Terms of Service
- Those Youngbloods Solutions GmbH (hereinafter "Cinema Calc"), Georgenstraße 119, 80797 Munich, e-mail: firstname.lastname@example.org, offers a web-based calculation software (hereinafter "Software") for film and video productions on the website "cinemacalc.com" or subdomains such as "app.cinemacalc.com" (hereinafter "Website"). The current range of functions of the software can be found on the cinemacalc.com website.
- The following General Terms and Conditions (hereinafter "GTC") apply to all user contracts (hereinafter "Contracts" or individually "Contract") concluded between Cinema Calc and its customers for the use of the Software as Software-as-a-Service (hereinafter "SaaS").
- These GTC apply exclusively to this contract. Deviating, conflicting or supplementary GTC shall only become part of the contract if and to the extent that Cinema Calc has expressly agreed to their validity in writing.
Conclusion of Contracts / Test Period
- By creating the account, the customer initially submits a binding offer to conclude a contract for the free use of the software for test purposes. After the test phase, there is no automatic conversion to a paid contract for the use of the software. The selection of a paid subscription and the subsequent entry of payment details by the customer shall be deemed an offer to conclude a paid contract. The contract is concluded with the order confirmation (after a capacity check) by Cinema Calc, unless the customer has already been granted access to the software; in the latter case, the start of service provision by Cinema Calc is considered an order confirmation.
- The use of the software requires the entrepreneurial status as well as the creation of a customer account (hereinafter "Account"), the former is guaranteed by the creation. To create the account, the data marked as required in each case must be provided and a password must be set. The creation of an account with a fictitious e-mail account is not permitted. Obviously fictitious accounts can be deleted by Cinema Calc and all damages incurred in this regard must be compensated by the customer to Cinema Calc.
- Cinema Calc grants the customer the right to use the software exclusively for test purposes for a limited period of time from the conclusion of the contract in accordance with section 2.1. Each customer is only entitled to one test period (hereinafter "Test Period"), the duration of which is usually 30 days. Upon request, the Trial Period may be extended at the discretion of Cinema Calc. The customer is not entitled to a specific duration of the trial period. During the trial period, the use of the software may be or become restricted. After the test period, the use of the software will be blocked; at this point, only the existing projects can be viewed.
Services / Version Change
- During the term of the contract, Cinema Calc grants the customer access to and use of the software as SaaS via the website within the scope of the rights described in section 6. Further services, in particular consulting services or the migration of data, are not part of the contract for the use of the Software. Such further services are provided by Cinema Calc under a separate contract.
- Cinema Calc is constantly striving to expand and optimize the software. In order to allow the Customer to use this, a version change may be necessary from time to time. The changes will be made outside of business hours (as defined in section 4.1.) if possible, so as not to restrict the Customer's use of the Software. In any case, the essential functionalities shall be retained within the scope of the version changes. The Customer hereby agrees to these version changes.
Availability and Response Time in the Event of Malfunctions
- Cinema Calc provides the software using cloud servers, so that the availability of the software is largely dependent on the availability of these cloud servers. Cinema Calc can guarantee 99% availability of the software on an annual average. This does not include times when the server cannot be reached due to technical problems that are beyond the control of Cinema Calc (in particular force majeure, internet disruption, fault of third parties). Also excluded are planned maintenance work (e.g. updates to the software) within the meaning of section 4.2., which are either outside normal business hours from Monday to Friday (taking into account public holidays at the Munich location) between 9:00 AM and 9:00 PM (hereinafter "business hours") or are announced at least one hour in advance by e-mail.
- Cinema Calc is entitled to temporarily interrupt the availability of the software for maintenance or repair purposes (especially after malfunctions). Planned maintenance work will be carried out outside business hours if possible.
- Disruptions to availability must be reported immediately after they become known. The response time on the part of Cinema Calc is up to 96 hours after notification (see section 5.1.) of the fault during normal business hours; Saturday and Sunday are not included in the response time. Delays in fault clearance for which the customer is responsible (e.g. unavailability of a contact person on the customer side, late or inaccurate reporting of the fault) shall not be counted towards the fault clearance time.
- Cinema Calc is entitled to temporarily show the Customer error workarounds and to eliminate the actual cause later by adapting the Software, provided that the elimination is more complex and the workaround is temporarily reasonable for the Customer. The notification of the workaround shall constitute compliance with the fault clearance period.
Cooperation of the Customer / Exemption
- Any service disruptions (service defects, lack of availability) must be reported immediately by e-mail to email@example.com together with as detailed a description of the service disruption as possible (including a screenshot if necessary), stating the affected functionality. The Customer shall support Cinema Calc to a reasonable extent in identifying and rectifying errors in the event of service disruptions.
- During the test period, the customer is obliged to check the functionalities, the general quality of the software as well as its suitability for his purposes and to notify Cinema Calc of any defects or other deviations from the quality requirements before concluding a contract for the use of the software for a fee. The customer may not invoke defects or other deviations from the quality requirements that were already known during the test period but were not reported to Cinema Calc prior to the conclusion of a fee-based contract.
