Terms and Conditions of Service for the Scoopa Trial Account

last updated: 29.11.2016

Terms and Conditions of Service for the Scoopa Full Account

last updated: 30.11.2016

These Terms and Conditions of Service apply in the relationship between best boys media lab GmbH & Co. KG, Johannesplatz 5a, 63773 Goldbach, Germany, registered in the commercial register of the Amtsgericht (local court) of Aschaffenburg under HRA 5616, and the customer to govern non-gratuitous use of cloud services.

1. Terminology (in alphabetic order)
   1. “Account” refers to the user account which the customer creates for using the cloud services, entering for such purpose the access data provided to him.
   2. “bbml” refers to best boys media lab GmbH & Co. KG, Johannesplatz 5a, 63773 Goldbach, Germany.
   3. “Cloud” refers to the entirety of the storage platform including the content management system provided by bbml.
   4. “Cloud services“ refers to the cloud functions made available to the customer under www.scoopa.com for the service category chosen by him.
   5. “Customer” refers to the contractual partner of bbml.
   6. “TCS“ refers to these terms and conditions of service and, in the case of subsequent changes hereof, the terms and conditions in the respective version applicable between the parties.
   7. “Party” refers to the customer or bbml, “parties“ to the customer and bbml jointly.
   8. “Content management system” refers to the software which bbml provides for the storage, administration and distribution of files.
   9. “Registration” refers to the creation of the account.
   10. “SLA“ refers to the Service Level Agreement which is part of the contract and which specifies the service level of the cloud services.
   11. “System requirements” refers to the technical requirements to be met by the customer for the use of the cloud.
   12. “Contract” refers to the contract entered into by and between the customer and bbml upon registration for the use of any of the available services categories, in all cases including the option to choose additional storage capacity and/or additional traffic. The details regarding the various service categories and additional options are contained in the service description at www.scoopa.com.
2. Conclusion, scope of application, basic provisions
   1. The contract is concluded between the parties upon registration, with the parties for such purpose making reference to and incorporating the TCS and the SLA. If the customer refuses to agree to the TCS and the SLA, he is not entitled to use the cloud services.
   2. Use of the cloud services, as regards the interpartes relationship between the parties, is exclusively governed by the TCS and the SLA if and to the extent that the parties do not agree on deviating provisions or amendments by individual agreement.
   3. Deviating, conflicting or supplementary terms and conditions of business of the customer do not become part of the contract, not even in the case that bbml has not rejected them explicitly resp. by separate notice.
   4. The cloud services are provided only to entrepreneurs in terms of § 14 BGB (German Civil Code), subject to appropriate evidence being produced. The cloud services are not available to consumers in terms of § 13 BGB (German Civil Code). To make sure that the customer is an entrepreneur, a procedure for VAT Id. No. verification is initiated automatically after registration.
   5. The TCS and the SLA are available for retrieval by the customer at all times at www.scoopa.com.
3. Subject matter of the agreement and scope of use
   1. The subject matter of the TCS is the non-gratuitous provision of the cloud services for the agreed number of accounts and the service category chosen (www.scoopa.com), including grant of the rights to use the content management system as specified in the TCS and the instructions from the time of registration, which is for each period subject to the condition precedent of payment of the agreed remuneration for the respective period.
   2. bbml provides the cloud services to the customer in the condition available upon contract conclusion. The point of delivery of the cloud services is the exit router of the computing centre used. The quality and functionality of the cloud services are exhaustively and conclusively defined in the TCS, the SLA and the instructions whereby the information contained in each of the aforesaid is deemed to constitute service description rather than warranties. bbml is under no obligation to provide any qualities or features other than the aforesaid unless bbml, prior to contract conclusion, has given a warranty for a certain quality. A warranty is only deemed given if it is explicitly referred to as such.
   3. The customer is entitled after registration to use the cloud services resp. have them used contemporaneously by any number of natural persons (users), for such purpose using the access data provided to him. The right to use the content management system is limited to the right to induce appropriate system run as intended.
   4. The customer is only entitled to use the cloud services for his own business purposes, namely for use by his own employees resp. members of his own executive bodies (“Organe”) or by third parties engaged by him or acting in his interest. The customer is not allowed to make the cloud services available to third parties or rent or lease them (by way of usufructuary lease) or otherwise make them available to third parties.
   5. The customer is not granted any rights of use other than and beyond the aforesaid. Any rights not explicitly granted to the customer hereinbefore, in terms of the mutual relationship between the parties, remain the sole property of bbml.
   6. The customer, in terms of the relationship with bbml, is the owner of all rights to use and exploit the materials stored by him while using the cloud.
4. Conditions of use
   1. Use of the cloud services in technical respect necessarily requires registration.
   2. The customer is not required to come up to particular system requirements. Use of the cloud services is possible in technical terms with a current version of a common standard browser. The customer will make regular updates of the browser used and in particular install without undue delay (“unverzüglich”) the security patches prescribed by the manufacturer. The customer must be aware that, in the case of use of the full bandwidth, while the customer is using the cloud services, only the remaining bandwidth capacity might be available to other users of the Internet connection that access the Internet via the same line.
