General Terms and Conditions
State as of: November 15, 2011
General Terms and Conditions (GTC) of StreamForge GmbH, Alosenstrasse 2, 6315 Oberägeri, Switzerland (in the following "StreamForge") for use of the products and services provided at cloudspeaker.fm and cloudspeaker.de (in the following "cloudspeaker").
1. Scope
These GTC define the legal relationship between the customer of cloudspeaker (in the following "customer") on the one hand and StreamForge on the other hand. Ancillary verbal and other individual agreements and contracts are only valid if confirmed by an authorized representative of StreamForge in writing. By using the services of cloudspeaker the customer agrees to these GTC. Without acceptance of these GTC the customer is not allowed to use the services of cloudspeaker.
2. Services of StreamForge
On cloudspeaker, StreamForge offers streaming services for the distribution of audio content over the Internet. The offers on cloudspeaker are non-binding and subject to change. A contract is concluded only after the registration and order of the customer and the transmission of a confirmation email from StreamForge to the customer.
StreamForge reserves the right to modify its pricing at any time. Customers are notified by email 30 days before a new pricing comes into effect. If the customer does not object in writing within 30 days after the transmission of the notification email the change is deemed approved and the new pricing becomes effective. If the customer objects, this is considered as a proper notice of termination by the date when the new pricing becomes effective.
2. Obligations of Client
When ordering, the customer shall be obliged to provide truthful information as requested by the order form. The customer shall also be obliged to keep his/her data up-to-date and to immediately notify StreamForge about all changes.
The customer must be of age to use the services provided by cloudspeaker. Users who are not of age are incapable of entering a contract and can thus not place an order.
The customer shall prevent third parties from accessing his/her login credentials. The customer shall be liable for all actions taken with his/her credentials. If the customer learns that a third party got access to his/her credentials he/she shall immediately notify StreamForge of the situation. StreamForge shall lock the customer’s account and send a set of new credentials to the customer.
The customer is forbidden to use the services of StreamForge for illegal or criminal actions. This includes in particular:- Infringements of trademarks, violation of competition rule, and infringements of intellectual properties,
- distribution of pornographic, obscene, or violence-glorifying contents,
- instigation to violence against persons, institutions, or companies,
- insulting, degrading, or abusive statements about persons, institutions, or companies,
- distribution of contents violating legal regulations.
In case of abuse StreamForge shall reserve the right to block the customer from all cloudspeaker services and to terminate the contract without notice or compensation. With a termination due to abuse also the remaining credit on the customer's streaming account shall expire and no refunds shall be paid.
Before signing up with cloudspeaker the customer shall know about the regulations concerning the operation of an Internet radio. The prices on cloudspeaker do not include any copyright charges or charges for the right to distribute copyrighted material. It is the customer’s own responsibility to acquire the necessary rights to the broadcasted content and to pay the applicable charges to the responsible institutions.
The customer shall agree to defend, hold harmless, and expeditiously indemnify StreamForge from any and all liability, claims, loss, damage or expenses arising out of his/her breach or violation of these GTC, or resulting from his/her use or abuse of the cloudspeaker services.
4. Payment Obligation
StreamForge reserves the right to charge for services on cloudspeaker and to change its fees from time to time in its discretion. All fee-based services on cloudspeaker shall be paid in advance (prepaid principle). Prepayments shall be credited to the customer's streaming account on cloudspeaker. When choosing a new plan or when upgrading to another plan on cloudspeaker, the streaming account of the customer shall have a sufficient balance to cover the costs arising for the next 30 days. Only if the balance is sufficient, the chosen fee-based services of cloudspeaker shall be activated.
If the streaming account of the customer is overdrawn, StreamForge shall reserve the right to stop the fee-based services of the customer until the outstanding charges are paid.
5. Contract Duration and Termination
The contractual relationship between the customer and StreamForge shall start on the day the customer starts using services on cloudspeaker and shall run indefinitely.
