General cloud service terms and conditions
These Terms were last modified on March 13, 2020. Effective from March 24, 2020.
TERMS AND CONDITIONS
Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions, and the Provider will ask the Customer for the Customer's express acceptance of these Terms and Conditions at the time the Customer is initially registering for any services and before starting to provide any such services to the Customer.
By using or accessing any of the services, the Customer agrees to be bound to these Terms and Conditions except if a separate agreement explicitly overriding these Terms and Conditions has been individually agreed in writing between the Customer and the Provider. If the Customer is using the Hosted Services for an organization, the Customer is agreeing to this Agreement on behalf of that organization, and represents and warrants that it has the full power and authority to do so.
Except to the extent expressly provided otherwise, in these Terms and Conditions:
- "Account" means an account enabling a person to access and use the Hosted Services, including user accounts and any sub-accounts, administrator accounts, reseller accounts or affiliate accounts;
- "Agreement" means a contract made under these Terms and Conditions between the Provider and the Customer;
- "Bandwidth Services" means the ingress and egress traffic measured in GBs that is passed through the Provider’s content distribution network (“CDN”) as required to deliver Customer’s content via the Hosted Services to end-users, or more generally, to serve any Internet requests for Customer’s content through the Provider’s Platform. Bandwidth Services are billed based on the amount of GBs transferred via the Provider’s Platform.
- "Browser"refers to a program used to provide interactive, graphical access to sites on the World Wide Web;
- "Business Hours" means the hours of 09:00 to 17:00 EET on any weekday other than a bank or public holiday in Estonia;
- "Charges" means the standard fees as specified in https://mediahub.xvid.com/pricing/ from time to time, or alternatively any other deviant amounts if explicitly agreed between the parties in writing; if not stated otherwise, the fees are typically composed of a fixed monthly service subscription fee that is always due each month during the Term of the Agreement and variable overage usage fees based on the Customer’s actual per-GB consumption of Transcoding, Storage and Bandwidth Services within the respective billing period;
- "Customer" means the person or entity identified as such in the Services Order Form;
- "Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
- "Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement, but excluding all Personal Data with respect to which the Provider is a Data Controller;
- "Data Controller" means an entity that determines the purposes and means of the processing of Personal Data;
- "Data Processor" means an entity that processes Personal Data on behalf of a Data Controller;
- "Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
- "Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
- "Effective Date" means following the Customer completing and submitting the online Services Order Form published by the Provider on the Provider's Website, the date upon which the Provider sends to the Customer an order confirmation;
- "EEA" means, for the purposes of this Agreement, the European Economic Area, United Kingdom and Switzerland;
- "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the Internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
- "Gigabyte (GB)" means a measure of data storage capacity equal to 1.000.000.000 bytes;
- "Hosted Services" means the Xvid MediaHub video protection and hosting services at https://mediahub.xvid.com. Xvid MediaHub provides mainly Transcoding Services, Storage Services and Bandwidth Services to facilitate the conversion, protection and distribution of digital video (together also with other related or supporting services), which will be made available by the Provider to each Customer as a service via the Internet in accordance with these Terms and Conditions;
- "Internet" means the global network of computers using the TCP/IP protocol for communication;
- "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
- "Personal Data" has the meaning given to it in the Data Protection Laws;"Personal Data" has the meaning given to it in the Data Protection Laws;
- "Personal Data Breach" means any breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data processed by Provider or a Sub-processor;
- "Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, any third-party sub-services employed to render the Hosted Services and the computer hardware and network on which that application, database, system and server software is installed;
- "Provider" means Xvid Services OÜ, a company incorporated in Estonia (registration number 12405759) having its registered office at Narva mnt. 5, 10117 Tallinn;
- "Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
- "Services Order Form" means an online order form published by the Provider and completed and submitted by the Customer incorporating these Terms and Conditions by reference;
- "Standard Contractual Clauses" means the contractual language approved by 2010/87/EU Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (notified under document C(2010) 593);
- "Storage Services" means disk space provisioned by Provider on its Platform to enable the Customer to archive content like video files, or generally any data that Customer uploads for storage or that results as output from using the Transcoding Service. The amount of data stored is determined and billed based on the daily amount of GBs stored in the Customer’s account throughout each day of a billing period that is then averaged based on the number of days in the billing period to yield an average storage consumption;
- "Sub-processor" means any Data Processor engaged by Provider to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement;
- "Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
- "Supported Web Browser" means the current release from time to time of the major Browsers Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari;
- "Term" means the term of the Agreement, commencing in accordance with Section 2.1 and ending in accordance with Section 2.2;
- "Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions as well as Appendix 1 (Specifications), Appendix 2 (Security Measures) and Appendix 3 (Acceptable Use Policy), including any amendments to that documentation from time to time;
- "Transcoding Service" refers to software and computational resources managed by Provider on its servers to process, convert or compress video files provided by Customer as a cloud-based service. The amount of data transcoded is measured and billed in units of GBs based on the size of the output video files resulting from the transcoding;
- "Website" refers to a series of interconnected Hypertext Markup Language documents capable of residing on a single web server or computer; and
- "World Wide Web" or "Web" means an information system on the Internet that allows documents to be connected to other documents by hypertext links.
