General terms and conditions for end customers for the booking of a model
1 Scope of application of these terms and conditions
1.1 These general terms and conditions (hereinafter referred to as the "GTC") apply to the booking of amodel on the marketing platform www.choisie.com, as well as applying to all contracts concludedbetween Digistore24 GmbH, Kalenberger Graben 7, 31134 Hildesheim, Germany (hereinafterreferred to as "we" or "Digistore24") and to you as our customer (hereinafter referred to as the“customer").
1.2 In this respect, we direct our offers to www.choisie.com exclusively to entrepreneurs within themeaning of section 14 of the German Civil Code (BGB) (hereinafter referred to as the"entrepreneur").
2 Contractual object
2.1 Digistore24 provides all the services described below exclusively based on these general terms andconditions. Deviating business conditions of the customer will not be an integral part of the contract,if Digistore24 does not expressly object to their validity.
2.2 The customer has the possibility to interact and communicate with the models registered there viathe online platform www.choisie.com, in order to compile an individual service package for individualprojects, which can then be booked via Digistore24.
2.3 We sell, in our own name and for our own account, the services of the models (hereinafter referred toas the "contract partner" or "model"), which are registered on the platform www.choisie.com, which,in the event of a booking with Digistore24, commit us to the direct provision of the service to thecustomer. Therefore, the provision of the service is carried out by our contractual partners, who areour vicarious agents. However, the contract for the purchase of the product of the service is alwaysconcluded with us.
3 Conclusion of contract
3.1 Discontinuation of the range of services of the contractual partner and its presentation on www.choisie.com does not constitute a binding offer from Digistore24 to conclude a contract with thecustomer. www.choisie.com is also our contractual partner and allows models and their businessactivity to be applied for. The customer has the possibility to directly communicate and interact withthe contractual partner at www.choisie . com in order to provide a non-binding service package.
3.2 Provided that an end customer decides to book a specific model and certain services after theindividual compilation of the individual performance parts for a desired project through the interactionwith the model, the end customer clicks on the corresponding button ("book model now", or similar).Subsequently the end customer is directed to the Digistore24 website, www.digistore24.com . Here,the end customer is informed in the online booking process that is offered there that Digistore24 isthe supplier of the desired catalogue of services of the model. In this booking process, in order forthe end customer to complete the booking, they must provide personal details, select the method ofpayment, provide the required information and then activate the booking process. Digistore24 offersthe end customer various methods of payment. Payment recipient and accounting office isDigistore24. Following this booking process, the buyer of Digistore24 will receive an e-mail with thebooking confirmation. However, this booking confirmation does not constitute an acceptance of theoffer sent by the customer to Digistore24.
3.3 Digistore24 stores the contract text of the booking and the buyer can print it before sending theirbooking to us by clicking on "Print" in the last step of the order process. In addition, we send thecustomer a booking confirmation as well as an order confirmation with all the details of the order tothe e-mail address that they have indicated.
3.4 Acceptance through Digistore24 takes place by means of a specific declaration of acceptance withrespect to the customer by e-mail; Digistore24 is entitled to reject contractual offers without specifyingreasons.
3.5 The offers of Digistore24 are subject to alteration and non-binding.
3.6 The contract language is exclusively German.
4 Payment terms
4.1 Digistore24 offers the customer different methods of payment. They are: PayPal, credit card paymentwith Mastercard or Visa, electronic direct debit, immediate transfer or transfer.
4.2 After the model’s provision of the service, Digistore24 will invoice the fee due for payment that hasbeen agreed on with the customer. This shall be payable immediately. The customer shall be indefault on payment at least 30 days after the invoice has been issued, provided that the invoice hasnot settled.
4.3 The fee agreed on for payment is based on the working hours of the model that has been booked.This begins with the arrival of the model on the set and ends with the definitive end of the shoot.