   3. As a rule, the customer is at all times able in technical terms to access to the cloud. Availability may be impaired or suspended for a short time even outside the maintenance period stated in the SLA (www.scoopa.com/terms) due to additional maintenance services or technical disturbances. However, compensation claims of the customer will only arise if the actual availability falls below the agreed availability level or if the agreed availability is indeed complied with but the non-availability is demonstrably attributable to bbml (“zu vertreten haben”). bbml will then compensate the customer for any damage or loss actually incurred, within the agreed limits of liability.
   4. The customer, if the actual availability falls below the agreed annual availability by more than five percentage points and regardless of whether or not he is entitled to damages, has the right to terminate the contract for cause.
5. Duties of the customer
   1. The customer is obliged within the limits of his duties of care to check prior to using the cloud services whether such use might cause conflicts with other hardware or software already installed on his equipment, and make sure that he is in possession of a backup copy of all his data.
   2. Backup copies of the customer’s data and files generated or kept available with the aid of the cloud services should be made prior to and even while using the cloud. It is the customer’s responsibility to take all adequate additional protection measures that can reasonably be expected to be taken to prevent possible loss of data. bbml therefore explicitly advises the customer not to keep data and files solely in the cloud.
   3. The customer is obliged to keep the access codes and passwords assigned to him secret and not to disclose them to third parties. A third party is deemed to be any person outside the customer’s enterprise. The customer is liable for all incidents occurring and damage incurred in connection with the use of the access data provided to him; this does not apply in the case that the incidents or damage are not attributable to the customer (“nicht zu vertreten haben”).
   4. The customer himself is responsible for compliance with the applicable statutory provisions in the context of the use of the cloud services. In particular, the customer must not (i) use the cloud services contrary to the principles of morality, (ii) infringe industrial property rights or copyrights or other property rights, (iii) send or spread viral content, so-called trojans or other programs that may damage the cloud (malware of all kinds), (iv) post, store or send hyperlinks or contents for which he is not authorized, especially if such hyperlinks or contents constitute a breach of non-disclosure obligations or are illegal, or (v) spread advertising contents or unrequested emails (“spams”) or fake virus warnings, bugs or the like or invite others to participate in gambling, multilevel selling or pyramid sales or chain letter schemes or similar activities. Moreover, the customer must abstain from all acts suitable to cause cloud overload or otherwise impair or manipulate the functionality of the cloud infrastructure. This also includes any acts by the customer that endanger the integrity, reliability, stability or availability of the cloud.
   5. bbml, usually after a prior warning issued at least in text form (“Textform” in terms of German law), however in severe cases even without a prior warning, is entitled to block a customer’s account in the case of unlawful conduct by the customer; such blocking may be temporary or permanent, depending on the severity of the contravention; no. 12.2 remains unaffected.
6. Hotline
   1. bbml may in its sole discretion, but is not obliged to, make telephone contact available to the customer during the business hours of bbml or depending on the resources available from time to time. Provision of the said contact option will not be charged separately unless agreed otherwise.
   2. This contact option is exclusively meant for answering technical and functional questions of the customer relating to the installation and use of the cloud services. No general advice will be rendered via this contact.
7. Defect remedy / Warranty
   1. The customer, without undue delay (“unverzüglich”) after registration and receipt of the access data, is obliged to report to bbml obvious defects or errors, otherwise liability for the defect or error in question will be excluded. This applies accordingly if a defect or error should become apparent later.
   2. The customer is obliged, without undue delay (“unverzüglich”) after starting use of the account, to check proper usability of the functionalities available under the agreed service category. If a defect or error should be detected while checking the usability, the customer is obliged to report this to bbml without undue delay (“unverzüglich”). If the customer fails to give notice of the defect or error, he will only be entitled to assert any possible claims later if the defect or error could not be realized during the inspection. If such a defect or error becomes evident later, it must be reported to bbml without undue delay (“unverzüglich”) after detection; otherwise performance by bbml is deemed approved by the customer even despite the existing defect or error.
   3. bbml warrants and is liable for the agreed quality of the cloud according to the statutory provisions and further warrants that the customer can use the cloud services as contractually agreed without infringing third-party rights unless the TCS provide otherwise.
   4. Liability for defects does not cover defects or errors that are due to the cloud services being used in a hardware or software environment that does not come up to the existing system requirements nor does it cover changes and modifications which the customer has made to the content management system.
   5. The following provisions governing liability for defects in quality apply with regard to the use of the cloud and the services agreed under the contract chosen:
      1. If the customer finds a defect in quality, he is obliged to give notice of the defect to bbml without undue delay (“unverzüglich”). bbml will then try to remedy the defect in quality. If, during such time, the customer cannot use the contractually agreed services or can only use them with restrictions, he will be discharged from the obligation to pay fees for the outage time resp. the time of restricted usability. bbml will credit to the customer any amounts already paid.
      2. If bbml fails to bring about defect remedy after two defect remedy attempts and the customer, due to the defect in quality, can no longer use the basic key functions of the cloud as agreed, the customer may terminate the contract for cause. bbml will compensate the customer for any damage demonstrably incurred by him as a result of the defect in quality within the agreed limits of liability.
