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.
- “Automatic Renewal” means a feature that provides for renewal of a license at the end of a license Term without the need of further notification.
- “Data” means electronic data recorded or manipulated by the Hard- and Software and stored as part of the Retorio Service.
- “To Decompile” means to reverse engineer, decompile, or disassemble the Software for the purpose of achieving interoperability with other computer programs according to section 69 e UrhG.
- “Retorio Product” means one of Retorio’ proprietary products including the related marketing materials, Documentation, ToUs, and other supplemental materials.
- “Retorio Service” means services to be performed by Retorio staff.
- “Dial-Out Option” means User’s option to receive a call-back by Retorio for audio conferencing to a telephone number provided by User.
- “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by Retorio with the Software via online access.
- “Entrepreneur” means any natural person, legal entity or partnership, having legal capacity that is not engaged in personal or familial usage in ordering or receiving SaaS while performing its commercial or independent professional or other work.
- “External User” means any individual (not an organization) using the Retorio Software who is not: (i) one of the User’s full-time, part-time or temporary employees; or (ii) any temporary personnel or an independent contractor on assignment at the User’s place of business or work-site.
- “Fee” means the subscription price paid for SaaS to Retorio.
- “Software” means Retorio software, and associated documentation that accompanies this ToU, which includes the associated media and Retorio internet- based services.
- “Term” means the term of the license obtained by the User for Production Use.
- “User” or “End User” means any individual or entity logging in on the SaaS and using the Software that is not an External User.
- “User Generated Content” means any information entered in, uploaded to or in any other way generated by User and stored uploaded, implemented or installed on Retorio SaaS, e.g. recorded videos.
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.
- Subscription plans: Retorio Software is ordered online and provided on a subscription basis in different plans and as applicable at the time the subscription is ordered.
- Term: Term of the License shall be 12 (twelve) months with Automatic Renewal for additional 12 (twelve) months unless terminated within one month to the end of the Term.
- Fee: Depending on the agreed subscription plan User has to pay to Retorio a monthly subscription Fee as specified in this Sec. 5 at the beginning of each month.
- Features and Volumes: Depending on the agreed subscription plan License is limited to the features specified in this Sec. 5 .
- Free Trial: User may test the software free of charge for the first 14 (fourteen) days after registration at Retorio. Sec. 11 shall apply. Upon termination of free trial period, no paid subscription is concluded between the parties. Retorio may at its own discretion delete the account of the User.
- Support: Depending on the agreed subscription plan Retorio provides certain service levels as specified and as applicable at the time the subscription is ordered.
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
- State of the art: Unless expressly agreed otherwise, the SaaS provided by Retorio shall be in line with the current state of the art technology and shall conform to all relevant product information and specifications provided by Retorio, including those in the Documentation. Retorio does not warrant that the Software under the agreement will be fit for purposes beyond the fulfillment of Retorio’s obligations under the Agreement.
- Errors: The User is advised that based on the current state of the art technology program errors cannot be excluded with complete certainty in spite of exercising greatest conscientious care and diligence. The Parties acknowledge that Retorio Products are inherently complex and may not be completely free of errors. The following errors are excluded from Retorio’s warranty: (i) insignificant defects, including but not limited to errors that can be easily corrected and will not show up as a performance defect and (ii) defects discovered in any Retorio Product that has been modified, altered, or enhanced by anyone other than Retorio itself.
- Rectification: Defects in the Software shall be rectified by Retorio within a reasonable period after notification of the defect. The rectification of defects shall be effected, at Retorio’s choice, by way of repair or substitute the Software free of charge. The User’s right to reduce the Fee for the time the defect persists remains unaffected. The User is only entitled to an extraordinary termination of the agreement due to the failure to grant use in accordance with the agreement if Retorio has been given sufficient opportunity to rectify the defect and such attempt has failed.
- Limitation: If Retorio has provided the User with the SaaS against no payment whatsoever, defects in the Software shall be rectified by Retorio only in case they were resulting from gross negligent or intentional behavior of Retorio, provided however rectification of a defect in the Software is not otherwise mandatory according to statutory law.
- Failure in rectification: It shall be assumed that the repair or substitution of Software has failed only if Retorio has been given sufficient opportunity to effect a repair or substitution delivery without achieving the desired result or if the repair or substitute delivery was unjustifiably refused by Retorio. If rectification of a defect in the form of repair or subsequent delivery is only possible for Retorio at unreasonable expenses, Retorio may refuse to rectify the defect and refer the User to his right to rescind or terminate the Agreement.
- Source Code: In no event shall the User be entitled to demand the source code for the Software in regard to any defects.
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"):
- Limitation of liability: Retorio shall be liable for any of the User’s damages resulting from gross negligent or intentional behavior of Retorio, which are due to culpable injury to life, body, and health, which arise due to the assumption of a guarantee or according to the Product Liability Act. In all other cases Retorio’s liability for damages is limited to the infringement of material obligations of the agreement. Material obligations are only such obligations which fulfillments allow the proper execution of the agreement in the first place and where the User may rely on the compliance with these obligations. Retorio’s liability for the loss of data is limited to the typical expenditures required for the restoration thereof, which are normal and typical if security copies have been made. Reference is made to the User’s obligation for regular data backups according to Sec. 10 of this ToU.