5.1 In general, the booking of a model can only be cancelled for an important reason. In particular, thecustomer has an extraordinary reason to terminate the contract if the model’s guaranteed characteristics arenot provided and therefore the model cannot be used for the purpose agreed upon for the order. The customeris obliged to notify the reasons for the termination without delay and to present the contents and to producedocumentation photographs. The hair styling, styling and make-up is not a guaranteed characteristic. For thispurpose, neither Digistore24 nor the model shall be held responsible.
5.2 If the order is not executed due to circumstances for which the customer is responsible, the customermust make the following payments to Digistore24:
in the event of cancellation 0-24 hours before the start of the order, 100% ofthe total fee,
in the event of cancellation 25-48 hours before the start of theorder, 50% of the total fee,
in the event of cancellation 49-168 hours before the start of the order, 30% of thetotal fee,
in the event of cancellation 169-336 hours before the start of the order,20% of the total fee,
The customer is entitled to prove a lower amount of loss on behalf of Digistore24.
5.3 Digistore24 reserves the right to assert claims for additional damages.
6 Buyout/rights of use
6.1 Unless explicitly agreed otherwise, no rights of use will be transferred with the fee that is agreed on forpayment. A transfer of the rights of use (buyout) takes place separately for an intended use that hasbeen agreed on, the agreed product, the agreed usage form and the period of use.
6.2 Any further use, such as, in particular, posters, billboards, packaging, displays, videos, require explicitwritten approval from us.
6.3 An agreed annual period starts with the actual use, however at the latest twelve months after thecreation of the photos or footage. After the start of the annual period, the deadline cannot besubsequently changed in a unilateral manner.
6.4 The contractually agreed rights of use are only granted upon the payment of the agreed fee. Any useprior to the full payment of the agreed fee is not permitted.
6.5 Should photos or footage be created without prior notice and a buyout agreement or renewal, acontractual penalty of 300% of the agreed daytime fee with the addition of the usual buyout fee will beimmediately payable.
7.1 Digistore24 shall be liable for intent and gross negligence, as well as for damages resulting from lossof life, bodily injury or damage to health.
7.2 In cases of slight negligence, Digistore24 shall only be liable if an essential contractual obligation isviolated. An essential contractual obligation within the meaning of this clause is a duty, the fulfilment ofwhich enables the performance of the contract in the first place and in the fulfilment of which thecontractual partner may thus regularly rely. Limitations of liability shall apply to Digistore24'semployees, agents and vicarious agents. Except in cases of unlimited liability in accordance withsection 7.1, Digistore24 is only liable for the foreseeable contract-type damages. If a model does notshow up, the customer is entitled to look for a replacement at www.choisie.com.
7.3 In the event of a complaint, the customer must immediately inform Digistore24 and indicate the reasonfor the complaint. Polaroids shall be made to prove the complaint. The model shall then immediatelybe released from their work obligation, if the justified complaints make the performance of the contractimpossible. However, if photos or footage are taken with the model, this shall be deemed a waiver onthe part of the customer for any justified complaint.
7.4 The customer is responsible for the hair styling and make-up, as well as the wardrobe. In principle, thecustomer has to insure accident and health risks at their own expense. In the case of particularly riskyphotos or footage, the customer has to take out appropriate insurance for the model. The customer isobliged to comply with the occupational safety regulations of the Federal Republic of Germany; thisshall also apply to any assignments abroad. If the risk involved has not been communicated to us atthe time of booking, the model is entitled to refuse performance. In this case, Digistore24 shall receivea cancellation fee of 70% of the agreed total fee. We do not assume any guarantee for a specificresult of the performance of the model.
8 Place of performance, place of jurisdiction, applicable law
8.1 The place of performance for all claims resulting from the contractual relationship is Hildesheim.
8.2 The exclusive place of jurisdiction for all disputes arising from or in connection with this contract isHildesheim, provided that the customer is a trader or has no general place of jurisdiction in Germanyor in another EU member state, has moved their permanent place of residence abroad after thecoming into force of these contractual terms and conditions or their place of residence or permanentaddress is not known at the point of time.