- The Agreement shall come into force upon the Effective Date.
- The Agreement shall continue in force indefinitely, subject to termination in accordance with Section 16.
- Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
- Hosted Services
- The Provider hereby grants to the Customer a non-exclusive licence insofar as is needed to use the Hosted Services by means of a Supported Web Browser in accordance with the Documentation during the Term.
Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Section 3.1 is subject to the following prohibitions:
- the Customer must not sub-license its right to access and use the Hosted Services;
- the Customer must not permit any unauthorised person to access or use the Hosted Services;
- the Customer must not republish or redistribute any content or material from the Hosted Services;
- the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
- the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
- The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access credentials, to ensure that no unauthorised person may gain access to the Hosted Services using an Account. Customer is further responsible for its secure use of the Hosted Services, including protecting the security of Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Hosted Services.
The Hosted Services are available to Internet users approximately 24 hours a day, subject to planned or unplanned maintenance and network interruptions. To minimize service downtime during peak usage hours, the Provider will aim to schedule routine maintenance during the hours of lowest average usage of network and services, if possible.
The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public Internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability. As such, the Hosted Services are essentially provided on a best-effort, as is, as available basis only. However, the Provider offers the Customer tools to monitor and track the uptime of the Hosted Services in real-time at http://status.xvid.com/ in order to document and publish the Services availability level.
- The Customer must comply with Appendix 3 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with Appendix 3 (Acceptable Use Policy).
- The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
The Customer must not use the Hosted Services:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
- For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
- The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer reasonable advance written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
- Customer Data
- The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, process, adapt, alter, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its third-party service providers, including but not limited to its hosting, cloud computing, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
- The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not violate any criminal laws and will not infringe the Intellectual Property Rights or other legal rights of any person in any jurisdiction and under any applicable law.
- Support Services
- The Provider may provide the Support Services to the Customer during the Term, but shall have no obligation to do so; any such Support Services shall be subject to this Section 5.
- The Provider shall make available to the Customer an email- and/or Web-based helpdesk.
- The Provider shall provide the Support Services with reasonable skill and care.
- The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services as well as, where applicable, communicating with other Customers or exchanging feedback about the Hosted Services; and the Customer must not use the helpdesk for any other purpose.
- No assignment of Intellectual Property Rights
- Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
- The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
- All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts, as applicable, and payable by the Customer to the Provider.
- Unless otherwise determined by Provider at its sole discretion, Provider will invoice the Customer for any and all accrued Charges on the basis of one month periods starting from the Effective Date. All invoices are immediately due and payable upon receipt.
- The Provider may elect to vary any element of the Charges at its sole discretion by giving to the Customer reasonable advance written notice of the variation.
- The Customer must pay the Charges to the Provider at the end of the period to which they relate.
If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:
- charge the Customer interest on the overdue amount at the rate of 8% per annum above the respective valid discount rate of the European Central Bank (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
- claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
- At the end of each period, you acknowledge, agree and authorize the Provider to automatically bill and/or charge your credit card on file for any Charges accrued throughout the period.
