensure that the Content provided on this Website infringes no applicable legal provisions or third-party rights. However, it may not always be possible to achieve such a result. In such cases, without prejudice to any legal prerogatives of Users to enforce their rights, Users are kindly asked to preferably report related complaints using the contact details provided in this document.
9.2 All information and Content displayed on this Website is the sole property of the owner and/or its licensors. This includes all ideas, software, source code, information, designs, images, titles, articles, Content, patentable materials, trade names, trademarks, copyrightable materials, trade secrets and any information, content or material contained on this Website (“intellectual property”), which is the sole intellectual property of the Owner and/or its licensors, and such intellectual property may not be reused, duplicated, copied, licensed or sold to any third party without the express written consent of the Owner. No Content sold or accessed on this Website may be copied, duplicated, resold, reverse engineered or modified for sale in any form by a User, and such Content is only to be used for the use expressly permitted by the Owner by these Terms or otherwise in writing. Any acts or omissions (“acts”) which violate the terms of this clause shall render the User responsible for such acts fully liable to the Owner upon demand, and such liabilities include lost profits, legal fees, attorney fees, and any costs incurred by the Owner in remedying the consequences of and preventing the acts in violation of this clause. By accessing this Website, you agree that you shall be fully liable for any failure to comply with the requirements of this clause. Any commercial reselling, duplication or reverse engineering of any Content, intellectual property, service or physical good accessed through this Website is by default an act in violation of this clause, and the perpetrator of such an act shall be fully liable to the Owner, on demand, as described in this clause.
9.3 Without prejudice to any more specific provision of these Terms, any intellectual property rights, such as copyrights, trademark rights, patent rights and design rights related to this Website are the exclusive property of the Owner or its licensors and are subject to the protection granted by applicable laws or international treaties relating to intellectual property. All trademarks — nominal or figurative — and all other marks, trade names, service marks, word marks, illustrations, images, or logos appearing in connection with this Website are, and remain, the exclusive property of the Owner or its licensors and are subject to the protection granted by applicable laws or international treaties related to intellectual property.
10. Rights regarding Content on this Website - All rights reserved
10.1 The Owner and/or its licensors hold and reserve all intellectual property rights for any Content on the Website.
10.2 Users may not therefore use such content in any way that is not necessary or implicit in the proper use of the Content.
10.3 In particular, but without limitation, Users may not copy, download, share (beyond the limits set forth below), modify, translate, transform, publish, transmit, sell, sublicense, edit, transfer/assign to third parties or create derivative works from the Content available on this Website, nor allow any third party to do so through the User or their device, even without the User's knowledge.
10.4 Where explicitly stated on this Website, the User may download, copy and/or share some Content available through this Website for their sole personal and non-commercial use, or for any commercial use explicitly permitted by the Owner, and provided that the copyright attributions and all the other attributions requested by the Owner are correctly implemented.
10.5 Any applicable statutory limitation or exception to copyright shall stay unaffected.
11. Content provided by Users
11.1 The Owner may allow Users to upload, share or provide their own data, software, images, materials, information, graphics, text, user created content of any identifiable nature (“User Content”) to this Website.
11.2 By providing User Content to this Website, Users confirm that they are legally allowed to do so and that they are not infringing any statutory provisions and/or third-party rights.
11.3 Further insights regarding acceptable User Content can be found inside the section of these Terms which detail the acceptable uses.
12. Rights regarding User Content
12.1 Users acknowledge and accept that by providing their User Content on this Website they grant the Owner a non-exclusive, fully paid-up and royalty-free license to process such content solely for the operation and maintenance of this Website as contractually required.
12.2 To the extent permitted by applicable law, Users waive any moral rights in connection with User Content they provide to this Website.
12.3 Users acknowledge, accept and confirm that all content they provide through this Website is provided subject to the same general conditions set forth for Content on this Website.
12.4 Users are solely liable for any User Content they upload, post, share, or provide through this Website.
12.5 Users acknowledge and accept that the Owner at their discretion, may filter or moderate such User Content in a preventative manner.
12.6 Therefore, the Owner reserves the right to refuse, censor, remove, delete, block or rectify such User Content at its own absolute discretion and to deny access to this Website to the uploading User without prior notice, if it considers such Content to infringe any applicable legal provision or third party right, or to otherwise represent a risk for Users, third parties, the Owner and/or the availability of the Content in general.
12.7 The removal, deletion, blocking or rectification of User Content shall not entitle Users that have provided such User Content or that are liable for it, to any claims for compensation, damages or reimbursement.