8.3 German law applies with exclusion of the UN convention on contracts for the international sale of goods(CISG).
8.4. Counterclaims of Digistore24 can only be offset by the customer or a right of retention asserted if theircounterclaim is beyond dispute, a legally binding title is present, or the counterclaim is in asynallagmatic relationship with the respectively affected claim.
8.5 Should individual provisions of these contractual terms and conditions be or become invalid and/orin the event that they are contrary to legal regulations, the validity of the terms of the remainingcontractual terms and conditions shall not be affected.
8.6 The customer is not entitled to assign claims from the contractual relationship to third partieswithout our consent.
Version: May 2017
Web portal CHOISIE terms and conditions of use
1. Object of the terms and conditions for participation and use
1.1 Choisie OOD (hereinafter referred to as "Choisie" or "we") provides a platform at www.choisie.com (hereinafter referred to as "the portal"), via which the duly registered customers or models (hereinafter referred to jointly as the “participants”) can communicate and interact with one another. The participants can create individual personal profiles, request access to the available content on the portal, and also use the other currently available free and paid services within the scope of the respective availability.
1.2 These terms and conditions for participation and use govern the provision of services by Choisie and the use of these services by you as a duly registered participant.
2. Amendments to the terms and conditions for participation and use
Choisie reserves the right to change these terms and conditions for participation and use at any time also with effect within the existing contractual relationships. Choisie shall notify you of any such changes at least 30 calendar days before the planned coming into effect of said changes. Provided that you do not object within 30 days of receipt of the notification and continue the use of the services after the expiry of the objection period, the changes shall be deemed to be effective as of the lapse of time. In the event of your opposition, the contract will be continued under the existing conditions. In the notification of amendments, Choisie will indicate your right of objection and the consequences.
3. Registration authorisation
3.1 The use of the services that are available on the portal requires your registration as a participant. There is no entitlement to participate. Choisie is entitled to reject registrations for participation without giving reasons.
3.2 Registration is only permitted if you are of full age and unlimited in your legal capacity. Minors are not allowed to register. In the event of a legal person, registration must be made by a natural person with unlimited capacity and who is authorised to act as a representative.
4. Your registration on the portal
4.1 Contact details and other information requested by us during the registration process must be stated completely and correctly. When registering a legal person, the authorised natural person must also be indicated. Choisie reserves the right to review the information by submitting appropriate documents, such as an extract from the commercial register or a personal identity card.
4.2 After all the details requested by you have been provided they shall be checked by Choisie for completeness and plausibility. If, from our point of view, the information is correct and, in our view, there are no other concerns, we will activate your requested access and notify you by e-mail. The e- mail that is sent is considered an acceptance of your request for participation. From the receipt of the e-mail, you are entitled to use the portal under these terms and conditions for participation and use. For this purpose, you must confirm your activation by clicking on the link in the e-mail that is sent.
5. Responsibility for access details
5.1 In the course of the registration process, you will be asked to provide a username and password. With these details, you are able to log in to the portal after the activation of your access and your confirmation in accordance with section 4.3. It is your responsibility to ensure that the username does not violate the rights of third parties, in particular no name or trademark rights and that it does not violate common decency.
5.2 The access details including the password must be kept secret by you and shall not be made accessible to unauthorised third parties.
5.3 Furthermore, it is your responsibility to ensure that your access to the portal and the use of the services available on the portal is exclusively carried out by you or by the persons authorised by you. If you are concerned that any unauthorised third parties are aware of your access data or are likely to obtain it, please inform Choisie immediately.
5.4 You are liable for any use and/or other activity that is carried out with your access details, in accordance with the legal regulations.
6. Updating participants’ details
You are obliged to keep your details (including your contact details) current and up-to-date. If any change occurs within the duration of your participation, you must correct the information immediately on the portal in the section of your personal settings. If this does not work, please inform us immediately of any changes to your details either by e-mail or fax.