- No Refunds. Because all Charges to the Provider become payable only at the end of the period after the respective Services have already been rendered and consumed by the Customer, all sales are final and the Provider will generally not give any refunds.
- Distance contracts: cancellation right
- This Section 9 applies if and only if the Customer enters into the Agreement with the Provider as a consumer - that is, as an individual acting wholly or mainly outside the Customer's trade, business, craft or profession - where the Agreement is a distance contract within the meaning of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
The Customer may withdraw an offer to enter into the Agreement with the Provider at any time; and the Customer may cancel the Agreement entered into with the Provider at any time within the period:
- beginning when the Agreement was entered into; and
- ending at the end of 14 days after the day on which the Agreement was entered into,
subject to Section 9.3. The Customer does not have to give any reason for the withdrawal or cancellation.
The Customer agrees that the Provider may begin the provision of services before the expiry of the period referred to in Section 9.2, and the Customer acknowledges that, if the Provider does begin the provision of services before the end of that period, then:
- if the services are fully performed, the Customer will lose the right to cancel referred to in Section 9.2; and
- if the services are partially performed at the time of cancellation, the Customer must pay to the Provider an amount proportional to the services supplied, including in particular all accrued usage-based fees for services that are charged based on the Customer's actual service consumption.
- In order to withdraw an offer to enter into the Agreement or cancel the Agreement on the basis described in this Section 9, the Customer must inform the Provider of the Customer's decision to withdraw or cancel (as the case may be). The Customer may inform the Provider by means of any clear statement setting out the decision. In the case of cancellation, the Customer may inform the Provider using the online cancellation form that the Provider will make available to the Customer as part of the Hosted Services. To meet the cancellation deadline, it is sufficient for the Customer to send its communication concerning the exercise of the right to cancel before the cancellation period has expired.
- Data protection
- Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement and that it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Provider to process Customer Personal Data and provide the Services pursuant to this Agreement.
The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement, the Personal Data of its end-users, meaning for example its Website visitors, its customers or any other intended recipients of Customer Data stored on or transmitted by the Hosted Services Platform, and of the following types: IP address, pseudonymous user ID or username, and email address; and the Provider shall only process the Customer Personal Data for the following purposes:
- To prevent unauthorized or fraudulent access to Customer Data according to the instructions of the Customer,
- To send transactional email notifications to end-users on behalf of and according to the instructions of the Customer,
- To personalize Customer Data according to the instructions of the Customer and keep track of end-user accesses to it,
- To trace back and identify the original recipient of personalized Customer Data and report it to the Customer according to Customer’s instructions,
- To keep track of end-users' service usage and prevent abuse according to usage limits specified by the Customer,
- To measure and monitor the Services' performance experienced by end-users, improve the performance for individual end-users according to the instructions of the Customer and report the respective performance data and achieved improvements to the Customer.
- The Provider shall only process the Customer Personal Data during the Term, subject to the other provisions of this Section 10.
- The Provider shall process Customer Personal Data only for the purposes as set out in these Terms and Conditions (including with regard to transfers of the Customer Personal Data to any place outside the EEA) or in accordance with the Customer’s documented lawful instructions. Specific instructions for the processing of Customer Personal Data may be issued by the Customer also via the application programming interface (API) of the Hosted Services as offered by the Provider. Customer acknowledges that Provider shall have a right to process Customer Personal Data in order to provide Services to Customer, fulfill its obligations under this Agreement, and for legitimate purposes relating to the operation, support and/or use of the Hosted Services such as billing, account management and technical support.
- The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
- Notwithstanding any other provision of these Terms and Conditions, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.
- The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data and to help ensure the ongoing confidentiality, integrity, and availability of the Customer Personal Data. The specific security measures applicable to Customer Personal Data, regardless of the transfer mechanism relied upon as provided by Section 10.13, are further described in Appendix 2 ("Security Measures").
