Terms of Service

Terms of Service

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1 Scope

(1) The present terms of service apply to the contracts between the user and the company RECORDBAY Ltd (RECORDBAY) which were concluded on the VARYCON platform (VARYCON), unless otherwise agreed on between the user and RECORDBAY in written. Differing or opposing terms of service are not acknowledged, unless they were explicitly consented to by RECORDBAY.

(2) Alterations to these terms of service are communicated to the user in written. If the user does not object within a period of four weeks upon receipt of the notice, the alterations are considered to be accepted. The user will be notified about the right of objection and the legal consequences of silence separately in the case of alteration of these terms of service.

2 Services

(1) VARYCON is a platform which facilitates the customizing (internationalizing, updating, and personalizing) of videos within a content management system (CMS).

(2) The platform has an integrated, automated messaging system at its disposal for the purpose of simplifying communication between the user and RECORDBAY, as well as extensive features to administer and monitor all ongoing transactions.

(3) RECORDBAY provides the possibilities of usage for VARYCON after admission of the user in accordance with § 3 of these terms of service.

3 Registration / Approval of Users

(1) The admission by RECORDBAY is the requirement for the registration and usage of VARYCON. VARYCON is available to merchants as defined by HGB and legal entities of public law only. There is no entitlement of admission or usage of VARYCON.

(2) The user is to designate his point of contact and to state his company data and information for invoices in the registration form. The acceptance of the registration form is issued by the confirmation of admission via e-mail. The user vouches for the correctness and completeness of his/her information.

(3) The user gets access to the demo version of VARYCON, which is initially free of charge. Only after submission of a request concerning a project and the admission of the project through RECORDBAY, the user gets access to the full version, in accordance with § 4 of these terms of service. The full version enables the user to allow employees further internal access and to configure this access to his wishes in order to grant the optimal usage of VARYCON. The attachment of further internal access authorizations is free of costs and possible in unlimited number for the user.

(4) The user is obliged to inform RECORDBAY about all future modifications of the information given immediately. The same holds true for any information given by the user when establishing an employee login.

(5) RECORDBAY is authorized to withdraw admission or to block the access to VARYCON if there is reasonable suspicion that the user violated these terms of service. The user might avert these measures by providing suitable evidence to relieve the suspicion on their own costs.

(6) All logins are individualized and are only to be used by the corresponding, entitled user. The user is obliged to keep login and password confidential and to protect them from unauthorized access of third parties. The user also takes responsibility for the employee-logins and will instruct his/her employees accordingly. In case of suspicion about the misuse through third parties, the user will inform RECORDBAY immediately. As soon as RECORDBAY learns about the unauthorized usage, RECORDBAY will block the access of the unauthorized user. RECORDBAY reserves the right to change login and password of a user; RECORDBAY will inform the user immediately in such cases.

4 Processing of Transactions / Terms of Payment on VARYCON

(1) RECORDBAY will set up a credit-account for the user. In order to charge the account, the user sends an inquiry with the requested amount of credits or the credits-package to RECORDBAY. As soon as RECORDBAY accepts the user’s inquiry, the equivalent of the credits or respective credit package will be invoiced and with invoicing the equivalent of the credits or respective credit package becomes due without deduction but including the VAT of the respective tax rate in force. The user agrees to the storage of settlement data for evidence purpose or in the scope of statutory storage obligations. The equivalent of credits or the respective credit packages is clear from the references in the tool. The credits will be added to the user’s credit-account immediately upon receipt of the entire amount, as stated on the invoice, to the bank account stated on the invoice.

(2) By clicking the ‘render with obligation to pay’ -button in the last step of the transaction, an electronic contract to the conditions displayed in the button (preview-rendering, HQ-rendering, and amount of credits) is concluded between RECORDBAY and the user. The purchase price is due immediately with occurrence and will be deducted automatically from the user’s credit-account.

(3) After expiration of two weeks from the definitive project period, the corresponding project, including the corresponding contents according to § 6 (1) of these terms of service, will be deleted from the server irretrievably.

5 Limitation of Liability

(1) RECORDBAY is fully liable for intent and gross negligence. RECORDBAY is liable for slight negligence only in the case of violation of contractual obligations. The liability, in these cases, is limited to contract-typical damages, which RECORDBAY should have expected at the time of the conclusion of the contract, based on the known circumstances to that time.

(2) Data communication through the internet cannot be granted to be error-free / or constantly available to the current state of technology. RECORDBAY is not liable for errors within the network of performance and errors of the cloud-service and servers provided which are not at RECORDBAY’s fault.

(3) RECORDBAY is liable for the loss of data only if the loss could not have been prevented by appropriate backups by the user, as in accordance with the previous paragraphs.