7. Termination of the participation
7.1 Access can be terminated at any time by signing out of the portal.
7.2 If termination takes effect, the contractual relationship ends and you are no longer allowed to use your access. Choisie reserves the right to block the username and password with the coming into force of the termination.
7.3 Choisie is entitled to irrevocably terminate all data that has arisen within the scope of your participation after the expiry of 30 calendar days after the termination has taken effect and after the expiry of any statutory period.
8. Service portfolio and availability of services
8.1 Choisie allows you to market or advertise your person as a model on the portal or to communicate and interact with the model presented here, in order to compile a suitable service package for you. For this purpose, Choisie provides various information and other services for temporary use. Such services can be, for example, the making available of data, contributions, image and audio documents, information and other content (hereinafter jointly referred to as the "content"), the possibility of creating individual profiles and to establish contact with other participants by creating personal messages.
8.2 Provided that a customer decides to book a specific model and certain services by individually compiling the individual performance parts for a desired project with the interaction with the model, the customer clicks on the appropriate button ("book model now", or similar). The end customer is then forwarded to the website of Digistore24 GmbH, St-Godehard-Str. 32, 31139 Hildesheim, www.digistore24.com (hereinafter referred to as "Digistore24"). Here the end customer is informed in the online booking process offered there that Digistore24 is the supplier of the desired catalogue of services of the model. In this booking process, in order for the end customer to complete the booking, they must provide personal details, select the method of payment, provide the required information and then activate the booking process. Digistore24 allows the customer various payment methods. Payment recipient and accounting office is Digistore24. Following this booking process, the Digistore24 customer will receive an e-mail with the booking confirmation. However, this booking confirmation does not constitute an acceptance of the offer sent by the customer to Digistore24. The acceptance through Digistore24 takes place by means of a specific declaration of acceptance with respect to the customer by e-mail. Digistore24 is entitled to reject contractual offers without specifying reasons. A contract is concluded exclusively with Digistore24 when booking a model. A transfer of rights of the model’s buyouts is also exclusively carried out by Digistore24 to the participant in the context of the contractual relationship between these parties. Choisie is merely acting as an intermediary.
8.3 Third party services can also belong to the available services, which Choisie only provides access to. For the use of such services - which are respectively marked as
third party services - additional regulations may be applicable which deviate from these terms and conditions for participation and use.
8.4 Furthermore, there is a claim for the use of the services available on the portal only within the scope of the technical and operational possibilities with Choisie. We endeavour to ensure the uninterrupted usability of these services. However, technical interferences (such as power interruptions, hardware and software failures, technical problems in the data lines) may result in temporary limitations or interruptions.
9. Protection of content, responsibility for third party content
9.1 The content available on the portal is protected by copyright or other such proprietary rights and is owned by Choisie, the other participant or other third parties, who have provided the respective content. You may only use this content in accordance with these terms of participation and use as well as within the framework provided on the portal.
9.2 The content available on the portal comes partly from Choisie and partly from other participants or other third parties. The content of the participants as well as other third parties is referred to collectively as “third party content". Choisie does not carry out any checks with regard to completeness, correctness or legality in the case of third party content, and therefore does not accept any responsibility or make any guarantees for the completeness, correctness, legality and topicality of the third party content. This also applies to the quality of the third party content and its suitability for a specific purpose, and also as far as third party content on linked external websites is concerned. All content on the portal is third party content, except content that is provided with a copyright notice on behalf of Choisie.
10. Scope of permitted use, monitoring of usage activities
10.1 Your right to use is restricted to access to the portal and to the use of the services available on the portal within the framework of the regulations of these terms and conditions for participation and use.
10.2 You are responsible for creating the necessary technical conditions in your scope of responsibility for the contractual use of the services. Choisie does not owe you any guidance in this regard.
10.3 Choisie points out that your usage activities can be monitored to the extent permitted by law. This may include the logging of IP connection data and call sequences as well as their evaluation, in the event of a specific suspicion of a breach of these terms and conditions for participation and use and/or in the event of a specific suspicion of the existence of any other unlawful act or offense.
