Terms and Conditions for users of the internet platforms of
represented by its Managing Directors Claudia Helming, Niels Nüssler,
hereinafter referred to as “DaWanda”
I. Scope of these Terms and Conditions, Platform
DaWanda is the online marketplace with a heart. It is a meeting place for people with a passion for unique, creative, lovingly produced products.
Registered members can offer and purchase home-made goods, vintage articles, materials and services via the DaWanda internet platform. In addition, DaWanda GmbH operates its own shops within the marketplace (e.g. DaWanda Kiosk, DaWanda Merchandise, DaWanda Fanshop, DaWanda Helps) and organises its own competitions.
These terms and conditions regulate the conclusion of the user agreement and the use of the online marketplace including all functions, offers, content, shops and other services (“applications” such as advertising space which can be booked to obtain increased visibility of products) which we provide within this framework.
The following documents also apply in addition to these Terms and Conditions:
- the DaWanda Guidelines, in their most recent version, containing an overview of the applicable code of conduct for users of the DaWanda platform and more detailed information on prohibited items for sale,
- the DaWanda Fees Explanation in its most recent version which lists the remuneration due for the use of the DaWanda platform,
In cases where DaWanda GmbH acts as a marketplace, it merely provides a sales platform and does not become a contracting party in the agreements concluded between the purchasing and the selling parties. This means that if a member purchases an article or a service from another member via DaWanda, the agreement is concluded with the seller of the item/service. DaWanda only offers goods and services itself in the respectively named own DaWanda shops. In this case, the separate DaWanda Shop Terms and Conditions and the respective revocation instructions apply. If DaWanda organises competitions, the Terms and Conditions for competitions apply; DaWanda advises participants of this in advance.
Maintenance performed on the DaWanda platform can have an adverse effect on its availability. Maintenance work will be, as far as possible, performed with the minimum of inconvenience to members. Routine or planned maintenance work will be performed at times of least possible use and if such work is to be of considerable duration, members will be given sufficient notice. In addition, however, it may be necessary to perform maintenance work without notice, for instance in cases of unforeseeable disruption (e.g. attacks, viruses). A particular level of availability of the DaWanda platform cannot be guaranteed.
Users are able to view product pages, shops or profiles on DaWanda without registration. Registration as a member is required, however, for all other features (e.g. selling, purchasing, using the pinboard function, using the communication system on the DaWanda platform, using the comment and rate functions, forums, communities).
The registration of a legal person may only be undertaken by a natural person authorised to represent the legal person. The natural person must be named. In cases where an association of persons can only be effectively represented by more than one person, the natural person who acts on behalf of the legal person on DaWanda must be respectively authorised to do so. Members are obligated to keep their registration information up-to-date at all times and when relevant changes occur (e.g. move, marriage etc.) to update the information accordingly.
At the time of registration, the member selects a member name and a password. The password must be kept secret and be of a sufficient degree of complexity. No person has a right to a particular member name or a particular password.
After completing the registration form (“New to DaWanda? Register now”) and sending it using the button “Register now”, DaWanda sends a message to the email address of the applicant. The agreement with DaWanda is only concluded once the applicant accesses the internet address (link) provided in this email or enters the code contained in the email on the DaWanda website.
Incorrect information which was inadvertently entered by the member can be corrected at any time before the information is saved. After registration has been completed, this information can be corrected via the menu point “My DaWanda” in the section, “My profile” under the point “Edit profile”. The exception is that first name and family name cannot be altered in this way. Such changes may only be effected via the DaWanda customer service team.
The registration process (including the confirmation email) is conducted in German/English/French/Dutch/Spanish/Italian or Polish dependent on which site the registration is undertaken.
After a successful registration, DaWanda stores the contractual terms agreed with the member. DaWanda makes these contractual terms available to the member in the confirmation of the agreement sent by email providing the contractual terms. We recommend keeping a permanent record of this email and/or printing it out.
Member accounts are not transferable and may only be used by the member personally. Creation of a new account following termination by DaWanda is not permitted.
III. Right of cancellation for consumers
If you are a natural person and you conclude a contract with DaWanda for the supply of services (i.e., the provision of the DaWanda marketplace) for a purpose that is not connected to your commercial or freelance activities (meaning that you are a consumer as defined by § 13 of the German Civil Code (BGB)), you are entitled to the legal right of cancellation described in more detail below.
