Terms and Conditions
These Terms and Conditions (this “Contract” or “Agreement”) is a binding contract
between you (“Customer,” “you,” or “your“) and Filestage GmbH. (“Provider,” “Filestage”,
“we,” or “us“). This Contract governs your access to and use of the Software and API.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON
BELOW, BY ACCESSING OR USING THE SERVICES, OR ENTER INTO AN ENTERPRISE LICENSE AGREEMENT (the “Effective Date”). BY CLICKING ON THE “I ACCEPT” BUTTON, OR BY ACCESSING OR USING THE SERVICES, OR BY ENTERING INTO AN ENTERPRISE LICENSE AGREEMENT, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT SELECT THE “I ACCEPT BUTTON, DO NOT ACCESS THE SERVICES, AND DO NOT ENTER INTO AN ENTERPRISE LICENSE AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
All products and services offered by Filestage are directed exclusively at industries, companies, regulators, public or charitable organizations, societies, associations, trade organizations and freelance professions, who, upon entering into a legal transaction, act as part of their commercial or self-employed business activity.
§ 1 Object of this Contract and Definitions
The object of this Contract is the provisioning of access rights to cloud hosted software and API by the Provider to the Customer. The software in question is “Filestage”, which has been developed by the Provider and includes the following features: Saving, sharing, and commenting on media files and the management of media projects.
The software contains a variety of features, which operate as self-contained features within the software.
The following definitions apply to this Contract:
“Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Software has been purchased hereunder.
“Software” means the services provided by Provider under this Agreement that are detailed on Provider’s website available at https://www.filestage.io and reflected in the Customer’s order and applicable Enterprise License Agreement.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Software.
“Documentation” means Provider’s end user documentation relating to the Software available at https://www.filestage.io, https://www.filestage.io/blog, https://www.filestage.io/tutorials, and the Filestage Help Center.
“Filestage IP” means the Software, the API, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Filestage IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Software and API, but does not include Customer Data.
“API” means the Filestage application programming interface and any API Documentation or other API materials made available by Provider on its website https://www.filestage.io.
“API Documentation” means the API documentation described at https://developers.filestage.io/docs/api/ZG9jOjg2MDMzMw-1-welcome and as updated
from time to time.
“API Key” means the security key Provider makes available for you to access the API.
“Your Applications” means any applications developed by you to interact with the API.
§ 2 Software and API Access
(1) Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Contract and applicable Enterprise License Agreement, Filestage hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Software during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Provider shall provide you the necessary passwords and access credentials to allow you to access the Software. Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Software. The Provider makes available to the Customer the functionality, as outlined in the appendix “Software Specifications”, of the software “Filestage” (henceforth referred to as “Software”) within the scope of functions and according to the functional prerequisites outlined in more detail therein. The Software is made available for use by the Provider at the transfer point (interface of the Provider-run data network and other networks) as outlined in the appendix “Software Specifications”. The Software remains on the cloud hosted instances of the Provider. The Provider is not responsible for the establishment and maintenance of the data connection between the Customer’s IT system and the Provider-run transfer point to the internet. The Provider further supplies storage – according to the definition in the appendix “Software Specifications” – on its cloud hosted instances for the resulting user data from the Software to the Customer.
(2) The Provider continues to develop the Software on an on-going basis. As part of further development, bugs are fixed and new features are added. The Customer has no claim to new functionalities, unless this has been explicitly agreed. The Provider has the right to add new features to the Software.
(3) The Provider provides access to the Software to the Customer at the transfer location with availability for use defined as follows.
- Mon 00:00 h – Sun 24:00h, 99,1%
- Customers on the Enterprise plan can enter into an extended uptime SLA with Filestage.
The Provider can interrupt the software for a defined time period to carry out maintenance. The Customer may not withhold his consent to these interruptions unduly. Filestage will attempt to notify administrators at least 8 hours in advance of any planned downtime lasting longer than 60 minutes.
The following downtime will not be included in availability:
- Scheduled downtime / maintenance
- Any force majeure events and other factors outside of Filestage’s control
- Internet outages and failures
- Acts or omissions of Customer and its users
- Enforcement of regulations
Filestage offers the possibility to conclude an extended support and service level agreement as part of an enterprise license agreement. If Customers are interested in an SLA, they can contact firstname.lastname@example.org directly.
(4) Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Software, any software component of the Software, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software, any software component of the Software, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or Documentation; or (v) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
(5) Limitation. Provider may subsequently limit the storage space of Customers if Customer consumes a disproportionate amount of storage space. The storage space consumption of other Customers in the Enterprise license is used as a comparative value.
