Terms and Conditions Filespots

1. Definitions

1.1 Filespots Operator (Account Owner)

A Filespots Operator pursuant to these Terms is a customer who himself at least operates one Filespots Account, i. e. who is given the Account Authorization Level “Owner”. Filespots Operators are under the particular obligations set out in clause 6 below.

1.2 Filespots User (User)

A Filespots User pursuant to these Terms is a customer, who has been invited by an Account Owner to a Filespots Account, i.e. who has been given the Account Authorization Level “User”. Specifically, Filespots Users are entitled to create own Filespots on Accounts.

1.3 Customer

Customer within the meaning of these Terms is any person who has signed up with Filespots, e.g. for the purpose of using one or more Services, irrespective of whether any special authorization levels have been provided. The use of Services requires the sign-up by sending the sign-up form and confirming these Terms. Users registered with a Filespot are with regard to this Filespot initially only Users with Read Authorization pursuant to below clause 1.4, unless other Authorization Levels have been provided.

1.4 Follower with Read Authorization (Filespot Reader)

Follower with Read Authorization pursuant to these Terms is any customer registered with a Filespot. A Follower with Read Authorization can access, but not write data on a Filespot, i.e. the customer is only given the Filespot Authorization Level “Read”.

1.5 Follower with Write Authorization (Filespot Writer)

A Follower with Write Authorization pursuant to these Terms is any customer registered with a Filespot and provided with the Filespot Authorization Level “Write”.

1.6 Service

Service is any functionality offered by Filespots with regard to Filespot Accounts, the Filespots available thereon or the data contained therein. Details with regard to scope, cost, term and other features are available from the specifications (Rates) published on Filespots.

2. Formation of contract

2.1 The Usage Agreement pursuant to these Terms is entered into between Filespots and the customer by submitting the sign-up form (button “Save”) on one hand and acceptance of this customer offer by Filespots on the other hand. Acceptance may be implied by Filespots by rendering Services hereinunder, the customer waives receipt of the acceptance.

2.2 Further Services are made part of the Usage Agreement at the terms and conditions provided by Filespots, if the customer confirms the respective booking by the “Buy now”-Button and further confirmation by Filespots. Filespots confirms the booking without undue delay via email, which is also the confirmation of formation of contract by Filespots with regard to the respective Service. This email may also contain the invoice for the respective Service. If an order is refused, a respective error message will be displayed. The information on revocation pursuant to clause 3 below applies to any singular additionally booked Service respectively.

2.3 In such far as a customer has at formation of contract acted for a company or while using Filespots has given legally binding declarations for a company (e.g. the booking of further Services pursuant to above clause 2.2), the customer warrants and represents that he has due power of attorney in this respect. Any natural person can only become a party to the Usage Agreement if 18 years or older, this is confirmed by the customer by submitting the sign-up form.

4. Subject of Contract

4.1 Filespots provides to its customers, depending on the respective Authorization Level, Filespots Services. A Filespots Account is a data area in which a customer may e.g. access, download, upload, amend or comment data depending on its Authorization Levels pursuant to clause 1.1. to 1.5. Filespots Operators pursuant to clause 1.1 respectively Filespots Users pursuant to clause 1.2 may create or structure Filespots, write data and invite and admit other customers to access their Filespots respectively Accounts. Further functionality can be used after booking whereas the Service description as published on booking applies and such Services may be subject to further terms and conditions by Filespots. For rendering its Services hereunder, Filespots may use suitable third parties.

4.2 The use of Filespots and its Services is explicitly limited to own commercial and private use. The Authorization to use does thus in no event extend to a redistribution or resale of the Services and performances offered to any third parties, including, but not limited to, the integration of functionalities or Services of Filespots in own products or Services of the customer, offered to third parties.

4.3 Filespots Rates specially dedicated to private Account Owners may be used for non-commercial use only with special conditions applying. The use of these tariffs is with standing for mentioned clause 4.2 exclusively authorized for strictly private and non-commercial purposes. Please also note the stipulations on warranties in clause 8.

4.4 In such far as Services are rendered at no cost to the customer, Filespots may include advertising also by third party in its services.

5. Obligations and guarantees of the customer, Indemnity

5.1 The customer shall at sign-up at any time during the use provide correct and complete information in his user account, including in relation to his name and address. In case of changes, updates have to be made without undue delay.

5.2 The customer shall obey laws applicable in the Republic of Germany. It is inter alia prohibited to publish any content which promotes violence, endangers, juveniles, is racist or pornographic make available access to such content to others and/or link thereto.

5.3 With regard to any content used, a customer has to secure that such content is free from any rights of third parties and does not infringe any third party rights. Explicit reference to clause 10.2 is made. The customer warrants and represents that his use of Filespots and Services made available there does not infringe rights of third parties or is else unlawful, including that he has obtained all necessary rights to the respective content and undertakes towards Filespots explicitly to desist from any use contrary to before mentioned guarantee. The customer indemnifies Filespots against all third party claims brought against Filespots in relation to content published by the customer and/or in relation to the customer’s behavior, including reasonable legal fees in connection with such claims.