The prerequisites and legal consequences of the right of cancellation for consumers in Germany also apply to consumers permanently resident in Switzerland, even if Swiss law does not provide for a right of cancellation.
Notice of cancellation
Right of cancellation
You have the right to cancel this contract within 14 days without stating any reason.
The cancellation deadline is 14 days from the day the contract is concluded.
To exercise your right of cancellation, you must inform us (DaWanda GmbH, Windscheidstrasse 18, 10627 Berlin; phone: + 49 1805 – 3292632; [email protected]) of your decision to cancel the contract by means of a clear declaration (e.g. a letter sent by post, a fax or an email). You can use the attached sample cancellation form, but it is not obligatory to do so.
The timely dispatch of the notice of your intention to exercise your right of cancellation shall be deemed sufficient for compliance with the cancellation deadline.
Consequences of cancellation
If you cancel this contract, we are obliged to return all payments we have received from you immediately or, at the latest, within 14 days of receiving your cancellation notice, including delivery costs (with the exception of additional costs that may arise from your choosing a delivery method other than the cheapest standard delivery we offer). For this repayment, we will use the same method of payment that you used for the original transaction, unless you have expressly agreed a different method of payment; in no instance will you be required to pay any fees for this repayment.
If you have requested that we start providing the service within the cancellation period, then you are required to pay an appropriate amount to cover the services provided as at the date you exercise your right to cancellation as a pro rata proportion of the total services intended to be provided as per the contract.
The right of cancellation attached to a service contract expires once the trader has supplied the service in full and only started supplying the service after the consumer had given his/her express permission, while also acknowledging that the right of cancellation is lost once the trader has satisfied his/her side of the contract in full.
End of notice of cancellation
The right of termination remains unaffected.
IV. Conclusion of agreements on purchase of goods or provision of services between members
If a member lists an item or description of a service as a seller, this constitutes a binding offer which allows any other member to purchase the item or the service at the price offered. The purchase agreement is concluded if another member (purchaser) clicks on the designated button (currently: “place order” and then confirms this. After the purchase agreement has been concluded, the purchaser receives, by way of confirmation, a system email from DaWanda. The purchaser is obligated to pay the total price within seven days of receiving this confirmation of purchase unless the parties agree otherwise.
The possible payment methods in each case are determined by the seller of the goods in the offer/listing.
It is the duty of each seller himself or herself to become informed as to the legal obligations which apply to the sale of goods or the conclusion of contracts for work or services and naturally to comply with these obligations (e.g. inclusion of imprint, revocation instruction etc.).
DaWanda is not involved in the conclusion of agreements between members and cannot does not provide any guarantees in respect of the properties and condition of the goods and services offered by members. The sellers of articles and services are themselves responsible for the description of their offerings.
Registering as a member at DaWanda is free of charge. Fees are charged for certain services used of sellers, the amount of which is listed in the current DaWanda Fees Explanation. DaWanda charges fees for, amongst other things, listing offers. Following a successful sale of a good or service via the DaWanda platform, a commission is due. In addition, members can choose to offer their products in the so-called advertising space of DaWanda, a particularly effective marketing tool. This incurs an extra charge. The same applies for home page bookings and other additional options specified in the Fees Explanation. DaWanda informs its members before each additional option is confirmed that a respective fee is due. If a purchase is not completed as a result of a valid revocation, DaWanda will refund the sales commission.
The member will be invoiced by DaWanda for any fees either when becoming due or after completion of a calendar month, at the latest at the end of the following month. The invoice will be sent by email as a PDF file to the member’s email address. The invoice amount will also be displayed in the “My DaWanda” section.
The member can set up a direct debit mandate, use PayPal or bank transfer for the fees due to DaWanda or use a credit card. DaWanda will always send invoices before debiting the amount and display it in the “My DaWanda” section. If the debit transaction fails, the member shall pay DaWanda a fixed fee for the return debit note unless the member can prove they are not responsible for the failure. The fixing of the additional costs for the failure of the debit transaction, does not affect the right to provide evidence that no costs, considerably lower costs or considerably higher costs have been incurred.
The member shall be in default without any further reminders if no payment is made within 30 days of an invoice being due and being received by email or the first time the invoice amount is listed in the “My DaWanda” section. If the member is a consumer, this only applies if DaWanda has advised the member of this consequence in the invoice.
VI. Obligations of the Member
1. General obligations which apply to all members:
There are laws (a) with which all members must comply, and rules (b) which DaWanda itself sets out in order to ensure the smooth operation of the internet platform. Further obligations for members, in addition to those laid out here, can be found in the DaWanda Guidelines.
