General Terms & Conditions of Use
Section 1 Scope of application, definitions
(1) The business relationship between simpleshow GmbH, Am Karlsbad 16, 10785 Berlin, phone: +49 30 809 50 21 – 33, email@example.com (hereinafter “simpleshow”), and the user (hereinafter “User”) shall be governed exclusively by the following General Terms and Conditions as in force at the time when the service package is ordered. These General Terms and Conditions shall apply, in particular, to the setting up and use of a user account on the website of simpleshow as well as to the purchase of service packages for the use of the mysimpleshow software offered by simpleshow via its website (hereinafter “Software”). Any deviating general terms and conditions of the User are not acknowledged, unless simpleshow agrees to their validity explicitly and in writing.
(2) simpleshow may update these General Terms and Conditions from time to time. In this case, simpleshow will notify the User by e-mail. By continuing to use the user account and the Software, the User agrees to the application of the updated General Terms and Conditions.
(3) The User is a consumer, if the purpose of the supplies and services ordered may not predominantly be attributed to such User’s commercial or independent professional activity. In contrast, any such natural or legal person or any partnership with legal capacity which at the time of conclusion of the contract acts in the exercise of its commercial or independent professional activity shall be deemed an entrepreneur.
Section 2 User account
(1) In order to use the Software, it is necessary to set up a free of charge user ac-count on the simpleshow website. Such user account will be created upon com-pletion of the registration form by clicking on the “Register” button. In the course of the registration procedure the User will be asked to accept the application of these General Terms and Conditions. Thus, the General Terms and Conditions will also apply to any service packages purchased under the user account.
(2) The User shall keep the access data pertaining to its user account confidential. Any disclosure to third parties shall be prohibited. In case the access data are lost, the User shall notify simpleshow immediately.
(3) The user account shall by default and without prejudice to Sec. 7 para. (5) include the “Free” service package, which allows the use of the Software with a limited functional scope free of charge. In case the User purchases any chargeable service package, the “Free” service package shall be replaced by such chargeable service package.
Section 3 Purchase of chargeable service packages
(1) The User may choose between various chargeable service packages, which pro-vide different functionalities for using the Software. A description of these various service packages and their functionalities (hereinafter „Service Description“) is included on the simpleshow website.
(2) Provision of the service packages on the simpleshow website constitutes a bind-ing offer for the conclusion of a contract. The User makes a binding declaration of acceptance by adding the selected service package to the shopping cart and then clicking on the “Confirm purchase” button. Thus, a contract is immediately concluded by clicking this button. Prior to submitting the order the User may change and verify the data at any time and thereby correct any mistakes.
(3) The contract is concluded in the German language.
Section 4 Prices and payment terms
(1) All prices quoted on the simpleshow website include the currently applicable statutory value added tax.
(2) The User may make payment by using the means of payment offered on the web-site. Further information on the applicable payment terms are available via the simpleshow website.
(3) Payment shall be due and payable in advance for the period of time selected in the course of the ordering process and will be debited each time at the beginning of the current annual or monthly period.
(4) The User’s obligation to pay default interest shall not exclude the assertion of any further damages by simpleshow.
Section 5 Use of the Software
(1) The use of the Software shall occur via the simpleshow website and will be possible via the User’s Internet browser without any additional software. Compatibility with any specific Internet browsers is not assured. Downloading the Software and using the Software off-line is not permitted.
(2) Use of the Software shall exclusively be made by the User.
(3) In the event that the service package ordered is intended for use by a team, the team members shall be determined by the User. Use of the Software shall exclusively be permitted for the designated team members.
Section 6 Rights to the Software and the user videos
(1) Any rights to the Software shall exclusively belong to simpleshow. By providing the service packages, the User is merely granted the non-exclusive right to use the Software for the creation of user videos via the Internet within the scope of the relevant service package. To the extent necessary for usage, the Software may be downloaded to the working memory of the user terminal. Any copying, permanent storage or any other use of the Software beyond that shall be prohibited. simpleshow reserves all rights in this respect. There will be no off-line provision of the Software, e.g. by downloading or on any data storage device.