(6) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Software if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any other Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other Customer or vendor of Provider; (C) Customer or any other Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Software to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Software; or (iii) in accordance with 5 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension“). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Software Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
(7) Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Software, API, and all other Filestage IP and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
(8) Customer Data. You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Software to you. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(9) Account Use. You are responsible and liable for all uses of the Software and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software and shall cause Authorized Users to comply with such provisions.
(11) API License Grant. This section is applicable if you are using our API. Subject to and conditioned on your compliance with all terms and conditions set forth in this Agreement, we hereby grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the term of the Agreement to use the API solely for your internal business purposes in developing Your Applications that will communicate and interoperate with the Software. You acknowledge that there are no implied licenses granted under this Agreement. We reserve all rights that are not expressly granted. You may not use the API for any other purpose without our prior written consent. You must obtain an API Key through the registration process available at https://developers.filestage.io/docs/api/ZG9jOjg2MDMzMw-1-welcome to use and access the API. You may not share your API Key with any third party, must keep your API Key and all log-in information secure, and must use the API Key as your sole means of accessing the API. Your API Key may be revoked at any time by us.
(12) API Use Restrictions. Except as expressly authorized under this Agreement, you may not:
(a) copy, modify, or create derivative works of the API, in whole or in part;
(b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the API;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the API, in whole or in part;
(d) remove any proprietary notices from the API;
(e) use the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
(f) combine or integrate the API with any software, technology, services, or materials not authorized by Company;
(g) design or permit Your Applications to disable, override, or otherwise interfere with any Company-implemented communications to end users, consent screens, user settings, alerts, warning, or the like;
(h) use the API in any of Your Applications to replicate or attempt to replace the user experience of the Company Offering; or
(i) attempt to cloak or conceal your identity or the identity of Your Applications when requesting authorization to use the API.
You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on our website from time to time. In addition, you will not use the API in connection with or to promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email (“spam”), multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities.
(13) API Applications. You agree to monitor the use of Your Applications for any activity that violates applicable laws, rules, and regulations or any terms and conditions of this Contract, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of Your Applications from further use of Your Applications. You agree to provide a resource for users of Your Applications to report abuse of Your Applications. As between you and us, you are responsible for all acts and omissions of your end users in connection with Your Application and their use of the API, if any. You agree that you are solely responsible for posting any privacy notices and obtaining any consents from your end users required under applicable laws, rules, and regulations for their use of Your Applications.
§ 3 Support of the Software
The Customer can contact the Filestage support anytime or use the help center to resolve questions.
Filestage agrees to provide support during the following support hours:
|Type of Support Request||Support Channels||Support Hours||First Response Time|
|A question about the functionality, the service modalities, feedback on the application or suggestions for improvement.||E-Mail: email@example.com||Monday 8:00 h till Friday 21:00 h CET||Within 8 hours during support hours.|
|Unavailability or misbehaviour of the application.||E-Mail: firstname.lastname@example.org||Monday 8:00 h till Friday 21:00 h CET||Within 8 hours during support hours.|
Filestage offers the possibility to conclude an extended support and service level agreement as part of an enterprise license agreement. If customers are interested in an SLA, they can contact email@example.com directly.
§ 4 Right to register
(1) To use the Software, registration is a prerequisite. There is no entitlement to the use of the Software. The Provider reserves the right to deny any requests for use without explanation.
(2) Registration is only open to Customers who are of age and legally competent. Minors may not register. For a legal entity, the registration has to be completed by a legally competent and authorized representative, natural person.
§ 5 Registration on the Platform
(1) The contact details and other information required by the Provider during the registration process must be complete and correct. The registration of a legal entity requires the additional designation of an authorized representative, natural person.
(2) Following the completed submission of all required data by the Customer, the data is reviewed by the Provider with respect to completeness and plausibility. If all details are correct from the perspective of the Provider and there are no other concerns on the part of the Provider, the Provider activates the requested access and notifies the Customer of this via email. The email is considered acceptance of the request for use. The Customer has to confirm his activation by clicking the link contained in the email within 24 hours.
§ 6 Customer Data Updates
The Customer must keep his details (including his contact details) updated. In the event that, during the period of use, a change in the supplied data occurs, the Customer must immediately correct the details in his personal settings online. If the Customer is unable to do so, he can also communicate the changed details via email or fax.