- Foreseeable damages: Retorio’s liability in case of negligent infringement of material obligations of the agreement by Retorio shall be limited to foreseeable damages which are typical for this type of contract.
- Exclusion: A strict liability of Retorio for defects existing at the time of entering into this ToU pursuant to section 536 a para. 1, alternative 1 German Civil Code (BGB) is hereby expressly excluded.
- Statue of limitation: All claims against Retorio for damages shall be statute barred 6 months after delivery, in case the User is an Entrepreneur. This shall not apply to any claims in tort.
- Further limitation: If Retorio has provided the User with the SaaS against no payment whatsoever, Retorio’s liability is further limited by section 599 BGB to damages resulting from gross negligent or intentional behavior of Retorio.
- Excluded liability: Retorio has no liability for any loss, damage, or misappropriation of data information provided by the User under any circumstances or for any consequences related to changes, restrictions, suspensions, or termination of the Services or the Agreement or caused by User Generated Content.
- Representatives: The foregoing limitations of liability also apply with regard to all Retorio’ representatives, including but not limited to its directors, legal representatives, employees, and other vicarious agents.
15. RESTRICTIONS IN USE.
- Unauthorized access: The User will use commercially reasonable efforts to prevent unauthorized access to or use of Services and Data, and notify Retorio promptly of any such unauthorized access or use and use Services and Data only in accordance with this Agreement, Documentation and applicable laws and government regulations.
- Restrictions in use: The User will not (i) make any Service or Data available to, or use any Service or Data for the benefit of, anyone other than the User or Users, unless expressly stated otherwise, (ii) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Data, or include any Service or Content in a service bureau or outsourcing offering, (iii) use a Service to capture and store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (v) attempt to gain unauthorized access to any Service or Data or its related systems or networks, (vi) permit direct or indirect access to or use of any Service or Data in a way that circumvents a contractual usage limit, or use any of Retorio Services to access or use any of Retorio’s intellectual property except as permitted under this Agreement, (vii) copy a Service or any part, feature, function or user interface thereof, (viii) copy Data except as permitted herein, (ix) frame or mirror any part of any Service or Data, other than framing on the User’s own intranets or otherwise for the User’s own internal business purposes, (x) access any Service or Data in order to build a competitive product or service or (xi) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, by the User or Users that in Retorio’s judgment threatens the security, integrity or availability of Retorio Services, may result in Retorio’s immediate suspension of the Services, notwithstanding that Retorio will use commercially reasonable efforts to provide the User with notice and an opportunity to remedy such violation or threat prior to such suspension.
16. INTEGRATION OF 3RD PARTY ACCOUNTS, , RECORDING, ANALYTICS.
- Third party accounts: Certain features of the SaaS allow User to integrate his account with third party services (the “Third Party Accounts”) like e.g. Gmail, Salesforce, Greenhouse, LinkedIn etc. via Application Programming Interface (the “API”) provided by such third party. By enabling those features, User grants to Retorio access to data stored in Third Party Accounts provided via API and certain rights to use functions of Third Party Accounts provided via API, like e.g. sending out e-mails for invitations of scheduled demo sessions etc., as far as agreed upon while activating integration of a Third Party Account, such as e.g. e-mails, inbox history, contacts etc., to enable Retorio to identify relevant data to be stored within the SaaS or to execute certain communications with contacts of the User.
- External user sharing: Certain features of the SaaS allow User to share a web application with one or more External User(s) like e.g. Salesforce, via interactive meetings. By using this feature, User may grant to External User insight or access to private and potentially personal data stored in web application. User understands that he bears sole responsibility for (i) the use of such feature with External Users and (ii) adherence to any applicable data protection laws in this regards.
- Audio and Video Analysis: Certain core feature of the SaaS allow User to analyze the audio and/or recordings according to Sec. 3 by transcribing and saving such analysis on our cloud servers. This feature is enabled by default and User before each session by blocking access. User can activate either analysis of his own audio or video stream only. User understands that he bears sole responsibility for (i) the use of such feature and (ii) adherence to any applicable data protection laws by using this feature.
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.
- Dispute resolution: Let's Try To Sort Things Out First. Retorio wants to address the User’s concerns without needing a formal legal case. Before filing a claim against Retorio, the User agrees to try to resolve the dispute informally by contacting firstname.lastname@example.org. Retorio will try to resolve the dispute informally by contacting the User via email. If a dispute is not resolved within 15 working days of submission, the User or Retorio may bring a formal proceeding.
- Applicable law, jurisdiction: Unless expressly prohibited by local law, the Agreement and warranties are controlled by and construed under the laws of Germany, notwithstanding any conflicts of law provisions; and the German courts in Munich shall have exclusive jurisdiction over any claim arising under the Agreement or warranties. The UN Convention on Contracts for the International Sale of Goods shall be explicitly excluded.
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.