Terms of Use Webgate

Media Services GmbH

Türkenstraße 89
80799 München
Phone: +49 89 4132 578 1659
Email: webmaster@pharos.de
VAT identification number: DE341508898

Register Court: Amtsgericht München
Registration Number: HRB 266809
Managing Director: Josef Reidinger • Peter Gerckens • Ernst Feiler

§1 Creation of the contractual relationship, changes to the Terms of Use

1.1 The following Terms of Use apply only to contracts entered into with natural or legal persons that when executing the transaction are acting in a commercial or independent capacity, or with public law legal entities or investment funds. These General Terms and Conditions do not apply to contracts with consumers. Upon concluding this Contract for Use or using the Webgate services, the user (hereinafter “User”) assures and guarantees that they are not a consumer in the sense of Article 13 of the German Code of Civil Law (BGB).

1.2 The following Terms of Use regulate the contractual relationship between Media Services GmbH (hereinafter “Provider”) and User with regard to the use of the web-based content platform “Webgate” made available by Provider.

1.3 Upon completing the registration process for Webgate, or when ordering services that encompass the use of Webgate, User makes an offer to conclude a contract for use on the basis of these Terms of Use. Upon Provider activating the user account or granting the first opportunity for usage, it accepts this offer for the conclusion of a contract for use on the basis of these Terms of Use as may from time to time be updated.

1.4 Provider only acknowledges User’s terms of use that contradict or deviate from these Terms of Use with Provider’s explicit written confirmation.

1.5 Provider has the right to change and modify these Terms during the ongoing usage of Webgate. Provider will forward the amended Terms to User in text form, drawing special attention to the new provisions. At the same time, Provider will grant User a reasonable period of time to declare whether they accept the modified Terms of Use for the future use of the services. If User does not make this declaration within the period provided, the modified Terms will be deemed to have been agreed upon. Provider will expressly draw User’s attention to this legal consequence upon setting the period of time for the declaration of acceptance. If User does not agree to the change in the Terms, Provider shall have the right to terminate the Contract for Use without notice at the time of the Terms of Use coming into effect.

§2 Subject matter of the Contract for Use, duration and termination

2.1 This Contract for Use authorizes User or the person authorized by User to access the web-based content platform Webgate made available by Provider, and to save, make available for access, access and/or transcode production-related content such as audio and video files and other production-related data on the applicable servers via the web-based access. Furthermore, User has the opportunity to administer contact data and to send or receive messages. The usage is restricted to the amount of memory prescribed by Provider and the transcoding volume, the number of users enabled by Provider, and the package-specific services enabled by Provider. The subject matter of the Contract for Use is the use of the services by User, to the extent of the service package booked and paid for. The scope of the services provided for use, and the restrictions, are formulated in real terms by the instructions and information issued during the ordering process, in particular by the service packages defined in the ordering process.

2.2 The actual graphic and functional design of the contractual usage options, and the decision to add new features these options or supplement them with fee-based additional services lies within Provider’s discretion. Provider has the right to modify the design at any time, in adherence to the contractual usage options.

2.3 The service packages are offered with the durations shown in the ordering process. With contracts with a monthly duration, the contractual term extends for a further month if User fails to terminate the contract in writing, by e-mail or by clicking on the cancel button in the user profile no later than 3 calendar days before the end of the contractual term. The date of Provider registering User (conclusion of contract) is the effective date for determining the start of the contract’s duration. The contractual relationship ends upon the termination becoming effective, and User is then no longer allowed to use the contractual access. Provider has the right to block the account.

2.4 Provider has the right to irrevocably delete all data uploaded, retrieved or created within the scope of the usage, 14 calendar days after the termination of the Contract for Use or blocking of the account, taking into account any statutory data-retention periods.

2.5 At its own discretion, Provider can terminate the Contract for Use or limit, suspend or end its use at any time without notice, in particular if it becomes aware that the usage breaches the Contract, is improper, fraudulent in any other way or violates the interests of Provider or other users. In the event of objective and concrete grounds for suspicion, the provider reserves the right to carry out random checks of the uploaded content in this respect.