§ 7 Documentation
(1) The Provider makes an Documentation for the use of the Software available. The Provider decides at his own discretion, whether changes to the Software necessitate an addition or revision to the Documentation.
§ 8 Data Storage and Transfer
(1) The Customer has the option to deposit data, which they can access in connection with the Software, in the storage capacity supplied for him by the Provider. The Provider is only obligated to supply the storage capacity for use by the Customer. The Provider has no custodial or care responsibilities with respect to the data transferred and processed by the Customer. The observation of any trade- or tax-related retention periods is the sole responsibility of the Customer.
(2) The amount of storage made available to the Customer is defined in the appendix “Software Specifications”.
§ 9 Processing of Personal Data
(1) If the Customer processes personal data as part of this transactional agreement, Customer responsible for the compliance with any data protection regulation. The Provider processes the data transferred by the Customer only within the framework of instructions issued by the Customer. If the Provider holds the opinion that a Customer’s instruction violates data protection regulations, he will immediately notify the Customer of this. The Provider offers the Customer the option of encrypted data transfer. Beyond that, the Contract for order data processing regulates further details of the processing of personal data.
(2) The Provider only collects and uses data within the scope necessitated by the execution of this Contract. The Customer agrees to the collection and use of such data within this scope.
§ 10 Return of Data
(1) The Provider does not have a right of retention or a statutory lessor’s lien (§ 562 BGB), with respect to the Customer’s data.
(2) The Provider will delete the Customer’s data available to him within 30 days after the handover of data to the Customer, in connection with the termination of the Contract, unless the Customer notifies the Provider of the illegibility or incompleteness of the data during that time period. Lack of notification will be regarded as agreement to the deletion of data. The Provider shall indicate for the Customer particularly the intended significance of his actions.
§ 11 Changes to the Software and API
The Provider has the right to change features provided free of charge at any time, to make available new features free of charge or paid-for, and to terminate the provision of free-of-charge modules. In these cases, the Provider will show consideration of the legitimate interests of the Customer.
§ 12 Data Backup
The Provider conducts a weekday (Monday – Friday, and holidays) backup of the Customer’s data on the cloud instance. The backups are retained for one week respectively and deleted subsequently. Data backup is not an obligatory service provided by the Provider. The Customer can download existing media files, and as such can create a backup.
§ 13 Access Authorisation
The Customer receives access authorization, consisting of the Customer’s email address and a password, for every user account claimed. The Customer may only share the email address and password with users authorized by him, and they are otherwise to be kept secret. Customer is responsible for keeping your passwords and access credentials associated with the Software confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
§ 14 Customer Cooperation
(1) It is up to the Customer to access the Software.
(2) The contractual use of service offered by the Provider depends on the Customer’s hard- and software, including workstation computers, routers, data communication devices etc., meeting the technical minimum requirements of the currently offered Software, and on the users, authorized by the Customer, being familiar with the use of the Software. Furthermore, the Customer will only utilize such hard- and software as meets the minimum requirements outlined in the appendix “Software Specifications”, to access the Provider’s services. The configuration of the IT system is the responsibility of the Customer. The Provider offers to support him in this under a separate agreement and for a fee.
§ 15 Use of Brand Names, Names and Logos
(1) The Customer gives permission for the Provider to use company identifiers, names, brand names and logos of the Customer (“Signs”) pursuant to the following provisions.
(2) The Provider is permitted to use Signs for the purposes of presentation and advertisement. In particular, the Provider is permitted to use the Signs for the purpose of presentation and advertisement on the company website, as well as other Provider-run websites, portals, in brochures, flyers, newspapers, magazines, for exhibitions and events of any kind.
(3) The Customer gives these permissions to the Provider free of charge.
(4) The Customer may withdraw permission at any time in writing, as long as he can claim a legitimate interest. As legitimate interests qualify in particular insolvency, cessation of business activity, business divestiture or a legal claim by a third party against the Customer with regard to the rights of use of the Signs.
§ 16 Right of Usage
(1) Per Section 2 of this Contract, The Customer is given a single right of usage (not sub-licensable and non-transferrable) to the Software, limited to the term of duration of this Contract, pursuant to the following provisions.
(2) The Customer receives cloud hosted access rights to the Software. There is no transfer of the Software to the Customer. The Software may only be used for the Customer’s own business activity and by his own members of staff.
(3) The Customer may only use the Software through the contractually agreed-upon number of Authorized Users .