Customer acknowledges that the Security Measures are subject to technical progress and development and that Provider may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 10 days in advance of any intended changes concerning the addition or replacement of any third party Sub-processor. Customer may object in writing within 5 days of such notice, provided that such objection is based on reasonable, documented grounds relating to data protection. Customer’s failure to timely respond or to document the basis of the objection will constitute Customer’s authorization of the proposed changes. In the event of a timely, reasonable and documented objection, the parties shall discuss Customer’s concerns in good faith with a view to achieving resolution. In case no acceptable resolution can be achieved, Customer may terminate the Agreement immediately by written notice to the Provider, providing that such notice must be given within the period of 10 days following the date that the Provider informed the Customer of the intended changes.
Customer agrees that this Section 10 constitutes Customer’s general written authorization for Provider to engage third party Sub-processors to process Customer Personal Data on Customer’s behalf. As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as Sub-processors with respect to Customer Personal Data, the following third parties: Amazon Web Services Inc, AWS Europe, Dedipath LLC, Freshworks Inc, FUGA BV, Highwinds Network Group Inc, Hivelocity Inc, Mailgun Technologies Inc, NFOrce Entertainment BV, OVH SAS, OVH US LLC, Online SAS, Orange Cloud for Business SAS, StackPath LLC, velia.net Internetdienste GmbH, Wildbit LLC.
The Provider shall take commercially reasonable measures to ensure that third party Sub-processors have the requisite capabilities to process Customer Personal Data in accordance with this Section 10 and enter into a written agreement with each Sub-processor to protect the Customer Personal Data to the standard required by Data Protection Laws.
- Provider aims at processing Customer Personal Data primarily in the EEA but may also process Customer Personal Data anywhere in the world where Provider or its Sub-processors maintain data processing operations. Provider shall at all times provide an adequate level of protection for the Customer Personal Data processed, in accordance with the requirements of Data Protection Laws. The parties agree that this Section 10 and the data transfer methods required by this Section 10.13 constitute appropriate safeguards to transfer Customer Personal Data to a third country pursuant to Article 46 of Regulation (EU) 2016/679.
The parties agree that to the extent Provider processes any Customer Personal Data under the Agreement in a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for Personal Data, the parties acknowledge that Provider shall be deemed to provide adequate protection (within the meaning of Data Protection Laws) by applying the terms of this Section 10 and the Standard Contractual Clauses. In all such cases, for the purposes of implementing the Standard Contractual Clauses:
- Customer is the data exporter and Provider is the data importer;
- Customer directs Provider to process Customer Personal Data in accordance with the Agreement and this Section 10 pursuant to Clause 5(a);
- Customer acknowledges and expressly agrees that Provider may engage third-party subprocessors as provided by this Section 10 pursuant to Clause 5(h);
- Customer acknowledges that Provider’s obligations and cooperation pursuant to Clause 5(f), Clause 11 and Clause 12 shall be limited to the extent provided by the terms of this Section 10;
- Appendix 1 of this Agreement shall serve as Appendix 1 of the Standard Contractual Clauses, and Appendix 2 of this Agreement shall serve as Appendix 2 of the Standard Contractual Clauses.
- To the extent Customer does not have the ability to independently respond to requests exercising a data subject's rights under the Data Protection Laws, then at Customer’s written direction and to the extent required by Data Protection Laws, Provider shall comply with any commercially reasonable request by Customer to facilitate such actions as correcting, amending, or deleting Customer Personal Data. To the extent legally permitted, Customer shall be responsible for any costs arising from Provider’s or its Sub-processors’ provision of such assistance.
The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of Personal Data Breaches to the supervisory authority, the communication of Personal Data Breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.
The Provider shall report any Personal Data Breach relating to the Customer Personal Data to the Customer without undue delay and, where feasible, within 48 hours following the Provider becoming aware of the Personal Data Breach. The obligations herein shall not apply to incidents that are caused by Customer, including Customer’s employees or agents.
- The Provider shall make available (on a confidential basis) to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Section 10 and the Data Protection Laws, upon written request of the Customer.
