Terms of Service

Terms of Service for Vidinet SaaS

of

Vidispine AB, Kista Alléväg 3, 164 55 Kista, Sweden


 

1      Definitions

"Administrator" shall mean the administrator of a Client Account who configures the Software Application and is responsible for the Users and ordering/usage of the Service within the Client Account.

"Client" shall mean the contracting party.

Client’s Account” shall mean the Vidinet account.

“Service” is defined in Section 2.1.

"User" shall mean a single user of the Service.

 

2     Scope of Service

2.1   Subject to the terms and conditions of these Terms of Service, Vidispine AB (hereinafter referred to as "Vidispine") provides the Client with the following portal and 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.

·          Portal: Vidinet Dashboard

·          Software Application(s): Vidispine Server API, Vidispine Transcoder, VSA (Vidispine Server Agent)

·          Third Party Service(s): Provided by third party service provider for which separate license terms apply exclusively.

·          Public Cloud: Amazon Web Services (AWS)

Portal, Software Application(s), Third Party Service(s) and Public Cloud are together hereinafter referred to 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 it is a legal entity and that the subscriber is authorized to accept these Terms of Service on the Client’s behalf.

 

3     Third Party Services

Additional license terms and/or service descriptions (“Third Party Terms”) apply to purchases of Third Party Services, which are made part of these Terms of Service by this reference. Client agrees to abide such Third Party Terms. If there is a conflict between these Terms of Service and Third Party Terms, the latter terms shall supersede these Terms of Service regarding the specific Third Party Service.

 

4     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 (www.vidispine.com) of the Service.

 

5     Contract term and termination

5.1   The use of the Service requires the successful registration and opening of a Client Account.

5.2   By completing and submitting the registration form, the Client submits an application for opening of a Client Account. The Client must completely and truthfully fill in the empty fields of the registration form and agree to these Terms of Service.

5.3   The contract is concluded by Vidispine by accepting the registration. The contract shall either be expressly accepted or shall be deemed to be accepted by granting  access to Service.

5.4   The contractual term begins with the successful opening of the Client Account. The Client Account runs for an indefinite period. By default Client will not have any Software Applications or Third Party Services provisioned. Client has the possibility to purchase Software Applications and Third Party Services at any time.  Unless otherwise agreed, the contract term of the Software Applications and the Third Party Services can be found in the corresponding service description.

5.5   During the contract period, the Administrator may create or delete Users for the use of the Service at any time. The Administrator has access to the corresponding functions for User administration in the Client Account.

5.6   Unless otherwise agreed, Client may terminate the Client’s Account at any time. Software Applications and/or Third Party Services existing at the time shall be automatically terminated as well.

The contractual term of the Software Application and/or the Third Party Service is set out in the corresponding service description.

5.7   Vidispine reserves the right to close the Client’s Account when all Software Applications and all Third Party Services are terminated and the Client’s Account stays unused for a period of 3 months after the termination date of the respective Software Application and/or Third Party Service.

5.8   The termination of a single Software Application or a single Third Party Service has no effect on the Client Account.

5.9   Usage fees paid in advance will not be refunded in the event of termination.

5.10 Both parties may terminate the contractual relationship extraordinarily for good cause. For Vidispine, 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. 

5.11 All notices of termination must be in writing or in text form (e-mail) in order to be effective. If Vidispine provides an appropriate termination function, the contractual relationship can also be effectively terminated within the Client Account. Vidispine may also send notice of termination to the e-mail address provided by the Client.

 

6     Prices and billing model

6.1   Usage fees: The amount of the monthly usage fee for the Service depends on the upon conclusion of the contract effective prices, ordering and the consumption of Software Application and/or Third Party Service. The current prices/usage fees can be viewed in the Client Account and/or on the product website of the Service (www.vidispine.com).

6.2   Unless otherwise agreed, the usage fees will be invoiced monthly at the end of a calendar month ("billing period"). Invoices are due 30 days after receipt without deduction.

6.3   If the Client defaults on his payment obligation, Vidispine is entitled to discontinue the Service without prior notice to Client. The temporary suspension of the Service does not affect the Client's payment obligation.

