Terms & Conditions

Terms and Conditions for Nowtilus' Server-Side Ad- Insertion Service SERVERSIDE.AI

 

1.   General, scope of application

 

1.1  These Terms and Conditions ("T&Cs") apply to contracts for the use of Nowtilus' server-side ad insertion service "Serverside.ai" and related services (together “Services”) between Nowtilus Onlinevertriebs GmbH, Magdeburger Straße 23, 06112 Halle, Germany ("Nowtilus") and a customer (“Customer”).

 

1.2  The Services are directed exclusively to the Customer who uses the Services as an entrepreneur. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his or her commercial or independent professional activity  .

 

1.3  These T&Cs apply exclusively. Conflicting or deviating terms and conditions of Customers will not be recognized unless Nowtilus has expressly agreed to their validity.

 

2.   Conclusion of contract, test phase and paid use, storage of the contract text and contract language

 

2.1  When the Customer enters his or her data on the registration page of Serverside.ai, Nowtilus sends the Customer an e-mail. When the Customer clicks on the "Confirm my account" button in this email, this constitutes an offer to Nowtilus to enter into a contract for the use the Services based on these T&Cs. If Nowtilus accepts Customer's offer, Nowtilus will send to Customer a confirmation e-mail, to which these T&Cs are also attached. Upon receipt of this e-mail, the contract comes into effect.

 

2.2  Upon conclusion of the contract, a 30-day test phase begins, which ends automatically if the customer does not decide before its expiry to pay for the use by booking an upgrade to the paid plan in his or her account.

 

2.3  The contract text (the order) of Customer is stored by Nowtilus. However, this stored contract text is not accessible by the Customer. The Customer has the option to archive the contract text of his or her order, for example, as follows: The Customer can save or print the confirmation e-mail that Nowtilus sends to Customer in accordance with Section 2.1. This e-mail contains once again the Customer's order and these T&Cs and can be printed or saved with Customer's e-mail program. The Customer can review the current status and the runtime of the contract at any time in his or her account.

 

2.4  The contract is concluded in English language.

 

3.   Subject matter of the contract and the Services provided by Nowtilus

 

3.1  The subject matter of the contract is the granting of a usage option for Serverside.ai (hereinafter referred to as "Serverside.ai" or "Application") by the customer via an Internet connection within the scope of a Software-as-a-Service offer (SaaS). The provisioning shall take place according to the scope of the agreed availability (section 4).

 

3.2  Serverside.ai enables a flawless cross-screen playback of live and on-demand streams with accurate shift between program and ads. It is designed to serve large audiences and provides analytic-insights into content, advertisement and audience performance. Ad-Creative conditioning and repository is provided as a pre-integrated feature.

 

3.3  The functionalities and system requirements of Serverside.ai result from the product presentation on the serverside.ai website. The scope of the functionalities available to Customer and the number of ad impressions included per month (ad impression = start of the advertising playback in the end user's player) depend on the license model booked by the Customer.

 

3.4  Nowtilus is entitled to change and adapt the content and functionalities of the Services, provided that this does not restrict the contractually agreed functionalities. This occurs in particular in the context of (technological) further developments or changes to the user interface. However, Nowtilus is under no obligation to further develop or provide new functionalities or functionalities that exceed the contractual scope of the described functions.

 

3.5  Customer's access to the Internet and the Internet connection to the servers on which Nowtilus provides Serverside.ai are not subject of this contractual relationship.

 

3.6  Any additional services provided by Nowtilus, in particular in the area of setup support, implementation, training, etc., may be commissioned on the basis of a separate agreement or statement of work.

 

4.   Availability of Serverside.ai

 

4.1  Nowtilus shall make the Services and Serverside.ai available not less than 99.5% on a monthly average, unless the parties have agreed on a different availability. However, this does not constitute a corresponding guarantee.