   6. In the case of defects in title, bbml will at its choice either enable the customer, with a view to the rights of use granted to him, to use the cloud legitimately, without any restrictions in legal respect, or modify or replace it so as to prevent any further infringement of third-party rights. If none of these two options can be implemented, the customer is entitled to terminate the contract for cause. bbml will compensate the customer for any damage demonstrably incurred by him as a result of the defect in title within the agreed limits of liability.
8. Remuneration
   1. The amount of remuneration depends on the type of contract chosen by the customer and is determined on the basis of the price list of bbml [www.scoopa.com].
   2. The customer is obliged to prepay the basic rate due for the service category chosen by the customer for the agreed period of use. Additional services used, if any, will be charged separately and are payable in arrears on a monthly basis.
   3. Remuneration is due according to the time for payment granted in the invoice; in default of such a time fixed for payment, it is 14 (fourteen) calendar days from receipt (“Zugang” ) of the invoice. The customer is deemed to be in default immediately upon non-payment on the due date. In the case of default of payment, bbml is entitled to charge interest in the amount of 8 percentage points above the base interest rate of the European Central Bank. In case the customer is in default of payment, bbml reserves the right to charge to the customer any dunning fees incurred. In case, after expiry of 15 (fifteen) working days from receipt (“Zugang” ) of the dunning letter, bbml has not received payment, bbml reserves the right to block the customer’s account after prior warning. This is without prejudice to the right of bbml to claim compensation of further damage incurred.
9. Liability
   1. bbml is fully liable (i) for intentional and grossly negligent conduct (ii) for any injury to the life or limb and (iii) under any warranty given by bbml to the extent stipulated therein.
   2. bbml is liable for simple or slight negligence only in the context of non-gratuitous contracts. In this case, the liability of bbml for breach of a duty that is essential for achieving the contract purpose and on the fulfilment of which the customer was reasonably allowed to rely (“Kardinalpflicht”) is limited to the amount of damage which, with regard to the type of contract in question, is typical and foreseeable.
   3. In the case of loss of data, bbml is liable to the customer for the loss of data only up to the amount that would have been required for data recovery if proper regular data backups had been made.
   4. The statutory regulations governing product liability remain unaffected.
   5. Claims to damages, except in the cases of no. 9.1 and no. 9.4 and notwithstanding the statutory provisions, become time-barred after expiry of two years - but no later than after expiry of ten years - from the time when the customer has become aware or could reasonably be expected to become aware of the event causing the damage and the damage incurred.
   6. Any further liability of bbml is excluded.
   7. bbml is in particular not liable for damage incurred by the customer as a result of non-provision or late provision by sub-suppliers of services that are necessary for the provision of the cloud services.
10. Indemnification of bbml in the case of third-party rights infringements by the customer
    1. The customer indemnifies bbml from any and all claims which third parties assert against bbml based on an infringement of their rights by the customer. This refers in particular but is not limited to rights from intangible property rights and personality rights.
    2. Insofar, the customer is also obliged to bear the costs of any necessary legal defence including the statutory lawyers’ fees and court fees incurred by bbml in connection with claims asserted against it by third parties.
11. Changes to the TCS and the scope of service and prices
    1. bbml is entitled at any time to change or amend the TCS with effect for the future. This also applies with regard to the scope of service and the prices. These can be adjusted upon extension of the contract term or upon contract renewal.
    2. bbml will inform the customer of any such changes upon customer logon to the account.
    3. The customer is given the possibility from time to time to agree to the changed and/or amended TCS resp. any other terms and conditions. If the customer does not agree, the contractual relationship will be continued unchanged. However, in this case, bbml reserves the right to regularly terminate the contractual relationship by general termination, effective as of the next possible date.
12. Term and termination
    1. Any contract is concluded for the initial term stipulated in the service description [www.scoopa.com]. The contract is extended automatically by a period equal to the initial term unless either of the parties gives notice of termination of the contract, effective as of the expiry of the initial term or the respective additional term, whereby (i) for the types Basic, Professional and Enterprise three months’ notice and (ii) for the type Event two weeks’ notice is required. Access to and use of the cloud services cease upon termination of the contract.
    2. bbml further reserves the right to terminate the contract for cause, regardless of the type of contract chosen by the customer (i) if the customer is in arrears with remuneration payment in the amount of not less than part of the remuneration payable for two months or (ii) in the case of a major breach of the contract whereby, depending on the severity of the breach, as a rule, a warning must be issued to the customer before notice of termination is given.
    3. In the case of termination for cause, bbml will refund to the customer any fees already paid for the respective term unless bbml sets such amounts off against any existing own claims to damages.
    4. If bbml terminates the contract for cause according to no. 12.2, bbml will inform the customer, usually together with the notice of termination, at least in text form (“Textform” in terms of German law) that the customer is to store the data and files generated or kept in the cloud by him otherwise within 48 (fourty-eight) hours from dispatch of the said notice to the customer. After expiry of this period, all data and files stored by the customer will be deleted.
13. Data protection/ Privacy

