1 Scope; Wacom Account
1.1 These Terms govern your access to and/or use of the Wacom Services, the Wacom Sites, and any associated Offerings. Other terms or conditions may apply to or govern your access to and/or use of specific Wacom Services, Wacom Sites, and/or Offerings. You agree that in the event of any conflict or inconsistency between these Terms and such additional terms or conditions, such additional terms or conditions shall govern and control, but only with respect to the specific Wacom Services, Wacom Sites, and/or Offerings to which such additional terms or conditions relate. Except as set forth in the preceding sentence or as otherwise expressly set forth in these Terms, Wacom will not be bound by any term, condition or other provision which is different from or in addition to the provisions of these Terms, including for example, any term, condition or other provision submitted by you in any order, receipt, acceptance, confirmation, or other document.
1.2.1 When you sign up for a Wacom Account by selecting a user name and password and by providing a valid email address (or alternatively, by using an existing social media account to provide your information), you are requesting that Wacom makes you an offer to access and use the Wacom Services pursuant to the terms and conditions of these Terms. Wacom will confirm receipt of your registration request by email. If Wacom chooses to make you an offer (such decision to be made in Wacom’s sole and absolute discretion), Wacom will do so by sending you an activation link by email. This may also be combined with the aforementioned confirmation of receipt. You accept Wacom’s offer, and these Terms become effective, if and when you activate your Wacom Account by clicking the activation link. The following terms and conditions also apply to any Wacom Account created through the Wacom Services:
a) You agree that the information you provide to Wacom as part of obtaining a Wacom Account and/or using the Wacom Services is and will be accurate, current, and complete. You further agree to keep your Wacom Account information, including without limitation, your email address and, if applicable, billing information (including billing address), current and up-to-date.
b) Your Wacom Account is personal to you and you acknowledge and agree that you may not assign, rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer your Wacom Account to any third party. Any licenses granted to you as part of any Offering tied to your Wacom Account are likewise personal to you and subject to the foregoing restriction, except to the extent any other terms and conditions applicable to such Offering permit transfer or assignment, or the foregoing restriction on transfer or sale is prohibited by applicable law. You further agree not to use the Wacom Account, user name, or password of any other user, or permit any third parties to use your Wacom Account, user name, or password.
c) You will keep the user name and password for your Wacom Account secure and confidential. You agree to inform Wacom without delay if you have reason to suspect that your user name and/or password has been disclosed to or otherwise obtained by any third party. Notwithstanding the preceding sentence, anyone using your Wacom Account on behalf of any Subscribing Organization (defined below) is not a “third party” for this purpose.
d) You acknowledge and agree that you are solely responsible for any and all uses of your Wacom Account, and any transactions and/or fees resulting therefrom.
1.2.2 When you sign in to any Wacom Service with your Wacom Account for the first time, you will be prompted to accept these Terms. You must accept these Terms by clicking “I ACCEPT” or taking such other action as prompted by the Wacom Service to indicate your acceptance of these Terms. If you do not accept these Terms, you will not be permitted to complete the sign in process, and as such, you will not be permitted to use the Wacom Service. Your Wacom Account will be subject to the terms and conditions applicable to it at the time you accepted and created your Wacom Account, except as such terms and conditions are later amended or modified by Wacom as permitted by these Terms.
1.3 The use of the Wacom Services is limited to persons over the age of 18 or equivalent minimum age in the relevant jurisdiction. Accordingly, you may not sign up for a Wacom Account, and Wacom may refuse to offer or provide you a Wacom Account, if you are under the age of 18 or equivalent minimum age in the relevant jurisdiction and do not have your parent or legal guardian’s permission to use the Wacom Services. Wacom further reserves the right to refuse to offer or provide you a Wacom Account if your prior Wacom Account was previously terminated by Wacom, or if Wacom has previously terminated or cancelled any other agreement previously entered into by you and Wacom. Accordingly, you represent and warrant that: (i) you are at least 18 years old or equivalent minimum age in the relevant jurisdiction, or have obtained your parent or legal guardian’s permission to use the Wacom Services; and (ii) Wacom has not previously terminated any prior Wacom Account owned or controlled by you, or any other agreement previously entered into by you and Wacom.
1.4 If you are using or opening a Wacom Account on behalf of a company, entity, or organization (collectively, a "Subscribing Organization"), then you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such Subscribing Organization to these terms, and that you agree to these terms on behalf of such Subscribing Organization. In such a case "you" in these terms refers to your Subscribing Organization, which shall ensure that each individual user accessing and using the Wacom Account on behalf of the Subscribing Organization complies with the obligations, limitations and restrictions contained herein.