12.8 Users agree to hold the Owner harmless from and against any claim asserted and/or damage suffered by the Owner which is related to User Content provided to or provided through this Website.
12.9 The User agrees that any User Content uploaded to the Website shall be free from viruses, malware, spyware, or any other software of a malicious nature, and that it shall be free from any illegal, obscene or inappropriate materials, which shall include child pornography, pornography, materials which contain discriminatory, racist, sexist, homophobic or xenophobic messages, or any hate speech (defined as any derogatory, defamatory or demeaning information or communications related to any individual, or groups, based on certain identifiable or personal characteristics, such as race, religion, sex, sexual orientation, country of origin, nationality, cultural practices, membership or affiliations, or otherwise defined by the Owner in their sole and absolute discretion), or other prejudicial messages, images or information of any kind, or any other materials or User Content which the Owner deems inappropriate in their sole and absolute discretion (“Restricted User Content”). The Owner may, at their sole and absolute discretion, remove any Restricted User Content if detected on this Website, and further delete or restrict access to the User’s account if the User has been found to have uploaded any Restricted User Content, without any liabilities for the Owner for loss of data or damages of any kind whatsoever.
13. Access to external resources
13.1 Through this Website Users may have access to external resources provided by third parties. Users acknowledge and accept that the Owner has no control over such resources and is therefore not responsible for the third-party content or its availability.
13.2 Conditions applicable to any resources provided by third parties, including those applicable to any possible grant of rights in third party content, result from each such third parties’ terms and conditions or, in the absence of those, applicable statutory law.
13.3 In particular, on this Website Users may see advertisements provided by third parties. The Owner does not control or moderate the advertisements displayed via this Website. If Users click on any such advertisement, they will be interacting with any third party responsible for that advertisement.
13.4 The Owner is not responsible for any matters resulting from such interaction with third parties, such as anything resulting from visiting third-party websites or using third-party content.
14. Acceptable use
14.1 This Website and the Content may only be used within the scope of what they are provided for, under these Terms and applicable law.
14.2 Users are solely responsible for making sure that their use of this Website and/or the Content violates no applicable law, regulations or third-party rights.
14.3 Therefore, the Owner reserves the right to take any appropriate measure to protect its legitimate interests which include the denial of User access to this Website or the Content or to an account, or the reporting of any misconduct performed through this Website or the Content to the competent authorities – such as judicial or administrative authorities - whenever Users engage or are suspected to engage in any of the following activities:
a) violation of laws, regulations and/or these Terms; b) infringement of any third-party rights; c) considerably impairing the Owner’s legitimate interests; d) offending, harassing or abusing the Owner or any third party. e) any other relevant activity which breaches these Terms, at the sole discretion and judgment of the Owner, including but not limited to, sharing, uploading, distributing or engaging in any Restricted User Content by the User.
15. Software license
15.1 Any intellectual property rights, and any other exclusive rights on any Content or software or technical applications embedded in or related to this Website are held by the Owner and/or its licensors.
15.2 Subject to Users’ compliance with and notwithstanding any divergent provision of these Terms, the Owner merely grants Users a revocable, non-exclusive, non-sublicensable and non-transferable license to use the Content and software and/or any other technical means embedded in the Service within the scope and for the purposes of this Website and the Service offered.
15.3 This license does not grant Users any rights to access, usage or disclosure of the original source code. All techniques, algorithms, and procedures contained in the Content, or any related software and any documentation thereto related is the Owner’s or its licensors’ sole property.
15.4 All rights and license grants to Users shall immediately terminate upon any termination or expiration of the User’s account or access to this Website.
16. API usage terms
16.1 Users may access their data relating to this Website via the Application Program Interface (API). Any use of the API, including use of the API through a third-party product/service that accesses this Website, is bound by these Terms and, in addition, by the following specific terms:
16.2 The User expressly understands and agrees that the Owner bears no responsibility and shall not be held liable for any damages or losses resulting from the User’s use of the API or their use of any third-party products/services that access data through the API.
17. Paid Products and Advertising on the Website
17.1 Applicability This Section applies to Content or products/services made available for sale directly on the Website, unless specified otherwise hereunder.
