Standard Terms of Service for the use of
of Sourcefabric GmbH, Prinzessinnenstrasse 20, 10969 Berlin, Germany
Registered at Charlottenburg Local Court, Commercial Register no. HRB 149568B
Directors: Sava Tatić
Last update: 04/26/2017
1.1 The following conditions (the „Terms“) apply to the use of Sourcefabric’s “Live Blog” service (the “Product”) by Sourcefabric. Sourcefabric will host and make available the Product for the Customer and use its best efforts to make the Product a working tool for the Customer. Hosting will take place on third party servers operated by Hetzner and Amazon S3.
1.2 The Product will be made available to the Customer as described on the Live Blog website www.liveblog.pro.
1.3 Further services, such as development – or customizing services, are not covered by these Terms, but can be agreed on separately.
1.4 Sourcefabric does not offer its services to consumers within the meaning of section 13 of the German Civil Code.
2. Subject Matter
2.1 Sourcefabric will make available the Product to the Customer via the Internet. The Product will be hosted and managed by Sourcefabric either on servers operated by Sourcefabric or a third party on behalf of Sourcefabric. Sourcefabric will make the Product available at the interface between the systems of the server operator and the internet (“Handover Point”), subject to any restrictions with regard to availability or other restrictions caused by the server operator. Sourcefabric will make sure that, where applicable, the Customer is informed about any such restrictions as soon as possible.
2.2 The Product can be accessed by the Customer via his user account. Sourcefabric will set up such user account and present the Customer with the initial password via email. The initial access enables the Customer to use the functionalities of the Product according to the agreed subscription level.
2.3 Sourcefabric will provide regular updates and upgrades for the Product in form of „major releases“ (new features and other substantial changes to the Product) or „minor releases“ (bugfixes, improvements etc.):
2.3.1 Minor releases are installed by Sourcefabric and have to be used by the Customer.
2.3.2 With regard to major releases, the following applies: If the Customer does not want to use any such updates or upgrades, he will notify Sourcefabric accordingly via email upon release of the respective update or upgrade. Sourcefabric reserves the right to discontinue its support services for old versions of the Product at any time. The Customer will be informed about such discontinuation in due time.
2.4 The Product makes use of third party software services not developed by Sourcefabric. Sourcefabric will inform the Customer of such third party software and the respective license information in due form.
3.1 Sourcefabric grants an availability of the Product of an average of 99.0% per year, but in no case more than a third party server operator, if applicable. The time necessary for installing updates, upgrades, new releases and/or other modifications is deducted from the availability before calculating the average availability. For the purpose of these Terms, availability means the time during which the Customer had uninterrupted access to the Product .
3.2 Sourcefabric hereby informs the Customer that restrictions or interferences of the services provided under these Terms may occur that are out of Sourcefabric’s sphere of influence. This includes in particular, but not limited to the following, actions by third parties, technical conditions of the Internet not open to influence by Sourcefabric, as well as force majeure. The Customer’s hard- and software or his technical infrastructure may also influence the services provided by Sourcefabric. Should the circumstances described above influence availability or functionality of the services, this shall not be considered a breach of this Agreement.
3.3 The Customer is obliged to report outages, disturbances or interferences immediately and as accurate as possible to Sourcefabric. If the Customer fails to provide such record, § 536 c BGB applies accordingly.
4. Obligations of the Customer
4.1 If necessary, the Customer is obliged to contribute to the services agreed on and provided by Sourcefabric, where necessary. The consequences of faulty or incomplete information shall be borne the Customer.
4.2 The Customer will back up data and information he processes by himself, including data and information processed on IT-Systems under Sourcefabric’s responsibility.
4.3 The Customer is obliged not to make content available via Sourcefabric’s systems, that is offensive or otherwise unlawful, be that absolute or in relation to a single third party. The Customer is the processor of personal data or information and has to make sure that this data is processed lawfully at all times.
4.4 The Customer is responsible for all processed data and content he makes available, including potentially necessary rights of use. Sourcefabric takes no notice of and does not examine the Customer’s content in any way whatsoever.
