General Terms and Conditions for "Software as a Service" Services
This General Terms and Conditions (GTC) is between you (hereinafter also referred to as "the Customer”, “the Licensee”) and THISISFIFTY.ONE UG, Glinderhagen 17, 38176 Bortfeld, Germany (hereinafter also referred to as "we", "us", "FIFTY.ONE", “the Provider”, “the Licensor”). Together hereinafter referred to as “the Parties”.
The Software, a mobile application tailored for advertising film production companies, is designed to showcase new projects, share exclusive content, provide essential details about ongoing projects, and digitalize feedback processes for film production decisions (hereinafter also referred to as “Film Production App” or “FPA”). All functionalities are described in detail on the functional overview website of FIFTY.ONE (https://www.thisisfifty.one/en/film-production-app)
Definitions
"Software" refers to the Licensor's mobile application, the FPA, tailored for commercial film production companies and the associated backend systems hosted on servers..
“Mobile App” refers to the mobile application of the Software, running on the mobile platforms iOS and Android.
“Content Management System” or “CMS” refers to a backend system that manages and stores the contents shown in the Mobile App.
"Custom UI" refers to the custom User Interface created for the Mobile Application.
"Features" refers to individual software components or functionalities within the Software, which can be selected by the Customer for customization.
"License Fee'' refers to the fee paid in regular intervals to remunerate the usage of the Software.
Preamble
The following General Terms and Conditions (GTC) apply to all contracts between FIFTY.ONE and the Customer regarding the Software.
GTC of the Customer shall not apply, even if the Provider does not expressly object to them.
The Customer shall be notified of any amendments to these GTC in writing, by fax or by e-mail. If the Customer does not object to the amendment within four weeks after receipt of the notification, the amendments shall be deemed accepted by the Customer. The Customer will be informed separately of the right to object and the legal consequences of silence in the event of an amendment to the GTC.
Subject of the Contract
The subject matter of the contract is the granting of rights of use of the Software developed by the Licensor with the name "Film Production App" via the internet and granting of storage space in servers if the Provider.
The Provider makes the Software available to the Customer as Software-as-a-Service ("SaaS") via the Internet. The Mobile Version via the Apple App Store and / or the Google Play Store and the CMS via a website hosted in the cloud.
Details about the performance (referring to performance as in i.e. reaction time, responsivity, availability) of the Software can be found in the current performance specification, available at: https://www.thisisfifty.one/en/film-production-app. The performance, uptime and maintenance of the Software is described in further detail in the chapter “Software Update and Maintenance”.
The Provider is permitted to engage subcontractors for the granting of the cloud storage space and the CMS. However, the use of subcontractors does not release the Provider from its sole obligation to the Customer to fulfill the contract in full.
Software Transfer
The Provider shall make the Software available to the Customer in the respective current version via the Internet for use against payment.
The current scope of Features of the Software can be found in its current service description on the Provider's website at https://www.thisisfifty.one/en/film-production-app. The hardware requirements on the part of the Customer also result from this. The Customer is solely responsible for providing suitable hardware for the use of the Mobile Application. Problems or errors on the Customer's hardware do not entitle the Customer to terminate the contract outside of what is agreed on in chapter Term and Termination.
The CMS can only be accessed online via a web browser. The Mobile Application supports all devices and mobile operating systems listed on the Provider’s website at https://www.thisisfifty.one/en/film-production-app.
Licensing Rights
The Provider grants the Customer the non-exclusive and non-transferable right to use the Software designated in this contract for the duration of this contract as intended.
The Licensee shall not sublicense, resell, or distribute the Software to third parties. The Licensee is expressly not permitted to sublet the software.
The Licensee's right to use the Software shall not arise until it has paid the costs described in the chapter “Remuneration”.
The Customer may only process the Software to the extent that this is covered by the intended use of the Software according to the respective current service description.
The Customer may only reproduce the software to the extent that this is covered by the intended use of the software in accordance with the current service description. Necessary duplication includes loading the CMS into the Customer's hardware in order for the CMS to be accessible, but not the installation or storage of the CMS, even temporarily, on storage devices of the hardware used by the Customer. In this context, the necessary duplication includes installing the Mobile Application on the mobile end devices through the Apple App Store or the Google Play Store.
Subject of the Contract
Any attempts at reverse engineering, decompilation, or disassembly are prohibited.
Load peaks refer to a surge in user activity that exceeds 150% of the average daily usage for a sustained period of 30 minutes or more. The Customer shall notify the provider at least 30 days in advance of events or activities expected to generate load peaks.