17.2 Advertising and Promoted User Content Some Users and/or third parties may be permitted by the Owner to upload, circulate and promote User Content, certain product or services recommendations or other promoted materials, to other Users of the Website and Content, on the basis of payment (“Promoted Content”). The payment for such Promoted Content and the rates applicable to Promoted Content, as well as the scope, reach, and form of such Promoted Content will be defined by the Owner: in various affiliate agreements with such third parties; or on the Website as communicated from time to time to the general Users of the Website, or as otherwise determined by the Owner in their sole discretion. Promoted Content may be removed, restricted or prohibited by the Owner, at their sole discretion, if such Promoted Content is found to contain any Restricted Content, or is otherwise found to be inappropriate or in violation of the Terms or applicable law by the Owner.
17.3 Purchase of Products and Services on the Website The Owner may make available certain products/services for sale or allow other Users or third parties to sell or promote products/services on the Website, such as various software services or packages (“Paid Products”). In addition, the Owner may allow Users to advertise and sell Paid Products through the Website, either directly on the Website, or through third-party websites or applications, at the Owner’s sole discretion.
17.4 Description of Paid Products Prices, descriptions or availability of Paid Products, if applicable, may be communicated to Users via the respective sections of this Website associated with such Paid Products, or otherwise by the Owner in writing, and such information is subject to change without notice. While Paid Product information on this Website is presented with reasonable accuracy, representation on this Website through any means (including, as the case may be, graphic material, images, colors, sounds) is for reference only and implies no warranty as to the characteristics of the purchased Paid Product. The characteristics of the chosen Paid Products package will be outlined during the purchasing process.
17.5 Purchasing process Any steps taken from choosing their desired options for Paid Products to order submission (if applicable) form part of the purchasing process. The purchasing process may include the following steps:
a) Users must choose the desired Paid Products option and verify their purchase selection. b) After having reviewed the information displayed in the purchase selection, Users may place the order by submitting it.
17.6 Order submission When the User submits an order, the following applies:
a) The submission of an order determines contract conclusion and therefore creates for the User the obligation to pay the price, taxes and possible further fees and expenses, as specified on the order page; b) In case the purchased Paid Products chosen require active input from the User, such as the provision of personal information or data, specifications or special wishes, the order submission creates an obligation for the User to cooperate accordingly; c) Upon submission of the order, Users will receive a receipt confirming that the order has been received; and d) All notifications related to the described purchasing process shall be sent to the email address provided by the User for such purposes.
17.7 Prices Users are informed during the purchasing process and before order submission, about any fees, taxes and costs (including, if any, delivery costs) that they will be charged. Prices on this Website are displayed either exclusive or inclusive of any applicable fees, taxes and costs, depending on the section the User is browsing. Prices displayed are indicative only and subject to change without notice, until the final purchase is ordered.
17.8 Methods of payment Information related to accepted payment methods may be made available during the purchasing process. Some payment methods may only be available subject to additional conditions or fees. In such cases related information can be found in the dedicated section of this Website. Some payments are independently processed through third-party services. Therefore, this Website will generally not collect any payment information – such as credit card details – unless required, and the Owner generally will only receive a notification once the payment has been successfully completed. If payment through the available methods fail or is refused by the payment service provider, the Owner shall be under no obligation to fulfil the purchase order. Any possible costs or fees resulting from the failed or refused payment shall be borne by the User.
17.9 Usage Rights Until payment of the total purchase price is received by the Owner, the User will not receive a right of use or ownership, if applicable, related to any Paid Products.
17.10 Delivery of digital content Unless otherwise stated, digital content purchased on this Website is delivered via download or via the browser on the device(s) chosen by Users. Users acknowledge and accept that in order to download and/or use the Paid Products, the intended device(s) and its respective software (including operating systems) must be legal, commonly used, up-to-date, and consistent with current market-standards. Users acknowledge and accept that the ability to download the purchased Paid Product may be limited in time and space.
17.11 Liability for Third Party Content, Paid Products, or Promoted Content The User agrees that the Owner is not responsible for the content, form, accuracy, or delivery of any Paid Products or Promoted Content, User Content, or any other information, content or data provided by or about third parties via the use of the Website and/or on the Website (“Third Party Content”), whether or not such Third Party Content is accessed and/or purchased via this Website or via a third party website or application, and the User agrees not to hold the Owner liable for any Third Party Content, under any circumstances whatsoever.
18. User Rights of Withdrawal in the European Union (EU)
18.1 Right of withdrawal Unless exceptions apply, the User may be eligible to withdraw from any contract with the owner, within the period specified below (generally 14 days), for any reason and without justification. Users can learn more about the withdrawal conditions within this section.