    The contract as well as the use of the trial account is subject to the privacy policy of bbml [https://scoopa.com/privacy].

14. Set-off by the customer

    The customer is only allowed to set off his own counterclaims if they are undisputed or have been established by a final non-appealable court decision (res judicata). The same applies for any right of retention.

15. Final provisions
    1. The right of the Federal Republic of Germany applies with the exception of UN Sales Law and the conflict of laws rules; Art. 3 EGBGB (Introductory Law to the German Civil Code) remains unaffected. If the customer, upon conclusion of the contractual relationship, has his habitual abode (“gewöhnlicher Aufenthalt”) in another country of the EU/EEA, the choice of law made in the TCS is without prejudice to the application of any mandatory provisions of such other country.
    2. For the customer, the place of performance (“Erfüllungsort”) is Cologne. The place of exclusive jurisdiction for all pecuniary disputes arising out of or in connection with the contractual relationship and its execution is Cologne unless any statutory provision of the law of the Federal Republic of Germany mandatorily prescribes another place of jurisdiction. bbml may however also sue the customer before the court having local jurisdiction over the customer’s domicile.
    3. The parties did not enter into any oral side agreements. Changes and amendments to the TCS require text form (“Textform” in terms of § 126b BGB – German Civil Code). This also applies for the cancellation or waiver of the text form requirement.
    4. If any individual provisions of the TCS should be or become invalid, this will be without prejudice to the validity of the remaining provisions of the TCS. The parties agree to replace the invalid provision by a valid one which corresponds most closely to the economic purpose of the invalid one. Until such time, the statutory provisions apply. This applies accordingly in the case of an omission in the TCS.