4.5. If and insofar as the Customer does not perform his obligations according to this section 4, Sourcefabric is not obliged to perform its contractual duties. In that case, Sourcefabric reserves the right to block the Customer’s access to the Product, if it is necessary to prevent severe damage. If the Customer is responsible for his violation of duty and Sourcefabric suffers damage, the Customer has to recompense for the loss.
4.6. If Sourcefabric is made liable by third parties, including the Customer’s employees, because of a claimed action or forbearance by the Customer, the Customer is obliged to indemnify Sourcefabric against all liability and any costs, including possible and actual legal fees (according to statutory law), if such claimed action or forbearance was incurred culpably by the Customer. As far as it is legally possible, Sourcefabric will inform the Customer about the claims and give him the possibility to defend himself. Simultaneously, the Customer will provide all the information available to him about the matter giving rise to the claim. Any further claims for damages remain unaffected.
5. Sourcefabric Customer Support/Service Level Agreement
5.1. Sourcefabric offers support for any questions relating to the functionality and/or operation of Live Blog as well as for any malfunctions of Live Blog that might occur. The support will be provided via a ticket system. The support staff will be available as listed on the product page.
5.2. Upon request of the Customer, support may also be performed outside of these Hours of Availability and/or by telephone on the basis of separate individual agreements.
5.3. Maintenance measures shall only be carried out between Monday and Friday during the hours from 23:00 h and 6:00 h am CET/CEST. During weekends, maintenance measures can take place during the hours from 23:00 h to 6:00 h CET/CEST. After consultation with Customer, maintenance may also be carried out outside of these time brackets. A monthly upper limit of 8 hours for such maintenance work shall not be exceeded. As far as possible, Customer will always be given appropriate notice before any maintenance work.
6. Fees and Payment
6.1 The Customer will pay a monthly or annual fee as agreed between the Parties. If not explicitly stated otherwise, prices are exclusive of value added tax. Payments are due immediately upon receipt of the invoice without any deduction.
6.2 The first invoice will be sent to the Customer on the first day of the Initial Term (cp Section 7.1) and may include a fee deduction as stipulated on the website. Further invoices will be sent at the beginning of each Renewal Period.
6.3 Sourcefabric is authorized to adjust prices according to the general price development after expiration of the Initial Term (cp. Section 7.1). If the raise is higher than 5%, the Customer has the right to terminate the Agreement with a notice period of five working days. Termination must be declared within a period of 14 days after the announcement of the raise.
6.4 If payment is due for a period of more than 35 days, Sourcefabric reserves the right to stop the provision of its services or to block the Customer’s access to the Product. If partial amounts of a claim are disputed, the undisputed parts have to be paid when due.
6.5 Offsetting shall only be allowed with legally established or undisputed claims that originate from the same legal relationship and arise from a claim entitling the counterclaim’s creditor to a right of retention or a right to withhold performance.
7. Term and Termination
7.1 This Agreement becomes effective when accepted by the Customer and once the Live Blog instance has been set-up and the access details have been sent to the Customer. The term will start upon completion of the Free Trial Period (“Free Trial Period”) and be valid for one year or one month (the “Initial Term”). It will renew automatically for the same period as the Initial Term (“Renewal Period”) if it is not terminated by notice either by email to “firstname.lastname@example.org” or by written letter.
7.2 During the Free Trial Period, termination is possible at any moment. If no termination notice has been issued before the official end of the Free Trial Period, the Initial Term will start automatically and the first invoice will be issued.
7.3 If the Initial Term and Renewal Period is one month, the notice period for contract termination is seven (7) days before the end of the term.
7.4 If the Initial Term and Renewal Period is is one year, the notice period for contract termination is three (3) months before the end of the term.
7.5 The right to extraordinary termination for cause remains unaffected.
7.6 The Customer’s right to use the Product shall lapse when notice of termination of the contract enters into effect. In such case, Customer’s access to the Product will be blocked, and the Customer shall no longer have access to their account or to any stored Application Data.