Every member is obligated to use the DaWanda platform for lawful purposes only and according to these Terms and Conditions as well as the DaWanda Guidelines. Members are themselves responsible without limitation for their offers (e.g. shop, items for sale) and content (e.g. ratings, forum posts, individual information).
a) Principles which apply to all members by law:
Members must comply with applicable statutory requirements at all times when using our services; in particular, but not limited to content from members may not violate:
- criminal law,
- regulations for the protection of minors,
- data protection law,
- third party copyrights, trade mark rights, sign rights, patent rights or rights to a name
- moral rights or other third party rights
This means, for example, goods or services which may not be offered and content which may not be published include but are not limited to:
- stolen goods/fenced goods (for example, goods acquired through fraudulent means)
- media harmful to young people
- premium telephone numbers
- incitements to commit crimes, racist content
- propaganda articles of banned parties, associations and groups
- items from anti-constitutional organisations
- slanderous, defamatory or libellous statements
- counterfeit goods, imitations of branded goods
- content which offends common decency (contra bonos mores)
- images or other files which are protected by copyright if the user has not obtained the respective right of use
- items produced using child labour
- images or other files which infringe trade mark rights, company name rights or other proprietary rights
Furthermore, one should note that there are many items whose trade is subject to special – sometimes very strict – statutory regulations or restrictions. This includes, but is not limited to:
- trade in toys
- trade in foodstuffs
- trade in textiles
- products from protected plant and animal species
Please note that content on the DaWanda platform is fundamentally accessible worldwide. Therefore, depending on the case it is possible that laws of other countries must be observed. This applies in particular to offers of goods and services aimed at customers in other countries; in particular, members who offer a good or service on one of the non-German DaWanda websites must usually also observe the regulations applicable in the country where they are offering said good or service.
b) Principles which DaWanda considers mandatory to ensure a good functioning of the market place:
- Members should treat each other with respect!
- Be fair to one another and to DaWanda!
- Only goods and services may be offered at DaWanda which are suited to DaWanda. This means that only lovingly designed, home-made goods may be offered or services which are related to handicraft, sewing and do-it-yourself. Furthermore, the sale of supplies and vintage fashion is allowed. In exceptional cases, goods may be offered which have been produced by a third party provided the original producer is named and only a small number of the goods are available. More precise information on this can be found in our Guidelines.
- Members may not circumvent the DaWanda fee schedule or prevent a fee-based act of usage in bad faith. In particular, the member may not use the contacts which arise through the DaWanda platform in order to sell items, listed on the DaWanda platform, elsewhere. In the case of a circumvention or bad faith avoidance of remuneration, DaWanda is entitled to demand the avoided remuneration from all members involved as joint and several debtors; further rights of DaWanda, in particular to block and/or terminate the member account concerned, remain unaffected.
- The seller of a good must actually be able to supply that good or be in a position of supplying it within the timeframe stated in the offer.
- Information provided by the seller as to price, payment, delivery, delivery time, delivery and shipment costs must be accurate, complete and comply with applicable statutory requirements.
- The offer must specify what the seller’s own contribution has been to the production of the product on offer.
- A seller may not pass the DaWanda fees on to the purchaser in addition to the sales price or collect these from the purchaser.
- Merely providing a link to an internet address does not qualify as a description of a good
- Offers must be listed in the appropriate category.
- Comments, ratings, messages and criticisms must be based upon facts and may not contain defamatory statements.
- Members are not allowed to submit ratings on themselves.
- No technology may be used which might be harmful or pestering to the platform, to members or to third parties (e.g. viruses, robots, spiders, scrapers, crawlers, hacking, brute force attacks etc.). This shall include, for example, the automatic read-out of data by crawlers.
- Collecting address data from DaWanda is prohibited without the consent of the respective member.
- Members may not use the contact details they receive from one another in the scope of communications or transactions for advertising purposes without the express permission of the respective other member.
- The use of spam, snowball systems and similar, unfair marketing measures is prohibited.
- Search word spamming is prohibited.
- On the German internet site of DaWanda, products must be described in German. On the other DaWanda platforms the description must be in the respective national language or the commonly used languages of the country.
- URLs may only be included in offers if further information on the respective topic can be found at the URL provided. The content of the linked pages must comply with the applicable law. Links to partner programs, referral URLs, URLs to fee-based subscription sites and online shops etc. are not permitted.