(2) In view of the user videos produced by means of the Software, the following shall apply:
a) Downloading and storing the user videos shall only be possible and permitted, if and to the extent that this is provided for in the Service Description of the relevant service package. Quality and formats shall be such as determined in the relevant Service Description.
b) If the relevant service package, under which the user video was created, does not include the option “Privacy Control”, simpleshow shall be entitled to publish the user videos on the simpleshow website as well as in the channel operated by simpleshow on the YouTube platform and to make them accessible to the public, free of charge and without any restrictions in terms of territory or time. If the relevant service package, under which the user video was created, includes the option “Privacy Control”, the User shall be free to allow publication by simpleshow in accordance with this paragraph. If the User allows such publication, the User grants simpleshow the aforementioned rights.
c) If the relevant service package, under which the user video was created, does not include the option “Remove watermark”, the user videos will automatically be provided with a simpleshow watermark.
d) If the relevant service package, under which the user video was created, does not include the option “Commercial rights”, the User may not commercially utilise the user video created. Commercial utilisation shall include any and all uses of the user video pertaining to the commercial activity of the User, except for the provision of services to third parties. This shall include, in particular, any use of the video for self-advertising.
e) If the relevant service package, under which the user video was created, does not include the option “3rd party transfer rights”, the User may not commercially utilise the user video created for the provision of services to third parties. This shall include, in particular, the provision of advertising services to third parties as well as the creation of user videos which are provided to third parties for a fee or any other consideration (e.g. training videos, animations for integration into third-party videos etc.). For the classification as “third-party use” it shall not be relevant whether any third parties are granted any rights in respect of the user videos.
f) The User will be granted the opportunity to indicate the User’s authorship of the user video via the “Description” field or as part of the so-called “Closing Frame”. No other authorship indication beyond that will be made in case the user video is published by simpleshow.
Section 7 Warranty
(1) simpleshow merely provides an opportunity for the User to create user videos it-self by using the Software. Thus, the service provided by simpleshow exclusively comprises the functionality and availability of the Software, but not any specific result of its use. If and to the extent that the service package includes downloading the files, the service provided by simpleshow shall also include the provision of such files for downloading.
(2) The Software may be used by the User via standard Internet browsers. Further details are included in the Service Description. The provision of the browser as well as a sufficiently fast Internet connection shall be the responsibility of the User and shall not be the subject matter of the services to be provided by simpleshow. The provision of the Software shall occur by making the Software accessible on the server of simpleshow. Accessibility of the server via the Internet shall not be the responsibility of simpleshow.
(3) simpleshow does not warrant that the Software will be available on a 24/7 basis. Particularly, the Software may temporarily be unavailable due to maintenance works or software updates.
(4) The service provided by simpleshow shall only be deemed defective, if such service negatively deviates from the Service Description of the relevant service pack-age in any material respects. simpleshow shall be entitled to further develop the service packages and the functionalities included therein, to the extent that the scope of use is not materially modified for the User thereby.
(5) The “Free” service package provides the possibility to test the Software with limited functionalities free of charge. This is a voluntary service provided by simple-show, to which no claim exists. simpleshow may disable the “Free” service pack-age or modify its functionalities at any time. There shall be no warranty claims in the event that the “Free” service package is not or no longer available or is not provided as described.
Section 8 Liability
(1) Any claims for damages by the User shall be excluded. This shall not apply to claims for damages by the User resulting from a violation of life, body or health or from the violation of material contractual duties (principal obligations) as well as to liability for any other damages arising from any wilful or grossly negligent violation of duties by simpleshow, its legal representatives or vicarious agents. Material contractual duties shall be deemed such duties the fulfilment of which is necessary to achieve the object of the contract.
(2) In case any material contractual duties are violated, simpleshow shall be liable only for the foreseeable damages which are typical of the contract, if such damages were caused by simple negligence, unless the claims for damages by the User are due to a violation of life, body or health.
(3) The limitations under paras. 1 and 2 shall also apply for the benefit of the legal representatives and vicarious agents of simpleshow, if any claims are asserted directly against them.
(4) The limitations of liability under paras. 1 and 2 shall not apply to the extent that simpleshow fraudulently concealed the defect or provided a guarantee for the condition of the service.
Section 9 Third-party rights
(1) simpleshow warrants that the Software will be free from any third-party rights. In case any third parties legitimately assert any claims in respect of the Software, due to which the use of the Software by the User is detrimentally affected, simple-show shall be entitled to modify the Software at its own discretion, so that it no longer infringes such third-party rights, to acquire the necessary licenses from the third party or to provide an alternative Software. Should this not or not reasonably be possible for simpleshow, simpleshow may terminate the service packages affected. In this case any advance payments for periods of use, during which the Software can no longer be used due to such termination, shall be refunded.
(2) The User warrants that it will not infringe any third-party rights or violate any applicable laws in any other way, when creating the user video. This shall apply, in particular, to the use of any contents protected by copyrights, design rights or trademarks, as well as to any offensive, punishable or otherwise illegal contents of the user videos. The User shall indemnify simpleshow, its corporate bodies, employees and agents for any costs and damages resulting from any violation of the above User obligations. This shall also include the reimbursement of reasonable legal costs.
Section 10 Right of revocation
(1) Consumers concluding a distance transaction generally have a statutory right of revocation, on which simpleshow provides the following information in accordance with the statutory model. Exceptions from the right of revocation are set forth in paragraph (2). Paragraph (3) contains a Sample Revocation Form.
