Terms of Service for EditMate SaaS
Arvato Systems S4M GmbH, Am Coloneum 3, 50829 Cologne, Germany
"Client" shall mean the contracting party.
"Super-user" is the administrator of a Client account who configures the software application and manages the users within the Client account.
"User" is a single user of the Service.
2 Scope of service
2.1 Arvato Systems S4M GmbH (hereinafter referred to as "Arvato Systems") provides the Client with the following software application on the basis of a public cloud for access via a telecommunications connection for use during the agreed term exclusively on the basis of these Terms of Service.
Name of the software application: EditMate SaaS
Name of the Public Cloud: Amazon Web Services (AWS)
Software application and Public Cloud are together referred to hereinafter as "Service".
2.2 The offer to use the Service is directed exclusively at companies, i.e. legal or natural persons or legal entities acting in the exercise of their commercial or independent professional activities (cf. § 14 of the German Civil Code (BGB) for the definition of "entrepreneur").
2.3 By registering via the registration form, the Client confirms that he is a legal entity.
3 Overview of functions / technical prerequisites for use
The valid functional scope at the time of the conclusion of the contract as well as the technical requirements for the use of the Service can be found in the Client account or on the product website of the Service.
4 Contract term and termination
4.1 The use of the Service requires the successful registration and opening of a Client account respectively.
4.2 By completing and submitting the registration form, the Client submits an application for the conclusion of a contract for the use of the Service and the opening of a Client account respectively. The Client must completely and truthfully fill in the empty fields of the registration form and agree to these Terms of Service.
4.3 The contract is concluded by Arvato Systems by accepting the registration. The contract shall either be expressly accepted or shall be deemed to be accepted as a result of Arvato Systems commencing performance of the Service.
4.4 The contractual term of the Service begins with the successful opening of the Client account and runs for an indefinite period. By default, the "trial" package is setup. The Client has the possibility to upgrade or downgrade to another functional package at any time.
4.5 During the contract period, the Super-user may create or delete additional Users for the use of the Service ("user licenses") at any time. The Super-user has access to the corresponding functions for User administration in the Client account.
4.6 The Client may terminate the Client account at any time with immediate effect. Arvato Systems has the right to terminate the Client account with a notice period of 7 days' to the end of the respective billing period.
4.7 Upon termination of the Client account, all user licenses shall also be automatically terminated. Upon termination, the Client account shall be blocked with immediate effect. The termination of individual user licenses has no effect on the Client account.
4.8 Usage fees paid in advance will not be refunded in the event of termination.
4.9 Both parties may terminate the contractual relationship extraordinarily for good cause. For Arvato Systems, an important reason exists in particular if the Client defaults on payment of the usage fees or culpably violates an essential contractual obligation, and the Client fails to remedy the breach within a reasonable period despite a warning.
4.10 All notices of termination must be in writing or in text form (e-mail) in order to be effective. If Arvato Systems provides an appropriate termination function, the contractual relationship can also be effectively terminated within the Client account. Arvato Systems may also send notice of termination to the e-mail address provided by the Client.
5 Prices and billing model
5.1 Usage fees: The amount of the monthly usage fee for the Service depends on the package ordered and the number of user licenses. The current prices/usage fees can be viewed in the Client account and/or on the product website of the Service.
5.2 The usage fees are to be paid monthly for one month in advance and are due immediately after receipt of an invoice without deduction ("billing period").
5.3 The usage fee in the first month for an upgrade of a package during a billing period will be offset against the already paid usage fees.
Client orders the Service with package X ("first order") on 15th of January. The usage fee for the first order is calculated in advance for the billing period. On 1st of February the Client orders an upgrade, package Y ("upgrade"). The usage fee of the first order will be charged proportionately against the usage fee of the upgrade until the end of the billing period of the first order.
5.4 The usage fee in the first billing period for additional user licenses to a package during a billing period will be charged proportionately until the end of the corresponding billing period of the package. The commencement of the new billing period for the package also marks the start of the billing period for the additional user licenses.
Client orders on 15th of January the package X, where 2 user licenses are included ("first order"). On 1st of February the Client orders 4 additional user licenses to his first order ("add-on order"). The add-on order will be invoiced pro rata until 14th of February. Starting from 15th of February the full usage fee of the user licenses will be charged additionally and simultaneously to the package.