The Software must not be distributed to or used by any person or entity in a jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Licensor to any registration requirement within such jurisdiction or country. The Licensor reserves the right to limit the availability of the Software or any portion of the Software, for any person, geographic area, or jurisdiction, at any time and at the Licensor’s discretion. The Licensor reserves the right to limit the functionality and availability of the Software to comply with trade regulations, laws and other regulations that the Licensor is subject to.
Software Transfer
The Provider shall make the Software available to the Customer in the respective current version via the Internet for use against payment.
The current scope of Features of the Software can be found in its current service description on the Provider's website at https://www.thisisfifty.one/en/film-production-app. The hardware requirements on the part of the Customer also result from this. The Customer is solely responsible for providing suitable hardware for the use of the Mobile Application. Problems or errors on the Customer's hardware do not entitle the Customer to terminate the contract outside of what is agreed on in chapter Term and Termination.
The CMS can only be accessed online via a web browser. The Mobile Application supports all devices and mobile operating systems listed on the Provider’s website at https://www.thisisfifty.one/en/film-production-app.
Licensing Rights
The Provider grants the Customer the non-exclusive and non-transferable right to use the Software designated in this contract for the duration of this contract as intended.
The Licensee shall not sublicense, resell, or distribute the Software to third parties. The Licensee is expressly not permitted to sublet the software.
The Licensee's right to use the Software shall not arise until it has paid the costs described in the chapter “Remuneration”.
The Customer may only process the Software to the extent that this is covered by the intended use of the Software according to the respective current service description.
The Customer may only reproduce the software to the extent that this is covered by the intended use of the software in accordance with the current service description. Necessary duplication includes loading the CMS into the Customer's hardware in order for the CMS to be accessible, but not the installation or storage of the CMS, even temporarily, on storage devices of the hardware used by the Customer. In this context, the necessary duplication includes installing the Mobile Application on the mobile end devices through the Apple App Store or the Google Play Store.
Usage Restrictions
Any attempts at reverse engineering, decompilation, or disassembly are prohibited.
Load peaks refer to a surge in user activity that exceeds 150% of the average daily usage for a sustained period of 30 minutes or more. The Customer shall notify the provider at least 30 days in advance of events or activities expected to generate load peaks.
The Software must not be distributed to or used by any person or entity in a jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Licensor to any registration requirement within such jurisdiction or country. The Licensor reserves the right to limit the availability of the Software or any portion of the Software, for any person, geographic area, or jurisdiction, at any time and at the Licensor’s discretion. The Licensor reserves the right to limit the functionality and availability of the Software to comply with trade regulations, laws and other regulations that the Licensor is subject to.
Granting of Storage Space
The Provider shall provide the Customer with a defined storage space on a cloud server for storing the Customer’s data, in particular data uploaded by users of the Software.
The Customer or their users can store content on the cloud server up to an amount of 50 GB. If the storage space is no longer sufficient to store the data, the Customer can request additional storage space for an additional fee.
The Customer is not entitled to transfer this storage space to a third party for use, in part or in full, against payment or free of charge.
The Customer shall not undertake any attempt to store any content on the storage space whose provision, publication or use violates applicable law or agreements with third parties. The Customer assures that they have the corresponding rights to the content.
The Provider shall take appropriate precautions against data loss and to prevent unauthorized access by third parties to the Customer's data. For this purpose, the Provider shall make regular backups, check the Customer's data for viruses and install firewalls according to the state of the art. However, the Customer is obliged to keep their own backup of the uploaded data.
The Customer grants the Provider a non-exclusive, royalty-free right of use, unlimited in space and limited in time to the term of the contractual relationship, to the respective content for the purpose of storage and display in the software. The right of use includes in particular:
the storage of the contents by the Provider and their duplication as necessary to provide the services as described in this contract, as well as
making it publicly available, by displaying the content in the Mobile App
Upon termination of the contractual relationship, the Provider shall immediately return the data stored on the storage space to the Customer The data to be returned shall be transferred via the internet.
Availability, Service Level and Bug Fixing
The Provider provides security and compatibility updates to the Mobile Application to support the two latest major releases of iOS and Android.
The Provider keeps the CMS up-to-date and ensures support for the latest version of each of the following web browsers: Safari, Edge, Firefox and Google Chrome.
The Provider guarantees an availability of the backend systems, including the CMS, of 99% annual average uptime, which is the opposite of downtime. "Downtime" is defined as a period when the system is down for more than 15 minutes and more than 50% of the users are affected and and 50% of the functions are affected.