(4) Per Section 2, the Customer must not make changes to the Software. This does not apply to changes, which are necessary for the correction of errors, if the Provider has fallen behind schedule with respect to the correction of errors, refuses to correct the error or is unable to correct the errors as a result of pending insolvency.
(5) If the Provider releases new versions, updates, upgrades or other new supplies with regard to the Software, this Contract will also apply to those.
(6) The Customer is not entitled to rights, which have not explicitly been granted to the Customer above. The Customer particularly does not have the right to use the Software beyond the agreed-upon usage, or allow its use by a third party or to make the Software accessible to a third party.
(7) The Customer must take the necessary precautions to prevent the use of the Software by unauthorized parties.
(8) The Customer is liable for ensuring that the Software is not used for any racist, discriminatory, pornographic, endangering the protection of minors, politically extreme or otherwise illegal purposes or other purposes counter to official regulations and requirements, and that no such data, in particular application data, is created and/or saved on the Provider’s IT system.
(9) If the Customer violates the provisions set out in this Contract, for reasons attributable to the Customer, the Provider may – following notification of the Customer in writing – terminate the Customer’s access to the Software, if the violation can demonstrably be remedied as a result.
(10) If the Customer unlawfully violates Paragraph 8, the Provider is entitled to delete the affected data, the application data respectively. In the event of an unlawful violation through users, the Customer must share with the Provider immediately and in full all details relevant for the filing of a claim against the user, in particular his name and address. If the Customer, following a corresponding written warning, continues to violate or repeatedly violates the provisions in Paragraph 1 – 8, for reasons attributable to the Customer, the Provider may terminate them immediately and without observing any notice period.
(11) If a breach of duty is attributable to the Customer, the Provider is entitled to claim damages.
§ 17 Payment
(1) Payment is due for each user account and, where applicable, for each feature by the month. Prices can be found on the Provider’s price list.
(2) Payment, plus applicable taxes, is owed at the respective statutory rate.
(3) Payment is due monthly, or where applicable, annually (depending on agreement) in advance and in accordance with any Enterprise License Agreement.
(4) If the Provider grants free use of Software for a limited time, or trial months, there are no payment obligations for the respective timeframe.
(5) Payments are made via the respective payment methods offered. The Provider may exclude payment methods in individual cases.
§ 18 Purchasing further Paid-For Features
The Provider offers further paid-for features within the Software. The applicable prices are displayed online directly to the Customer. If the use of further features requires additional payment, the Customer will be notified of the ensuing cost, the payment methods and further relevant details, prior to accessing the respective feature online. Only afterwards does the Customer have the option of ordering the respective feature bindingly.
Please note: By clicking on the relevant button, you declare bindingly that you want to access the respective feature. By doing so, the Customer accepts the Provider’s binding offer of licensing a paid-for feature and another contractual agreement takes effect. These terms and conditions apply also to this contractual agreement, as well as, if applicable, other conditions, about which the Provider will inform the Customer prior to the feature’s purchase. If you don’t want to access the paid-for feature, you click the relevant button or use the “back”-button of your browser to return to the previous page.
§ 19 Adding of own Content by the Customer
(1) The Customer may add content, within the functionality available on the portal and pursuant to the following regulations, within the framework of Software usage.
(2) By adding content, the Customer grants the Provider the free and non-transferable rights to use the respective content, in particular
- for the saving of the content on the Provider’s server,
- for the processing and reproduction, insofar as this is necessary for the provision, and, where applicable, publication of the respective content, and
as and when the Customer deletes the content added by him, the rights of use and exploitation extended to the Provider expire. The Provider retains the right to keep copies made for backup and verification purposes. The Provider is also entitled to keep the data in an external data processing center.
3) The Customer is solely responsible for the content added by the Customer. The Provider does not perform checks as to completeness, accuracy, legality, timeliness, quality and fitness for a specific purpose. The Customer thus declares and ensures towards the Provider that the Customer is the sole owner of all rights to the content added by him, or is otherwise entitled (e.g. through valid permission by the rightsholder) to add the content and to grant the rights of use and exploitation according to above Paragraph (2).
(4) The Provider reserves the right to refuse the addition of any content and/or to process, block or remove any previously added content without prior notice, if the adding of content by the Customer or the added content itself has led to violation of § 14 section 8, or if there is concrete evidence that there will be a severe violation of § 14 section 8. In these matters, the Provider will consider the Customer’s legitimate interests and choose the least drastic means of defense against a violation of § 14 section 8.
