General Terms and Conditions of Sale

These General Terms and Conditions of Sale (“GTCS”) govern the contractual relationship between Wacom Technologies Corp., 1455 NW Irving St., Portland, Oregon 97209 (“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 or services (each, a “product”) entered into through the Marketplace between WACOM and the Customer.

 

1 Subject of the contract

1.1 WACOM allows the Customer free access to 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 entering into contracts for the provision of products. Upon registering, a customer account is set up, with which the Customer is able to use all online products 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 during the setup process and available on the Marketplace site.

1.3 Where the Customer enters into 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 other third-party products (in each case, “Provider”). WACOM shall inform the Customer during the purchase process whether WACOM or a third party is the Provider.

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

 

2 Provision of products

2.1 To obtain a product, the Customer must complete the order process available on the Marketplace and provide all necessary information, and a binding offer for the product is sent to WACOM. WACOM may accept this offer, at which time there will be a valid contract for the provision of the product, either by issuing an express declaration to this effect or by simply providing or making available the products ordered by the Customer. Confirmation of receipt of the offer by WACOM shall not constitute the acceptance of an offer. WACOM is not responsible for pricing, typographical, or other errors and reserves the right to cancel any offers or orders that you place for any reason (including as a result of such errors). Orders are not binding on WACOM until the Product is made available by WACOM or is otherwise accepted by WACOM.

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 at the creation of the contract. The scope of the product 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 creation of the contract, 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 creation of the contract. The Customer is advised that it may be necessary to enter into 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 creation 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 creation of the contract and which the Customer must accept upon submitting the Customer’s offer. 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 products 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 laws. 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, in addition to any other remedies which WACOM may have under these GTCS or at law.

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 data or 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 and hold WACOM harmless from all third-party claims that are asserted against WACOM due to a breach of any obligation on the part of the Customer in connection with the products. To the extent permitted by law, 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 creation 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 creation of 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 creation of the contract are exclusive of applicable sales taxes.

6 Right of withdrawal for consumers

Consumers, i.e. a natural person acting for personal or household purposes only, are entitled to the following right of withdrawal when entering into a contract:

 

Right of withdrawal

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

If the contractual obligation is for 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 creation 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 authorized by you, who is not the carrier, takes possession of the goods.

To withdraw your order you have to inform us (Wacom Technologies Corp., 1455 NW Irving St., Portland, Oregon 97209; Marketplace.Admin@wacom.com) by an explicit statement (e.g. in writing as letter 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 also fill out and transmit the sample withdrawal form or send us a different statement electronically that clearly sets out your request for withdrawal.

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 choice of a different shipping method than the cheapest standard shipping method offered by us) shall be returned to you no 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 delay providing 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 immediately and not later than fourteen days upon sending your statement of withdrawal of your order, or the goods were delivered to you, whichever is later. The goods must be sent within the withdrawal period to be effective. 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
To the extent permitted by law, the right of withdrawal does not apply to orders for 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 for the delivery of digital data which is not stored on a physical data media, if the Provider begins performance of the contract upon your explicit agreement to begin prior to the expiry of the withdrawal period and you have confirmed that you will no longer have the right of withdrawal.

Sample Withdrawal Form

(In case you wish to withdraw your order, please fill out this form and send it back to us.)
To: Wacom Technologies Corp.,
1455 NW Irving St.
Portland, Oregon 97209

Marketplace.Admin@wacom.com

I/We hereby give notice that I/we (*) withdraw from my/our (*) order of the following goods/the following service (*):
________________________________________________
________________________________________________

Ordered on (*)/received on (*):

Name of the Customer(s):

Address of the Customer(s):

Signature of the Customer(s) (only in case of a notice on paper)

Date:

___________________________

* please delete as far as not applicable

 

7 Term and termination

7.1 These GTCS will remain in effect until the later of: (i) termination by WACOM; and (ii) termination or expiration of all existing contracts with the Customer. 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 Each party may terminate a contract for cause effective immediately upon delivery of a termination notice to the other party if the other party breaches the contract and has not remedied the breach within thirty (30) days after receipt of a default notice from the non-breaching party identifying the breach and stating the non-breaching party’s intention to terminate the contract if the breach is not remedied within a thirty (30) day cure period, provided that the termination notice is delivered no later than fifteen (15) days after the end of the cure period.