7.7 In case of a full or partial termination of these Terms, Sourcefabric is obliged to hand over, or destroy, if requested so by the Customer, all data, documents and materials containing business, organizational or technical data or information about the Customer or his customers, unless there is a legal duty to preserve such material or the material is Sourcefabric’s intellectual property, or necessary for further liquidation of the contract.
8.1 Sourcefabric is liable for damage that is caused willfully or with gross negligence, or that is the consequence of the absence of a guaranteed condition of the services, or that is caused by a culpable breach of an essential contractual obligation (“Cardinal Duty”, cp. section 8.2), or that is the consequence of a culpable infringement of health, body or life, or under the legal requirements that are provided for by the German “Produkthaftungsgesetz” (Product Liability Law).
8.2 “Cardinal Duties” are contractual obligations, without the fulfilment of which due performance of the contract would not be possible, in the fulfilment of which the contractual partner may trust, and whose infringement on the other side endangers the achievement of the purpose of the contract.
8.3 Sourcefabric’s liability is restricted to damage that is typically foreseeable in connection with contracts such as the one between Sourcefabric and the Customer, to the extent the damage is based on slight negligence only and does not affect health, body or life.
8.4 In case of an interruption or interference or other damage causing occurrences that result from telecommunications services by Sourcefabric or a third party Sourcefabric is responsible for, Sourcefabric is only liable up to the amount that can be claimed within a right of recourse against the telecommunications services provider. Sourcefabric is not liable for the operability of the connection cables leading to the servers that are subject of this Agreement, or in case of a power outage, or in case of server outages that are not in the sphere of influence of Sourcefabric.
8.5 The Customer is not entitled to any claims for lost profits.
8.6 Sourcefabric’s liability for a loss of data is limited to typical expenditures required for restoration that would have not been avoidable with regular and due creation of backup copies.
8.7 Otherwise, Sourcefabric’s or its vicarious agent’s liability, or the liability of the persons employed in the performance of Sourcefabric’s obligations under this Agreement, for whatever reason is excluded.
9. Subcontractors, Products of Third Party Suppliers
Sourcefabric may use subcontractors to perform its services without further notice or approval.
10.1 Sourcefabric has the right to reference the Customer and the services provided to the Customer on its own website and for advertising purposes. For this purpose, Sourcefabric has the right to use the logo and firm (abbreviated as the case may be) of the Customer. Furthermore, Sourcefabric has the right to publish a press release about the agreement with the Customer.
10.2 Sourcefabric reserves the rights to make screenshots of the web-presence of the Customer created with the Product and use them as references. Customer makes sure to inform Sourcefabric about any third party rights that might prevent such use.
11. Data Privacy
11.1 If Sourcefabric collects, processes, or uses personal data or information of the Customer during the initiation, conclusion or performance of these Terms, Sourcefabric will comply with applicable data protection and privacy laws and only within the scope of this Agreement.
11.2 The Customer is not allowed to process personal data or information on IT-Systems Sourcefabric is technically responsible for. If it cannot be ruled out that Sourcefabric comes in touch with personal data or information the Customer is responsible for during the performance of the services ordered by the Customer, an agreement over a commissioned data processing must be concluded.
The Customer obliges not to employ, recruit or entice away or try to recruit or entice away any person employed or otherwise engaged by Sourcefabric.
13. Final provisions
13.1 Any changes and additions to this document require text form (letter, email or fax) Text form shall also apply to any amendments to this provision 13.1.
13.2 This Agreement shall be governed by the laws of the Federal Republic of Germany. The application of German and European international private law and UN Convention on Contracts for the International Sale of Goods are hereby excluded.
13.3 Exclusive place of jurisdiction is Berlin.
13.4 If any individual provisions of this contract, including this provision, are wholly or partly ineffective, the effectiveness of the other provisions or parts of such provisions shall remain unaffected. The respective statutory provisions shall apply in place of the ineffective or lacking provisions.