5.5 Payments are made by credit card. The Client authorizes Arvato Systems to collect the due invoice amount from his deposited credit card.
5.6 If the Client defaults on his payment obligation, Arvato Systems is entitled to discontinue the Service without further reminder or information to the Client. The temporary suspension of the Service does not affect the Client's payment obligation.
5.7 All prices are quoted in euros plus the applicable statutory sales tax.
6 Initial setup
6.1 When the Service is setup, a Super-user will be created in the Client account.
6.2 The Super-user is entitled to manage the Client account and to add/create additional Super-users or Users to his account.
6.3 Arvato Systems will provide the Client with a user documentation to operate the Service.
7 Termination of the Service/ Exit
7.1 Upon termination of the Service, Arvato Systems will block the Client account and all Users; all associated data will be deleted.
7.2 The Client is responsible for the timely transfer of his data from the Service.
8.1 Changes to functionalities and technical requirements
a. Arvato Systems is entitled to extend the Service, adapt it to technical progress and/or make improvements. This applies in particular if the adaption appears necessary to prevent misuse, or if Arvato Systems is obligated by law to change its services.
Arvato Systems shall inform the Client of any significant changes via the
product website of the Service or send a notice to the e-mail address
stored in the Client account.
b. Arvato Systems reserves the right to change or discontinue functionalities at any time with a notice period of at least 6 weeks to the end of a calendar month.
Arvato Systems shall inform the Client of these changes by means of
- publication on the product website of the Service; or
- by sending a notice to the e-mail address stored in the Client account.
The change becomes effective if the Client does not object in writing or by e-mail within the above period (beginning after receipt/publication of the change notification) and Arvato Systems has informed the Client of this legal consequence in the change notification.
It is the Client's responsibility to regularly check the product website of the Service and his e-mail account for change notifications.
8.2 Changes to the Terms of Service
Arvato Systems reserves the right to change these Terms of Service at any time with a notice period of at least 6 weeks to the end of a calendar month. The procedure described in section 8.2.b applies.
8.3 Price changes
Arvato Systems reserves the right to change prices at any time with a notice period of at least 6 weeks to the end of a calendar month. The procedure described in section 8.2.b applies.
9 Service level
9.1 Arvato Systems shall make commercially reasonable efforts to achieve a monthly availability of 98%.
9.2 In the event that the availability is not achieved in one month, the Client can request a service credit.
9.3 The request must be sent to Arvato Systems by e-mail within 4 weeks of the occurrence of the non-availability.
9.4 Arvato Systems shall examine the request at its own discretion and, if Arvato Systems determines that the above availability has not been achieved, Arvato Systems may grant a service credit amounting to 30 % of the monthly net usage fee to be paid by the Client in the month in which the non-conformity occurs.
9.5 The payment of credit notes is the sole and exclusive legal remedy in the event that the above-mentioned availability is not met.
9.6 The monthly Service availability is calculated by subtracting from 100% the percentage of 5-minute periods during which the Service was not available for reasons for which Arvato Systems is responsible.
9.7 Non-availability means that all connection requests to the Service have failed for a period of 5 minutes.
9.8 Downtimes due to subsequent events shall not be charged to Arvato Systems when calculating availability: Planned maintenance work, emergency maintenance work or force majeure. The same applies to the failure of public communication networks and power outages.
10 Service times/ Service desk
10.1 Arvato Systems will provid the Client with a FAQ list in its Client account, in which the most important and frequently asked questions about the Service are answered.
10.2 In addition, the service desk can be reached by e-mail on the following days: Monday to Friday 9-17 CET / CEST, Sundays and public holidays are excluded ("service time"). All public holidays of the Federal Republic of Germany are considered as public holidays.
10.3 The service desk is available in German or English.
10.4 In the event of functional failures, malfunctions or impairments of the Service, the Client is obligated to first use the available user documentation or the FAQ list, as well as reports published by Arvato Systems on defects and their rectification, and to remedy them himself.
10.5 In addition, Arvato Systems shall maintain reported defects by e-mail to the service desk in its internal ticket system for processing. The commencement of the work to rectify the defect shall depend on the degree of operational hindrance. After an error has been processed, the Client will be informed and the ticket will be closed.
10.6 Arvato Systems is not obliged to accept and process defects outside the defined service time. If an error message is received outside the service time, Arvato Systems will not begin troubleshooting until the next day.
