Terms of Service
§ 1 Scope
These terms of service ("ToS") by airfocus GmbH ("airfocus") apply for contracts between airfocus and its customers as business persons (section 14 German Civil Code, Bürgerliches Gesetzbuch (BGB)) ("Customer") regarding the use of the 'airfocus' Software and IT tool (Software-as-a-Service) ("Software" or "Tool") as described in detail on https://airfocus.com/ ("Website") and related services (the Software and related services jointly the "Service(s)"). The provided scope of the Services depends on the package the Customer subscribes for. The Customer shall be fully responsible for the compliance with these ToS by its respective users using the Services.
§ 2 Availability; changes to the ToS
The ToS are available on the Website (https://airfocus.com/terms/) at any time. airfocus is entitled to change these ToS at any time with a reasonable notice period and with effect for the future. In that case the Customer will be notified about the changes via email. Further, the Customer obtains an extraordinary right of termination of the agreement with airfocus. The changes shall be deemed approved, if the Customer does not object in writing to the changes within the reasonable notice period and has been notified of such effect in the respective amendment notification.
§ 3 Services provided by airfocus; Agreement
The use of the Software requires the successful registration as well as the set-up of a user administration account ("Account") via the Website. The Customer must fill in all required fields in the sign-up form truthfully and completely. By clicking on the respective sign-up-button the Customer submits an offer on the conclusion of an agreement to use the Tool (and related Services) and agrees to these ToS valid at the time of registration. airfocus will send a confirmation email to the customer in order to verify the customer’s email address. airfocus accepts this offer in writing or by providing the Service, and therewith, the agreement between airfocus and the Customer to use the Tool subject to the ToS is concluded (the “Agreement”).
airfocus makes the Tool, not the source code, available on its own servers or on the server of an engaged data processor ("Data Centre"). The Software is kept available via this Data Centre along with the data that is recorded, elevated, used and held, saved onto the open platform and kept available for remote data access in the interest of intended polling. Use of the Tool will be made available to the Customer by airfocus from the router output via the Data Centre. The establishing and maintaining of the data connection between the Tool user's end device and the delivery point operated by airfocus is subject to the Customer's responsibilities. Accessing the data saved with the Tool will no longer be possible for the Customer after termination of the Agreement.
In general, access to the Tool and the stored data is possible at all times outside of the maintenance window, unless airfocus is required to carry out emergency support works or take other urgent measures in order to maintain the Tool's usability. However, the Customer acknowledges that downtimes might occur due to technical issues. Therefore, airfocus only provides for a reasonable and common service level. airfocus is not obliged to make a document or a separate instructions manual available to the Customer. airfocus will give an overview of the Tool's basic functions and will give the Customer access to the relevant information, if necessary.
§ 4 Intellectual Property Rights
Customer acknowledges that all copyrights, trademarks, and other intellectual property rights in and relating to the Services are owned by or licensed to airfocus.
§ 5 Rights in case of defects; Changes to and development of the Tool
The Software made available to Customer shall essentially correspond to the product description as described on the Website. Warranty claims do not exist in the case of an insignificant deviation from an agreed or presumed quality and in the case of only insignificant impairment of usability.
As a matter of principle, the statutory provisions for warranty in rental contracts shall apply. Sec. 536a para. 2 BGB is excluded. Also excluded is the application of Sec. 536a para. 1 BGB insofar as such provision causes liability regardless of fault and not due to any guarantee. In all other respects, the provisions of service contract law (section 611 et seq. BGB) shall apply.
According to § 2 above, airfocus is entitled to change the design and to adapt the structure and functions of the Tool and will inform the Customer of any significant changes. airfocus is entitled to decline the use of the Tool and the saved data once a week for a maximum of two (2) hours, in order to be able to bring changes to the tool or to carry out other maintenance activities. airfocus will try to keep the limitations to a minimum, for example by carrying out the works at night. Customer notes that airfocus may not be responsible for any interruptions of the Tool caused by the engaged third party providers (as named in the data processing agreement). Any binding statutory rights of Customer related to rights in case of defects shall remain unaffected.
In the event of any defects or errors relating to the Services Customer shall report such defects or errors via the chat function in the Software or via email to contact@airfocus.com and include sufficient details relating to the defect in such reporting.