2.6 It is possible to change between service packages at any time. In the event of an upgrade, the extended usage is provided upon booking the altered service package. In the event of a downgrade, the shift to the new service package occurs at the end of the ongoing billing month.

2.7 A memory add-on can be booked in addition at any time, in dependence on the service package, and the availability of the add-on begins on the day of booking it. If User fails to terminate the contract in writing, by e-mail or by clicking on the cancel button in the user profile no later than 3 calendar days before the end of the billing period, or if Provider fails to terminate the contract in writing or by e-mail no later than 3 calendar days before the end of the billing period, the usage of the additional memory space extends by one further billing period at the end of the billing period. The additionally granted memory can only be used within the applicable billing period of the booking.

A transcoding add-on can be booked in addition at any time, in dependence on the service package, and the availability of the add-on begins on the day of booking it. The transcoding add-on ends at the end of the billing period in which the transcoding add-on was booked. The additionally granted transcoding minutes can only be used within the applicable billing period of the booking and are forfeited after the end of the billing period.

When changing to another service package, the transcoding add-on and the memory add-on remain in effect for the billing period of the newly booked service package.

§3 Registration, user account, passwords

3.1 You must be registered to use Webgate. User is obliged to provide true and complete information about their person/company as provided for in the registration form, and to always keep this information up to date.

3.2 Only the registered user can use the user account. User has the right to set up sub-accounts in dependence on their account, in order to authorize further persons for access. User and persons authorized by User must keep their password secret and must not authorize third parties to access and/or use Webgate in their name. User undertakes to inform Provider immediately when they think their account or a sub-account set up by them, and the corresponding access data, have been used improperly, or if there has been a security breach regarding the use of Webgate.

3.3 User is responsible for all activities in connection with their account and the sub-accounts set up in connection to it. This also applies to acts performed by third parties, in particular the persons authorized by User. User must ensure that users they have authorized are aware of and adhere to the provisions of these Terms of Use.

3.4 The account will be blocked if the password is entered wrongly three times.

§4 General User obligations

4.1 User may only use the services made available by Provider within the scope of the agreed authorizations. Any use by User in excess of this is forbidden.

4.2 Any breach of obligation authorizes Provider to terminate the Contract for Use without notice, without reimbursing fees, and to block User’s account and the sub-accounts connected to it. Provider also has the right to refuse to allow a new account for this User for an indeterminate period after the termination.

§5 Obligations of the user regarding submitted content

5.1 User must ensure that they do not breach third-party rights when providing content (texts, images, photos, videos, names, brands, etc.) (e.g. copyrights, personal rights, fair competition rights).

5.2 User releases Provider from all third-party claims that such third parties assert with regard to legal breaches vis-à-vis Provider committed by User for which User is culpable. User assumes all costs of a necessary legal defense.

5.3 Provider has the right to delete or deactivate content entered by User, if said content violates third-party rights or if third parties assert legal claims on the basis of a breach of rights, the merits of which cannot be obviously ruled out. If Provider becomes aware of a possible rights breach caused by content from User, it will inform User of this without delay in text form.

5.4 When using Webgate, User may not: (a) store, publish and/or forward data, texts, images, files, links software or other content that in line with applicable statutory regulations or that according to Provider’s estimation is illegal, damaging, threatening, abusive, harassing, libelous, vulgar, obscene, hateful, racist, pornographic, that glorifies violence or that is objectionable in any other way; or (b) store, publish and/or forward material that contains software viruses or other information, files or programs that are intended or suitable for interrupting, destroying or restricting the function of computer software or hardware, or telecommunication equipment.

5.5 User’s content remains User’s content. With the exception of the materials that Provider licenses to User, Provider does not claim any ownership of the content that User uploads or makes available via Webgate. User controls who has access to this content. If User places content in an area accessible to third parties, anyone with access to these areas may also use the content.

5.6 User acknowledges and authorizes Provider to use, alter, copy, distribute and publish content provided by User to the extent required to provide Webgate, but only to fulfil this Contract for Use or other contracts in place between User and Provider.

