General Terms and Conditions of Sale

These General Terms and Conditions of Sale (“GTCS”) govern the contractual relationship between Wacom Europe GmbH, Dusseldorf, Germany (“WACOM”) and the Customer regarding the use of the Wacom Marketplace and the Inkspace (hereinafter collectively referred to as “Marketplace”) and for all contracts for products and services concluded on the Marketplace between WACOM and the Customer.

1 Subject of the contract

1.1 WACOM allows the Customer free access WACOM’s Marketplace, where Customers are able to purchase the products of various providers centrally from WACOM.

1.2 The Customer is required to register for WACOM Single Sign-on as a precondition for concluding contracts for the provision of products. Upon registering, a customer account is set up, with which the Customer is able to use all online services provided by WACOM and companies associated with WACOM. Registration for WACOM Single Sign-on requires the Customer to accept additional Terms and Conditions of Use, which regulate access to and use of WACOM Single Sign-on. The Terms and Conditions of Use will be provided to the Customer in good time and in an appropriate form.

1.3 Where the Customer concludes a contract with WACOM on the Marketplace for the provision of a product, a contract is entered into between the Customer and WACOM for the provision of the availability for use of the respective product. These products may be “Software as a Service” offers, locally installed (mobile or stationary) applications or computer programmes, or subscriptions for services. Contracts may be contracts for pecuniary interest or non-pecuniary interest, fixed-term or open-ended contracts, or a purchase contract or another type of contract with no specific term.

1.4 Products may be WACOM’s own products, products of companies associated with WACOM, or third-party products (in each case “Provider”). WACOM shall inform the Customer in good time and in an appropriate manner whether WACOM or a third party is the Provider of the product.

1.5 For the purposes of the aforementioned contract, WACOM shall provide the Customer - unless expressly agreed otherwise - with access to the services of the Providers that are rendered within the scope of and with the help of the respective product.

2 Provision of products

2.1 A contract for the provision of a product is entered in which the Customer completes the order process available on the Marketplace, stating all necessary information, and thus sends a binding offer for the conclusion of the relevant contract to WACOM; WACOM accepts this offer either by issuing an express declaration to this effect or by tacitly providing the services ordered by the Customer. Confirmation of receipt on the part of WACOM shall not constitute the acceptance of an offer.

2.2 The service owed to the Customer by WACOM consists in providing the availability for use of the relevant product in the scope agreed upon conclusion of the contract. The scope of the product’s services and the terms and conditions applicable to it are defined, in particular, in the product description provided and in the Terms and Conditions of Licence and Use provided by WACOM for the relevant product.

2.3 After the contract is concluded, WACOM shall send the access data necessary to use the relevant product, as well as all other data necessary for access to and use of the product, to the Customer via the e-mail address stated by the Customer during the order process.

2.4 WACOM may authorise Providers to render all services for products owed to the Customer. WACOM shall disclose the identity of the Providers to the Customers prior to conclusion of the contract. The Customer is advised that it may be necessary to conclude additional non-pecuniary contractual agreements directly with the Provider commissioned by WACOM, in particular for data protection reasons (order data processing).

3 Granting of rights

3.1 With the conclusion of the contract, the Customer shall be entitled to have WACOM provide him/her with the availability for use and the usage rights in the scope specified in the Terms and Conditions of Licence and Use and in accordance with the conditions stated therein.

3.2 Rights for products purchased by the Customer shall be granted pursuant to the Terms and Conditions of Licence and Use for the relevant product, which are provided by WACOM to the Customer prior to conclusion of the contract and which the Customer must accept upon concluding the contract for the provision of the availability for use of the product. Unless otherwise expressly stated in the respective Terms and Conditions of Licence and Use, rights shall be granted exclusively by the respective Provider.

3.3 The rights required to use the products shall be granted in accordance with the respective Terms and Conditions of Licence and Use of the Provider. These Terms and Conditions of Licence and Use may require additional legally binding declarations by the Customer to the respective Provider. Moreover, these Terms and Conditions of Licence and Use may contain additional provisions on supplementary services offered by the Provider as well as on the availability of the product, rectification of defects by the Provider, etc.) among other things. The Provider shall be solely responsible for the contents of these Terms and Conditions of Licence and Use. The Customer shall be obligated to familiarise him-/herself with the Provider’s Terms and Conditions of Licence and Use for the relevant product.