18.2 Who the right of withdrawal applies to Unless any applicable exception is mentioned below, Users who are European Consumers are granted a statutory cancellation right under EU rules, to withdraw from contracts entered into online (distance contracts) within the specified period applicable to their case, for any reason and without justification. Users that do not fit this qualification, cannot benefit from the rights described in this section.
18.3 Exercising the right of withdrawal To exercise their right of withdrawal, Users must send to the Owner an unequivocal statement of their intention to withdraw from the contract. To this end, Users may use the model withdrawal form available below. Users are, however, free to express their intention to withdraw from the contract by making an unequivocal statement in any other suitable way. In order to meet the deadline within which they can exercise such right, Users must send the withdrawal notice before the withdrawal period expires.
18.4 When does the withdrawal period expire? a) Regarding the purchase of a service, the withdrawal period expires 14 days after the day that the contract is entered into, unless the User has waived the withdrawal right. b) In case of purchase of a digital content not supplied in a tangible medium, the withdrawal period expires 14 days after the day that the contract is entered into, unless the User has waived the withdrawal right.
18.5 Effects of withdrawal Users who correctly withdraw from a contract will be reimbursed by the Owner for all payments made to the Owner, including, if any, those covering the costs of delivery. However, any additional costs resulting from the choice of a particular delivery method other than the least expensive type of standard delivery offered by the Owner, will not be reimbursed. Such reimbursement shall be made without undue delay and, in any event, no later than 14 days from the day on which the Owner is informed of the User’s decision to withdraw from the contract. Unless otherwise agreed with the User, reimbursements will be made using the same means of payment as used to process the initial transaction. In any event, the User shall not incur any costs or fees as a result of such reimbursement.
18.6 On the purchase of services Where a User exercises the right of withdrawal after having requested that the service be performed before the withdrawal period expires, the User shall pay to the Owner an amount which is in proportion to the part of service provided. Such payment shall be calculated based on the fee contractually agreed upon, and be proportional to the part of service provided until the time the User withdraws, compared with the full coverage of the contract.
19. Liability and indemnification
19.1. General Disclaimers a) The Owner makes no warranty of fitness for a particular purpose with respect to any products or Content sold or accessed or displayed on this Website. The User of any Content listed on this Website agrees that such Content is accessed “as is”. The Owner bears no liability for any costs, injuries to person or property, or damages of any kind, arising from the use or misuse of the Content accessed on this Website. All such Content is accessed or relied upon at the sole risk and discretion of the User. Once Products or Content are purchased or accessed from this Website, there are no refunds permitted, unless the Owner, in their sole and absolute discretion, deems that a refund is warranted to the User. If the User relies on any information provided to them via the Content, the User hereby agrees that they are solely responsible for relying on, verifying, and utilizing the same, and the Owner does not warrant that the information provided through the Content on the Website is accurate, free from errors, or reliable in any form whatsoever.
b) TO THE FULL EXTENT PERMISSIBLE BY LAW, THE OWNER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OWNER DOES NOT WARRANT THAT THE CONTENT, INFORMATION, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE, THE OWNER’S SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM THE OWNER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR SHALL REMAIN UNINTERRUPTED OR ACCESSIBLE AT ALL TIMES. ACCESS TO THE PRODUCT OR CONTENT MAY BE DISCONTINUED AT ANY TIME, AT THE SOLE AND ABSOLUTE DISCRETION OF THE OWNER, EXCEPT TO THE EXTENT OF ANY CONTRACTUAL OBLIGATIONS BINDING THE OWNER WHICH ARISE EXCLUSIVELY FROM THE PAYMENT BY THE USER FOR ANY PRODUCT OR CONTENT. TO THE FULL EXTENT PERMISSIBLE BY LAW, THE OWNER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE AND CONEQUENTIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY OWNER PRODUCTS OR CONTENT, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS WEBSITE. THE OWNER SHALL BE LIABLE ONLY FOR DIRECT DAMAGES ARISING FROM THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN ALL CIRCUMSTANCES.