- The member is obligated to avoid placing any excessive strain on the DaWanda platform. In particular, no content may be published which could endanger the integrity, stability and availability of the DaWanda platform.
2. Obligations which apply to members who offer goods or services commercially:
A member who acts in a commercial capacity is obligated to announce this clearly and to observe all applicable legal information requirements including the obligation to provide the relevant names and addresses (in Germany: “Impressum” [imprint], regulated in: Sec. 5 German Telemedia Act, TMG), to provide information on how data is handled (in Germany: Sec. 13 TMG), on distance selling of goods and on eCommerce (in particular on the “right of revocation” in Germany, regulated in: Sec. 312d to 312e, Sec. 355 et seq. German Civil Code, BGB, Art. 246, Sec. 1, 3 German Introductory Law to the Civil Code, EGBGB) for their offers and content.
If a member who offers goods or services uses their own terms and conditions, these may not contradict the DaWanda Terms and Conditions. Commercial sellers must additionally ensure they are aware of all regulations applicable to them, such as the provisions of the packaging ordinance.
VII. Consequences of violations of law or of these Terms and Conditions
The online marketplace of DaWanda can only work smoothly if all members adhere to the rules. Therefore, DaWanda reserves the right to take measures against members where specific evidence suggests that the member, through his or her use of the platform, violates or has violated applicable law and/or these Terms and Conditions. When deciding upon these measures, DaWanda shall take into consideration the operational requirements of the DaWanda platform, own liability risks as well as the legitimate interests of any party asserting a claim and those of the member (e.g. debts, seriousness of the breach of duty, risks, statement of the user).
If DaWanda should learn of evidence for breaches of duty on the part of the member, e.g. through complaints from third parties, DaWanda will inform the member thereof. When doing so, DaWanda is entitled to set a time limit for the member to submit a statement on a case by case basis; in the case of extreme urgency, this time limit can be just a few hours.
The sanctions which DaWanda can place on a member are:
- issue a written warning to the member, demanding the violation is immediately ceased;
- suspend, block or terminate individual offers (e.g. shop, profile, item) or content (e.g. ratings, forum posts, individual information) of the member on the DaWanda platform;
- limit or restrict the member’s use of the DaWanda platform (e.g. block access to forum, limit number of offers);
- preliminary blocking of the member;
- exclusion of the member
In the case of the termination of offers or the blocking of a member account (preliminary blocking or exclusion) due to the existence of a violation of the law or a violation of these Terms and Conditions, the member shall owe all fees due in relation to the respective offer up to the point of termination by way of compensation. The fixing of the compensation does not affect the right to provide evidence that no loss, considerably lower losses or considerably higher losses have been incurred.
A member whose membership has been terminated is not allowed to reregister at DaWanda or to use other member accounts.
DaWanda is entitled to remove offers of members at its own discretion if these offers are not in line with the overall image of the DaWanda platform. Provided the member is not responsible for any breach of duty, DaWanda will, on request, cancel or reimburse any fees due on the removed offer.
VIII. Reporting violations of these Terms and Conditions
Violations of these Terms and Conditions as well as of the DaWanda Guidelines may be reported by members using a report button located on every product page.
If a report is submitted by the legal representative of an authorised person (e.g. in the case of copyright infringements), we request that the legal representative sends us the notification of the rights infringement together with proof of his or her authorisation to represent the respective person (power of attorney) by fax, by email with a scan or by letter. DaWanda reserves the right to demand to see the original of the power of attorney document.
The member releases DaWanda from any claims which third parties might assert against DaWanda due to a rights infringement or breach of duty of the member, unless the member is not responsible for the breach of duty. This covers, in particular, the listing of items, ratings or forum contributions which is unlawful or contrary to contract. Reasonable costs of a legal defence (in particular, attorney fees) which DaWanda has demonstrably incurred through the misconduct of the member, must also be reimbursed.
The user agreement shall run for an indefinite period of time and may be duly terminated by the member or DaWanda at any time providing a notice period of seven days. Notification of termination by the member may be in the form of a written communication to DaWanda or an email to [email protected] or through de-registration in the section “My profile” via the menu point “Edit Profile”.
The right to termination for good cause remains unaffected. In addition to legal grounds for termination for good cause, it shall also constitute cause for immediate termination for DaWanda if a member, upon receiving a reminder from DaWanda (which can be grounds for default), does not pay the remuneration due within a reasonable period of time and is in default of payment at the time of the termination. DaWanda is entitled to institute preliminary measures as per clause VII during the time period set by law.