5.7 User is obliged to back up data they store within Webgate, by making a copy of said data. If Webgate is blocked or terminated, the data will be deleted permanently from Provider’s server. Functional defects in hardware, software or transmission technology, damage to the computing center, force majeure, natural disasters, etc. can also lead to data becoming unusable or being permanently deleted. Deleted or corrupted data can generally not be recovered.

5.8 When using the Directlink function, the user undertakes to obtain the prior consent of all recipients to enter their e-mail addresses into our systems. By creating Directlinks, the user confirms the existence of consent for all recipient addresses entered by him for this purpose. To protect our interests, we document your consent to these terms of use.

§6 Data protection

6.1 Provider requires certain information about User or the persons authorized by User, in order to provide the Webgate service.

6.2 User declares their consent to Provider using the personal data disclosed in the context of registering for and using Webgate (“Personal Data”) for the purpose of providing and managing Webgate, informing about goods and services, offering and/or delivering these, and for other purposes in this context. User shall ensure that persons authorized by them to use Webgate submit a declaration of consent for this purpose. Personal Data will only be stored to meet the original purpose of their being gathered, and deleted after this purpose has been met. This declaration of consent can be revoked vis-à-vis Provider at any time with effect for the future. User has the right to receive information about the stored data at any time, for any or no reason, and to have these data blocked, deleted or corrected.

6.3 The separately issued data privacy statement applies without restriction and becomes a component part of this Contract for Use by way of reference.

§7 Liability

7.1 Provider provides Webgate “as viewed”, “with all errors” and “as available”. It does not guarantee that the information made available is correct or up to date. User acknowledges that computer and telecommunication systems cannot be created without faults, and that this means that there can on occasion be times during which these systems cannot be used. Provider does not guarantee that Webgate will run without interruption, reliably and without faults. Provider does not offer any explicit guarantees, warrantees or assurances, and it rules out any implied guarantees, including guarantees of merchantability, suitability for any given purpose, expert execution or the non-violation of third-party rights.

7.2 The respective third parties are responsible for the content and activities of third parties, in particular also content that refers to third-party websites through links. Such content and activities are not attributable to Provider, nor do they reflect Provider’s opinion.

7.3 Provider is only liable to the extent that Provider, its authorized representatives and/or its vicarious agents acted with intent or gross negligence. This does not apply in as much as main performance obligations of this Contract are breached. Main performance obligations are to be understood as obligations that the Contract has to grant User, in accordance with the purpose of this Contract, or that the proper execution of the Contract enables the fulfilment of, and which User can trust will be upheld.

7.4 Provider, its authorized representatives and vicarious agents shall only be liable for foreseeable, typical losses in the event of slight negligence. In such case there shall be no liability for loss of profits or for indirect damage in the event of financial loss.

7.5 Any strict liability on the part of Provider and the above-mentioned parties provided for by law, such as a product or guarantee liability, shall remain unaffected by items 7.2-7.4. The same applies for a liability in the event of damage to body, life or health.

The above items 7.1-7.5 encompass all contractual and non-contractual claims resulting from this Contract and/or the use of Webgate.

§8 Final provisions

8.1 Only the laws of the Federal Republic of Germany apply, under exclusion of international private law and UN sales law. The sole legal venue for any disputes arising out of this Contract for Use or pertaining to its effectiveness is Munich District Court 1 (Landgericht München I).

8.2 Rescissions of, alterations and amendments to this Contract for Use must be made in writing. Any oral agreements, including any oral agreement on the revocation of the written-form requirement, are null and void.

8.3 Should a provision of this Contract for Use breach the law or for any other reason be invalid or lead to commercially unacceptable results, this shall not affect the remainder of this Contract for Use. The invalid or unenforceable provision will be replaced by a provision that comes as close as legally possible to what the Parties would have agreed upon if they had considered the invalidity or unenforceability of the matter in question in advance, in view of the purpose of this Contract for Use. Gaps in this Contract are to be closed in the same way.