Upon termination or expiration of the Agreement the Provider shall, at the choice of the Customer, delete or return, if feasible, all of the Customer Personal Data remaining in its possession or control, save that this requirement shall not apply:
- to the extent Provider is required by applicable law to retain some or all of the relevant Customer Personal Data;
- if Provider is reasonably required to retain some or all of the Customer Personal Data for limited operational and compliance purposes;
- if Provider has archived Customer Personal Data on back-up systems. In all such cases, Provider shall maintain the Customer Personal Data securely and protect from any further processing.
The terms of this Section 10 shall survive for so long as Provider continues to retain any Customer Personal Data.
- The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer and approved by the Provider in respect of the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Section 10. The Provider may charge the Customer at its standard time-based charging rates for any and all work performed by the Provider at the request of the Customer pursuant to this Section 10.18.
- If a law enforcement agency sends Provider a demand for Customer Personal Data (for example, through a subpoena or court order), Provider may attempt to redirect the law enforcement agency to request that data directly from Customer. As part of this effort, Provider may provide Customer’s basic contact information to the law enforcement agency. If compelled to disclose Customer Personal Data to a law enforcement agency, then Provider shall give Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless Provider is legally prohibited from doing so.
- If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under these Terms and Conditions, then the parties shall use their best endeavours promptly to agree such variations to these Terms and Conditions as may be necessary to remedy such non-compliance.
- The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
- All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
- Acknowledgements and warranty limitations
- The Customer acknowledges that the Hosted Services provided under this Agreement are provided on an as is, as available basis. Neither the Provider, its customers, employees, agents, or affiliates make any warranties of any kind, expressed or implied, including but not limited to warranties of merchantability or fitness for a particular purpose, for the Hosted Services or any equipment provided in conjunction therewith.
- The Customer acknowledges that complex software or hardware systems are never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be available without interruptions or will be wholly free from defects, errors and bugs.
- The Customer acknowledges that complex software or hardware systems are never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
- The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
- Limitations and exclusions of liability
Nothing in these Terms and Conditions will:
- limit or exclude any liability for death or personal injury resulting from negligence;
- limit or exclude any liability for fraud or fraudulent misrepresentation;
- limit any liabilities in any way that is not permitted under applicable law; or
- exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party's statutory rights will not be excluded or limited by these Terms and Conditions, except to the extent permitted by law.
The limitations and exclusions of liability set out in this Section 13 and elsewhere in these Terms and Conditions:
- are subject to Section 13.1; and
- govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
- The Provider will not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
- The Provider will not be liable to the Customer for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Hosted Services or any of its supporting or relating services.
- The Provider will not be liable to the Customer in respect of any loss of profits or anticipated savings.
- The Provider will not be liable to the Customer in respect of any loss of revenue or income.
- The Provider will not be liable to the Customer in respect of any loss of business, contracts or opportunities.
- The Provider will not be liable to the Customer in respect of any loss or corruption of any data, database or software.
- The Provider will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the greater of:
- 5.000 EUR; and
- the total amount paid and payable by the Customer to the Provider under the Agreement in the 6 month period preceding the commencement of the event or events.
- Customer hereby indemnifies Provider and its parent, subsidiary, sister and affiliated companies, and each of their respective members, officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties"), and undertakes to keep the indemnified parties indemnified, against any and all losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by the indemnified parties to a third party in settlement of a claim or dispute) incurred or suffered by the indemnified parties and arising directly or indirectly out of Customer’s use of Hosted Services or any breach by Customer of any provision of this Agreement.
- Force Majeure Event
- If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
- Customer may terminate the Agreement at any time via the Services' online forms, either by canceling its Account or by submitting a new Services Order Form that is intended to replace and supersede a previous order on the Account. Provider reserves the right to change, suspend or discontinue, or terminate, restrict or disable Customer's use of or access to, parts or all of the Hosted Services or their functionality at any time at its sole discretion and without notice, however Provider will endeavor to provide Customer reasonable notice upon suspending or terminating part or all of the Hosted Services.
- Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
the other party:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay its debts as they fall due;
- is or becomes insolvent or is declared insolvent; or
- convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
- an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement).