6.4   Unless otherwise agreed, all prices are quoted in Euro or US-Dollar plus the applicable statutory sales tax.

 

7     Initial setup

7.1   When the Client Account is setup, an Administrator will be nominated by the Client.

7.2   The Administrator is entitled to manage the Client Account, configures the Software Application and is responsible for the Users and ordering/usage of the Service within the Client Account.

7.3   Vidispine will provide the Client with a user documentation to operate the Service.

 

8     Termination of the Service/ Exit

8.1   Upon termination of the Service, Vidispine will block the Client Account and all Users; all associated data will be deleted.

8.2   The Client is responsible for the timely transfer of his data from the Service.

 

9     Changes

9.1   Changes to functionalities and technical requirements

a.  Vidispine 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 Vidispine is obligated by law to change its Services.

Vidispine 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.  Vidispine reserves the right to change or discontinue functionalities or cease to provide Third Party Services at any time with a notice period of at least 6 weeks to the end of a calendar month.

Vidispine 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 Vidispine has informed the Client of this legal consequence in the change notification.

9.2   It is the Client's responsibility to regularly check the product website of the Service and his e-mail account for change notifications. Changes to the Terms of Service

Vidispine 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.

9.3   Price changes

Vidispine 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.

 

10   Service level

10.1 Vidispine shall make commercially reasonable efforts to achieve a monthly availability of 98%.

10.2 In the event that the availability is not achieved in one month, the Client can request a service credit.

10.3 The request must be sent to Vidispine by e-mail within 4 weeks of the occurrence of the non-availability.

10.4 Vidispine shall examine the request at its own discretion and, if Vidispine determines that the above availability has not been achieved, Vidispine 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.

10.5 The payment of credit notes is the sole and exclusive legal remedy in the event that the above-mentioned availability is not met.

10.6 The monthly Service availability is calculated by subtracting from 100% the percentage of 10-minute periods during which the Service was not available for reasons for which Vidispine is responsible.

10.7 Non-availability means that all connection requests to the Service have failed for a period of 10 minutes.

10.8 Downtimes due to subsequent events according to section 14 shall not be charged to Vidispine when calculating availability.

 

11   Service times/ Service desk

11.1 Vidispine will provide the Client with a FAQ list on the product website of the Service (support.vidispine.com), in which the most important and frequently asked questions about the Service are answered.

11.2 In addition, Vidispine will provide a support portal. Client has to create an account to be eligible to receive support on the following days: Monday to Friday 9-17 CET / CEST, Sundays and public holidays are excluded ("Service Time"). All public holidays of Sweden are considered as public holidays.

11.3 The service desk is available in English.

11.4 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 Vidispine on defects and their rectification, and to remedy them himself.

11.5 In addition, Vidispine shall maintain reported defects via the support portal in its internal ticket system for processing. After an error has been processed, the Client will be informed and the ticket will be closed.

11.6 Vidispine is not obliged to accept and process defects outside the Service Time.

 

12   Service delivery point

12.1 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 API Endpoint from the public Internet, the Service is considered available.

12.2 The Service transfer point is therefore: The API Endpoint of the Service.

12.3 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.

12.4 The Client shall be responsible and has to secure the compliance of this provision.

 

13   Optional professional services

The professional 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 and/or Third Party Service, (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/Third Party Services 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 or Third Party Service 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, Vidispine 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 Vidispine deems it necessary (e.g. due to the duration of the downtime expected by Vidispine), Vidispine will inform the Client in advance.

b.  Interruptions in emergencies: e.g. in the event of imminent damage or malfunction of the Service, 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 or power outages;

e.  official or court orders;

f.   attacks and attacks from the Internet and from Users of the Service itself (e.g. viruses, worms, DoS attacks, Trojan horses), which Vidispine could not have prevented even with reasonable care under the circumstances of the case;

g.  interruptions made by the Public Cloud provider.

h.  interruptions made by Third Party Service providers.

14.2 Vidispine makes commercially reasonable efforts to keep Service interruptions short and to minimize any effects.

14.3 Vidispine has no influence on Service interruptions outside the area of responsibility of Vidispine in accordance with section 13.1. c – h.

 

15   Obligations of the Client

15.1 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.