4 Duties and obligations of the Customer

4.1 The Customer shall safeguard all access data provided by WACOM to the Marketplace and to the products, and protect said data from unauthorised third-party access.

4.2 The Customer shall be obligated to make regular, risk-appropriate back-up copies of all data entrusted by the Customer to WACOM or its Providers for the purpose of the use of these products.

4.3 In using the products, the Customer shall comply with all applicable statutory provisions. The use of products for the transmission, storage, dissemination or other use of content that is illegal, immoral, sexually offensive, insulting, or that incites hatred and violence, is prohibited.

4.4 The Customer shall not use the products in any way that could compromise their data security and integrity. In particular, the products may not be used for spamming, illegal manipulation of data or cyber attacks of any kind whatsoever.

4.5 In the event of a breach of Section 4.3 or 4.4, WACOM shall be entitled to temporarily block the Customer’s access to the products concerned. Any further claims on the part of WACOM shall hereby remain unaffected.

4.6 Where a third party claims that the data or contents provided by the Customer within the scope of the use of products are in violation of law, WACOM shall be entitled to block said contents either completely or temporarily. In such cases, WACOM shall request that the Customer cease the violation or provide evidence of the legality of the contents within a reasonable period of time. If the Customer fails to comply with this request or if he/she is unable to provide sufficient evidence of the legality of the contents, WACOM shall be entitled - notwithstanding further rights and entitlements - to terminate the contract without notice for good cause.

4.7 The Customer shall indemnify WACOM from all third-party claims that are asserted against WACOM due to a breach of obligation on the part of the Customer during use of the products. This indemnification shall also include all defence costs, court fees, fines and necessary expenses that are reasonable and customary in the industry. WACOM shall inform the Customer without delay in written or text form of any claims asserted by third parties and shall conduct the defence in consultation with the Customer. WACOM shall neither recognise third-party claims nor put such beyond dispute without the consent of the Customer.

5 Remuneration

5.1 The Customer shall be obligated to pay WACOM the amount of remuneration of which he/she was informed in the description of and during selection of the respective product and which was agreed upon conclusion of the contract.

5.2 The due date for payment of the remuneration shall be stipulated in the product description and in the information provided at the time of concluding the contract.

5.3 If, where prepayment of the due amounts has been agreed with the Customer, an attempt to collect the due prepayment from the method of payment specified by the Customer is unsuccessful, WACOM shall reserve the right to block access to the Marketplace and to the products purchased by the Customer on the Marketplace until such time as all due (pre-)payments have been rendered in full. As soon as all due (pre-)payments have been rendered in full by the Customer, WACOM shall enable the Customer to access the Marketplace and the products purchased by the Customer on the Marketplace again.

5.4 The prices stipulated in the product description and at the time of concluding the contract are final prices including statutory VAT.

6 Right of withdrawal for consumers

Consumers, i.e. persons who conclude a contract for the provision of one or more products for purposes that cannot be predominantly attributed either to their commercial or self-employed professional occupation, are entitled to the following right of withdrawal when concluding a contract:

Right of withdrawal

You have the right to withdraw your order without giving reasons within fourteen days.

If contractual obligation is the delivery of digital goods, which will not be delivered by a physical data carrier, the withdrawal period is fourteen days and starts with the day of the conclusion of the contract; if contractual obligation is the delivery of goods, the withdrawal period is fourteen days and starts from the day when you or a person entitled by you, who is not the carrier, takes possession of the goods.

To withdraw your order you have to inform us ( Wacom Europe GmbH, Völklinger Str. 1, 40219 Düsseldorf, Germany; +49 (0) 211 38548 111 ) by an explicit statement (e.g. in writing as letter, facsimile or e-mail), that you want to withdraw the contract. You can use the attached sample withdrawal form, but you are not obliged to use it. You can use the attached sample withdrawal form, but you are not obliged to use it. You can also fill out and transmit the sample withdrawal form or send us a different clear statement electronically.