 

4.2  Serverside.ai shall be deemed to be available if the servers on which Serverside.ai is operated are connected to the Internet and the agreed functionalities of Serverside.ai are without material defects, as well as during the agreed maintenance windows (Section 4.3).

 

4.3  In order to maintain the quality and security of Serverside.ai, maintenance windows (shutdown times) of a total of (in sum) maximum 6 hours per month are agreed upon, during which Serverside.ai is scheduled to be unavailable. During these maintenance windows Serverside.ai is considered available despite the shutdown. The scheduled maintenance windows will be announced at least 7 (seven) days prior to the scheduled shutdown via e-mail to the e-mail address provided by Customer.

 

4.4  The measurement period for availability is the calendar month. Availability is calculated according to the following formula:

 

Availability [%] = MinIs / (MinMes - MinWart) * 100

 

Here, related to the measurement period:

 

MinIs = minutes of actual availability (see section 4.2) of Serverside.ai MinMes = minutes of the measurement period

 

MinWart = minutes of the shutdown times during the agreed maintenance windows.

 

4.5  The availability of Serverside.ai is monitored automatically and tracked by Nowtilus. The results of this monitoring are sufficient as the basis for proving the level of availability, although Customer retains the right to prove that the measurement results are inaccurate.

 

4.6  Nowtilus is not liable for disruptions in availability due to force majeure events. Force majeure includes theft, general disruptions of the Internet or other circumstances, insofar as they are unforeseeable, serious and not the fault of Nowtilus. Nowtilus will inform Customer immediately of the occurrence of such an event, insofar as this is possible and reasonable under the circumstances.

 

4.7  Nowtilus is in no case liable for disruptions in availability caused by Customer, the telecommunications service provider, the Customer's access provider or mobile service provider, or any other third party attributable to Customer's sphere of  influence.

 

5.   Granting of rights and user accounts

 

5.1  Nowtilus grants Customer the simple rights of use required for the agreed use of Serverside.ai and the Services for the term of the contract between Customer and Nowtilus.

 

5.2  Customer is granted access to the functionalities of the Services and the possibility to create up to ten (10) user accounts.

 

5.3  Without a separate agreement, Customer is not allowed to grant third parties access to Serverside.ai.

 

5.4  Customer grants Nowtilus the geographically unlimited simple rights of use to the content stored by him or her on Serverside.ai or distributed or sent via Serverside.ai, which are necessary for Nowtilus to make the functionalities of Serverside.ai available to Customer to the agreed extent. This includes, in particular, Nowtilus' right to broadcast and distribute, reproduce and store the content for Customer, including the creation of backup copies. Nowtilus is entitled to keep backup copies, which may contain content of Customer, for a reasonable period of time after the end of the term of the contract between Customer and Nowtilus and to use them for backup purposes, if necessary.

 

6.   Obligations of the Customer

 

6.1  The Customer is obligated to treat his or her access data for the access to Serverside.ai confidentially, to keep them secret and to pass them on only to such persons to whom he wants to allow the intended use of the application within the agreed scope of use. The persons to whom Customer passes on the access data must be bound to secrecy accordingly. In relation to Nowtilus, Customer is responsible for all actions that persons to whom he has granted access to the application perform using this access. In the event that Customer becomes aware that third parties have obtained knowledge of his or her access data, he or she is obliged to change his or her access data immediately. The Customer is also obliged to inform Nowtilus immediately if there are indications that his or her access data to the Services have been or are being misused by third parties.

 

6.2  Customer is obligated to notify Nowtilus immediately if he or she becomes aware of errors or defects or disruptions in the availability of Serverside.ai. To the extent possible and reasonable for Customer, errors or defects of the Services shall be reported with a detailed description of the error or defect and the circumstances under which it occurred. Customer shall, if possible, make a screen shot of error messages and/or the appearance of the defect and provide it to Nowtilus.