- The customer is obliged to protect its identification and authentication data relevant to the software as well as access data from access by unauthorized persons inside and outside the company and to exclude the use of access to the software as a "shared account".
- The Customer shall be solely responsible for the content entered by the Customer and the data created with the Software. This also applies to the regular backup of their data.
- The customer hereby undertakes to use the Cinema Calc software only as intended and in accordance with the contract and within the framework of the applicable legal provisions, and not to infringe any third-party rights, in particular image rights and the like, when using the software.
- The customer shall inform Cinema Calc immediately of: (i) any misuse of the Software; (ii) any risk to data protection or data security that occurs or may occur in the course of the provision of the contractually agreed service; (iii) any threat to the Software provided by Cinema Calc, e.g. through loss of access data or hacker attack. The aforementioned obligation also applies if there is a sufficiently concrete suspicion.
- Should third party claims be asserted against Cinema Calc in this context, the customer shall indemnify Cinema Calc against all third party claims, at least to an appropriate amount. In this case, third parties may also be other customers. In addition, the customer shall reimburse Cinema Calc for all damages and expenses incurred in this context in an appropriate amount. This applies in particular to the reimbursement of the costs for a defense against the asserted claim (e.g. court and legal fees).
- The customer shall ensure that state-of-the-art IT security measures are applied within its organization, such as the provision and regular updating of risk-adequate antivirus software, an updated firewall and the use of secure passwords for the Cinema Calc account.
- The customer is responsible for the setup and administration of the account in technical terms within the framework of SaaS contracts. This applies regardless of whether Cinema Calc supports the Customer in setting up the account in any way whatsoever. This includes in particular: (i) the technical setup of the account; (ii) checking the correctness of the function of the integration on the basis of test cases before productive use; (iii) the administration of the account.
Granting of Rights
- Cinema Calc grants the customer a simple, non-exclusive, non-transferable right to use the software within the scope of the version ordered, limited in time to the term of the contract. The customer acknowledges that the use of the software - depending on the subscription - is limited to a certain number of approved accounts.
- The Customer undertakes to use the software exclusively in accordance with the contract and its intended use and to make it available to third parties for use only if they are named as authorized users under this contract or if the Customer assigns them an activated account as part of their subscription.
Fees / Fee Adjustments / Terms of Payment
- The fee for the subscriptions can be found in the current offer on the website at the time the contract is concluded - subject to subsequent adjustments. Unless expressly stated otherwise, the fees always refer to the term of a billing period.
- The first billing period begins with the selection of the paid subscription by the customer. Unless otherwise agreed, a billing period shall be one month in each case.
- Monthly invoices are sent electronically by e-mail. In addition, the invoices are also stored under "Account Settings" in the "Manage Plan" menu item. The fee is debited automatically for the respective billing period.
- Switching to a more expensive subscription ("upgrade") is possible at any time; the costs of the more expensive subscription are charged pro rata temporis in the current billing period. It is possible to change to a cheaper subscription ("downgrade") at the end of the current billing period. After an upgrade/downgrade, the functions of the newly selected subscription will be activated or deactivated at the start of the new billing period.
- Cinema Calc is entitled to adjust the prices for the contractual services subject to a charge to an appropriate amount to compensate for increases in personnel and other costs (such as price increases by cloud providers, increases in the value of the software (e.g. through integrations and features), inflation, etc.). Cost reductions for the aforementioned reasons shall be taken into account accordingly. Price adjustments shall take effect at the beginning of the next billing period and shall not affect any periods for which the customer has already made payments.
- Cinema Calc shall notify the customer of these price adjustments and the effective date of the price adjustment in text form at least four weeks in advance. If a price increase amounts to more than 5% of the previous price, the customer may object to this price increase and terminate the contract extraordinarily with effect from the end of the current term; if the current term is less than four weeks, the special right of termination shall apply for a total of four weeks. The customer shall be informed of this special right of termination when the new price is announced. The same shall apply if several price adjustments lead to a price increase of more than 5% within a period of one year.
- Furthermore, in the event of default, the statutory provisions, in particular §§ 286, 288 BGB, shall apply.
Term & Termination
- Subscriptions are renewed after the end of the billing period for a period of the same duration if the customer has not previously canceled the subscription. To prevent renewal, termination is possible until the last day of the billing period by clicking the cancel button under "Account settings" in the "Manage plan" menu item or by sending an email to firstname.lastname@example.org at least 3 working days before the end of the billing period.
- The right of both contracting parties to terminate for good cause remains unaffected.
- After termination of the subscription or expiry of the trial period, the account shall remain in place so that the customer can continue to view the existing data for at least six months. However, after termination or expiry of the trial period, the customer can neither enter nor edit new data. If the customer wishes to export data from the software, this should be communicated to Cinema Calc before the end of the contract. Subsequently, data export cannot be guaranteed in every individual case or may lead to significantly increased effort, which Cinema Calc will continue to charge.
