These terms of service by airfocus GmbH for the use of the airfocus tool (as applicable from time to time "ToS") apply for contracts between airfocus GmbH ("airfocus") and its customers as business persons (section 14 German Civil Code, Bürgerliches Gesetzbuch (BGB)) ("Customer") regarding the use of the 'airfocus' IT tool (software-as-a-service) ("Software" or "Tool") as described in detail on https://airfocus.com/ ("Website") and 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.
Customer shall support airfocus in respect to the Services within reasonable scope.
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. After the publication of an amendment notice, the Customer has an extraordinary right of termination of the agreement based in these ToS. 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.
The use of the Software requires the successful registration as well as the set-up of a user administration account ("Account") via the Website. 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 ToU valid at the time of registration. airfocus accepts this offer in writing or by providing the Service.
There is no legal entitlement for using the Service provided. airfocus has the right to stop or deny any registration without giving any reasons.
airfocus makes the Tool 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 falls under the Customer's responsibilities. Accessing the data saved onto the Tool will no longer be possible for the Customer after termination of the agreement.
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. The object or source code of the Software will not be disclosed.
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.
Customer acknowledges that all copyrights, trademarks, and other intellectual property rights in and relating to the Services are owned by or licensed to airfocus.
The Software made available to Customer shall essentially correspond to the product description according to this agreement. 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. The provisions set forth in section 536b BGB (Kenntnis des Mieters vom Mangel bei Vertragsschluss oder Annahme) and section 536c BGB (Während der Mietzeit auftretende Mängel; Mängelanzeige durch den Vermieter) shall apply. However, the provisions set forth in section 536a para. 2 BGB (Selbstbeseitigungsrecht des Mieters) are excluded. Also excluded is the application of Section 536a para. 1 BGB (Schadensersatzpflicht des Vermieters) 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. If airfocus is obliged to remove any errors / shortcomings of the Tool and to bring about / maintain the contractually elaborated nature of the Tool, airfocus is entitled to choose the method in which it removes said shortcomings. 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 email@example.com and include sufficient details relating to the defect in such reporting.
When using the Tool and Services Customer (or its users) may provide or upload content in or as part of the Services such as texts, photos, graphics, etc. ("Content"). In general, all copyrights, trademarks, and other intellectual property rights in and relating to such Content shall be owned by or licensed by Customer. When providing any Content in the Services Customer grants to airfocus for the term of the agreement a world-wide, non-exclusive, royalty-free, sub-licensable and transferable license to use, modify, publicly perform, publicly display, reproduce, and distribute Content on and through the Services. 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.
Customer bears responsibility for ensuring that the Content entered comply with the relevant laws and regulations, and, importantly, do not infringe any third party's rights.
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 (copyrights, trademarks, other intellectual property rights) or infringes such third party's privacy.
Should airfocus be notified that a profile contains unlawful content (such as texts, photos, videos etc.), 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.
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 uploaded content, if airfocus decides in its sole discretion that it results in or from a breach of law or any part of these ToS.
In particular, Customer (or users) may not
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.
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. 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, 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.
The Customer is obliged to regularly save / backup data, including Content, created by or saved onto the Tool itself, either analogically or digitally.
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.
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 (grobe 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 (grobe 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.
The remuneration for the Services is determined by the current price list at the moment of entering into the agreement based on these ToS as displayed on the Website https://airfocus.com/ ("Price List"). All prices are excluding VAT.
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 this agreement. 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. All invoices are denominated, and Customer must pay as set out in the Price List, currently in U.S. Dollars only. Customer shall be obliged to pay monthly on or about the first day of each month, if not otherwise agreed in writing with airfocus. 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 fees and renewal fees will be billed at the rate agreed between the parties at the time of successful 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 (2) email notifications within a fifteen (15) day period before suspending the respective Account.]
The agreement based on the ToS is entered into for an indeterminate period of time and can be terminated by each party by the end of the month with a notice period of 14 days. The right to termination for cause remains unaffected. Any termination shall be in text form. The Customer may cancel the Services at any time by logging into the Account. After the cancellation being effective, the customer's Account will be inactivated and the Customer will no longer be able to log into the Website and/or have any access to the Services.
Each party agrees and undertakes, with respect to any information received by the respective other party marked as 'confidential' or appearing confidential ("Confidential Information"):
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; or 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.
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.
Customer agrees that airfocus may identify the Customer (or company and use company's logo) on the Website and in marketing materials to identify Customer (or company and use company's logo) 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 as airfocus sees fit, without any obligation or restriction of any kind to Customer.
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. Instead of the ineffective provision or for replenishment of gaps an adequate provision will apply. In case this may constitute an unreasonable hardship for one of the contracting parties the contract shall become ineffective as a whole.