*** Instruction on Revocation ***
Right of revocation
You are entitled to revoke this contract within fourteen days without stating any reasons. The revocation period expires after fourteen days from the day on which the contract is concluded.
To exercise your right of revocation, you must inform simpleshow GmbH, Am Karlsbad 16, 10785 Berlin, phone: 0711-2172650, fax: 0711-2172669, firstname.lastname@example.org, of your decision to revoke this contract by a clear statement (e.g. a letter sent by mail, fax or e-mail). To this end, you may use the enclosed Sample Revocation Form, which, however, is not obligatory.
To meet the revocation deadline, it is sufficient for you to send your communication concerning your exercise of the right of revocation before the revocation period has expired.
Effects of revocation
If you revoke this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the extra costs resulting from your choice of a type of delivery other than the low-price type of standard delivery offered by us), without undue delay and in any event not later than fourteen days from the day on which we receive the communication concerning your revocation of this contract. We will carry out such reimbursement using the same means of payment as was used by you for the initial transaction, unless we have expressly agreed with you otherwise; in any event, you will not incur any fees as a result of such reimbursement.
(2) Pursuant to Sec. 356 para. 5 BGB (German Civil Code), the right of revocation expires even prior to the expiry of the time limit of fourteen days, if you complete any user videos, which were created by means of the Software, by clicking on the “Finalize video” button, resulting in these videos being made available for streaming and downloading. You will be notified of this again separately before the first rendering.
(3) By using the Sample Revocation Form, the client notifies simpleshow, in accordance with the statutory provisions, as follows:
Sample Revocation Form
(If you wish to revoke this contract, please fill out this form
and send it back to us.)
To: simpleshow GmbH, Am Karlsbad 16, 10785 Berlin, phone: 030-809502133, fax: 0711-2172669, email@example.com:
I/We (*) hereby revoke the contract concluded by me/us (*)
regarding provision of the following service:
Ordered on (*): _______________________________________________
Name of consumer(s): ___________________________________
Address of consumer(s): ______________________________
Signature of consumer(s) (only if this communication is made on paper)
(*) Delete as appropriate
*** End of the Instruction on Revocation ***
Section 11 Term and termination
(1) The service packages shall have an indefinite term and may be terminated regularly by either party with a notice period of four weeks with effect from the end of the relevant contractual term (year or month). In case the termination is not effected in time, the contract shall be extended automatically for another year or, in case of a monthly subscription, for another month.
(2) In case the User orders a higher-priced service package during a contractual term, the existing lower-priced service package shall be automatically terminated. Any payments already made for periods during which the lower-priced service package can no longer be used shall be reimbursed to the User. The order of the higher-priced service package shall be for a separate monthly or annual contractual term, not for the remaining term of the lower-priced service package.
(3) Termination for good cause shall not be affected. Good cause for termination by simpleshow shall be deemed to exist, in particular, if
i) the User is in default of payment of the service fee for more than two billing periods;
ii) the user videos created by the User contain content that infringes protected third-party rights or violate statutory, in particular punishable provisions;
iii) the operation of the entire website by simpleshow is terminated. In this case any advance payments for periods of use, during which the Software can no longer be used due to such termination, shall be refunded.
(4) In case of termination the right of the User to use the Software shall expire. However, if the service package ordered by the User contains the downloading of user videos, simpleshow shall enable the User to download the user videos created, through the user account. This shall not apply in case of a termination by simpleshow for good cause, nor as long as the User is in arrears with payment. There shall be no entitlement to permanent availability of the user videos after termination.
Section 12 Final provisions
(1) Any contracts between simpleshow and the User shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Con-tracts for the International Sale of Goods. Statutory provisions regarding the limitation of the choice of law and the applicability of mandatory provisions, in particular of the state in which the User as a consumer has his or her habitual residence, shall remain unaffected.
(2) Online Dispute Resolution pursuant to Article 14 para. 1 of the ODR Regulation: The European Commission provides a platform for Online Dispute Resolution (ODR), which may be accessed under http://ec.europa.eu/consumers/odr/.
(3) If the User is a merchant, a legal entity under public law or a special estate under public law, the place of jurisdiction for any disputes arising from contractual relationships between the User and simpleshow shall be the registered office of simpleshow.
(4) Should any individual clauses of this contract be legally invalid, the remaining con-tract shall remain in force. Such invalid clauses shall be replaced by applicable statutory provisions, to the extent existing. However, to the extent that this would constitute an unreasonable hardship for either party, the contract shall be invalid in its entirety.
(5) This English translation of these General Terms and Conditions is for convenience only. In the event of contradictions or discrepancies between the English and the German version, the German version shall prevail.