1.5 Your Wacom Account, where applicable, may be used across a number of online services and platforms operated by Wacom and/or its affiliated companies. However, you acknowledge and agree that additional terms and/or conditions may apply to your purchase of, access to, and/or use of any Offerings made available on or through the Wacom Services. You will be given the opportunity to review and accept any such additional terms and conditions prior to completing your purchase or signing up for any such Offerings. Notwithstanding the preceding sentence, your purchase of, access to, or use of an Offering will be considered your acceptance to the additional terms and conditions applicable to such Offering. In case of contradictions, these additional terms and conditions shall supersede these Terms.
2 Use of Wacom Services and Wacom Sites
2.1 Subject to the terms and conditions of these Terms, Wacom will permit you to access the Wacom Services and use the features and/or functions associated with the Wacom Services. You may use the Wacom Services and the Wacom Sites when and as available. Although Wacom generally intends for the Wacom Services and the Wacom Sites to be available on an uninterrupted basis, the Wacom Services and the Wacom Sites will not always be available (e.g., during maintenance, changes, outages, and for other reasons). Wacom reserves the right to change or eliminate and restrict or block access to all or any part of the Wacom Services and/or the Wacom Sites, including any features, functions, or content displayed or made available through the Wacom Services and/or the Wacom Sites, from time to time with or without notice to you, in Wacom’s sole and absolute discretion.
2.2 You may enter into other agreements with Wacom, Wacom affiliates, and/or third parties through the Wacom Services that are specific to your access to and/or use of certain Offerings. For third party Offerings, your access to and/or use of the Offering is subject to the respective terms and conditions communicated to you by the respective third party vendor. In the event of any conflict between these Terms and the any terms and conditions specific to a certain Offering, the terms and conditions specific to the Offering shall prevail with respect to your access to and/or use of the Offering only.
2.3.1 From time to time there may be information on the Wacom Services and the Wacom Sites, whether or not posted by Wacom or by other users, that is outdated or that contains errors, inaccuracies, or omissions (“Inaccuracies”). The information on the Wacom Services and the Wacom Sites is informational only. Wacom reserves the right to correct any such Inaccuracies at any time. Furthermore, you acknowledge and agree that Wacom does not pre-screen User Content and cannot guarantee that the Wacom Services or the Wacom Sites will be free from content that is inaccurate, deceptive, offensive, defamatory, unlawful or otherwise objectionable. You acknowledge that Wacom is acting only as a passive channel for such distribution. Wacom will have no liability relating to any User Content or activities of other users. If you have concerns about any User Content, please notify Wacom using the copyright notice procedures in Section 7 of these Terms.
3 Your Obligations
3.1 You acknowledge that your Wacom Account and the Wacom Services are not data backup services. You agree to create and maintain adequate regular backups of any and all User Content you upload or share using your Wacom Account and/or the Wacom Services.
3.2 You agree that you will not violate any law, breach any contract or other legal duty owed to a third party, infringe or misappropriate any intellectual property right, or commit any tort, in connection with your use of the Wacom Services. More particularly and/or in addition to, in any case with statutory usage rights remaining unaffected (e.g. Sec. 69d and 69e of the German Copyright Act (Urheberrechtsgesetz), you agree not to:
a) access or tamper with or attempt to access or tamper with any area of the Wacom Services that you are not authorized to access or otherwise attempt to probe, scan, or test the vulnerability of any Wacom or third party system or network;
b) reverse engineer any aspect of the Wacom Services, do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Wacom Services;
c) modify, translate, or otherwise create derivative works of any part of the Wacom Services;
d) interfere or attempt to interfere with the proper workings of or any activities conducted on the Wacom Services, or access or attempt to access the Wacom Services with any bot, spider, crawler, or other automated system or process, or bypass robots.txt exclusion files or other measures as may be used to prevent or regulate access to the Wacom Services;
e) post, upload, or distribute any User Content that is defamatory, libelous, inaccurate, unlawful (including in violation of any applicable intellectual property, personality rights, youth protection or similar laws), or that a reasonable person would deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
f) post or upload any User Content that contains any viruses, adware, spyware, worms, or other malicious code or any content or file that may have the effect of compromising any security or access control feature of the Wacom Services or of any Offering;
g) impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Wacom Account of any other user without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Wacom Services, or perform any other similar fraudulent activity;
h) post or send unsolicited commercial messages or advertise any goods, software, products, or services other than the Offerings available through any Wacom Services;
i) use the Wacom Services to create products or perform services which compete or interfere with those of Wacom or its licensors;
j) store, maintain, process or transmit an individual’s government issued personal identifications number(s) (such as, social security numbers, driver’s license or passport numbers) or protected health information (as defined by U.S. Health Insurance Portability and Accountability Act of 1996);
k) infringe or misappropriate any patent, trademark, trade secret, copyright, right of publicity, or other intellectual property right or other proprietary right;
l) invade the privacy of a third party and use personal data of third parties for commercial purposes or in some other manner that violates their rights or applicable laws.