11 Service delivery point
11.1 Access to the Service is via the Internet. The Service transfer point defines the interface for checking the availability of a service. If the service is accessible from the monitoring system via the network via this interface (Healthcheck URL provides defined result), the service is considered available.
11.2 The Service transfer point is therefore: The HTTP interface (e.g. load balancer, web server, application server) of the web application.
11.3 The provision of the conditions for use as well as the telecommunication services including the transmission services from the service transfer point to the devices used by the Client are not subject of this Service.
11.4 The Client shall be responsible and has to secure the compliance of this provision.
12 Data backup
12.1 Data backup shall be carried out in accordance with the following procedures: Daily backup of the storage volume as a snapshot and intraday backup at transaction level. The backups are kept for the last 35 calendar days. During this time, a point in time recovery is possible.
12.2 The restoration of data backups is possible but subject to a charge, since it is not included in the usage fee.
12.3 All expenses incurred by Arvato Systems shall be charged at the usual hourly rates.
13 Optional benefits
The services listed below are explicitly not part of the Service and will be invoiced separately according to expenditure: (i) technical advice, (ii) user support beyond section 10, (iii) troubleshooting caused by improper handling of the software application, (iv) Individual programming services (e.g. (v) on-site service at Client's site, (vi) training, (vii) support services regarding the cooperation of the software application with third-party software used by Client, (viii) development of Client-specific scripts, programs, configurations, (ix) establishment and maintenance of technical connections between the software application environment (public cloud environment) and Client's IT systems such as VPN tunnels or similar.
14 Maintenance work / service interruptions
14.1 The Service may be interrupted in the following cases:
a. Interruptions within the scope of announced maintenance: e.g. release changes, installation of software for troubleshooting or global changes to the infrastructure. In such cases, Arvato Systems will make commercially reasonable efforts to perform maintenance at times when the load is low, e.g. between 10 p.m. - 4 a.m. CET / CEST). If Arvato Systems deems it necessary (e.g. due to the duration of the downtime expected by Arvato Systems), Arvato Systems will inform the Client in advance in text form.
b. Interruptions in emergencies: e.g. in the event of imminent damage or malfunction of the software application, the data stored there or the hardware used for this purpose;
c. interruptions due to force majeure, such as war and natural disasters;
d. disruptions of public communication networks;
e. official or court orders;
f. attacks and attacks from the Internet and from users of the software application itself (e.g. viruses, worms, DoS attacks, Trojan horses), which Arvato Systems could not have prevented even with reasonable care under the circumstances of the case;
g. interruptions made by the public cloud provider.
14.2 Arvato Systems makes commercially reasonable efforts to keep Service interruptions short and to minimize any effects.
14.3 Arvato Systems has no influence on Service interruptions outside the area of responsibility of Arvato Systems in accordance with section 14.1. c – g.
15 Obligations of the Client
15.1 The Client is obligated to comply with data retention and data protection regulations applicable to him and shall not violate legal prohibitions, morality and rights of third parties (copyrights, trademark rights, naming rights, etc.). Arvato Systems is entitled to suspend the Service with immediate effect or to block access to the Client account in the event of a breach of the above provision.
15.2 The Service may not be used in a manner that could damage, deactivate, overload or impair the Service or the networks connected to the Service, or in a manner that could infringe the rights of any third party.
15.3 It is not permitted to gain unauthorised access to the Service, Client accounts, computer systems or networks connected to them by decompiling codes, illegally obtaining passwords or other methods.
15.4 The Client shall be solely responsible for maintaining the confidentiality of access data to the Client account.
15.5 The Client shall be obligated to inform Arvato Systems immediately of any unauthorized access to the Service or any other services, other Client accounts, computer systems or networks connected to a server, or to other services, achieved by hacking, password mining or other means.
15.6 Arvato Systems shall not be liable for damages incurred by the Client as a result of third parties using the password or the Client account with or without the Client's knowledge.
15.7 The Client is not permitted to use the Client account of a third party without its permission.
16 Responsibility for data and content
16.1 The Client is responsible for ensuring that data and content entered into the system by him do not violate legal prohibitions, applicable law, morality and the rights of third parties (copyright, trademark, name and data protection rights). If Client violates any of the aforementioned obligations, Arvato Systems shall be entitled to suspend the Service with immediate effect and/or to block access to the Client account.
