Terms of Use

Terms of Use Policy

On the website pencila.com (“Site”), Pencila Technologies GmbH, Dolziger Str. 46, 10247 Berlin, Germany (“Pencila”) provides a platform for creating, editing, sharing, and using graphics (the “Pencila Platform”). 

Use of the Pencila Platform requires that you as the user (“User”) accept all provisions, rules, and conditions of these terms of use (“Terms of Use”) as well as the license terms (“License Terms”) which form the basis of the agreement concluded between Pencila and the User (“Contract”). If, for whatever reason, the User disagrees with these provisions and does not accept these Terms of Use, he/she must not enter the Site and must not use the Pencila Platform. In case of any contradiction between the details of these Terms of Use and other documents on the Site, the details given within these Terms of Use shall prevail. 

Changes to the Pencila Platform pursuant to Section 6., as well as changes to statutory requirements, may make it necessary for Pencila to amend these Terms of Use and/or the License Terms (“Amendment”). Pencila will inform the User in the event of a planned Amendment about the content of the Amendment with at least four (4) weeks’ notice to the scheduled date of entry into force; the amended Terms of Use and/or the License Terms will only come into effect if the User has agreed to the Amendments. 

1. CONDITIONS OF PARTICIPATION AND LOGIN DETAILS 

The User can use the Pencila Platform if he/she is a natural person who has reached the age of 18. If the User uses the Pencila Platform on behalf of a company or organization, the User confirms to Pencila that he/she is authorized to act on behalf of that company or organization and the User agrees to be legally bound by these Terms of Use on such company’s or organization’s behalf. 

Use of the Pencila Platform requires that the User has fully completed the registration process for the Pencila Platform. In order to register for the Pencila Platform, the User needs to:

a) enter his/her username, e-mail address, and define a password, or

b) use a profile of a (social) network operated by third parties, such as Facebook or Google ("Social Login"); if the User wishes to register with the Pencila Platform by means of Social Login, the User will be redirected to the login/registration mask of the (social) network and can log in there with his/her username and password stored with this provider ("Login Details"). 

The Login Details chosen by the User are confidential information. The User acknowledges the necessity not to disclose these Login Details and promises to keep it secret and not uncover, pass, or offer the Login Details to a third party without written permission from Pencila. 

The User confirms that he/she, as an owner of the Login Details, bears responsibility for each access to the Pencila Platform. Also, the User is informed and agrees that Pencila automatically accepts and recognizes the use of his/her Login Details as evidence of the fact that it was the User who gained access to the Pencila Platform. If the User has reason to believe that the confidentiality of his/her password has been compromised or unauthorized access to his/her Pencila account is otherwise possible, the User agrees to promptly change the Login Details and notify Pencila. 

Pencila has the right to request password changes from time to time. Pencila may block access to the Pencila account pursuant to Section 11 until such password change has been made. 

2. SERVICE 

With the Pencila Platform, Pencila offers the User the opportunity to create graphics by using various tools and features (e.g., editing illustrations, text effects, color settings, etc.). 

The User can:

- upload his/her own photos, designs, fonts, illustrations, or other content (“User Uploads”),

- use photos, designs, fonts, or illustration templates of Pencila (“Pencila Designs”) as such, and/or

- use Pencila Designs and/or User Uploads to create an individual(ized) design on the Pencila Platform (“User Generated Designs”, User Generated Designs and Pencila Designs, together the “Designs”). 

Further, the User has the opportunity to publish and share User Generated Designs with other users. 

3. FREE VERSION 

Pencila may provide a free-of-charge version of the Pencila Platform that includes a reduced set of features of the Pencila Platform (“Free Version”). The scope of features that can be used within the Free Version is at Pencila’s discretion and Pencila retains the right to change the scope of features or to stop providing a Free Version at any time. 

4. SUBSCRIPTION PLAN, PRICING AND PAYMENT 

Pencila offers various subscription plans for the use of the Pencila Platform that include different sets of features and licenses (“Subscription”). The prices for the Subscription are specified under https://www.pencila.com/pricing. 