c) Third Party Content The User hereby acknowledges that the Owner is not responsible for facilitating the User’s access to or rights arising from the purchase of any Third-Party Content, or Paid Products or other services purchased from any third parties via the Website or otherwise. Any Third Parties providing Paid Products or other services to the User will be directly responsible for honoring the legal rights of Users who make use of such Paid Products services. The User agrees that the Owner is in no way liable for the accuracy, delivery, or content of any Third-Party Content or Paid Products, and any Content which references such information is provided on the Website for informational purposes only. The Owner does not guarantee the accuracy, reliability or completeness of any information about third party products or services displayed on the Website. Such information is relied on at the User’s sole and absolute risk and discretion. The Services may contain links to Third Party Content, websites and services. The Owner provides such links as a convenience, and does not control or endorse these websites and services or any Third-Party Content under any circumstances whatsoever. You acknowledge and agree that the Owner has not reviewed the Third Party Content, advertising, products, services, or other materials that appear on such third party websites or services, and is not responsible for the legality, accuracy, or appropriateness of any such Third Party Content, and shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any such Third Party Content, websites or services. The Owner makes no representations, warranties, or guarantees, express or implied, regarding any Third Party Content, service or advice provided by a third party, or any quotes or offers provided through the Services. The Owner may, in their sole discretion, act solely as an intermediary between you and third party service providers, and the Owner expressly disclaims any and all liability for any content, products, or services provided by such service providers.
20. Limitations of liability
20.1. To the maximum extent permitted by applicable law, in no event shall the Owner, and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees be liable for:
a) any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service; b) any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Content or User accounts or the information contained therein; c) any errors, mistakes, or inaccuracies of Content; d) personal injury or property damage, of any nature whatsoever, resulting from User access to or use of the Content; e) any unauthorized access to or use of the Owner’s secure servers and/or any and all personal information stored therein; f) any interruption or cessation of transmission to or from the Content; g) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Content; h) any errors or omissions in any Content or for any loss or damage incurred as a result of the use of any Content posted, emailed, transmitted, or otherwise made available through the Service; and/or i) the defamatory, offensive, or illegal conduct of any User or third party.
20.2. In no event shall the Owner, and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees be liable for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount paid by User to the Owner hereunder in the preceding 12 months.
20.3. This limitation of liability section shall apply to the fullest extent permitted by law in the applicable jurisdiction whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if company has been advised of the possibility of such damage.
20.4. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, therefore the above limitations or exclusions may not apply to User. The terms give User specific legal rights, and User may also have other rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under the terms shall not apply to the extent prohibited by applicable law.
The User agrees to defend, indemnify and hold the Owner and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees harmless from and against any and all claims or demands, damages, obligations, losses, liabilities, costs or debt, and expenses, including, but not limited to, legal fees and expenses, arising from:
a) User’s use of and access to the Content, including any data or information transmitted or received by User; b) User’s violation of these terms, including, but not limited to, User’s breach of any of the representations and warranties set forth in these terms; c) User’s violation of any third-party rights, including, but not limited to, any right of privacy or intellectual property rights; d) User’s violation of any statutory law, rule, or regulation; e) any User Content or other Content that is submitted from User’s account, including third party access with User’s unique username, password or other security measure, if applicable, including, but not limited to, misleading, false, or inaccurate information; f) User’s willful misconduct; or g) any violation of a statutory provision by User or its affiliates, officers, directors, agents, co-branders, partners, suppliers and employees to the extent allowed by applicable law.
22. No Waiver
The Owner’s failure to assert any right or provision under these Terms shall not constitute a waiver of any such right or provision. No waiver shall be considered a further or continuing waiver of such term or any other term.
23. Service interruption
23.1 To ensure the best possible service level, the Owner reserves the right to interrupt access to the Content for maintenance, system updates or any other changes, informing the Users appropriately.
23.2 Within the limits of law, the Owner may also decide to suspend or terminate the Content access altogether. If the Content access is terminated, the Owner will cooperate with Users to enable them to withdraw Personal Data or information in accordance with applicable law, if this is required.
23.3 Additionally, the Content might not be available due to reasons outside the Owner’s reasonable control, such as “force majeure” (e.g. labor actions, infrastructural breakdowns or blackouts, etc.).
24. Service reselling
Users may not reproduce, duplicate, copy, sell, resell or exploit any portion of this Website and of its Content without the Owner’s express prior written permission, granted directly in writing.
26. Changes to these Terms
The Owner reserves the right to amend or otherwise modify these Terms at any time. In such cases, the Owner will appropriately inform the User of these changes. Such changes will only affect the relationship with the User for the future. The continued use of the Content will signify the User’s acceptance of the revised Terms. If Users do not wish to be bound by the changes, they must stop using or accessing the Content. Failure to accept the revised Terms, may entitle the Owner to terminate access to an account or the Content for the User. The applicable previous version of the Terms will govern the User’s relationship with the Owner prior to the User's acceptance of the revised Terms. The User can obtain any previous version of the Terms from the Owner. If required by applicable law, the Owner will specify the date by which the modified Terms will enter into force.