§ 20 Contract Term and Termination
In addition to any other express termination right set forth in this Agreement:
(1) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
(2) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(3) Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Filestage IP. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(4) Survival. This Section 20, Sections 17, 21, 22, 23, 24, 26, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
§ 21 Confidentiality
(1) The contracting parties shall enter into an agreement of non-disclosure regarding all confidential information, which has come to their attention as part of this contractual agreement, or use it only after obtaining written permission by the other party with a third party, regardless to what purpose. Among the information to be treated confidentially is the information explicitly termed confidential by the information-providing party and such information, the confidentiality of which is implied clearly by the circumstances of their transfer. The Provider ought to treat confidentially, in particular, the application data, should it become known to him.
(2) The obligations according to section 1 are void for such information or parts thereof, where the receiving party can prove that it
- was known to them prior to the date of receipt, or was generally accessible;
- was known to the public prior to the date of receipt, or was generally accessible;
- was known to the public after the date of receipt, or was made generally accessible, without the information-receiving party being responsible for it.
(3) Public declarations of cooperation between the two parties are only made following prior mutual agreement.
(4) The obligations according to section 2 extend beyond the term of the for an indefinite time period, specifically, for as long as an exceptional circumstance, as listed in section 2, cannot be proven.
§ 22 Warranty
(1) Provider warrants that it provides Software and API using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(2) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 22(1), THE SOFTWARE AND API ARE PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, API, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(3) Customer Warranty. Customer warrants that Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and Customer’s use of the Software and API are in compliance with this Contract. The Customer is obligated to report defects to the Provider immediately. Warranty claims for defects expire within one year.
§ 23 Limitations of Liability and Indemnification
(1) LIMITATIONS OF LIABILITY. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS CONTRACT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS CONTRACT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(2) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; or (ii) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Cloud Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
§ 24 Limitation of liability for use free of charge
In the event that the Customer should suffer damages as a result of free-of-charge use of the Software (use free of charge, trial phase), the Provider will assume liability only in cases, where the damages were incurred as a result of contractually agreed-upon use of the Software, and only in cases of intent (including fraud) and gross negligence on the part of the Provider.
§ 25 Changes to the Contract terms
Unless other specific provisions have already been made, the Provider retains the right to change or amend these contractual terms as follows. The Provider shall notify the Customer of the changes or amendments in written form at least six weeks prior to their taking effect. If the Customer does not agree to the changes or amendments of the Contract terms, he can object to them within a deadline of four weeks from the intended time of the changes or amendments taking effect. The objection must be made in writing. If the Customer does not object, the changes and amendments are considered approved by the Customer. The Provider shall, as part of his notification of changes and amendments, indicate particularly the intended significance of his actions.
§ 26 Closing provision
(1) The assignment of claims is only permissible following prior written agreement by the other contracting party. The agreement may not be unduly withheld. The regulations according to § 354 a HGB remain unaffected hereof.
(2) A right of retention may only be claimed as a result of counterclaims from the respective contractual agreement.
(3) The contracting parties may only offset claims, which have been ascertained legally and are undisputed.
(4) All changes, amendments and termination of contractual agreements require written form, as does the repeal of the written form requirements, as long as this contract does not intend the written form.
(5) In the event that individual regulations or party agreements shall be invalid in part or as a whole, or become invalid, the validity of the remaining provisions remain unaffected.
(6) The applicable law is that of the Federal Republic of Germany. The jurisdiction is, where applicable, the registered seat of the Provider.
Appendix Software Specifications
Filestage is a cloud hosted web-based application, which simplifies approval processes between media creatives and their clients.
Users upload their files to Filestage. Clients and colleagues can comment on and approve the file from within their web browser.
The web application includes the saving, sharing and commenting on media files, as well as the management of media projects.
Filestage supports the latest versions of major web browsers. Since Filestage is based on modern web technologies, the optimum user experience can only be ensured in the latest browser versions. Regular browser updates are therefore recommended.
As web technologies change, new technical functions are added, older functions are dropped and web standards change, Filestage continually adapts the compatible browsers to new requirements. It may therefore be necessary to change the browser used, to install an update of the browser and, if necessary, to install plug-ins and keep them up to date. Filestage will take your legitimate interests into account when making necessary changes in this regard.
To ensure the best possible usage, the web application requires a stable internet connection. The upload and download speeds may be affected by the user’s bandwidth.
Filestage provides for its users a limited amount of digital storage space within the web application. The size of the storage space varies according to the chosen subscription.
Point of transfer
Unless otherwise specified, the web application shall be made accessible to the user via a public link. This link is accessible via the Provider’s homepage.