11. Creation of user profiles
11.1 If available as a feature on the portal, you can customise your user profile according to your requirements within the framework of the present terms and conditions for participation and use. Please pay attention to the limitations indicated in section 14.
11.2 As a general rule, Choisie does not carry out any verification of the identity of the profile owner and the information found in the profiles. Therefore, Choisie does not guarantee that each profile owner is the person the respective profile owner claims to be.
12. Configuring your own content by yourself
12.1 If available as a feature on the portal, you may, subject to the following regulations, configure content on the portal and make it available to third parties.
12.2 By configuring content, you hereby grant to Choisie, in each case, a free-of-charge, non- transferable and transferable right of use, which is unlimited in terms of content and location, in particular
–for the storage of the content on our server as well as its publication, in particular public accessibility (e.g. by displaying the contents on the portal),
–for the processing and reproduction, to the extent that is necessary for the presentation or publication of the respective content, and
–for the granting of third party rights - also for consideration - to your content in accordance with clause 13.
12.3 You are fully responsible for the content that you provide. Choisie does not assume any responsibility for the content with regard to completeness, correctness, legality, timeliness, quality and suitability for a particular purpose.
You hereby declare and guarantee with respect to Choisie that you are the sole owner of all rights to the content of the portal that you have posted on the portal, or otherwise (e.g. by an effective permission of the holder of said rights) to adjust the content on the portal and the rights of use and exploitation in accordance with the preceding paragraph.
12.4 Choisie reserves the right to refuse the configuring of content and/or any editing, blocking or removal of already configured content without prior notice, provided that the configuring of the content by participant or the configured content itself results in a breach of clause 14 or there are specific indications that a serious breach of clause 14 will occur. Nevertheless, Choisie will take due care of your legitimate interests and choose the mildest means of defending the breach of clause 14.
13. Right to use the content available on the portal
13.1 Provided that no further use is explicitly permitted in these terms and conditions for participation and use or enabled on the portal by means of a corresponding feature (e.g. download button),
–you may access the portal and view the content available online on it exclusively for personal purposes. This right of use is limited to the duration of your contractual participation in the portal;
–you are prohibited from being able to edit, change, translate, publish, display, reproduce or disseminate the content available on the portal in whole or in part. Likewise, it is forbidden to remove or modify copyright notices, logos and other distinguishing symbols or protective notices.
13.2 You are only authorised to download content ("download") and to print content, provided that a download or print option is available as a feature (e.g. by means of a download button) on the portal.
In the case of the content that you have downloaded or printed out, you will be granted unlimited and non-exclusive rights of use for your own non-commercial purposes. In addition, all rights to the content remain with the original holder of the copyright (Choisie or the respective third party).
13.3 Your compulsory legal rights (including copying for private and other personal use according to section 53 of the German Copyright Act (UrhG)) remain unaffected.
14. Forbidden activities
14.1 You are forbidden from conducting any activities on or relating to the portal that violate applicable law, violate the rights of third parties or violate the principles on the protection of minors. In particular, the following actions are forbidden:
–the dissemination, diffusion, offer and promotion of pornographic, content, services and/or products that are contrary to the protection of minors, data protection and/or other rights;
–the use of content that offends or slanders other participants or third parties;
–the use, provision and diffusion of content, services and/or products that are protected by law or are subject to the rights of third parties (e.g. copyrights) without being expressly authorised to do so.
14.2 Furthermore, you are also independent of a possible breach of law in the event of
configuring your own content on the portal, as well as when communicating with other participants, the following activities are prohibited:
–spreading viruses, Trojans and other damaging files;
–sending junk, spam or chain mail;
–distribution of alleged, offensive, sexually characterised, obscene or defamatory content or communication, as well as such content or communication, which is/are suitable to promote or support racism, fanaticism, hatred, physical violence or unlawful acts (both explicitly and implicitly);
–harassment of other participants, e.g. by means of repeated personal contact without or contrary to the reaction of the other participant, as well as the promotion or support of such harassment;
–requesting other participants to share passwords;
–diffusion and/or public reproduction of content that is available on the portal, provided that this is not expressly permitted by the respective author or is expressly made available as a feature on the portal.
