Date: February 2019
If this Agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version shall prevail. The User should keep a copy of this ToU for his records. The latest version of this ToU appears in its entirety on http://retorio.com/pages/terms_of_service. Retorio reserves the right, in its sole free discretion, to make reasonable amendments to this Agreement from time to time provided that disputes arising hereunder will be resolved in accordance with the Terms of the Agreement in effect at the time the dispute arose. Retorio will inform the User after each amendment in due way and the User should review the published Agreement from time to time to become aware of changes. Material changes to these terms will be effective upon the User’s first use of the Software with actual knowledge of such change. Any use of the Software by the User after the amended Agreement becomes effective constitutes the User’s acceptance of the amended Agreement. If the User does not accept amendments made to this Agreement, then this Agreement will be immediately terminated pursuant to the Sec. 12.
1. PROVISION OF SOFTWARE AS A SERVICE.
Retorio will make the Software available to the User and use commercially reasonable efforts to make the online Software available as Service 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Retorio shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Retorio’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Retorio’s employees), Internet service provider failure or delay, hosting service provider failure or delay, User Generated Content or denial of service attack.
The Software is neither sold nor licensed.
The User has the right to access and use SaaS subject to the terms of this Agreement and the Documentation. The User grants Retorio, its Affiliates according to section 15 German Stock Company Act (§ 15 AktG) and applicable contractors a worldwide, limited-term license to host, copy, transmit and display his uploaded data information, and any Non-Retorio Applications and program code created by or for the User using a Service or for use by the User with the Services, as reasonably necessary for Retorio to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Retorio acquires no right, title or interest from the User or his licensors under this Agreement in or to any of the User’s uploaded data information.
2. CLOUD STORAGE & SECURITY.
Retorio will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Software and/or Data and/or User Generated Content. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Software and/or Data by Retorio personnel except (i) to provide the subscribed services and prevent or address service or technical problems, (ii) as compelled by law, or (iii) as the User expressly permits in writing. Sec. 7 shall remain unaffected.
3. NO LICENSING.
The Software is provided as SaaS and no license is granted to User. In particular, the provision of SaaS does not include any exploitation rights, in particular but not limited any right of reproduction (section 16 UrhG), right of distribution (section 17 UrhG), right of exhibition (section 18 UrhG), right of recitation, performance, and presentation (section 19 UrhG), right of making works available to the public (section 19a UrhG), right of broadcasting (section 20 UrhG) or any right of adaptations and transformations (section 23 UrhG).
4. RESERVED RIGHTS.
The User acknowledges and agrees that the Software is a proprietary product of Retorio protected by copyright and other applicable intellectual property laws and treaty provisions. The User further acknowledges and agrees that the entire right, title, and interest in and to the Software including associated intellectual property rights, shall remain with Retorio. Retorio retains all rights not expressly granted to the User in this ToU.
5. THE SOFTWARE IS PROVIDED AS SOFTWARE-AS-A-SERVICE.
6. PURCHASING CONDITIONS.
The User acknowledges that registration is required in order for the User to utilize the full benefits of the Software. If the User is not registered as the End User, the User has no right to access the software and the limited warranty in this ToU does not apply.
7. NO RENTAL OR COMMERCIAL HOSTING.
The Software is provided as SaaS for the User only. The User may only rent, lease, lend, or provide commercial hosting services with the Software upon Retorio’s prior written consent.
8. DATA CAPTURE AND USE.
The User agrees that Retorio may collect and utilize technical information gathered as part of the Software support services and SaaS provided to the User. Data captured in this form will only be used to improve Retorio Products and/or provide customized services to the User and will not be disclosed or disseminated to third parties except in an anonymized form.
9. BACKUP OF DATA.
The setup of a functional hardware and software environment for use of the Software shall be solely in the User’s responsibility. The same shall apply to regular data backup.
10. NO AUTOMATED USE.
A subscription for the SaaS may not be shared or used concurrently on different Devices, nor to support multiple Users or operational requests as indicated above. As a result, the User may not use the SaaS in an automated, unattended, non-interactive server application or component (including ASP) where: (i) multiple User requests from different Users are queued for processing; or (ii) multiple requests from one User are queued for processing but acting against content created or edited by other Users.
11. RESTRICTIONS ON CERTAIN SOFTWARE.
Software identified as free trial, demo, evaluation, and Beta versions may not be used for any purpose other than the User’s testing or evaluation unless specified otherwise pursuant to a separate agreement signed by both the User and Retorio.
If the User breaches the terms and conditions of this ToU, Retorio may terminate this ToU without prejudicing any of its other rights. In such event the User must cease use of the Software with immediate effect. Sections 1, 4, 13, 14, 15, 16, 18, 19 and 20 specifically survive termination.
12. LIMITED WARRANTY
13. HIGH RISK ACTIVITIES.
The Software is not fault tolerant and is not designed, manufactured, or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (the "High Risk Activities"). Accordingly, Retorio and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
14. LIMITATION OF LIABILITY
Notwithstanding the legal nature of the relevant claim, the following shall apply to the User’s damage claims and claims for expenses incurred in vain ("Ersatz vergeblicher Aufwendungen"):
15. RESTRICTIONS IN USE.
16. INTEGRATION OF 3RD PARTY ACCOUNTS, , RECORDING, ANALYTICS.
THE USER IS EXPRESSLY ADVISED BY RETORIO OF AND UNDERSTANDS AND ACCEPTS POTENTIAL RISKS OF AN INTEGRATION OF THIRD PARTY ACCOUNTS, SHARING A WEB APPLICATION WITH EXTERNAL USER WITH RESPECT TO PRIVACY AND DATA SECURITY, AUDIO RECORDINGS AND AUDO ANALYSIS.
17. STATUTORY CONSUMER RIGHTS.
Nothing in this ToU is meant to contravene statutory rights that consumers may have pursuant to local law.
18. DISPUTE RESOLUTION AND GOVERNING LAW.
The provisions of this ToU shall be deemed to be separable and the invalidity of any provision hereof shall not affect the validity of the remainder of this Agreement.
Should the User have any questions regarding this ToU, please contact the Retorio authorized partner serving the User, or write to: Retorio GmbH, Legal, Gaisbergstr. 11, D-81675 München, Germany.