To withdraw your order, sending the withdrawal statement prior to the expiration of the withdrawal period is sufficient.

Consequences of Withdrawal

If you withdraw your order, any of your payments received by us, including shipping costs (with the exception of additional costs resulting from your choose of a different shipping method than the cheapest standard shipping method offered by us) shall be returned to you instantly and not later than fourteen days after the receipt of the withdrawal of your order. Unless otherwise explicitly agreed, refunds will be given to the same mean of payment you used at your order; we will not charge any fees for your refund. We are entitled to retard the refund upon reception of the goods or provision of evidence that you dispatched the goods, whatever is the earliest date.

You have to return the goods to us instantly and not later than fourteen days upon sending your statement of withdrawal of your order. he withdrawal period is kept if you dispatch the goods within the period of fourteen days. You have to bear the direct costs of return. You are solely obliged to pay compensation for loss of value of the returned goods, if the loss of value results from a handling by you, which is not required for the inspection of condition, features and functionality of the goods.

Special notes

The right of withdrawal does not apply to orders of the delivery of audio- or video recordings or computer software provided in a sealed package, if the package has been unsealed after delivery.

The right of withdrawal ceases for orders of the delivery of digital data which is not stored on a physical data media, if we begin with the performance of the contract upon your explicit agreement to begin with the performance of the contract prior to the expiry of the withdrawal period and you confirmed your knowledge of ceasing your right of withdrawal by providing this agreement.

7 Term and termination

7.1 The term of contract for the provision of one or more products is stipulated in the respective product description on the Marketplace for the product selected by the Customer or by the service level selected for the product.

7.2 Termination for good cause shall remain unaffected for both parties.

7.3 A breach of obligation under Sections 4.3 and 4.4 of these General Terms and Conditions of Sale on the part of the Customer, in particular, shall constitute good reason.

7.4 The termination of the contract on the use of the Marketplace shall not affect any contracts concluded on the Marketplace for the provision of products. In particular, the termination of the contract on the use of the Marketplace shall not affect any standing payment obligations on the part of the Customer to WACOM on the basis of contracts for the provision of products; said obligations shall persist until such time as the contract for the provision of products has ended.

7.5 Customers may be required to have a customer account on the Marketplace and/or for the WACOM Single Sign-on as a precondition for using a product. WACOM shall the inform the Customer of this accordingly in the product description and in the event that the Customer wishes to close any customer account for the Marketplace and/or WACOM Single Sign-on that is required for a product used by the Customer.

7.6 Notice of termination must be made in writing or in text form.

8 Warranty

8.1 For deficits in the gratuitous provision of products, WACOM shall assume warranty in accordance with statutory regulations.

8.2 For non-gratuitous products provided by WACOM, WACOM shall assume warranty in accordance with this Section 8.2.

8.2.1 A material defect is deemed to exist only if the product does not have the contractually agreed quality or is not suitable for the contractually intended use. The contractual quality of the product is determined, in particular, by the provisions of this contract, the specifications in the product description, the user documentation, where provided, the summary of services provided by WACOM prior to conclusion of the contract and any additionally applicable Terms and Conditions of Licence and Use for the respective product. Claims for material defects are excluded in the case of deviations that merely compromise the suitability of the product for the purpose intended in the contract to a minor extent (minor deviations). Deviations, which affect the stored data to the extent that the appropriate use of essential parts of the products in an economically viable manner is rendered impossible or is severely restricted, are not deemed to be minor deviations. In case of doubt, a mere deceleration of the programme sequence shall be deemed a minor deviation. Malfunctions resulting from the improper use of the product by the Customer, in particular from the failure to observe conditions or instructions for use in accordance with the documentation provided, shall not be deemed to be material defects.

8.2.2 If the services to be provided by WACOM pursuant to this contract are defective, WACOM shall, at its own discretion, within a reasonable period of time allowing for at least two attempts at subsequent improvement and after receiving a complaint from the Customer, subsequently improve, repeat or circumvent the services in such a way that the Customer is able to use the product according to contract.

8.2.3 Where WACOM fails to provide the services free of defects for reasons for which WACOM is responsible, even within a reasonable period of time set by the Customer in accordance with Section 8.2.2, the Customer may assert his/her other statutory warranty rights. The entitlement to reduce payment shall be limited to the amount of remuneration due for the defective part of the service.