§ 6 User Generated Content; Grant of Rights
When using the Tool and Services, the Customer (or its users) may provide or upload content in or as part of the Services such as texts, photos, graphics, videos ("Content"). airfocus will use the Content only to the extent necessary to perform the Service set out in Sec. 3. When providing any Content in the Services, the Customer grants to airfocus for the term of the Agreement a world-wide, non-exclusive, royalty-free, sub-licensable and transferable license to use the Content in order to perform Services as set out in Sec. 3. If such Content is provided to airfocus via feedback on the features of the Services such license according to the foregoing sentence shall be unlimited in time and extended to the scope for any use to improve the Services. The Customer bears responsibility for ensuring that the Content entered complies with the relevant laws and regulations, and, importantly, does not infringe any third party's rights.
§ 7 Customer's warranty
The Customer hereby represents and warrants that, as applicable, (i) it owns such Content provided, holds the necessary rights or is otherwise authorized to use such Content for the purpose of the Service, and (ii) such Content does not infringe any third party rights (e.g. copyrights, trademarks, other intellectual property rights) or infringes such third party's privacy. Should airfocus be notified that a profile contains unlawful Content, airfocus is legally entitled to block this profile temporarily or permanently, airfocus will inform the Customer of the third party's complaint, allow the Customer (or its user) to justify the related statement and forward the justification to the third party if reasonable.
§ 8 Prohibited use
The Customer agrees not to upload, transmit, support, incite, promote or otherwise make available any Content that is or could reasonably be viewed as unlawful, racist, hostile, violent, discriminatory (including relating to race, religion, sex, sexual orientation, age, disability, ancestry or national origin), harmful, harassing, defamatory, vulgar, obscene or otherwise objectionable or which contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. airfocus has the right to remove unlawfully uploaded content.
In particular, Customer (or users) may not
use the Services for any other purpose than provided for in these ToS, in particular, not offer the Services to unauthorized third parties or sell, sub-license, lease, transfer or otherwise commercially exploit the Software;
interfere with or disrupt the Services or servers or networks;
remove or amend any proprietary notices or other ownership information from the Service;
collect or harvest any personally identifiable information, including account names, from the Service;
decompile, reverse engineer, disassemble or hack any of the Service or defeat or overcome any of airfocus' (or engaged third party providers') encryption technologies or security measures;
conduct any action that restricts or inhibits anyone's use or enjoyment of the Service or may harm or offend or expose airfocus or its users to liability, in particular refrain from use that can disable, overburden, damage or impair the Service (or the ability to engage in real time activities via the Service) or use of robots, spiders or other automatic device, process or mean (to access the Service);
use any device, software or routine to interfere with the proper working of the Service, in particular, not use any viruses, trojan horses, worms, logic bombs or anything malicious or technologically harmful;
not perform attempts for unauthorised access, interference, damage or disrupt, copying, distributing or disclosing any parts of the Service;
transmit or procure of any junk mail, chain letter, spam, or any other similar solicitation;
harm minors by exposure of inappropriate content;
impersonate airfocus, airfocus' employees or other users of the Service or their employees;
pursue any threatening, fraudulent, harmful purpose or activity; and/or
use the Services in any other way not permitted by these ToS.
In the event of a violation of the above by the Customer airfocus shall be entitled to deny access to the Services (temporarily) and - if reasonable - immediately terminate the Agreement.
§ 9 Customer account and information
Depending on the package the Customer has chosen for the use of the Tool, Customer may set up additional user accounts for 'editor(s)' via the admin Account and control and edit the admin rights relating to such additional user accounts. The Customer shall be solely responsible for such Account and additional user accounts (if any) according to the details set out in these ToS.
If there are any changes to the Customer's relevant information, e.g. billing or email address, the Customer is obliged to inform airfocus of the new data immediately in writing, for example via changing the settings in the Account, provided this is relevant to the fulfillment of the Agreement.
§ 10 Back-up rights and obligations
airfocus will back up the data, including Content, created by or saved onto the Tool by the Customer on a regular basis, unless otherwise agreed between airfocus and the Customer, at least once per calendar day. The backup resulting from this data will be deleted after a period of 14 days.