Before ordering a Subscription plan, the User must create a free user account. By selecting a Subscription plan and clicking on the button (referred to as "Order with obligation to pay" or similar) at the end of the order process, the User places a legally binding offer to the conclusion of a contract regarding the chosen Subscription plan. Prior to placing the order, the User may always make adjustments to the order. 

Upon receipt of the order, the User will receive an automatically generated summary of the Subscription. This is a non-binding confirmation receipt to let the User know that the order has been duly received and which Subscription the User has ordered. Only upon Pencila’s order confirmation or the start of the actual provision of services, a contract shall have been concluded. 

The prices of the Subscription can be paid monthly or annually via credit card. The User’s Subscription will automatically renew on a monthly or yearly basis, depending on which plan the User chose, unless it has been terminated. 

All prices are net prices plus the applicable taxes and fiscal charges that accrue by law. 

5. RIGHT OF WITHDRAWAL

If the User is a consumer within the meaning of § 13 German Civil Code, Pencila will inform the User about his/her right of withdrawal within the scope of the respective order process. The User acknowledges that Pencila will not commence the provision of services with regard to the Pencila Platform until the expiry of the withdrawal period, unless the User has expressly waived his/her right of withdrawal by clicking on the relevant checkbox as part of the ordering process. 

6. AVAILABILITY, FUNCTIONALITY AND CHANGES 

Pencila offers the User the possibility to use the Pencila Platform if and to the extent that the Pencila Platform is available and functional. However, Pencila does not guarantee the continuous availability and functionality of the Pencila Platform. 

Pencila offers the possibility to use the Pencila Platform only with the functionalities and the quality that the Pencila Platform currently provides at the time, but Pencila does not promise any functionality or quality, except that the Pencila Platform generally provides for the scope described in Section 2. Information about the functionality and quality of the Pencila Platform on the Site or in advertising material is not part of the Contract concluded between Pencila and the User, unless explicitly referred to in the Terms of Use. 

Pencila reserves the right to make other changes to the Pencila Platform including to modify functionalities (together: “Changes”) at any time without prior notification, provided that the Pencila Platform continues to generally provide the scope described in Section 2 and that such Changes are not unreasonable for the User. However, Pencila is not obligated to make any Changes. Pencila does not warrant that information given on the Pencila Platform is complete, accurate, and compliant. 

7. DUTIES OF CARE AND COOPERATION 

The User is responsible to ensure that the electronic equipment he/she uses, has all the relevant technical specifications that are required for using the Pencila Platform. 

The User agrees to use the Pencila Platform solely in compliance with all applicable laws. The User is prohibited from using the Pencila Platform to support activities that may cause Pencila to violate applicable law. 

The User is responsible for any User Uploads and User Generated Designs provided by the User on the Pencila Platform. In particular, the User must ensure that (i) User Uploads and User Generated Designs do not violate personal rights, advertising rights, copyrights, publishing rights or any other rights of any other person, and (ii) no license or other fees are incurred through their use. The User further undertakes not to provide any User Uploads and User Generated Designs that are offensive, discriminatory, glorifies violence, defamatory or misleading, promotes or supports an illegal act or otherwise violates applicable law and agrees to avoid using the Pencila Platform in an inappropriate manner including, but not limited to: 

- Falsifying or imitating data concerning an original source of Designs on the Pencila Platform,

- Advertising or selling goods or services of any kind, and also placing on the Pencila Platform any information without any relation to the specialization of Pencila Platform resources (such as surveys, advertisements, or spam mailings),

- Downloading or saving any User Uploads, User Generated Designs, or other files from the Pencila Platform if the User knows that such downloads or copies are unlawful, cannot or should not be legally distributed,

- Using any Pencila Platform options including but not limited to sharing User Uploads or User Generated Designs with other users of the Pencila Platform for advertising purposes, to distribute referral links, promote files, designs, goods, services or activities, whether or not connected to the Pencila Platform.

The User also agrees not to use the Pencila Platform in a way that