 

7.   Remuneration

 

7.1  The monthly fee to be paid by Customer for the provision of Serverside.ai and any usage-dependent fees shall be governed by Annex 1. Other services, such as support or training services, shall be invoiced according to Time & Material at the rates set out in Annex 1.

 

7.2  The remuneration will be invoiced at the beginning of each month for the preceding month and is due within fourteen (14) days of receipt of invoice.

 

7.3  All prices are subject to the statutory value added tax (VAT).

 

7.4  All fees and prices are exclusive of all taxes, levies or duties imposed by taxing authorities. As between Customer and Nowtilus, Customer accepts sole responsibility for the payment of any taxes, charges or assessments imposed on Customer, the Nowtilus Service, or the fees to be paid to Nowtilus by any foreign or domestic national, state, or local government bodies, or subdivisions thereof, and any penalties or interest (other than income taxes imposed on Nowtilus' revenue).

 

7.5  The Customer may only set off counter claims based on material defects or defects of title of Nowtilus' services against claims of Nowtilus insofar as the amount set off does not exceed the defect-related reduced value of the Service concerned or the anticipated costs of subsequent performance or rectification of defects. Apart from that, offsetting against claims of Nowtilus is only permitted with undisputed or legally established counter claims.

 

In the event that Customer is in default of payment, Nowtilus may temporarily suspend the provision of its Services and block Customer's access to the Services until payment has been made in full, unless this would be contrary to good faith under the circumstances, in particular due to a proportionate insignificance of the outstanding payment. The ongoing claim to remuneration shall remain unaffected by such blocking of access or suspension of the Services. The Services shall be reactivated immediately after the arrears have been paid.

 

8.   Warranty

 

8.1  Nowtilus warrants that the functionalities of Serverside.ai meet the agreed requirements. Nowtilus also warrants the connection of Serverside.ai to the Internet within the scope of the agreed availability.

 

8.2  If the Services owed by Nowtilus deviate from the contractual agreements to the detriment of Customer, Nowtilus will remedy the defect, in which case Customer will support Nowtilus to the best of his or her ability. Nowtilus is entitled to a period of ten working days for the rectification of defects related to the respective defect. If the defect is not remedied within the deadline and Nowtilus does not provide a   work around free of charge, Customer may reduce the agreed remuneration and, if applicable, terminate the contract under the additional conditions of section 8.3.

 

8.3  Customer's right of termination due to Serverside.ai's failure to provide the possibility of use is excluded unless the provision of the contractual possibility of use is deemed to have failed. The creation of the contractual possibility of use shall be deemed to have failed at the earliest if Nowtilus does not remedy a material defect within a period of four weeks from receipt of the notice of defect or if it does not provide a corresponding work around and Customer has duly provided the cooperation incumbent upon it in this context. Customer is not entitled to terminate the contract due to immaterial defects.

 

8.4  The strict liability of Nowtilus as lessor for defects present at the time of   conclusion of the contract is excluded.

 

9.   Free trial period and contract duration

 

9.1  During the 30-day trial period, Customer is entitled to use Serverside.ai for testing purposes. During the test period, notwithstanding section 4, no specific availability is warranted and, notwithstanding section 10, Nowtilus is only liable for intent and gross negligence.

 

9.2  The contract for the paid use of Serverside.ai begins when Customer books the corresponding upgrade in his or her account and has a minimum term of twelve months. The contract is automatically extended by the duration of the agreed minimum term if it is not terminated with three months' notice to the end of the respective contract term.

 

-     The right of the parties to terminate for cause remains unaffected. In particular, Nowtilus is entitled to terminate the contract for cause if Customer is in default of payment of the respective invoice for the monthly remuneration for two consecutive months or, in a period extending over more than two months, in default of payment of the remuneration in an amount equal to the agreed remuneration for two months, or

 

-     if Customer grossly violates his or her contractual obligations and this violation is not terminated within a reasonable period of time upon request of Nowtilus in text form (e-mail, fax or letter). A warning or the setting of a deadline is dispensable if the continuation of the contractual relationship appears unreasonable due to the severity of the breach of duty, success is not to be expected or immediate termination appears justified after weighing the interests of both parties.