Apart from the above, airfocus is entitled to regularly make backups (backup copies) to comply with its legal obligations (including retention periods), secure an optimal running of the Tool or in case airfocus has a legitimate interest in the backup / archiving of contents, for example if a third party has published claims against airfocus or users airfocus is entitled to keep the relevant backup / archived content for such purposes, in general until the legal ending of these proceedings.
§ 11 Liability of airfocus
For services by airfocus free of charge the following shall apply: To the extent that airfocus provides services to you free of charge, airfocus shall only be liable in accordance with the statutory provisions, provided that claims for damages are based on willful intent (Vorsatz) or gross negligence (große Fahrlässigkeit).
For services by airfocus against payment the following shall apply: To the extent that airfocus provides services to you against payment, airfocus shall only be liable for any loss or damages caused by willful intent (Vorsatz) or gross negligence (große Fahrlässigkeit). airfocus shall only be liable for slight negligence, if an essential contractual obligation is violated, which is indispensable for the duly execution of the contract and thereby jeopardizes the achievement of the contract purpose.
The limitation of liability in the above mentioned paragraphs of this Section does not apply to claims for damages that result from injury to life, body or health, in cases of warranting for the condition of a product or service, under the Product Liability Act and in cases of fraudulent concealment of defects by airfocus.
The limitation and/or restriction of airfocus' liability in this Section shall equally apply to the personal liability of its legal representatives, officers, employees, assistants in performance and agents.
§ 12 Trial plan / subscription plans / remuneration
The Customer may subscribe for a free, time-limited trial period (“Trial Plan”) or choose between one of the following fee-based subscription plans:
Core
Scale
Enterprise
The respective Service features provided under each subscription plan can be found under https://airfocus.com/pricing/. The features displayed at the time of the customer’s subscription are deemed to be agreed between the parties. The remuneration for each subscription plan is determined by the current price list at the time of the customer’s subscription displayed under https://airfocus.com/pricing/ ("Price List"). The remuneration for the Enterprise subscription plan is subject to an individual agreement between the parties. All prices are excluding VAT.
The Customer may switch his Account from the free Trial Plan to any of the fee-based subscription plans at any time (even after termination of the Trial Plan). Unless the Customer has subscribed to the Enterprise subscription plan or another custom subscription plan, the Customer may also switch between all fee-based subscription plans at any time. In case of a downgrade in the subscription plan, the remuneration already paid by the Customer will be credited to the Customer’s Account. The Customer is not entitled to a refund of any pre-paid fees.
§ 13 Billing terms / payments
The Customer may choose between monthly and annual billing (“Billing Term”). Deviating Billing Terms are subject to approval by airfocus.
airfocus uses Stripe https://stripe.com/ as a third party payment processor ("Payment Processor(s)") to bill the Customer through a payment account linked to its Account ("Billing Account") for use of the paid Services. The processing of payments may be subject to the terms and conditions as well as the privacy policies of the Payment Processors in addition to these ToS. airfocus is not responsible for any defects related to or services by the Payment Processors. By choosing to use paid Services, the Customer agrees to pay airfocus through the Payment Processors, all charges at the prices then in effect for any use of such paid Services in accordance with the applicable payment terms and Customer authorizes airfocus, through the Payment Processors, to charge the chosen payment provider ("Payment Method"). Customer agrees to make payments using that selected Payment Method. On rare occasions, the Customer may be billed an amount up to the Customer's current balance in an effort to verify the authenticity of the Customer's account information. This process ensures that Customers without a payment history are not subjected to additional scrutiny. Customers outside of the European Union (EU) are entirely responsible for the payment of all taxes. For specific pricing policies, please refer to the current Price List. Monthly, annual and renewal fees will be billed at the rate agreed between the parties at the time of initial subscription.
Customer must provide current, complete and accurate information for its Billing Account, must promptly update all information to keep them current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and promptly notify airfocus or our Payment Processors if the payment method is canceled (for example for loss or theft) or if Customer becomes aware of a potential breach of security, such as the unauthorized disclosure or use of user name or password. Changes to such information can be made under 'Billing settings' in the Account of the Customer. If Customer fails to provide any of the foregoing information, Customer agrees that airfocus may continue charging Customer for any use of paid services under the Billing Account unless Customer has terminated the paid services as set forth herein.