16.2 If necessary, the parties shall conclude a data processing contract. In this case, Arvato Systems shall act as a processor within the meaning of Art. 28 DSGVO.
16.3 The Client may not store any data on the Service that, due to its nature or characteristics (e.g. viruses), size or duplication (e.g. spamming), is suitable to endanger the existence/operation of the infrastructure or data network.
16.4 Irrespective of all contractual and legal rights, Arvato Systems is entitled to delete all illegal content from the Service if Arvato Systems is requested by a third party to modify or delete content on the Service that apparently infringes third party rights.
17 Storage / Deletion / Disclosure of data
17.1 The Client can demand the premature deletion of his data.
17.2 The deletion does not apply to correspondence and other documents, data stored in accordance with statutory regulations or documents intended to remain with Arvato Systems.
17.3 The costs and expenses incurred by Arvato Systems for deletion or release shall be borne by the Client.
17.4 Arvato Systems' applicable hourly rates shall apply.
17.5 In the event of a legal requirement for data retention (e.g. German Commercial Code, HGB, AO, etc.), the Client shall be responsible for the appropriate and legally compliant backup of the respective data.
18 Rights of Use of software
18.1 If and to the extent that Arvato Systems makes software available to the Client for use as part of the provision of the Service, Arvato Systems shall grant the Client the non-exclusive, revocable right to use the provided software for his own purposes during the agreed term of the contract as part of the intended use. Upon termination of the contract, all rights of use end automatically.
18.2 Arvato Systems and its licensors shall be entitled to all rights, ownership and exploitation claims to all copyrightable components of the Service.
18.3 The Client is not entitled, within the framework of the provision of the Service, to (a) modify, distribute, change, manipulate or otherwise create derivative works based on the provided software, (b) reverse engineer, disassemble or decompile or use any other procedures or procedures to obtain the source code of the software - unless such a prohibition is prohibited by law.
18.4 Client shall not be entitled to use or access the Service in any way that is designed to avoid any user fees or exceed any usage restrictions or quotas, or resell or sub-license the Service.
19 Rights of use for third-party software components
19.1 Insofar as software components are provided within the framework of the provision of the Service in which third parties hold rights (e.g. open source), the following shall apply: Arvato Systems shall inform the Client about such third-party software components e.g. in open source documentation, in readme files, in notice files within the software, on the product website of the service or within the Client portal ("third party documentation").
19.2 Additional components may be added or existing components may be omitted as part of the further development of the software or in the event of error corrections (e.g. as part of agreed software maintenance). The third party documentation is continuously updated.
19.3 Unless explicitly stated otherwise in the third party documentation, third-party software components are subject to the license terms of the originator, which the Client shall ensure compliance with.
19.4 In the case of third-party software components that are delivered in binary code and whose license terms give the Client a right of access to the source code, the delivery of the source code for the specific third-party software component shall take place as noted in the third-party documentation. In addition, the Client can submit an application for access to the source code at any time, which Arvato Systems will comply with. Alternatively, Arvato Systems will inform the Client where the source code can be obtained.
19.5 Provision of open source components free of charge: Open source components are made available to the Client free of charge. The usage fee for the Service is charged for the overall interaction of all components.
19.6 Open source components are provided free of charge "as is" by their authors without any warranty. Authors of open source release themselves from any claims that may arise through the use of these components. The Client waives the assertion of any rights against the authors of the open source software.
19.7 The Client undertakes to retain copyright notices and other legal reservations contained on and in the software unchanged and to include them in all copies of the software made by the Client, in whole or in part, as far as they are lawful, in unchanged form.
20.1 Arvato Systems warrants that the main functionalities of the Service will essentially be available during the contract term of the Service.
20.2 Arvato Systems makes clear that the provision of a completely error-free Service is not possible and a completely uninterrupted provision is not assumed. This is also not contractually owed.
20.3 Defects shall be processed in accordance with section 10. If it proves impossible to eliminate the defect, Arvato Systems will provide an alternative solution. Insofar as this is not unreasonable for the Client, the defect has been remedied.
20.4 Arvato Systems may reject the processing of minor defects.
20.5 If the rectification of defects fails within a reasonable period of time, Client may set a further reasonable period for an additional attempt to rectify the defect. If this also fails, Client has the right to reduce the monthly usage fee or to terminate the contract in the event of significant defects. The right to extraordinary termination for good cause remains unaffected.