27. Assignment of contract
The Owner reserves the right to transfer, assign, dispose of by novation, or subcontract any or all rights or obligations under these Terms, taking the User’s legitimate interests into account. Provisions regarding changes of these Terms will apply accordingly. Users may not assign or transfer their rights or obligations under these Terms in any way, without the written permission of the Owner.
28. Severability in General
Should any provision of these Terms be deemed or become invalid or unenforceable under applicable law, the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect.
29. Severability for E.U.-based Users
Should any provision of these Terms be or be deemed void, invalid or unenforceable, the parties shall do their best to find, in an amicable way, an agreement on valid and enforceable provisions thereby substituting the void, invalid or unenforceable parts. In case of failure to do so, the void, invalid or unenforceable provisions shall be replaced by the applicable statutory provisions, if so permitted or stated under the applicable law. Without prejudice to the above, the nullity, invalidity or the impossibility to enforce a particular provision of these Terms shall not nullify the application of the entire Terms.
30. Severability for U.S.-based Users
Any such invalid or unenforceable provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent. These Terms constitute the entire Agreement between Users and the Owner with respect to the subject matter hereof, and supersede all other communications, including but not limited to all prior agreements, between the parties with respect to such subject matter. These Terms will be enforced to the fullest extent permitted by law.
31. Governing law
These Terms are governed by the laws of the Federal Republic of Germany, without regard to conflict of laws principles.
32. Venue of jurisdiction
The exclusive jurisdiction to decide on any dispute or controversy resulting from or connected to these Terms lies with the courts located closest to or in the city of Osnabrück, Germany. The User accepts and acknowledges that all disputes arising out of the use or access to the Website or its Content or any products or accounts therein, or involving the Owner in any way related to this Website, shall be resolved in the competent courts described hereunder.
33. Dispute resolution (Amicable dispute resolution)
33.1 Users may bring any disputes to the Owner who will try to resolve them amicably.
33.2 While the Users' rights to take legal action shall always remain unaffected, in the event of any controversy regarding the use of this Website or its Content, Products or accounts, Users are kindly asked to contact the Owner at the contact details provided in this document.
33.3 The User may submit the complaint including a brief description if applicable, to the Owner’s email address specified in this document.
33.4 The Owner will process the complaint without undue delay within 21 days of receiving it.
33.5 By Using the Services and accessing the Content, the User agrees to waive any right to participate in or bring any class action lawsuit against the Owner, with respect to the use of the Website, Services or Content, and any dispute brought by a User against the Owner shall only be on an individual basis.
34. Data Protection
34.2 Any personal or sensitive data shared on this Website shall remain the property of the User and shall be subject to full confidentiality and data protection obligations on the part of the Owner. However, the User of this Website specifically allows the Owner, by the act of creating an account, accessing specific Content or purchasing any Paid Products, to use any such personal or sensitive data, and transmit such data to third parties with reasonable and adequate data protection, confidentiality and data security capabilities and obligations, and to other regions with similar or less data protection regulations in place, such as the United States of America, or elsewhere, if required for the sole purpose of providing Content, Paid Products or access to this Website, for the User specifically. If the User, submitting any information to the Owner via this Website, does not wish to have their data sent to third parties, or other regions outside their home jurisdiction, then they must communicate this in writing to the Owner, who will then determine whether they can continue providing the account, Content or Paid Products to such a User without remitting or using their data as described. If the Owner, in their sole discretion, discontinues an account, any Paid Products or access to Content, for a User making such a declaration, then any fees paid or currency of value transferred to the Owner shall be rendered forfeited to the Owner, and shall be non-refundable, to the extent permitted under applicable law.
35. Force Majeure
The Owner will not be liable for any delay in the performance of their obligations resulting directly or indirectly from or contributed to by any acts of God, acts of government or other civil or military authorities, acts of terrorists, fires, accidents, floods, war, riot or other circumstances beyond its reasonable control.
36. Example withdrawal form addressed to:
Fenger Digital GmbH INSERT EMAIL I/We hereby give notice that I/we withdraw from my/our contract of sale of the following goods/for the provision of the following service: _____________________________________________ (insert a description of the goods/services that are subject to the respective withdrawal) • Ordered on: _____________________________________________ (insert the date) • Received on: _____________________________________________ (insert the date) • Name of consumer(s):_____________________________________________ • Address of consumer(s):_____________________________________________ • Date: _____________________________________________ (sign if this form is notified on paper)