14.3 You are likewise prohibited from any action that is likely to affect the proper running of the portal, in particular if it threatens to overload our systems.
14.4 Should you become aware of any illegal, abusive, unlawful or other such unauthorised use of the portal, please get in contact with us. Choisie will then review the process and, if necessary, take the suitable measures.
14.5 In the event of a suspicion of unlawful or criminal acts, Choisie is entitled and, if necessary, obliged to review your activities and, if necessary, to take the appropriate legal action. This may include the submission of a case to the public prosecutor's office.
15. Blocking access
15.1 Choisie may suspend your access to the portal temporarily or permanently, if there are specific indications that you have violated these terms and conditions for participation and use and/or applicable law, or if we have other legitimate interests in blocking you. When making a decision to block, Choisie will consider your legitimate interests in a suitable manner.
15.2 In the event of temporary or permanent blocking, Choisie will block your access authorisation and notify you via e-mail.
15.3 In the event of a temporary suspension, Choisie reactivates the access authorisation after the expiry of the blocking period and notifies you of this by e-mail. Permanently barred access authorisation cannot be restored. Permanently barred persons are permanently excluded from participating in the portal and are not allowed to register again on the portal.
16. Data protection
16.1 One of the quality requirements of Choisie is to deal responsibly with the personal details that are provided by the participants (these details are hereinafter referred to as "personal details"). The personal details resulting from your registration on the portal, as well as from the use of the available services, will therefore only be collected, stored and processed to the extent that this is necessary for the contractual provision of services and is permitted by statutory provisions or prescribed by the legislator. Choisie will treat your personal details in a confidential manner and in accordance with the provisions of the applicable data protection law and will not disclose this information to third parties.
16.2 In addition, we only use your personal details if you have expressly granted your consent. You can revoke your consent at any time.
17.1 Should your use of services (including the retrieval of free content) be made available on the portal free-of-charge, you shall be liable only to the extent that any damages have arisen due to the contractual use of the free content and/or services and only in the event of intent (including fraudulent intent) and gross negligence on behalf of Choisie.
17.2 Within the scope of the use of paid services (including the retrieval of paid content) by yourself, Choisie is liable in accordance with the following regulations:
- Choisie shall be liable without limitation for damages caused by Choisie or by their legal representative, managerial staff or ordinary vicarious agents by intent or gross negligence.
- Choisie is not liable for cases of negligent breach of insignificant contractual obligations. Furthermore, our liability for damages caused as a result of slight negligence is limited to the damages that are typically expected to arise within the scope of the respective contractual relationship (damages that are foreseeable in the contract). This also applies to a slightly negligent breach of duty on behalf of Choisie's legal representatives, managerial staff or ordinary vicarious agents.
- The aforementioned limitation of liability does not apply in the event of fraudulent use, in the event of personal injury or damage to persons, the violation of guarantees or claims arising from product liability.
18. Written form requirement
Unless expressly stated otherwise in these terms and conditions for participation and use, all statements made during the course of the participation in the portal shall be made in writing or by email.
19. Severability clause
In the event that any provision of these terms and conditions for participation and use is or becomes invalid, the legal validity of the remaining provisions shall remain unaffected. Instead of the invalid provision, an effective provision is agreed on that is closest to the economic intention of the parties.
20. Applicable law
These terms and conditions for participation and use are subject to the laws of the Federal Republic of Germany with exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
21. Place of jurisdiction
The exclusive place of jurisdiction for all disputes arising from these terms and conditions for participation and use is Hildesheim, provided that such an agreement on the place of jurisdiction is permitted.
Version: May 2017