Draft wording — this text has not been reviewed by a lawyer yet and serves as a working basis.
These terms apply to every contract for the use of the online services provided by ModiFax e.U.. The contracting party is ModiFax e.U., Mariastein 111, 6324 Mariastein, Autriche. Deviating terms of the user apply only if expressly acknowledged in writing.
A consumer is anyone entering into the contract for purposes that are predominantly outside their trade or profession; a business is anyone acting in the course of it. Clauses that apply to consumers only are marked as such. The German wording of these terms is the authoritative one; this translation is provided for convenience.
Depending on the package booked, the service covers planning and managing productions, managing people, dates and tasks, uploading, processing, storing and delivering video and media files, analysing them, building and running websites and shops, and sharing content with third parties by link.
The functions included and the limits on storage, transferred data volume, projects and simultaneously registered devices follow from the package description in force when the booking is made. That description forms part of the contract.
Functions marked as preview or test features are provided without any assurance as to their condition and may be changed or discontinued at any time.
Use requires a user account. The user must provide truthful details on registration and keep them current. The contract comes into being when the registration is confirmed. There is no entitlement to conclusion of a contract.
Credentials are to be kept secret and must not be passed to third parties. The user must report any suspicion of unauthorised use without delay. As a safeguard, the service may limit the number of devices registered per account at the same time.
Paid packages are invoiced in advance for the billing period chosen. All prices are in the currency shown at the time of purchase. Prices quoted to consumers include value added tax; prices quoted to businesses are exclusive of statutory value added tax.
Payments are handled by external payment providers. Payment details are processed solely by that provider and are not stored by ModiFax e.U.. If the package is changed within a running billing period, the difference is charged pro rata.
If the user falls into arrears, access may be restricted or suspended after prior notice. Stored data is retained during that time; clause 13 remains unaffected.
The contract runs for an indefinite period and renews by the chosen billing period unless terminated by the end of the current one. Termination is possible at any time through the user account.
Both parties reserve the right to terminate for cause. Cause exists in particular where clause 7 is seriously breached.
For the term of the contract the user receives a simple, non-transferable right to use the service to the agreed extent. There is no entitlement to the source code. The service must not be reverse engineered, reproduced, or made available to third parties for their own use.
The user retains all rights in the content they upload. They grant ModiFax e.U. the right, limited to the purpose of the contract, to store that content, process and convert it technically, and deliver it to the extent the user determines.
The user warrants that they hold all necessary rights in the content uploaded, in particular to music, imagery, fonts and the people depicted. They indemnify ModiFax e.U. against third-party claims arising from a breach of that warranty.
Prohibited in particular are unlawful, harmful, hateful or infringing content, sending unsolicited messages, automated extraction of the service beyond the intended extent, and any act that impairs availability for others.
Where there is reasonable suspicion of a serious breach, the content concerned may be blocked. The user is informed without delay and given the opportunity to comment.
The service is operated with the care customary for online services. No particular availability is promised unless separately agreed in writing. Maintenance is announced where possible and placed in low-traffic periods.
Functions may be developed further, replaced or discontinued. Where a function essential to the booked scope is dropped, the user is informed with reasonable notice and may terminate as of the date of the change.
If the user exceeds the limits of the booked package, they are notified. Further storage or delivery may be restricted until the package is adjusted. A paid extension happens automatically only where the user has expressly agreed to it.
Where the user offers their own services or content for a fee through the service, the contract for that service is between the user and their customer. Where ModiFax e.U. acts as the contracting party towards end customers, this is disclosed before purchase and the terms displayed there apply to that customer.
The user is responsible for meeting the legal duties owed to their own customers, in particular the legal notice, price information, withdrawal instructions and tax treatment.
The processing of personal data is described in the privacy notice. Where ModiFax e.U. processes personal data of the user's customers or staff on the user's instruction, the parties conclude a data processing agreement under Article 28 GDPR; it is provided on request and prevails over these terms within its scope.
The statutory warranty provisions apply. ModiFax e.U. is liable without limit for damage arising from injury to life, body or health and in cases of intent and gross negligence.
In cases of slight negligence, liability towards businesses is limited to the breach of material contractual duties and in amount to the fees paid in the year before the damaging event. Statutory claims of consumers remain unaffected.
The user remains responsible for their own backups. Liability for loss of data is limited to the extent that would have arisen had proper backups been kept.
After the contract ends, the user's content remains available for export for 30 days. It is then deleted unless a statutory retention duty applies. Earlier deletion is carried out on request.
Changes are communicated in text form at least six weeks before they take effect. If the user does not object before they take effect, the changes are deemed accepted; the notice draws separate attention to this effect. In the event of objection, either party may terminate as of the date the change takes effect.
Austrian law applies, excluding the UN Convention on Contracts for the International Sale of Goods. Towards consumers this choice of law applies only in so far as it does not deprive them of the protection of mandatory provisions of the state of their habitual residence.
For disputes with businesses, the court with subject-matter jurisdiction at the seat of ModiFax e.U. has jurisdiction. For consumers, the statutory places of jurisdiction apply.
The European Commission provides a platform for online dispute resolution. ModiFax e.U. is neither obliged nor willing to take part in dispute resolution proceedings before a consumer arbitration board.