5.4 Customer activities which aim at rendering Filespots dysfunctional or impede usability are prohibited and may become subject to civil and criminal law enforcement. Specifically prohibited are any activities which may influence the physical or logical structure of the service. The use of automated means, e.g. scripts or bots, in connection with the services offered, with the aim to grab or search data or data collections, namely crawling and scraping, but also while administering or other use of Filespots’ Services, is strictly prohibited.

5.5 The Services and the underlying software shall only be used in order to use the offers containing Filespots and shall namely not to be copied. It is further prohibited to sign-up any third party to Filespots without their knowledge and consent.

5.6 The content and data on Filespots Accounts and Filespots originates only from the respective customers. Content is to be maintained by the customer publishing it and is in his sole responsibility.

5.7 By publishing information on Filespots the customer irrevocably authorizes Filespots and any third parties used by Filespots to render its Services for the term of this Usage Agreement to use the content and data of the customer, including the data stored in Filespots and also in relation to any copyright or intellectual property rights to such content, but in any case only in so far as is necessary for the performance of this agreement, including the provision of the Services.

5.8 Filespots reserves the right to block access to or delete content of customers in case of any violation of the terms of this clause 5 at any time and without prior notice. Filespots is further entitled to request the customer to delete the respective content upon reasonable notice in case of violation of the terms of this clause 5.

5.9 Filespots is further entitled to use content and data in accordance with the legal obligations it is subject to, including data retention and disclosure.

6. Specific obligations of Filespots Operators and Users

6.1 The Filespots Operator is operator of and responsible for the Filespots Account he has set up. The Filespots Operator is responsible towards Filespots also for any data or other content published or stored on his Filespots Account by any third party. The obligations, guarantees and liabilities from above clause 5.3 apply to such content respectively.

6.2 The Filespots Operator must provide Filespots with at least one valid email address he is availabe under and can upon short notice respond to Filespots´ queries. The Account Operator warrants that queries by Filespots are answered by the Account Operator without undue delay, however latest within one business day. If unavailable, the Filespots Operator has to provide for due replacement. The aforementioned has to be had specific regards to when establishing the standard contact address.

6.3 Filespots Operators are obliged to regularly review the content of their Filespots Accounts and any content stored by customers within the framework of their respective authorizations.

6.4 The Filespots Operator is responsible for admitting and inviting Followers as well as the administration of Authorizations with regards to his Filespots Account and its Filespots. The Filespots Operator may only admit Followers and Users to a Filespots Account if they have separately registered and accepted these Terms.

6.5 The Filespots Operator shall without undue delay delete any personal data collected from customers, in such as far as no legal obligation for further retention or the respective consent of the customer exists.

6.6 With specific reference to clause 5.2, Filespots advises that a Filespots Operator may be subject to special statutory obligations, namely notification (§ 5 TMG respectively § 55 RStV) as well as information and other obligations, including in connection with distance selling and electronic commerce regulation. Complying with these obligations is the sole responsibility of the Filespots Operator.

6.7 If a Filespots Operator has designated Filespots Users pursuant to clause 1.2 for his account, he ensures and is responsible towards Filespots in regards thereto that the User is complying with the aforementioned obligations. The Filespots Operator however remains liable.

6.8 A Filespots User is liable to Filespots to the same extent as is the Filespots Operator.

7. Prices and payment

7.1 For the use of Filespots and the Services offered costs apply for the respective time period and the respective scope of Services as provided for at booking of the respective Service. Pricing display on Filespots may be inclusive or exclusive of value added tax, depending on whether an VAT identification number has been provided and how rendering of Services is to be effected in accordance with the location of customers so provided. In such far as German VAT does not apply towards of the customer, due documentation has to be provided.

7.2 Payment has to be made by a payment method authorized by Filespots after the start of the usage period, that the Account Owner has booked. Charges depending on usage are accounted for per calendar month in arrears and charged to the respective payment method.

7.3 If agreed limitations for storage, transfer or maximum number of Users pursuant to clause 1.2 are exceeded, Filespots is entitled to charge the Account Owner the respective amounts based on the prices applying at time of access. Calculation will be made based upon the maximum amount, respectively value, of storage use and number of Users in the respective calendar month of the term. The customer explicitly consents and authorizes Filespots respectively. As long as a payment has not been made, Filespots shall without prejudice to other remedies available be entitled to block access to Filespots or single Services.

7.4 Filespots may change and amend its prices at any time. If upon notice by Filespots by email the customer objects against changes and amendments in pricing or scope of Services, Filespots shall be entitled to terminate the Usage Agreement without notice.

7.5 Notwithstanding any further rights and remedies under contract or at law, Filespots is entitled to block the customer access wholly or partly in case of any default with due payments.

8. Warranty, Data security, Availability

8.1 Unless specifically agreed, Filespots does not make any representation or give any warranty with regards to the security, availability or operability of Filespots or its functionalities and also not with regards to Filespots Accountss, data stored therein or any other Service.

8.2 Filespots does not provide any dedicated backup-systems with regards to stored data. It is a customer’s sole responsible to safeguard his content against data loss.