Limitation of Liability / Force Majeure
- Cinema Calc shall only be liable for damages - irrespective of the legal grounds - in the event of intent, gross negligence and slightly negligent breach of material contractual obligations. Material contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on which the contractual partner regularly relies. In the event of a slightly negligent breach of material contractual obligations, Cinema Calc's liability shall be limited to compensation for foreseeable damage typical for the contract, but not exceeding an amount corresponding to one monthly fee per event causing damage, and limited to the annual fee for all damage within one year. In particular, indirect damage shall not be compensated.
- In the case of services provided free of charge (e.g. within the test period), Cinema Calc shall only be liable for damages caused by intent, gross negligence or fraudulent intent.
- The above limitations of liability do not apply to culpably caused damages resulting from injury to life, body or health or to liability under the Product Liability Act.
- Should Cinema Calc be prevented by force majeure from fulfilling its contractual obligations, in particular from providing the software, Cinema Calc shall be released from its obligation to perform for the duration of the hindrance and a reasonable start-up time, without being obliged to pay damages to the customer. The same applies if the fulfillment of Cinema Calc's obligations is made unreasonably difficult or temporarily impossible due to unforeseeable events for which Cinema Calc is not responsible, such as labor disputes, official measures, energy shortages, disruptions at one of our cloud partners or significant operational disruptions. Cinema Calc is entitled to withdraw from the contract if such an obstacle lasts for more than three months and the fulfillment of the contract is no longer of interest to the contractual partners as a result of the obstacle.
- Neither contracting party shall be entitled to disclose confidential information of the other contracting party to third parties without express consent (at least in text form). This applies to customers with contracts for both free and fee-based use. All information, whether in writing or transmitted orally, which (i) is considered confidential or confidential by nature, (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or confidential due to the external circumstances of the transmission, or (iii) which is marked as "confidential" or "confidential", shall be deemed "Confidential Information" within the meaning of these GTC. Confidential information includes, in particular, technical specifications and prices. Both contracting parties undertake to use Confidential Information only for contractually agreed purposes and to make it accessible only to those persons who need to know it in the context of the contractual relationship or its preparation and who have been obliged to maintain confidentiality in writing. Both contractual partners shall take at least those precautionary measures that they take to protect against disclosure to third parties, including with regard to their own Confidential Information.
- Excluded from the above obligation is such information that (i) was already known to the other contracting party prior to transmission and without an existing confidentiality agreement, (ii) is transmitted by a third party who is not subject to a comparable confidentiality agreement, (iii) is otherwise publicly known, (iv) was developed independently and without using the Confidential Information, (v) has been approved in writing for publication or (vi) must be transmitted due to a court or official order, provided that the contracting party affected by the transmission is informed in good time in order to initiate legal protection measures: the contractual partner affected by the transmission is informed in good time in order to be able to initiate legal protection measures.
- The contracting parties shall inform each other in writing in the event of misuse or disclosure of Confidential Information.
- The obligation of confidentiality shall also apply beyond the term of the contract and shall end twelve months after the end of the contract.
Amendment of the GTC and the Software
- Cinema Calc has the right to amend these GTC at any time in a reasonable manner or to supplement them with regulations for the use of any newly introduced additional services or functions of the software. The changes and additions to the GTC will be announced to the customer by e-mail to the e-mail address provided by the customer at least four weeks before the planned entry into force. The customer shall be deemed to have consented to the amendment of the GTC if the customer does not notify Cinema Calc of its rejection before the amendment comes into effect. Cinema Calc undertakes to point out separately in the notice of change the possibility of objection, the deadline for objection, the text form requirement and the significance or consequences of failure to object.
- The software is constantly being further developed in order to implement new functions, eliminate security gaps in the software, comply with changed legal requirements or optimize the software as a whole. As part of the further development of the software, partial functions may be changed or omitted, provided that this does not jeopardize the achievement of the purpose of the contract for the customer and the equivalence relationship is maintained. Cinema Calc shall inform the customer of these changes in writing as part of version updates.
- Text form is sufficient for all communication within the scope of the contractual relationship. If the customer provides an e-mail address for this purpose, he/she agrees to communication via this address and will ensure that incoming e-mails are read promptly. Cinema Calc must be informed of any changes to the e-mail address in good time in advance.
- Ancillary agreements, amendments and additions to the contractual relationship must be made in writing (e-mail is sufficient). This also applies to a waiver of this written form requirement.
- The customer's rights under this contract may not be assigned to third parties.
- The contract language is German. If Cinema Calc provides terms of service in several languages, the terms of service in German are binding. You can switch to the German language with the menu in the navigation bar.
- All claims arising from this contract shall lapse after 12 months. The period begins when the claim arises, but not before the party entitled to the claim has knowledge of the facts giving rise to the claim.
- These GTC are only applicable to services provided by Cinema Calc outside this software contract insofar as there are no special GTC for these services and this does not contradict the legal nature of the services in question.
- Offsetting against payment claims of Cinema Calc is only possible with claims recognized in writing by Cinema Calc or established by a court of law.
- The contractual relationship between the contracting parties is exclusively subject to the law of the Federal Republic of Germany with the express exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship between Cinema Calc and the customer is the registered office of Cinema Calc.