XI. Rights of Use
1. The member grants DaWanda all rights in the content uploaded by him or her to the online platform necessary for the fulfilment of the agreement. This covers, in particular, the right to reproduce, distribute, make available to the public or adapt, for the purpose of providing the services, the content uploaded by the member. DaWanda is, in particular, entitled to reproduce, distribute and make available to the public all content uploaded by the user also beyond the end of his or her membership.
2. Furthermore, the member grants DaWanda the right to use the content listed by him or her in the advertising for the online platform or individual offers, in particular for advertising on the internet (in particular affiliate advertising, eCards etc.), in print advertising and/or TV advertising. To this end, DaWanda is especially entitled to reproduce, distribute, make available to the public, adapt or broadcast content of the member or to communicate the broadcasts or make them available to the public (Sec. 22 German Copyright Act, UrhG).
3. The rights granted under points 1 and 2 above are granted to DaWanda as non-exclusive exploitation rights in perpetuity and throughout the universe. The rights granted under points 1 and 2 above may be assigned and sub-licensed by DaWanda to third parties. DaWanda shall not be liable to pay any additional remuneration in such cases.
XII. Limitation of liability
The following provisions on the limitation of liability of DaWanda apply to all claims for damages and liability cases, irrespective of the legal grounds such claims are based on (e.g. guarantee, default, impossibility, breach of duty, impediment to performance, except for:
claims of the member due to losses caused by injury to life, body or health,
rights and claims of the member due to malicious concealment of a defect by DaWanda or due to the lack of a property for which DaWanda has assumed a guarantee,
rights and claims of the member based on wilful or grossly negligent behaviour on the part of DaWanda itself, its legal representatives or vicarious agents as well as
claims of the member under the German Product Liability Act (Produkthaftungsgesetz).
In respect of the aforementioned exceptions, the statutory provisions alone shall apply.
DaWanda is liable for losses caused by simple negligence only where material obligations have been breached, i.e. obligations whose fulfilment is essential for the achievement of the purpose of the agreement or whose fulfilment can normally be relied upon by the contracting partner. In the case of a breach of fundamental obligations, the liability of DaWanda is limited to compensation for losses typically foreseeable for DaWanda at the time of conclusion of the agreement. Otherwise, a liability of DaWanda for losses caused by simple negligence is excluded.
Liability for non-availability of the online platform is excluded. In particular, no claims against DaWanda can exist where non-availability affected purchase agreements, for example because an item cannot be listed or a purchase agreement is not concluded.
DaWanda is not liable for the performance of agreements between members.
XIII. Responsibility for content and links
DaWanda is not obligated to monitor the information transmitted or stored or to search for possibly illegal content.
XIV. Third party assignment and assumption
DaWanda is entitled, upon provision of four weeks’ notice, to assign its rights and obligations under this user agreement in whole or in part to a third party. In such a case the member is entitled to terminate the user agreement within three weeks of receiving the notification giving four working days’ notice.
XV. Alterations to the Terms and Conditions
DaWanda reserves the right to alter these Terms and Conditions at any time and to make the use of the online platform subject to new or additional contractual terms. You will be notified of any alterations or additional terms and these will come into effect as soon as they are accepted. Should you not accept the alterations, DaWanda is entitled to terminate the user relationship.
XVI. Final provisions, applicable law and place of jurisdiction
The most recent version of the Terms and Conditions is stored on the DaWanda platform and is available to be viewed by anyone. The same applies to earlier versions of the Terms and Conditions which are not more than two years old.
DaWanda is entitled, for the purpose of performing its obligations under this agreement, to also avail itself of third parties as so-called vicarious agents.
Claims against DaWanda may not be assigned to third parties either in part or in full.
The legal relationship between the parties to this agreement is subject to German law. The provisions of the Vienna UN Convention on Contracts for the International Sale of Goods of 11 April 1980 do not apply.
Berlin shall be the sole place of jurisdiction in respect of business persons, legal persons incorporated under public law or special funds under public law. In addition, Berlin shall be the sole place of jurisdiction in respect of entrepreneurs if the member has no general place of jurisdiction in Germany or the member moves his domicile or main residence out of Germany after the conclusion of the agreement or if the domicile or main residence of the member is unknown.
End of Terms and Conditions
Status: June, 2014