1 Scope and Validity
By completing the registration form (creating a user account) you or the company or entity you represent (referred to as “Client” or “you”) accept this terms of service (referred to as “Agreement”) with all its terms and conditions for the use of MARMIND® Software (referred to as “MARMIND®”). Software providers are various UPPER Network branches or authorized partners.
UPPER Network GmbH (Seering 5, 8141 Premstätten, referred to as “UPPER Network”), as author and operator of MARMIND® grants you access to the software on the condition that you accept this Agreement.
By accessing or using the MARMIND® you automatically recognize the general terms and conditions. In case of non-recognition or non-compliance with this Agreement, access to the member area of the software or its use is prohibited.
2 Terms and Rights
2.1 Supply of Software
UPPER Network grants Client the use of MARMIND® in the current version on the Internet for the duration of the contract with applicable fees. To this end, UPPER Network stores the software on a server that is accessible for the Client via the Internet. Optionally, the customer himself operates the software on his own server (hereinafter referred to as “local hosting”).
UPPER Network continuously monitors the availability of MARMIND® and immediately eliminates any software errors. An error exists in particular if the software does not perform the functions specified in the software specifications, generates incorrect results, terminates in an uncontrolled manner or is not working otherwise, so that the use of the software is restricted or impossible.
UPPER Network continuously develops MARMIND® and will steadily improve it through ongoing updates and upgrades.
2.2 Software License Grant
UPPER Network hereby grants Client a limited, non-exclusive, non-transferable and non-sublicensable right to use MARMIND® according to its intended purpose during the contracted term provided Client complies with the terms and conditions of this Agreement.
Client is allowed to load MARMIND® into the main memory, but not allowed to temporarily install or store the software on data carriers (e.g. hard disks) on hardware used by him.
Client is not entitled to make MARMIND® available for use with or without charges to third parties. Subleasing the software by the Client therefore is expressly forbidden. Client agrees to define his contractual relationships with third parties to ensure the exclusion of the free of charge use of MARMIND®.
2.3 Use of Content
Client acknowledges that MARMIND® can contain information, software, photographs, illustrations, audio files, videos, animations, flash files, data, code snippets and other material (collectively called “Content”) which is protected by copyright, trademark or other proprietary rights of UPPER Network or by third parties.
An alteration, publication, dissemination, distribution or sale, and the reproduction of the contents, and the creation of derivative works, distribution, showing, presentation, processing or any other use of the contents in whole or in part is prohibited.
2.4 Client Data Storage
(Does not apply to “local hosting”)
UPPER Network provides Client with a defined storage space on a server to store data.
Client can expand the storage space at any time against payment. UPPER Network ensures that the data stored on the Internet are available.
Client is not entitled make this storage space available to a third party in part or completely with or without payment for use.
Client agrees not to save content on the storage space in which case provision. publication and use is in violation of the law or agreements with third parties.
UPPER Network is obligated to take appropriate precautions against data loss and to prevent unauthorized access by third parties to the Client’s data. To this end, backups are made daily, and firewalls are installed.
3 Code of Conduct and Client’s Obligations
3.1 Confidentiality towards third parties
Client is responsible for entering and updating its data and information.
Client is obligated to check its data and information for viruses or other harmful components before entering and to employ state-of-the-art anti-virus programs.
When registering Client is required to define a password in order to continue using the software. He is obligated to keep the password secret and inaccessible to third parties.
3.2 Code of Conduct
Client must not use MARMIND® for an unlawful purpose, or in any way that violates the terms of this Agreement. For example – and not limited to these examples – Client agrees when uploading or sharing data via MARMIND® to refrain from the following acts:
- Defaming, abusing, spamming, harassing, threatening or acts that otherwise violate the legal rights of third parties (for example, the protection of privacy).
- Publishing, shipping, distributing or disseminating any defamatory, infringing, obscene, pornographic, sexual or unlawful material or information.
- Uploading files into MARMIND® or otherwise transferring software or other material that is copyright protected (or under the protection of privacy or confidentiality) unless you have appropriate rights to the material or the necessary permits.
- Uploading files into MARMIND® or otherwise transferring software or other material that contain a virus or corrupted data or any other software or programs that interfere with the operation of another computer or make its use impossible.
- Blocking, overwriting, modifying, copying, unless necessary for the proper use of MARMIND®.
- Deletion of references to authors, legal references, copyright indications or markings in a file that is uploaded to MARMIND®.
- Faking of origin, source of software or other contained material that is uploaded to MARMIND®.
- Acts of harassment such as sending chain letters.
- Sharing of information, content or other data in MARMIND® for purposes that are in competition with MARMIND® itself or the business of UPPER Network.
Client further commits itself not to use MARMIND® in any way that may damage, shut down, overload, or adversely affect the use of MARMIND® by third parties.
Furthermore, Client is prohibited to gain any unauthorized access to other members’ accounts and computer systems of MARMIND®. Also, Client refrains from any attempt to obtain materials or information from MARMIND® in other than the intended manner.
4 Blocking and Removal of Content
UPPER Network is not responsible for the uploaded and published content nor the information shared via MARMIND®.