m) access or use the Wacom Services for any unlawful, unintended, or harmful purpose, or other than in full compliance with applicable law and these Terms;
n) take any action which might impose a significant burden on the infrastructure for the Wacom Services;
o) use the Wacom Services in connection with life support systems, medical devices, or any application where failure or malfunction could lead to possible loss of life; or
p) interfere with the ordinary operation or mission of the Wacom Services.
4 Intellectual Property Rights and Licenses
4.1 The Wacom Services may feature, without limitation, data, text, designs, graphics, logos, slogans, interfaces, icons, software, and other information (“Content”). Content that is posted by you in connection with your use of the Wacom Services is referred to herein as “User Content.” Content that is posted by or that otherwise originates from Wacom is referred to herein as “Wacom Content.”
4.2 You retain ownership of any User Content posted or transmitted to or through the Wacom Services. You hereby grant to Wacom, a non-exclusive, royalty-free, worldwide, and sublicensable license and authority to use, copy, modify, transmit, download, store, distribute, incorporate and otherwise exploit the User Content solely (i) to the extent necessary to perform Wacom’s obligations or enforce Wacom’s rights under these Terms; or (ii) to ensure Wacom’s compliance with applicable laws.
4.3 You represent and warrant to Wacom that: (i) you own the User Content which you post or transmit on or through the Wacom Services, or otherwise have the legal right to post or transmit such User Content on or through the Wacom Services; and (ii) the User Content or the posting thereof to or through the Wacom Services does not violate the privacy rights, publicity rights, intellectual property rights, or any other proprietary rights of any third party.
4.4 The Wacom Services and all Wacom Content featured on the Wacom Services is the property of Wacom or its affiliates, licensors or suppliers, and is protected by intellectual property laws. No Wacom Content may be used, copied, distributed, republished, uploaded, posted or transmitted in any way except pursuant to the express provisions of these Terms, or with Wacom’s prior written consent. All rights not expressly granted to you are reserved. Modification or use of the Wacom Services and the Wacom Content for any other purpose may violate Wacom’s intellectual property rights, and no title to copies or to intellectual property rights in the Wacom Services and/or the Wacom Content are transferred to you – all title and rights remain with Wacom. You are granted only a limited, non-exclusive, non-transferable license to use the Wacom Services for your internal, non-commercial use, subject to these Terms, and for the period of time in which you maintain a Wacom Account.
4.5 Any comments, feedback, suggestions, or ideas (“Feedback”) you provide through the Wacom Services may be used by Wacom in an anonymous or pseudonymous form. While you may continue to own all such Feedback, you hereby grant to Wacom a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify and otherwise commercialize and exploit the Feedback (provided that the Feedback is in anonymized or pseudonymized form). If you do not want Wacom to use the Feedback, do not provide any such Feedback to Wacom.
5 Disclaimer; Limitation of Liability
5.1 Wacom shall be liable under these Terms as follows:
a) without limitation for damages resulting from injury to life, physical integrity or health as well as under the German Product Liability Act [Produkthaftungsgesetz] and any guaranties that have been promised;
b) without limitation in the case of intentional fraudulent or grossly negligent misconduct;
c) for damages resulting from the culpable violation of material contractual duties, i.e. those duties which must be fulfilled in order to even enable the proper performance of the relationship for use and which the User can normally rely on being complied with, whereby the liability is limited to compensation for the typically foreseeable damages under the contract.
5.2 Any further liability for Wacom is excluded.
5.3 Additionally to sections 5.1 and 5.2, in case you use Wacom Sites, Wacom Services or other Offerings free of charge, Wacom’s liability for slight negligence is generally excluded.