20.6 Arvato System only assumes guarantees for the quality of the service in express and written form, i.e. by using the term "guarantee".
20.7 Arvato Systems' warranty shall lapse in all cases in which defects and other impairments of the Services are caused by improper operation or intervention by the Client, by services provided by the Client (in particular data and content) or by the existing system environment for which Arvato Systems is not responsible.
20.8 Services provided by Arvato Systems that were performed on the basis of an alleged warranty obligation shall be paid for by the Client on a time and material basis.
20.9 Any claims for damages or reimbursement of expenses by the Client shall be governed exclusively by the liability provisions of the present contractual provisions.
21.1 The following limitations of liability do not apply to damages resulting from injury to life, body or health, nor to damages caused intentionally or through gross negligence by Arvato Systems, a legal representative or one of Arvato Systems' vicarious agents.
21.2 The following also applies to the liability of Arvato Systems:
21.3 In the event of negligence, the liability of Arvato Systems shall be limited to the (contract-)typical, reasonably foreseeable damage or to the (contract-)typical, reasonably foreseeable expenses.
21.4 Liability in the case of the preceding sub-paragraph is limited to 100 % of the user fee paid for the last 12 months prior to the breach by Arvato Systems.
21.5 Arvato Systems shall not be liable for indirect damage and consequential damage, such as without limitations damage from interruptions of operations and lost profits.
21.6 The aforementioned limitations of liability apply mutatis mutandis to the personal liability of Arvato Systems' executive bodies and employees.
21.7 The Client shall regularly and frequently make backups of his data according to their importance. Liability for data loss caused by Arvato Systems as a result of slight negligence is limited to the typical recovery effort required for the existence of such data backups.
21.8 Irrespective of the legal basis, the limitation period for all claims for damages against Arvato Systems shall be two (2) years as from the statutory start of the limitation period.
21.9 The liability for guarantees assumed by Arvato Systems and the provisions of the Product Liability Act remain unaffected.
22 Force majeure
22.1 Arvato Systems shall not be obligated to render Services if and as long as force majeure exists.
22.2 The following shall also be regarded as force majeure: strikes, lock-outs, delays or failure of deliveries by suppliers, insofar as these were caused by an event of force majeure, as well as official or court orders, attacks and attacks from the Internet and from the Client himself (e.g. viruses, worms, DoS attacks, Trojan horses), which Arvato Systems could not have averted with reasonable care under the circumstances of the case, shall also be regarded as force majeure.
22.3 Force majeure is not excluded because Arvato Systems is generally obligated to implement certain security measures.
23 Special conditions for free services
23.1 If Arvato Systems provides the Service or (additional) services without (additional) payment, Client has no claim to performance. Arvato Systems shall be entitled to discontinue, change or offer such Services or (additional) services within a reasonable period of time and free of charge at any time. Arvato Systems will inform the Client in a timely manner. In addition, the following special regulations shall apply.
23.2 Warranty/Liability: The Service or (additional) service is provided "as is". Warranty claims do not exist. Furthermore, Arvato Systems shall only be liable for intent.
23.3 Service Desk: The Service Desk is not available to the Client.
23.4 Service Level: The Client has no claim to service level for the Service or service offered.
24 Final provisions
24.1 These Terms of Service shall apply exclusively.
24.2 Arvato Systems does not participate in any dispute resolution proceedings within the meaning of the Consumer Dispute Resolution Act (VSBG).
24.3 Any terms and conditions of the Client that conflict with or deviate from these Terms of Service shall not be recognized unless Arvato Systems has expressly consented to their application in individual cases.
24.4 Rights and obligations arising from the contractual relationship can only be transferred to third parties with the written consent of the other party to the contract.
24.5 However, Arvato Systems shall be entitled to transfer the contract or parts thereof to affiliated companies without the Client's consent. A group-affiliated company must directly or indirectly hold at least 50% of the capital and voting rights of Bertelsmann SE & Co. KGaA. in Gütersloh.
24.6 The place of jurisdiction for all disputes in connection with the use of the Service shall be Cologne, Germany.
24.7 The law of the Federal Republic of Germany applicable to legal relationships between domestic parties shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).