8.2.4 Any expense and compensation claims, where applicable, on the part of the Customer in accordance with Section 536a (1) BGB [German Civil Code] are excluded.

8.2.5 The Customer shall immediately inform WACOM in writing or by e-mail of any defects. Appropriate deadlines for subsequent improvement are to be agreed in a manner that is customary for software contracts and commensurate with the specific characteristics of software. Should the Customer give WACOM a deadline by which to remedy the defects, the Customer must immediately declare in writing how to proceed with the contract immediately after the expiration of the deadline without result. Should the Customer fail to issue such a declaration or fail to issue such immediately, WACOM may assume that the contract shall continue to apply unaltered.

8.3 The Customer shall support WACOM in remedying the defects to a reasonable extent free of charge and, in particular, provide it with all necessary documents, data, etc., that WACOM needs to analyse and remedy the defects.

9 Liability

9.1 WACOM shall be liable for the gratuitous provision of products in accordance with statutory regulations.

9.2 In all other cases, WACOM shall be fully liable for cases of intent and gross negligence and for damages arising from injury to life, body or health.

9.3 In cases of slight negligence, WACOM shall be liable for the breach of a contractually essential obligation. A contractually essential obligation within the meaning of this Section is an obligation the fulfilment of which makes the execution of the contract at all possible and upon the observance of which the contractual partner should be able to regularly rely.

9.4 In the case of Section 9.3above, WACOM shall not be liable for lack of economic success, loss of profit and indirect damages.

9.5 Liability in accordance with Section 9.3 above shall be limited to damage typically foreseeable at the time the contract was concluded, in all events to the amount of remuneration agreed for the current term of provision of the product.

9.6 In the case of Section 9.3above, liability for damages due to data loss are limited to the costs of recovering the data which would have been incurred even if the Customer had made regular, risk-appropriate data back-ups.

9.7 The limitations of liability shall apply accordingly in favour of the employees, authorised persons and vicarious agents of WACOM.

9.8 Any liability on the part of WACOM for guarantees given and for claims under the Product Liability Act shall remain unaffected.

9.9 Any further liability on the part of WACOM is excluded.

10 Amendments to the General Terms and Conditions of Business

These GTCS may be amended between the Customer and WACOM by means of an appropriate agreement as set forth below: WACOM shall forward the amended terms and conditions in text form prior to the scheduled entry into force of such, making separate reference to the new regulations and to the date of the scheduled entry into force. At the same time, WACOM shall grant the Customer an appropriate period of at least one month in which to declare if he/she accepts the amended Terms and Conditions of Use with regard to the further use of the services. If no declaration is made within this period, which shall commence upon receipt of the message in text form, the amended conditions shall be deemed to have been accepted. WACOM shall at the start of this period advise the Customer separately of the legal consequences, i.e. the right of objection, the time limit for filing an objection, and the significance of failure to respond.

11 Final provisions

11.1 Differing General Terms and Conditions of Business of the Customer shall only become an integral part of the contract where WACOM has consented to such in writing prior to the conclusion of the contract.

11.2 Any amendments or ancillary agreements to this contract must be made in writing. This shall also apply to this written form clause.

11.3 Set-offs by the Customer against claims on the part of WACOM shall be limited to counterclaims that are undisputed or have been adjudged legally binding, or that are synallagmatically related to the claim concerned.

11.4 The contract language is German. Translations into other languages are solely for the purpose of comprehensibility and are not legally binding.

11.5 The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

11.6 Exclusive place of jurisdiction for all disputes arising from or relating to this contract shall be Düsseldorf, provided the contracting parties are merchants, or the Customer does not have any general place of jurisdiction in Germany or in any other EU member state, or has relocated his/her permanent residence abroad subsequent to entry into force of these Terms and Conditions of Use, or his/her domicile or habitual place of residence is unknown at the time the action is brought.

11.7 The European Union has set up an online platform (“ODR” platform) for resolving consumer disputes out of court, to which you can initially appeal. The platform is available at http://ec.europa.eu/consumers/odr/.

 

Status as of: March 2018

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