- Effects of termination
- Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Sections 1, 3.8, 8.1, 8.2, 10.1, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 10.17, 10.18, 10.19, 10.20, 13, 14, 17, 20 and 21.
- Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
- Within 30 days following the termination of the Agreement for any reason, the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement, without prejudice to the parties' other legal rights.
Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
- sent by email to the relevant email address specified through the Hosted Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server; or
- sent using the contractual notice mechanism incorporated into the Hosted Services, in which case the notice shall be deemed to be received upon dispatch,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
- Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement.
- No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
- If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted and replaced by an effective and / or enforceable provision coming closest to the economic purpose of the deleted provision).
- The Provider may vary the Agreement from time to time at its sole discretion and will always publish the most current version on its Website. The Customer shall review this Agreement periodically for new versions. If a variation meaningfully reduces the Customer's rights, the Provider will give the Customer advance written notice (by, for example, sending an email or displaying a prominent notice within the Hosted Services). The notice will designate a reasonable period after which the new terms will take effect. Variations will never apply retroactively. By continuing to use or access the Hosted Services after any variations come into effect, the Customer agrees to be bound by the varied Agreement and price changes. The Customer has the right to stop using the Hosted Services and cancel all paid subscriptions in case the Customer does not agree with the Provider's changes.
- The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time - providing that such action does not serve to reduce the guarantees benefiting the Customer under the Agreement. The Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
- The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
- Subject to Section 13.1, a Services Order Form, together with these Terms and Conditions and any Appendixes, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
- The Agreement shall be governed by and construed in accordance with English law.
- The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
- The EU Commission provides an Online Dispute Resolution (ODR) platform for the out-of-court resolution of disputes concerning contractual obligations with consumers (as defined in Article 4 of EU Directive No 11/2013). A link to this platform can be found here: http://ec.europa.eu/consumers/odr/. Provider has neither intent nor obligation to participate in such ODR.
In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
- that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
- any subordinate legislation made under that statute or statutory provision.
- The Section headings do not affect the interpretation of these Terms and Conditions.
- References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
- In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES (SPECIFICATIONS)
The data exporter is (please specify briefly your activities relevant to the transfer):
Customer, which purchases services from Provider pursuant to the Agreement and authorizes Provider to process Customer Personal Data for purposes of providing the services.
The data importer is (please specify briefly activities relevant to the transfer):
Provider, which processes Customer Personal Data upon the instruction of the data exporter in accordance with the terms of the Agreement and in particular the provisions specified in Section 10 of the Agreement.
The personal data transferred concern the following categories of data subjects (please specify):
The data exporter may transmit Customer Personal Data to Provider’s service, and the extent of this transmittal is determined by data exporter in its sole discretion such that data subjects may include, but may not be limited to, natural persons who are customers, Website visitors, resellers, affiliates, employees, contractors, agents, or advisors of data exporter, or natural persons authorized to use the services by data exporter.
Categories of data
The personal data transferred concern the following categories of data (please specify):
The data exporter may transmit Customer Personal Data to Provider’s service, and the extent of this transmittal is determined by data exporter in its sole discretion such that categories of data may include, but may not be limited to, names, usernames or other user identifiers, contact information (email address, etc.), and device data indicating geographic location (e.g. IP address).
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The data exporter will NOT transmit Customer Personal Data to Provider’s service that constitute sensitive personal data such as racial or ethnic origin, political opinion, religious or philosophical beliefs, trade union membership, and data concerning a person’s health or sexual orientation.
The personal data transferred will be subject to the following basic processing activities (please specify):
Processing will be undertaken to the extent necessary for Provider to provide services to data exporter and as otherwise authorized by the Agreement, in particular by Section 10 of the Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES (SECURITY MEASURES)
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
Provider has implemented and shall maintain a security program that includes appropriate administrative, physical, and technical safeguards designed to protect Customer Personal Data from Personal Data Breaches and to help ensure the ongoing confidentiality, integrity, and availability of the Customer Personal Data and processing Platform.
These safeguards include:
- Authentication measures, including secure methods of assigning, selecting, and storing access credentials, measures designed to restrict access to active users, and blocking access after a reasonable number of failed authentication attempts.
