§ 1 Scope of Application and Subject Matter
The following terms and conditions shall govern the “Software-as-a-Service”-hosting, maintenance, operation and making available on-demand of the open source product “Pageflow” (“Hosted.Pageflow”) through Codevise Solutions Limited, Deutz-Mülheimer Straße 129, 51063 Köln („Codevise“).
Hosted.Pageflow makes available to the customer, and/or users authorized by the customer (if any), via the internet a software application which is hosted on servers of Codevise.
The customer shall, in connection with its registration, provide true and correct information and keep such information correct and up-to-date. The same shall apply to any information provided at any later stage, i.e. after the registration.
§ 2 Services
For use of the service we will provide the customer with one or more user accounts under which account(s) the customer can retrieve and maintain information on its contract with us and use the features of the “Pageflow”-Software. This shall include without limitation the creation and maintenance of multimedia reportages.
The software version of the Hosted.Pageflow service may deviate from the software version of the open source product “Pageflow”.
Where Codevise offers testing free-of-charge, the option to publish an applicable reportage will be excluded.
For the use of Hosted.Pageflow (except for free-of-charge test use) the prices as per our current price list shall apply. (http://hosted-pageflow.com/pricing).
We shall provide the use of Hosted.Pageflow to the customer with a system availability (uptime) of 98.5%. The system availability is calculated on the basis of the time period attributable to an applicable calender month if and to the extent that it is part of the contractual term, minus maintenance periods. We shall be entitled to perform maintenance works on workdays from 3 to 6 a.m. and/or on weekends, for a total of five hours during each applicable calender month. During maintenance works our service shall not be available.
§ 3 Usage Right
We grant the customer – for use of its own or by other users authorized by the customer in accordance with § 1 – a non-exclusive right limited to the duration of the customer’s applicable contract with us to access Hosted. Pageflow via the internet and to use, by means of a browser, the functionalities related to Hosted.Pageflow in accordance with the customer’s applicable contract with us, subject to the present terms and conditions.
§ 4 Backup of Data
We will provide for a backup of the customer’s data on our servers at least once per work day (i.e. excluding Sunday and holidays).
§ 5 Customer’s duties and obligations
The customer shall, without limitation, have the following duties and obligations:
to timely pay the agreed prices. For each direct debit which will not be redeemed or will be returned, the customer shall, to the extent that it is responsible for such non-redemption or return, reimburse to us the related cost incurred by us. Any further indemnification claims for damages caused by a default of payment of the customer shall remain unaffected.
to protect the authorizations for use and access to the service, as well as the identification and authentication protection, against access by any third party and to refrain from passing such authorizations and protection to unauthorized users;
to refrain from publishing content which breaches copyrights, trademark rights, design rights, personality rights or any other rights of any third party or any other provisions of the applicable laws. It shall not be permitted to upload erotic, pornographic or extremist content or content which conflicts with public morals;
to collect the required consent of any person concerned, where the customer collects, processes or uses personal data in connection with the use of Hosted.Pageflow, where such collection, processing or us is not permitted under the applicable laws without consent of the person concerned.
to obligate the users authorized by the customer in accordance with § 1 hereof to equally comply with the provisions related to the use of Hosted.Pageflow as set forth in § 6.2 through § 6.5 hereof;
to ensure that the customer’s website hosted on Hosted.Pageflow, if addressed to visitors in Germany, contains an appropriate imprint in accordance with § 5 TMG or, where such website is addressed to visitors in other countries, in accordance with such other countries’ applicable laws including any applicable conflict of laws provisions.
§ 6 Blocking of Content
We shall be entitled, but not obliged, to block content of the customer immediately if and to the extent that such content breaches applicable laws or rights of third parties and/or if any claims for injunction, damages or any other claims will be asserted against us or against the customer and where such claims are based on a breach of the applicable laws and/or of any rights of any third party.
We shall promptly notify the customer of any such applicable blocking of its content. The blocking of the applicable content shall be lifted if and once the respective suspicion of unlawfulness or breach of an applicable third party’s right will be cleared out.
§ 7 Terms of Payment, Invoicing
Monthly and yearly prices shall be paid in advance, starting on the day when the service is made available and ready to operate.Other prices shall be payable if and once that the applicable performances will have been rendered. Invoices shall be sent via email.
§ 8 Defects
Where defects already exist at the time of our making available of Hosted.Pageflow, our liability for such defects shall be excluded, provided that the defects are not caused by any fault (i.e. intention or negligence) of us.
Except for para 1. of this § 8, warranty claims hereunder shall be subject to the applicable provisions related to warranty claims under the applicable laws.
§ 9 Liability
Our liability for damages shall be subject to the following:
In case of intention or gross negligence, also on part of any persons assisting us in the performance of our obligations, we shall be liable in accordance with the applicable laws. The same shall apply in case o f a damage caused by negligent violation of life, body or health.
In case of a damage to property or a financial damage, we ourselves as well as any persons assisting us in the performance of our obligations, shall only be liable in case of breach of an essential contractual obligation, subject, however, to a maximum amount equal to the damage which was foreseeable at the time of conclusion of the contract and typical for the contract; essential contractual obligations within the aforesaid meaning are such obligations the fulfilment of which is a prerequisite for performance of the contract and which the other party may generally expect to be complied with.
Otherwise, any liability for damages of any kind, regardless of the respective underlying cause of action, shall be excluded, except if and to the extent that we are liable under mandatory applicable laws, including without limitation because of our assumption of a guarantee or under mandatory provisions of applicable product liability laws.
§ 10 Term, Termination
The minimum term of Hosted.Pageflow shall be 1 month or 12 month depending on the chosen contract and begin on the day when the service is made available and ready to operate.
The applicable contract shall be prolongued by consecutive 1-month-periods / 12-months-periods unless and until terminated as follows: The customer may terminate without giving any reason and without notice. We may also terminate without giving any reason but subject to the following notice period: Our termination shall become effective by the end of the contract period if the respective notice is submitted no later than 15 days before end of the contract period.
Either party’s right of termination for cause shall remain unaffected.
§ 11 Choice of Law, Jurisdiction
The laws of Germany shall apply. The Convention on the International Sale of Goods shall not apply. Where the customer is a consumer (i.e. a natural person who enters into the business relationship with us for purposes which cannot be predominantly attributed to the customer’s trade, business or profession) such choice of law shall only apply to the extent that it does not affect mandatory provisions of the country where the customer has its habitual place of abode.
For dealings with merchants, legal persons under public law or separate estates under public law, the courts of our place of business shall have jurisdiction over all conflicts arising hereunder. However, we shall remain entitled, at our choice, to file a lawsuit at the customer’s location instead.