8.3 With regards to limitation of capacity, the security and integrity of Filespots and the Services offered and in order to perform necessary maintains work, Filespots retains the right to limit or partially or wholly suspend its Services at any time. Filespots Operators will be made aware reasonably prior to foreseeable interruptions for maintenance work.

9. Limitation of liability

9.1 Filespots is liable without limitation for gross negligence and intent.

9.2 Liability for slight negligence is only assumed if essential contractual obligations are breached. Essential contractual obligations are to be understood as such which the contract from its purpose has to provide to the customer or performance of which only enables due performance of the contract and compliance with which the customer may regularly rely upon.

9.3 For slight negligence Filespots’ liability is limited to the typical and foreseeable damage.

9.4 Liability for indirect damages as well as lost profit is excluded for slight liability except where unlimited liability pursuant to Claus 9.2 applies.

9.5 The limitations of liability pursuant to Clauses 9.2 to 9.4 do not apply for any statutory guarantee of Filespots or liability for a contractually assumed guarantee or for any harm to body, life and health.

9.6 In such far as liability of Filespots is excluded or limited or this also applies for the personal liability of its representatives or agents.

9.7 In case of slight negligence, the liability of Filespots is also limited to the amount the customer has paid to Filespots pursuant to this usage agreement during the twelve months immediately preceding the respective incident causing damage.

9.8 The limitations of liability contained herein apply to all kinds of claims, including tort.

9.9 Furthermore, Filespots does not assume any liability for damages of whatever kind, caused by breach of security protection against an authorized access (e.g. firewalls). The customer acknowledges that due to the various and ever developing means of intrusion available to unauthorized third parties, a certain security level in and via the internet cannot be warrented.

9.10 Filespots is not responsible for any technical or other disruptions and non-performance and does not assume any liability in this respect which does not derive from the sphere of Filespots, including force majeure, negligence or intent of third parties, interruption of internet access or data transmission, as well as damages resulting therefrom, e.g. loss of data.

10. Data protection

10.1 Filespots Privacy Policy is available here.

10.2 Filespots advises its customers that the customer may be subject to special data protection provisions with regards to his data and content. The customer is solely responsible for compliance with any such provisions.

11. Term, Termination, Amendments to the Terms

11.1 In principle, the customer as well as Filespots are entitled to terminate this Usage Agreement at any time, the customer after the end of the minimum period with effect from the end of the respective calendar month and Filespots upon two weeks notice with effect from the end of a calendar month. The respective minimum period is communicated upon booking in the description of the respective Service, and usually extends to at least one full calendar month and ends with the end of the respective calendar month. Unless otherwise agreed, the Usage Agreement renews for the minimum period each, unless terminated with due notice to the end of the respective term. For the minimum period of three months the notice period for both parties is one month, in case of a minimum period of six months two months and in case of one year three months.

11.2 Filespots is further entitled to terminate the Usage Agreement with immediate effect, if the customer repeatedly or materially breaches these Terms, specially the guarantees from clause 5.3, and has not cured such breach after notice with a reasonable curing period or repeats the breach. Filespots may also choose at its sole discretion to suspend the customer from one or more Filespots or Services.

11.3 Filespots is further entitled to special measures with regards to certain Filespot Accounts in such far as it considers these necessary and appropriate. This includes:

• the complete deletion of a Filespot Account, one or more Filespots and/or any data stored there; or
• the inactivation of Filespots Accounts or Filespots.

The customer has no claims against Filespots with regards to such actions.

11.4 Upon termination of the Usage Agreement irrespective of cause, Filespots deactivates without undue delay all Filespots Accounts and deletes any data contained therein irrevocably.

11.5 Filespots retains the right to modify Services or the structure of Filespots at any time. This includes offering certain Services or offers at cost or to discontinue them. With regards to new offers or services rendered to customers at cost, such costs only accrue to the customer, if the customer has made entered into a respective agreement with Filespots.

11.6 Filespots is entitled to change these Terms at any time. Amended Terms are communicated to the customer, e.g. via notifications via the user account, publishing on Filespots or delivery to the standard email address. If a customer does not want to continue the Usage Agreement upon the amended Terms, he is in case of substantially detrimental amendments entitled to terminate the service without notice. Else the Usage Agreement is continued upon the amended Terms.

12. Final Provisions

12.1 These Terms constitute the general terms and conditions for Filespots. Filespots Operators may additionally impose further terms for their Filespots Accounts or Filespots towards customers, which they grant access to, which do apply in addition to these Terms. In no event can such terms amend or limit the scope of these Terms.

12.2 The law of the Republic of Germany applies. The law on UN Sales of Goods is excluded. Exclusive venue of jurisdiction is Munich, in such far as the customer is “Kaufmann” within the meaning of the German Commercial Code (“Handelsgesetzbuch”) or has at time of filing of a claim no firm residence in Germany.

12.3 In case any stipulation of these Terms is wholly or partly invalid, the remaining stipulations shall not be affected.

12.4 These Terms as well as further data on the usage relationship are stored by Filespots after formation of contract. These Terms are available in German and English language. They are accessible in their current version under the URL http://www.filespots.com/terms.html, prior versions are no longer accessible.