 

9.3  Cancellations must be made in writing, e-mail is sufficient.

 

10.  Liability

 

10.1  Nowtilus is liable in accordance with the statutory provisions for damages to Customer caused by intentional or grossly negligent conduct on the part of Nowtilus or its vicarious agents, as well as for personal injury and damages under the Product Liability Act.

 

10.2 In all other respects, Nowtilus' liability for claims for damages by Customer is limited in accordance with the following provisions, unless otherwise stipulated in a warranty assumed by Nowtilus:

 

-     Nowtilus shall only be liable for damages caused by slight negligence insofar as they are based on the violation of essential contractual obligations (cardinal obligations). Cardinal obligations are those contractual obligations whose fulfillment is essential for the proper execution of the contract and on whose fulfillment Customer could rely. Insofar as Nowtilus is liable hereunder for simple negligence, the liability of Nowtilus is limited to the typically foreseeable damage.

 

-     Nowtilus' liability for the loss of data and/or programs caused by slight negligence is limited to the typical recovery effort that would have been incurred if Customer had backed up the data regularly and appropriately under the circumstances.

 

10.3 The provisions of the preceding paragraph shall also apply mutatis mutandis to a limitation of the obligation to compensate for futile expenses.

 

10.4 The above limitations of liability also apply to vicarious agents of Nowtilus.

 

11. Secrecy and data protection

 

11.1 The parties undertake to treat as confidential any trade and business secrets of the respective other party which they - including their vicarious agents - have acquired on the occasion of the initiation of the contract or the performance of the contract. These obligations shall not apply to information, knowledge, and experience which

 

-     can be proven to be or become generally known without breach of this confidentiality obligation,

 

-     were already demonstrably known to the parties prior to receipt of the information, knowledge, and experience,

 

-     been received from a third party without an obligation of confidentiality

 

-     or have been demonstrably developed independently.

 

11.2 The parties undertake to comply with the relevant provisions of data protection law. If necessary, further regulations on data protection are to be made in a separate agreement on commissioned processing.

 

12.  Choice of law and place of jurisdiction

 

12.1 The parties agree that the law of the Federal Republic of Germany shall apply to all legal relationships arising from the contractual relationship between Customer and Nowtilus to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

 

12.2 If Customer is a registered merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for disputes arising from the contractual relationship between Customer and Nowtilus shall be Berlin. The same place of jurisdiction shall apply if Customer does not have a general place of jurisdiction in Germany, relocates its registered office or usual place of residence outside Germany after conclusion of the contract or if Customer's registered office or usual place of residence is not known at the time the action is brought.

 

Annex 1

 

1    CPM and monthly Minimum

 

CPM Pricing (Cost for 1,000 Ad Impressions) as follows:

  •       CPM Trial:                 0,00 EUR

  •       CPM Basic:                0,99 EUR

 

Monthly Minimum CPM for 100,000 Ad Impressions in Basic Tier, i.e., 99,00 € per month to be paid upfront in the beginning of every month.

 

2    Media Services for Ad-Creatives are priced as follows:

 

Ad-Creative Transcoding, Packaging, Repository

 

  •       per output minute < 720p         0,05 EUR

  •       per output minute >= 720p       0,12 EUR

 

Ad-Creative Delivery, JiTP Origin, CDN (depending on delivery zone)

 

  •        per GB Egress Traffic, monthly aggregated         0,10 EUR or more

Ad-Creative Cloud Storage (depending on delivery zone)    

  •       per GB, monthly stored aggregated     0,10 EUR or more

 

3    Other Services are priced as follows:

 

Support or Training Services

 

  •       per man day              1,200 EUR

 

Statement of Work to be agreed upon.