(4) The liability does not extend to impairments of the contractual usage of the rendered services from RECORDBAY on VARYCON which were caused by the improper or incorrect use by the user. It is assumed that RECORDBAY does not delete or damage any contents in the sense of § 6 (1) from individual contents or projects, except for the irretrievable deletion after expiry of the project period according to § 4 (3) of these terms of service. In the case that the user claims that RECORDBAY has deleted or damaged contents from the corresponding project arbitrarily within the scope of service provision, the user is to provide excessive proof by appropriate means.

(5) As far as the possibility of transmission from VARYCON to databases, websites, services, etc. of a third party exists, for example through the placement of links or hyperlinks, RECORDBAY is neither liable for accessibility, existence or safety of these databases or services, nor for their content. RECORDBAY is, especially, not liable for their legality, content correctness, completeness, currency, etc.

6 Third Party Contents and Copy-/ Trademark Rights

(1) The contents in service include video, audio, graphics, photos, text, marks (including business designation, trademarks, and logos), software, and other materials. Users may incorporate and give access to contents within the scope of service. The contents fall under the responsibility of the user.

(2) The contents transmitted to VARYCON by the user are not to contain intellectual property, especially copy- or trademark rights of a third party, except for those of which the user has gained permission by the owner or is otherwise authorized to these by law. In this respect the user grants that the contents provided do not violate any copyrights, trademark rights, patents, other property rights or trade secrets. RECORDBAY does not adopt third party contents under any circumstances.

(3) RECORDBAY does not adopt any third party contents in any respect. It is prohibited for the user to place any discriminatory, despising or hateful contents on VARYCON. It is prohibited for the user to place contents that violate legal provisions, administrative orders, or standards of public decency. RECORDBAY reserves the right to delete or block any contents if they contains one or more of the contents mentioned in the sentences above or if they are punishable under applicable law or if they are apparently suitable in order to prepare for acts of criminal offence.

(4) The user indemnifies RECORDBAY from any third party rights which may be enforced against RECORDBAY, based on violations of their rights or infringement due to the contents the user placed, as far as they are within the user’s responsibility. The user carries the costs for the legal defense of RECORDBAY in these cases, including all court- and attorney fees.

7 Other Obligations of the User

(1) The user is obliged to:

(a) establish and maintain the necessary backup precautions during the entire contractual period.

(b) immediately inform RECORDBAY about technical amendments or alterations on her/his side, if these are suitable to affect the service provision or security of VARYCON.

(2) The user is obliged to refrain from any actions which endanger or destroy the operation modes of VARYCON, as well as not to access data of which he/she has no access authorization. Furthermore, the user is obliged to ensure that the data and information placed on VARYCON does not contain viruses, worms and Trojans. The user is obliged to compensate for any damage caused by the non-observance of these obligations and, further, to indemnify RECORDBAY from any third party claims, including court- and attorney fees resulting from the non-observance of the obligations by the user

8 Data Security and Privacy Statement

(1) The servers utilized and provided by RECORDBAY are placed in Germany and comply with the state of the art, they are especially secured by firewalls. The user is aware that there is a risk for all parties that transmitted data is read out on the transmission path. RECORDBY reserves the right to use additional servers, also in other countries.

(2) RECORDBAY is authorized to edit and store data received from the user in connection with the business relation during the period of the contract under consideration of the guidelines of the applicable data protection after GDPR.

(3) With acceptance of the user, as described in § 3 of these terms of service, the user accepts the liability that the data transferred by him/her accord to the data security legal requirements and indemnifies RECORDBAY from any claims, even those of public and private law. Especially, has the user to make certain that the required consent of employees is obtained before personal data from employees is placed on VARYCON in order to create employee logins or for any other purpose.

9 Assignment and Offsetting

(1) A partial or complete transfer of rights from the contract between the user and RECORDBAY from the user to a third party is precluded.

(2) The user is entitled to a set off against RECORDBAY with undisputed or legally valid counterclaims only.

10 Final Clauses

(1) Alterations or additions to these terms of service must be given in writing. This also holds true for the repeal from this stipulation for the written form.

(2) The right of the Federal Republic of Germany shall apply with exception of the UN sales law.

(3) The place of performance and court of jurisdiction for all legal disputes resulting from this contract or in connection with this contract is Mönchengladbach.

(4) Should individual terms of these terms of service be or become invalid and/or conflict with legal provisions, the validity of the other parts of these terms of service will remain valid. The invalid term will be replaced with such a term which most closely approximates the commercial intent of the clause in question. The above provision applies to the closure of any gaps.