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 material breach by Customer.

7.4 Any termination of the right to use of the Marketplace shall not affect any contracts entered into through the Marketplace for the provision of products, and in particular any payment obligations on the part of the Customer to WACOM under such contracts; 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 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, then the contract will be terminated.

7.6 Notice of termination of a contract may be provided in writing or to the electronic mail address provided by Customer when entering into the contract.

8 Limited Warranty and Disclaimer

8.1 WACOM warrants that each of WACOM’s own products as delivered or made available to Customer by WACOM will operate and perform in substantial conformity with the product’s applicable description on the Marketplace site for a period of ninety (90) days from the date on which the product is first delivered or otherwise made available to Customer (the “Warranty Period”). If there is a breach by WACOM of the foregoing warranty, Customer’s sole and exclusive remedies and WACOM’s sole obligations to Customer are as follows, at WACOM’s option: (a) WACOM will modify or replace the defective product so that it operates and performs in substantial conformity with the product’s applicable description on the Marketplace site, unless the description on the Marketplace site is in error in which case WACOM will modify the description on the Marketplace site to accurately reflect the actual operation of the product; or (b) WACOM will terminate the contract for the defective product and reimburse the applicable contract fees paid by Customer for the defective product. The foregoing warranty and remedies will be available to Customer only if a warranty claim notice is delivered to WACOM during the Warranty Period, and will not apply: (i) if the product has been modified by any person other than WACOM; or (ii) to any errors, damage or problems caused by any of the following: Customer’s failure to provide a suitable operating environment, third party software, use of product in breach of the contract, or other matters beyond WACOM’s reasonable control.

8.2 THE WARRANTY SET FORTH IN SECTION 8.1 IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES RELATING TO PRODUCTS. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRODUCTS ARE PROVIDED “AS IS AND WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO DURABILITY; FITNESS FOR A PARTICULAR PURPOSE; MERCHANTABILITY; NON-INFRINGEMENT; PERFORMANCE; QUALITY; RESULTS; SUITABILITY; TIMELINESS; TITLE; OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY DISCLAIMED BY WACOM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE SELECTION AND USE OF PRODUCTS TO ACHIEVE CUSTOMER’S INTENDED RESULTS. CUSTOMER INSTALLS AND USES PRODUCTS AT CUSTOMER’S OWN RISK.

8.3 PROVIDERS ARE INDEPENDENT AND ARE NOT AUTHORIZED TO BIND WACOM TO ANY AGREEMENT OR TO MODIFY THESE GTCS. WACOM DOES NOT MAKE OR GIVE ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER REGARDING PROVIDERS AND PROVIDER’S PRODUCTS AND SERVICES.

 

9 Liability Exclusions/Limitations

9.1 NOTWITHSTANDING ANY PROVISION OF THESE GTCS EXCEPT SECTION 9.2, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

9.1.1 WACOM GROUP’S LIABILITY (IF ANY) TO CUSTOMER GROUP ARISING FROM, CONNECTED WITH OR RELATING TO ANY OF THE PRODUCTS IS LIMITED TO DIRECT DAMAGES SUFFERED BY CUSTOMER ONLY, AND IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL WACOM GROUP BE LIABLE TO CUSTOMER GROUP OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE, OR FOR ANY LOSS OF DATA, LOSS OF INFORMATION, LOSS OF BUSINESS, LOSS OF MARKETS, LOSS OF SAVINGS, LOSS OF INCOME, LOSS OF PROFITS, LOSS OF USE, LOSS OF PRODUCTION OR LOSS OF GOODWILL, ANTICIPATED OR OTHERWISE;

9.1.2 IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL WACOM GROUP’S TOTAL AGGREGATE LIABILITY TO CUSTOMER GROUP ARISING FROM, CONNECTED WITH OR RELATING TO THE PRODUCTS EVER EXCEED THE AMOUNT OF FEES (IF ANY) ACTUALLY PAID BY CUSTOMER TO WACOM FOR PRODUCTS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE;