The Provider may intentionally shut the cloud system down for maintenance work. Non-availability due to maintenance work is not classified as downtime, if the Provider is pre-noticing the maintenance work at least 7 days in advance. The Provider will strive to perform all scheduled maintenance at times which will impact the least customers.
In the event of malfunctions in software operation, the response times for bug fixing are based on the severity of the malfunction and the corresponding urgency.
The Customer can reach the Provider in terms of support requests via a contact form (provided by the Provider), via Slack or via e-mail (support@filmproduction.app) from 09:00 am - 06:00 pm CET/CEST. The Provider will respond within the same workday if a request is received until 3 pm CET/CEST and within the next working day otherwise.
The Provider may integrate third-party services to provide the Software or parts of the Software (e.g. features). The Provider will address any issues with these services with the third-party provider but cannot guarantee that the previous full functionality will be recovered, (e.g. in the case a third-party service is ending a service).
Software related to or made available by the FPA may be subject to EU export controls. Thus, no part of the Software may be downloaded, exported, or re-exported into (or to a national or resident of) any country to which the EU imposes a relevant embargo. By using or downloading the Software a user represents and warrants that they are not located in, under the control of, or a national or resident of, any such country or on any such list.
The Provider reserves the right to edit, change, decrease, or extend functionalities of the Software with a pre-notice of 30 days. Bug fixes and patches are excluded from this regulation.
Duties of the customer
The Customer undertakes not to store any illegal content or content that violates the law, official requirements or the rights of third parties on the storage space provided. This also applies to the Customer's users. The Customer may have to carry out their own control measures.
The Customer is obliged to prevent unauthorized access by third parties to the protected areas of the software by taking suitable precautions. For this purpose, the Customer shall, to the extent necessary, instruct their employees accordingly.
The Customer is responsible for maintaining the security of their login accounts (to secure areas of the Mobile Application or the CMS), including the confidentiality of their login information. Any unauthorized use of the Customer's account or any breach of security should be immediately reported to the Provider.
Notwithstanding the Provider's obligation to back up data, the Customer is responsible for entering and maintaining their data and information that they require to use the Software.
The Customer is obliged to check their data and information for viruses or other harmful components before entering them. The Customer is obliged to use state-of-the-art virus protection programs for this purpose.
While the Provider will take reasonable steps to perform regular backups of data, the Customer is ultimately responsible for their own data and should ensure they have a backup or duplicate copy of any data uploaded onto the Software.
The Customer may use the services provided under this GTC exclusively in accordance with their intended use. They expressly do not undertake to use any programs, algorithms or other software in connection with the Software or the storage space provided which may interfere with the function and/or availability of the Software or the storage space or the infrastructure. In particular, they may not deliberately take any measures that may result in an unreasonable or excessive load on the infrastructure of the cloud storage and the Software or may interfere with it in a disruptive manner, such as the excessive upload of data packets.
Rules of Cooperation
Both Parties shall respect the rights of the other Party and take into account the rights and reputation of the other Party. Any Party should inform the other Party about information deemed relevant for the other Party.
To the extent possible and reasonable, the contracting Parties shall attempt to resolve differences of opinion among themselves before taking legal action. To this end, they may set the other Party reasonable deadlines for action, response or similar.
External communication
Both contracting Parties agree that they will generally not communicate externally, i.e. take public communication and marketing measures, statements about the respective other contracting Party, the subject matter of the contract, the cooperation and similar announcements to third parties to the detriment of the other contracting Party and that they will coordinate such public communication with the other Party in advance.
The above specifications for confidentiality and external communication shall not be affected by the termination of this agreement.
Secrecy and Confidentiality
Both parties involved in this contract must keep all business and operational details private. They should not share this information with anyone who isn't officially or professionally required to know it (like consulting lawyers or tax advisors, for example). This rule applies to any information that is obviously meant to be confidential, as per the wishes of the other party or based on the situation.
The conditions and circumstances of this contract as well as the contract itself shall be kept confidential by both contracting Parties, unless there is a justified interest to the contrary. The above obligations to maintain confidentiality shall continue to apply after termination of the contractual relationship.
The Parties undertake, prior to the termination of the contractual relationship, to carefully and conscientiously return to the other Party all business papers, records, data, documents, reports, correspondence, documents and information related to the other Party, or to destroy them at the request of the other Party, unless they are legally obliged to retain such material.
Remuneration
Upon launch of the Software the Customer will begin to be charged a monthly fee. This includes the launch of the backend systems and the release of the Mobile Application to the Apple App Store and / or Google Play Store,. The fee is based on the number of Features chosen by the Customer, the service level, the duration of the contract and the number of Mobile App logins provided to the Customer. The amount of the remuneration results from the corresponding offer of the Provider. All prices stated are net prices plus the statutory value added tax.