- Secure access controls, including measures designed to limit access to personal information based on need-to-know, supported by appropriate policies, procedures and controls to facilitate access authorization, establishment, modification, and termination.
- Use of appropriate encryption technologies.
- Appropriate monitoring systems and other technical security measures intended to prevent and detect security breaches such as firewall protection, antivirus protection, security patch management, logging of access to or disclosure of personal information, and intrusion detection.
- Appropriate physical security to safeguard facilities and records containing personal information from unauthorized physical access, tampering or theft, such as facility access controls.
- Training and awareness programs designed to ensure workforce members are aware of and adhere to the security procedures and practices.
- Data back-up and disaster recovery procedures intended to permit continued provision of service in an emergency or disaster.
- Periodic assessment of threats and vulnerabilities to personal information and the effectiveness of the security procedures and practices implemented to comply with Data Protection Laws.
APPENDIX 3 (ACCEPTABLE USE POLICY)
This acceptable use policy (the "Policy") sets out the rules governing:
- the use of the Hosted Services at https://mediahub.xvid.com, any successor or related Website, and the services available on that Website or any successor Website (the "Services"); and
- the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
- References in this Policy to "you" are to any Customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Xvid Services OÜ as the Provider (and "we" and "our" should be construed accordingly).
- By using the Services, you agree to the rules set out in this Policy.
- We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
- You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.
- General usage rules
- You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
You must not use the Services:
- in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
- in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
- You must ensure that all Content complies with the provisions of this Policy.
- Unlawful Content
- Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
- be libellous or maliciously false;
- infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
- infringe any right of confidence, right of privacy or right under data protection legislation;
- constitute negligent advice or contain any negligent statement;
- constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
- be in contempt of any court, or in breach of any court order;
- constitute a breach of racial or religious hatred or discrimination legislation;
- constitute sensitive Personal Data as defined under applicable Data Protection Laws, such as a person’s racial or ethnic origin, political opinion, religious or philosophical beliefs, trade union membership, and data concerning a person’s health or sexual orientation;
- constitute a breach of official secrets legislation; or
- constitute a breach of any contractual obligation owed to any person.
- Graphic Material
- Content must be appropriate for all persons who have access to or are likely to access the Content in question.
- Factual accuracy
- Content must not be untrue, false, inaccurate or misleading.
- Statements of fact contained in Content and relating to persons (legal or natural) must be true.
- Negligent advice
- Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
- Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
- You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
- You must at all times be courteous and polite to other users of the Services.
- Marketing and spam
- Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
- You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
- You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, "get rich quick" schemes or similar letters, schemes or programs.
- You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
- Regulated businesses
- You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
- You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
- You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.
- You acknowledge that we may actively monitor the Content and the use of the Services but have no obligation to so.
- We have the right, in our sole discretion, to take immediate corrective action, including but not limited to removing any Content that we find objectionable for any reason, without prior notice to you. You agree that we shall have no liability to you or to any of your customers due to any corrective action that we may take (including, without limitation, suspending your Account or disconnecting you from Services).
- Copyright Notice Infringement Information
- We reserve the right to remove or block Content that is properly complained about pursuant to this Section by a copyright holder. You expressly acknowledge that you are aware of this provision. You waive any claims against us that you may have should you be injured by the enforcement of this provision.
If a copyright holder believes that there has been a violation of their copyright on a Website for which we host Content and the copyright holder demands that we remove the material in question, we shall be entitled to remove or disable access to the material if the copyright holder provides us with all of the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Data mining
- You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
- You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
- Harmful software
- The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, malware, trojan horses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
- The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
- Violations of system or network security
Violations of system or network security are strictly prohibited, and in addition to immediate Account suspension and termination without notice, may result in criminal and civil liability. Examples of system or network security violations include, but are not limited to, the following:
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to bypass security or authentication measures without express authorization of the owner of the system and network.
- Interference with service to any other user, host or network including, without limitation, mail-bombing, flooding, deliberate attempts to overload the system, denying service to any user or host (e.g. denial of service attacks and/or DNS spoofing attacks) and broadcast attacks.