Service Level Agreement for the Scoopa Cloud

last updated: 22.12.2016

The parties have entered into a contractual relationship for use of the cloud provided by bbml. This SLA applies in addition to the “Terms and Conditions of Service – Full Account” [As amended on: 30.11.2016]. The parties agree on the following service level.

The specific services and functions available to the customer depend on the service category chosen by him. The customer, depending on the specific service category chosen, is provided with appropriate storage space and a traffic flatrate.

1. Availability of the cloud and its functions
   1. Warranty of availability

      The cloud is available at the point of delivery (exit router of the computing centre) if and as soon as the agreed services basically can be used, in particular video files can be distributed as intended resp. made available ready for retrieval. The cloud is agreed to be available during 99.9% uptime per calendar month, based on a 24/7 operation. Downtimes are times when the cloud is not available for reasons attributable to bbml (“zu vertreten haben”). Downtimes not attributable to bbml, by contrast, are those which are due to problems occurring with the pre- / sub-supplier, a third-party or the customer himself.

   2. Crediting

      If bbml fails to comply with the agreed availability due to downtimes, the customer will be credited for 10% of the monthly basic rate (without optional services) payable for the specific service category in question (resp., in the case of longer payment intervals, on a prorata basis for the months concerned) which will be set off against the amount due for the accounting period following non-compliance with the agreed availability resp. paid out upon termination of the contract. For every full percentage point of non-availability below 99%, another flat rate of 5 % will be credited on the applicable basic rate, however not more than a maximum of 25% [in total].

2. Defect categories
   1. Category 1 (defects preventing operation)

      is given if the cloud is technically not available at the point of delivery for reasons attributable to bbml (“zu vertreten haben”). Examples: The cloud servers are not available, the cloud servers do not allow access, no downloads can be made from the cloud servers – provided in all cases that this is attributable to bbml.

   2. Category 2 (defects substantially impairing operation)

      is given if the cloud as such is available but functionalities required for handling ongoing business transactions are unavailable for reasons attributable to bbml (“zu vertreten haben”). Examples: No uploads can be made to the cloud server, it is impossible to create user accounts, email notifications do not work.

   3. Category 3 (minor defect)

      is given if only subordinated functionalities are unavailable for reasons attributable to bbml (“zu vertreten haben”), the key functions and transactions can however be used and operated. Example: The preview player does not work.

3. Response times and recovery times
   1. Response time

      The response time for defect category 1 and defect category 2 is two hours, for defect category 3 eight hours.

   2. Recovery time for categories 1 and 2

      The recovery time for category 1 and category 2 defects is five hours. Recovery is understood as the restoration of availability of the cloud according to No. 1, which means that the agreed services basically can be used, whereby for such purpose it may be necessary to temporarily use a workaround solution.

   3. Commencement of the response and recovery times

      The response time runs from receipt („Zugang“ ¹ ) of an external notification or an automated internal notification from the bbml monitoring systems reporting a defect. The recovery time runs from the end of the agreed response time.

   4. Crediting

      If bbml fails to comply with any agreed recovery time, the customer, from the second full hour of exceedance of the recovery time and for every additional full hour of exceedance, will be credited with regard to the monthly invoice amount payable for the month in default of the non-compliance with the recovery time, as follows: 5% in the case of a category 1 defect, 3% in the case of a category 2 defect, however in any case not more than a maximum of 25 % for each case of exceedance.

4. Coincidence of several crediting events and maximum credit, damages

   If one and the same incident causes several amounts to be credited under this SLA, these amounts will not be summed up but only the maximum credit amount accruing during the reference period in question will be granted. The monthly maximum amount eligible for credit is 100% of the basic rates payable for the month in question without optional services.

   The customer may claim compensation of damage, if any, exceeding the amounts to be credited within the agreed limits of liability.

¹ A notice is deemed received (“Zugang” in terms of German law) if and as soon as it has come into the sphere of the recipient in the way that the recipient can reasonably be expected to take note of it.