Client is solely responsible for all shared information and content stored under his username on the website. UPPER Network has the right, but not the obligation, at its sole discretion, to correct errors or omissions in any content. Client acknowledges that the content filtering performed by UPPER Network is a voluntary service for deciding whether such content is acceptable.
UPPER Network cannot determine with certainty whether a MARMIND® registered user is the person he claims to be technically. UPPER Network therefore provides no guarantee of the actual identity of a user. Each user is solely responsible for checking the actual identity of another user.
If Client notices use of MARMIND® contrary to the law or the Agreement (including the use of pseudonyms or false identities), it can contact us using the contact form.
5 Software Service Availability
Due to technical reasons the permanent availability and the faultless operation of MARMIND® cannot be guaranteed. UPPER Network monitors the functionality of the software and the Internet connection and strives to resolve errors, interruptions or disruptions immediately.
In particular, maintenance, security or capacity issues and events that are outside the control of UPPER Network (such. as disruptions in public communication networks, power failures, access to the customer’s server etc.), may result in brief malfunctions or temporary interruptions of MARMIND®.
Unavailability of MARMIND® does not entitle Client for a refund of already paid fees or to suspend the payment of future charges. Client has the option (see paragraph 8: Duration and Termination of Membership) to terminate its membership.
6 Payment (Prices, Taxes and Fees)
Client shall pay the agreed monthly fee for access to MARMIND® (software license) and data hosting.
All prices are in EUR excluding VAT.
UPPER Network will send Client a statement of the payments due in accordance with the contract. The fee is paid using one of the payment options offered.
UPPER Network is authorized to adjust the fees and service content by written notice to Client with a notice period of 1 month. Requirement and reason for such a change of service content in particular is technical progress and further development of the software itself. The adjustment is made in the manner and to the extent in which the scope and performance of the software changes. If Client chooses to discontinue the contract on the changed fees, he is entitled to an extraordinary, written notice of termination.
7 Copyright and Right of Use
All copyright on the agreed services belong exclusively to UPPER Network. Client solely obtains the right to use the software strictly for his own purposes after payment of the agreed fee and only for the extent specified in the contract.
8 Duration und Termination of Membership
This membership Agreement is valid until the membership is terminated. Client may cancel this Agreement by sending an email to firstname.lastname@example.org. A termination in another written form is also possible, provided UPPER Network can clearly discern your identity and intention to terminate the membership.
The membership for MARMIND variants hosted centrally by UPPER Network may be terminated on a thirty (30) days’ notice. A notice period of 12 months applies to all MARMNID Enterprise or to locally hosted MARMIND installations.
UPPER Network reserves the right with the exclusion of liability to fully or partially restrict, suspend or terminate your access rights to MARMIND® at any time, in its sole discretion and without prior notice. This includes the availability of certain features, databases or content.
9 Updates to the Terms of Service
UPPER Network expressly reserves the right to change the terms and conditions of this Agreement at any time, in whole or in parts. Any change in the terms and conditions of MARMIND® is valid at the moment of its publication online. Your continued use of MARMIND® after the effective date of such changes constitutes your acceptance of such changes, including any, above mentioned changes by UPPER Network.
MARMIND® SOFTWARE AND CONTENT PLACED THEREIN ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. UPPER NETWORK HEREBY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UPPER NETWORK DISCLAIMS THAT THE SOFTWARE MARMIND® WILL MEET YOUR REQUIREMENTS, OR THAT YOUR USE WILL BE UNINTERRUPTED OR ERROR-FREE.
11 Limit of Liability
RESPONSIBILITY AND RISK FOR THE USE MARMIND® AND THEREIN (AMONGST OTHER THINGS) CONTAINED CONTENTS AND INFORMATION LIES SOLELY WITH THE CUSTOMER.
IN NO EVENT WILL UPPER NETWORK HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE MARMIND® OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED.
UPPER NETWORK IS LIABLE FOR DAMAGES INSOFAR AS INTENT OR GROSS NEGLIGENCE CAN BE PROVEN, WITHIN THE FRAMEWORK OF STATUTORY REGULATIONS. LIABILITY FOR SLIGHT NEGLIGENCE IS EXCLUDED. COMPENSATION FOR CONSEQUENTIAL DAMAGES AND FINANCIAL LOSSES, LOST PROFITS, LOSS OF INTEREST AND DAMAGES FROM THIRD PARTY CLAIMS AGAINST UPPER NETWORK IS IN ANY CASE, AS FAR AS LEGALLY PERMISSIBLE, EXCLUDED.
If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable. Invalid parts of this Agreement are to be replaced by those that most closely match the parties’ intent of the Agreement in economic terms.
13 Jurisdiction / Applicable Law / Venue
This Agreement shall be governed by substantive law and procedural law of Austria. The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the state Courts located in Graz, Austria (Landesgericht Graz).
14 Acknowledgement of Terms
YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS OF MARMIND®, UNDERSTAND AND AGREE TO THE TERMS SET FORTH HEREIN. AS AGREED THIS CONSTITUTES THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN YOU AND UPPER NETWORK WHICH REPLACES ALL ORAL OR WRITTEN PROPOSALS MADE, EARLIER AGREEMENTS AND ANY OTHER AGREEMENT WITH RESPECT TO THE MEMBERSHIP THAT WAS COMMUNICATED BETWEEN YOU AND UPPER NETWORK.