5.4 Wacom is liable for recovery of data only to the extent the User has taken all necessary and reasonable precautions for securing data and has made sure that the data can be recovered with a reasonable effort from data material kept in machine readable form.
5.5 These limitations of liability also apply for the benefit of Wacom’s directors, officers, employees, licensors, freelancers, subcontractors, representatives and agents of any kind.
5.6 These limitations of liability apply with regard to all claims for liability, without regard to the legal basis, also with regard to pre-contractual or ancillary contractual claims.
5.7 You are required to notify Wacom without undue delay at least in text form about any damages under the above provisions on liability or to have Wacom take note of such damages, so that Wacom is informed as early as possible and can conduct any mitigation of harm together with you.
5.8 For clarity, the warranties and liability of Wacom or the relevant provider of any Wacom Services or Offerings you may purchase from Wacom, its affiliates and/or any third parties through the Wacom Services may be subject to separate terms and conditions applicable to the relevant Wacom Service or Offering, if any. In case such separate terms and conditions encompass provisions on Wacom’s liability, such provisions shall supersede the respective provisions in these Terms.
You agree to defend, indemnify and hold harmless Wacom, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to) your culpable breach or violation of these Terms.
7 Copyright Infringement Notification Procedure
Wacom respects third party intellectual property rights. If you believe your copyrighted work has been copied or posted on or through the Wacom Services in a way that constitutes copyright infringement, then please contact us at firstname.lastname@example.org and provide the following information:
a) A description of the copyrighted work that you believe has been infringed;
b) A description of what the allegedly infringing work is;
c) A description of the location where the allegedly infringing work is located on the Wacom Services;
d) An address and telephone number where you can be contacted, including an email address if possible;
e) A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
f) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright; and
g) A statement, made under penalty of perjury, that the above information is accurate and that the signatory is the copyright owner or is authorized to act on behalf of the copyright owner.
We recommend that you consult with your legal advisor before filing an infringement notice, because there can be penalties for false claims.
Please use the same procedure for any claimed infringement of any trademark rights or infringements or misappropriations of other intellectual property or third party rights.
8 Term and Termination
8.1 These Terms are concluded for an indefinite term. Either party may terminate the Wacom Services and/or Wacom Account for convenience in writing (e-mail sufficient) at any time with 7 days’ notice.
8.2 We reserve the right to: (i) immediately terminate your Wacom Account; (ii) – after reasonable notice in advance – delete any of your User Content; (iii) immediately restrict your use of all or any part of the Wacom Sites or the Wacom Services; and (iv) immediately suspend, modify or discontinue the Wacom Sites or Wacom Services (or any part thereof), if you have breached or violated any of the obligations stated in these Terms. To this extent, we also reserve the right to block users from accessing or posting content to the Wacom Sites or the Wacom Services by using any technology available, such as blacklisting certain IP addresses or device numbers.
8.3 Furthermore, both parties’ right of extraordinary termination for good cause remains unaffected.
9 Modification of Terms
Wacom has the right to change these Terms at any time. Wacom will post a notice of the changes on the Wacom Sites and, if you provided us with an email address, email you a notice of the changes to the email address Wacom has on file. Furthermore, Wacom will provide you with the proposed new version of these Terms and notify you of the date when these new Terms will be implemented. Any change is subject to a prior written notice of six weeks. If you do not expressly refuse the respective modification within six weeks from the date on which the new Terms are implemented, you are deemed to have approved the modification of these Terms. In the aforementioned notice of the proposed modification, Wacom will inform you expressly and specifically about the right to object within the six weeks period and the consequences of not expressly refusing the proposed modification.
10.2 These Terms will be governed by German law, without giving effect to its conflict of laws provisions. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10.3 If you are an entrepreneur, public law entity or public law special fund, or if you are not a resident of Germany or give up your residency in Germany after these Terms is concluded, or if your whereabouts are unknown at the time of filing a lawsuit, the exclusive legal venue for any disputes arising out of or in connection with these Terms is Düsseldorf, Germany.
10.4 These Terms shall be governed and construed using the English language. Accordingly, the English version of these Terms controls in the event of any discrepancy with other translated versions of these Terms.
10.5 If any part of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, then that part will be deemed superseded by an enforceable provision that most closely matches the intent of the original and honors the allocation of risks in these Terms and the remainder of the Terms will continue in effect.
10.6 Wacom’s failure to act with respect to a breach of these Terms does not waive Wacom’s rights to act or as to subsequent or similar breaches.
Last modified: October 15, 2020