15.2 It is not permitted to gain unauthorized access to the Service, Client Accounts, computer systems or networks connected to them by decompiling codes, illegally obtaining passwords or other methods.

15.3 The Client shall be solely responsible for maintaining the confidentiality of access data to the Client Account.

15.4 The Client shall be obligated to inform Vidispine immediately of any unauthorized access to the Service or any other services, computer systems or networks connected to a server, or to other services, achieved by hacking, password mining or other means.

15.5 Vidispine 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.

15.6 The Client is not permitted to use the 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 Service by him do not violate legal prohibitions, applicable law, morality rights and the rights of third parties (including, but not limited to copyrights, trademark rights and data protection rights). If Client violates any of the aforementioned obligations, Vidispine shall be entitled to suspend the Service with immediate effect and/or to block access to the Client Account.

16.2 The parties shall conclude a data processing contract, which is available at www.vidispine.com (or a subsequent page determined by Vidispine) and is an integral part of these Terms of Service. In this case, Vidispine shall act as a processor within the meaning of Art. 28 DSGVO. Vidispine will process the stored personal data on behalf of the Client and in accordance with the Client's instructions.

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, Vidispine is entitled to delete all illegal content from the Service if Vidispine is requested by a third party to modify or delete content on the Service that apparently infringes third party rights.

16.5 The Client undertakes to indemnify Vidispine against any claims by third parties based on illegal or infringing actions by the Client or false information provided by the Client. This applies in particular to copyright, trademark, name, data protection and competition law infringements.

 

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 Vidispine.

17.3 The costs and expenses incurred by Vidispine for deletion or release shall be borne by the Client.

17.4 Vidispine's 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

18.1 Vidispine shall grant the Client the non-exclusive, revocable right to access and use the Service for his own internal business purposes during the agreed term. Upon termination, all rights of use end automatically.

For Third Party Services the applicable third party license terms apply exclusively.

18.2 Vidispine 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 these Terms of Service, to (a) modify, distribute, change, manipulate or otherwise create derivative works based on the provided Service or any other software, (b) reverse engineer, disassemble or decompile or use any other procedures or procedures to obtain the source code of the Service or any other 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, transfer or sub-license the Service in whole or in part.

 

19   Rights of use for third-party software components

19.1 Insofar as software components are provided within the Service in which third parties hold rights (e.g. open source), the following shall apply: Vidispine 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 Vidispine will comply with. Alternatively, Vidispine 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   Warranty

20.1 Vidispine warrants that the main functionalities of the Service will essentially be available during the contract term.

20.2 Vidispine 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, Vidispine will provide an alternative solution. Insofar as this is not unreasonable for the Client, the defect has been remedied.

20.4 Vidispine 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 Vidispine only assumes guarantees for the quality of the Service in express and written form, i.e. by using the term "guarantee".

20.7 Vidispine's 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 Vidispine is not responsible.

20.8 Services provided by Vidispine 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   Liability

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 Vidispine, a legal representative or one of Vidispine' vicarious agents.

21.2 The following also applies to the liability of Vidispine:

21.3 In the event of negligence, the liability of Vidispine 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 Vidispine.

21.5 Vidispine 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 Vidispine' 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 Vidispine 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 Vidispine shall be two (2) years as from the statutory start of the limitation period.

21.9 The liability for guarantees assumed by Vidispine and the provisions of the Product Liability Act remain unaffected.

 

22   Force majeure

22.1 Vidispine 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 Vidispine 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 Vidispine is generally obligated to implement certain security measures.

 

23   Special conditions for free services

23.1 If Vidispine provides the Service, in whole or in part, or (additional) services without (additional) payment, Client has no claim to performance. Vidispine shall be entitled to discontinue, change or demand a charge for the Services or (additional) services at any time within a reasonable notice period. Vidispine 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 are not granted. Furthermore, Vidispine shall only be liable for intentional misconduct and for liability which cannot be limited by law (such as without limitations the Product Liability Act) which remains unaffected by this Section.

23.3 Service Level: The Client has no claim to service level for the Service or (additional) service offered.

 

24   Final provisions

24.1 These Terms of Service shall apply exclusively.

24.2 Vidispine 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 Vidispine 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, Vidispine 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).