The remuneration shall be paid monthly in advance by the 3rd day of the respective contract month. It is to be paid non-cash to the bank account of the Provider.
The Provider is entitled to make the activation of the Customer account dependent on the complete payment of the remuneration. Likewise, they are entitled to restrict a Customer account if the Customer is in default with the payment of the remuneration.
Individual agreements of the Parties remain unaffected.
In the event of exchange rate fluctuations, the Provider reserves the right to recalculate the remuneration and bank charges accordingly. The exchange rate risk underlying the order shall be borne by the Customer. Exchange rates are charged to the Customer's account as well as to their benefit. The dates of receipt of payment by the Provider shall determine the applicable exchange rate.
Limitation of liability
Individual agreements of the parties remain unaffected.
The contracting parties shall be liable to each other without limitation for intent and gross negligence. For ordinary negligence, they shall only be liable for damages resulting from injury to life, limb, health or a material contractual obligation (obligation whose fulfillment is a prerequisite for the proper performance of the contract and on whose fulfillment the contractual partner regularly relies and may rely).
In the event of a simple negligent breach of material contractual obligations, the liability of the contracting parties shall be limited to the amount of the foreseeable, typically occurring damage. In all other respects, liability is excluded.
The above limitations of liability shall also apply in favor of the legal representatives and vicarious agents of the contracting parties.
The Provider shall not be liable for the loss of data insofar as the damage is due to the Customer's failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
Under no circumstances the Provider will be liable for any indirect, incidental, special, consequential or punitive damages, or any loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other intangible losses resulting from the use of the service.
The Provider is not liable for any damage, failure, or loss resulting from the content displayed on the Mobile Application, as all content is provided by the customer. Even if a bug leads to incorrect information being displayed, the provider is not liable. We will fix the bug within a reasonable timeframe, but we are not liable for any resulting damage.
Liability of the customer
In the event that the Software is used by unauthorized third parties using the Customer's credentials, the Customer shall be liable for any charges incurred as a result within the scope of civil liability until receipt of the Customer's order to change the credentials or notification of the loss or theft, provided that the Customer is at fault for the access of the unauthorized third party.
The Provider is entitled to immediately restrict access to the storage space if there is reasonable suspicion that the stored data is illegal and/or infringes the rights of third parties. A reasonable suspicion for an illegality and/or a violation of rights exists in particular if courts, authorities and/or other third parties inform the Provider thereof. The Provider shall immediately notify the Customer of the restriction and the reason for it. The restriction is to be lifted as soon as the suspicion is invalidated.
The Customer shall indemnify the Provider against all claims of third parties which are attributable to the fact that the Customer has used the software in an unlawful manner and/or in violation of this agreement, in particular has stored unlawful content on the Provider's server.
Intellectual Property
Unless otherwise stated, all materials contained on or within the Software including, but not limited to, text, graphics, images, code, illustrations, designs, icons, photographs, video clips, and written and other materials (collectively, "FIFTY.ONE Content"), as well as their selection and arrangement, are protected by copyright, trademark, trade dress, patent, and/or other intellectual property laws.
Unauthorized use of FIFTY.ONE Content may violate such laws and these GTC.
Term and termination
The minimum contract duration for the provision of the software is 1 month. The contractual relationship shall be extended by 1 further month in each case if the Customer does not terminate the contract within a period of 30 days (monthly payment) or 90 days (yearly payment) before the end of the contractual term. The termination must be issued in written form, e.g. by email.
Individual agreements of the Parties regarding the term shall remain unaffected.
The right of each contracting Party to terminate the contract without notice for good cause remains unaffected. In particular, the Provider shall be entitled to terminate without notice if the Customer fails to make due payments despite a reminder and a grace period or if the Customer violates the contractual provisions regarding the use of the Software.
The Provider reserves the right to modify these GTC at any time. The Provider will always post the most current version on its website. By continuing to use the service, the Customer agrees to be bound by the revised terms and conditions.
The Customer will be notified within the notice period of the termination, but not more than 30 days, if there are any modifications to the service or the terms and conditions.
Final provisions
The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Should individual provisions of these terms be or become invalid, this shall not affect the validity of the remaining provisions.
If a legal issue arises, it will be handled by a court in Hamburg, Germany.
If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance as well as the exclusive place of jurisdiction for all disputes arising from and in connection with the contract shall be Hamburg, Germany.
Annexes to which reference is made are an integral part of the contract
Last Updated:
20. Dezember 2023