Payments not made within ten (10) days of invoicing will be deemed in arrears. For accounts in arrears, if any amount is more than ten (10) days overdue, without the requirement of providing notice of such arrears, airfocus may suspend service to such account and bring legal action to collect the full amount due, including any attorneys' fees and costs. If a Customer is past due on their balance, airfocus may send up to three (3) email notifications within a fifteen (15) day period before suspending the respective Account.
§ 14 Service Term; Termination
The Trial Plan terminates automatically after two weeks, if not agreed otherwise.
In case the Customer has subscribed for the Enterprise subscription plan or any other custom subscription plan, the Initial Service Term is defined by airfocus and the Customer individually.
For all other fee-based subscription plans (e.g. Core, Scale, Enterprise) the Initial Service Term depends on the subscription plan chosen by the Customer as set out on the Website.
Upon expiry of the Initial Service Term the Agreement will automatically renew for the same duration as the Initial Service Term (the Initial Service Term and a renewed term each a “Service Term”), unless terminated pursuant to the terms below.
In case of the Enterprise subscription plan, the Agreement can be terminated by each party with a notice period of three months to the end of the then current Service Term.
For all other fee-based subscription plans, the Agreement can be terminated by each party with a notice period of 14 days to the end of the then current Service Term respectively.
The right to termination for cause remains unaffected. The Customer may terminate the Agreement via the Customer Account by using the in-app chat. After the termination has come into effect, the Customer's Account will be deactivated and the Customer will no longer be able to log into the Website and/or have any access to the Services. After the Agreement has ended, if the Customer has not already paid all applicable fees for the then-current Service Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
§ 15 Confidentiality
Each party agrees and undertakes, with respect to any information received by the respective other party marked as 'confidential' or appearing confidential ("Confidential Information"):
to examine and use all Confidential Information only for the purpose of the Services, and not to use the Confidential Information for its own benefit or to compete or obtain advantage vis-à-vis each party's in any commercial activity or transaction which may adversely affect such party;
not to disclose Confidential Information to any third party, whether in whole or in part either directly or indirectly in any shape or form, except to each party's employees or representatives and/or other users of the Service as is reasonably required in connection with using the Service;
not to copy, reproduce or reduce to writing any part of the Confidential Information except as may be reasonably necessary pursuant to the first bullet point above and to ensure that any copies, reproductions or reductions to writing so made shall be the property of the respective party.
This obligation shall not apply to any information that is or becomes generally known to the public through no fault or breach of these ToS or any other confidentiality obligation applicable; is legally known to a party at the time of disclosure without an obligation of confidentiality; a party rightfully obtains from a third party without restriction on use or disclosure and without a breach of a confidentiality obligation by such third party; or in case the party is being ordered by a competent authority or court to disclose the information.
Each party is obligated to inform the respective other party immediately if such party becomes aware of any violation of this Section.
Nothing in these ToS grant any rights to any party under any patent, copyright, trade secret or other intellectual property right nor will these ToS grant any rights in or to the Confidential Information except as expressly set forth in these ToS.
§ 16 References; Feedback
Customer agrees that airfocus may name the Customer (or company and use company's logo) on the Website and in marketing as a user of the Services, and Customer hereby grants airfocus a non-exclusive, royalty-free license to do so on the Website or in any media now or later developed in connection with any marketing, promotion or advertising of the Website or the Services, and if Customer provides suggestions, ideas, feedback, or recommendations to airfocus regarding the Website or the Services ("Feedback"), airfocus will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback at its own discretion.
§ 17 Final provisions
If these ToS refer to written form text form according to section 126b BGB (for example via email) shall be sufficient.
This agreement and its interpretation are subject to the jurisdiction of the Federal Republic of Germany, to the exclusion of the Convention of the United Nations on Contracts for the International Sale of Goods (CISG). Any statutory provisions on the limitation of the choice of law as well as the applicability of mandatory laws especially by the state, in which a consumer has his usual place of residence, shall not be affected.
Place of jurisdiction for each and any legal dispute arising from or being in connection with this contract shall be the registered office of airfocus, provided Customer is a business person and to the extent permitted by and compatible with the law.
In case individual provisions in these ToS, including this provision, are or become invalid, or in case of gaps arising in these ToS, the validity of all other provisions will not be deemed affected thereby.