9.1.3 THIS SECTION 9.1 APPLIES TO LIABILITY UNDER ANY THEORY OF LAW (INCLUDING CONTRACT, TORT, STRICT LIABILITY AND STATUTORY LIABILITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY WACOM GROUP OR ANY PERSON FOR WHOM WACOM IS RESPONSIBLE, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE FOR THE LOSS OR DAMAGE, AND EVEN IF WACOM HAS BEEN ADVISED OF THE POSSIBILITY OF THE POTENTIAL LOSS OR DAMAGE BEING INCURRED; AND

9.1.4 IN THIS SECTION 9.1, “WACOM GROUP” MEANS WACOM AND ITS AFFILIATES AND THEIR RESPECTIVE PAST, PRESENT AND FUTURE SUPPLIERS, LICENSORS AND REPRESENTATIVES, JOINTLY AND SEVERALLY; AND “CUSTOMER GROUP” MEANS CUSTOMER AND ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES, JOINTLY AND SEVERALLY.

9.2 THE EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTION 9.1 DO NOT APPLY TO: (A) LIABILITY FOR DEATH OR BODILY INJURY CAUSED BY THE NEGLIGENCE OR WILLFUL ACT OR OMISSION OF WACOM OR ITS PERSONNEL; OR (B) ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.

 

10 Amendments to the General Terms and Conditions of Sale

All provisions in these GTCS may be amended by WACOM in whole or in part, by means of an appropriate agreement as set forth below: WACOM shall forward the amended terms and conditions in text form at least thirty (30) days prior to the scheduled entry into force of such, making separate reference to the changes, setting out the new clause, or the amended clause and how it read formerly, and the date on which the change will come into effect. If the amendment entails an increase in Customer’s obligations or a reduction in WACOM’s obligations, Customer may refuse the amendment and rescind, or cancel these GTCS without cost, penalty or cancellation indemnity, by sending WACOM notice to that effect no later than 30 days after the amendment comes into force, at the address or email address indicated in the notice. 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 The Customer’s obligation to pay fees or make any other required payments under these GTCS or a contract shall not be subject to any right of offset, set-off, deduction or counterclaim, however arising.

11.2 The contract language is English. Unless prohibited by applicable law, translations into other languages are solely for the purpose of comprehensibility and are not legally binding.

11.3 Subject to Section 11.4, these GTCS, the relationship of the parties and all related matters will be governed, construed and interpreted solely in accordance with the laws of the Province of British Columbia, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws and excluding any laws that implement the United Nations Convention on Contracts for the International Sale of Goods.

11.4 The courts in some provinces will not apply foreign law to certain types of disputes. If the Customer resides in one of those provinces, then where the law of British Colum-bia is excluded from applying, the Customer’s laws will apply to disputes related to these GTCS.

11.5 Except where prohibited by the Customer’s local laws, if either party wishes to bring legal proceedings against the other party regarding this Agreement, the relationship of the parties or any related matter, the party will do so in the state or federal courts lo-cated in the Multnomah County, Oregon, and each party irrevocably submits and at-torns to the exclusive jurisdiction of those courts over those matters. Each party irrev-ocably waives all rights to trial by jury. If the courts in the Customer’s country or prov-ince will not permit the Customer to consent to the jurisdiction and venue of the courts in Multnomah County, Oregon, then the Customer’s local jurisdiction and venue will apply to all disputes pertaining to these GTCS.

11.6 Notwithstanding the foregoing in Section 11.5, WACOM may seek preliminary or tem-porary injunctive relief from the Supreme Court of British Columbia sitting in Vancou-ver, British Columbia to avoid irreparable harm or to preserve the status quo, and the parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of that court in respect of all of those matters.

11.7 The parties hereto have requested that this contract, together with all related documen-tation, be drafted in the English language. Les parties aux présentes ont exigé que la présente convention, ainsi que tous les documents qui s’y rapportent, soit rédigées en anglais.

 

Status as of: March 2018