StreamForge may grant the customer a free trial period, which is limited in time, to evaluate the fee-based services of cloudspeaker. If the customer does not pay the initial bill for these fee-based services after the end of the trial period, there shall be no further obligations for the customer and StreamForge and the services under consideration are deactivated.
The customer shall be able to use fee-based services of cloudspeaker any time under the condition that the services are available and technically feasible. Both involved parties, the customer and StreamForge, shall have the right to terminate fee-based services with a 30 days’ notice and without justification.
On account termination, a refund of remaining credit on the customer’s streaming account shall be available on request within 30 days and at a processing fee of € 50,00. If there was no request for refunds the remaining credits shall expire 30 days after the date of the account termination.
StreamForge shall be allowed to stop any free services on cloudspeaker at any time. If a free service is shut down, a notification of the affected customers by email shall suffice.
StreamForge shall reserve the right to delete all customer related data 30 days after the termination of the account, or 30 days after locking an overdrawn account.
6. Availability and Uptime
Together with its technology partners, StreamForge takes all feasible steps to guarantee the availability of the service on cloudspeaker and to prevent interruptions. However, the customer acknowledges that on the Internet a 100% uptime cannot be guaranteed. StreamForge is thus unable to guarantee an interruption and interference free operation of the cloudspeaker services. Particularly, the services of cloudspeaker may be interrupted due to maintenance work. If possible, the customer is informed in advance about maintenance work which may have an impact on the availability of the cloudspeaker services.
7. Privacy
StreamForge points out that personal data of the customer is stored in the course of the implementation of the contract and may be forwarded to involved cooperation partners, agents, or service providers to the extent necessary to fulfill the contract. Otherwise, personal data is only collected and processed with the agreement of the customer or if a statutory regulation allows or requires StreamForge to do so.
Furthermore, the cloudspeaker Privacy Policy is an integral part of these General Terms and Conditions. By using the services on cloudspeaker the customer agrees to and accepts the cloudpeaker Privacy Policy.
8. Warranty
StreamForge is not liable for any interruptions in the availability of the cloudspeaker services. The company is only liable in case of intention, gross negligence, or missing contractually guaranteed properties. This also applies to cooperation partners, agents, service providers, and legal representatives of the company. In all other cases StreamForge is only liable for negligent infringement of substantial contractual obligations. In all cases compensation is limited to the damage typically predictable (contract value, monthly fee). There is no compensation for atypical or unpredictable damages.
9. Liability Disclaimer
StreamForge does not guarantee that the contents on cloudspeaker are up-to-date, correct, or complete. The company has no influence on the layout and content of remote websites. StreamForge therefore assumes no liability for external links and disassociates itself from all foreign content, even if there is a link to the remote site on cloudspeaker. This applies to all links listed on cloudspeaker and for all content of the linked pages, as well as for all third party entries in message boards, blogs, guest books, and mailing lists operated by StreamForge.
10. Miscellaneous
Changes, additions and ancillary agreements require written form, unless these General Terms and Conditions state differently. The same is true for a waiver of the requirement of the written form.
StreamForge shall reserve the right to modify these General Terms and Conditions at any time without indicating any reason. Changes to these General Terms and Conditions shall be communicated to the customer by email. Unless the customer objects within 30 days of the access to this information, the changes shall be effective. If the customer objects this shall count as a contractual notice of termination.
StreamForge shall be allowed to use newer or different technologies, systems, techniques, or standards than initially promoted, as long as this does not result in a drawback for the customer.
StreamForge shall be allowed to commission third parties with the supply of the services. StreamForge shall be allowed to change the employed Internet infrastructure and suppliers at any time without notice as long as this change does not result in a drawback for the customer.
Sale of individual business units of StreamForge or a shareholder exchange shall not result in special termination conditions.
Should any of the provisions of the GTC be ineffective or void in part or in whole, the contractual partners agree to stipulate a provision that comes closest to the meaning and purpose of the ineffective or void provision.
This GTC and all legal relations between the customer and StreamForge are governed by and construed in accordance with Swiss law without regard to conflicts of law rules and both parties submit to the jurisdication of Zurich Commercial court in Switzerland. The United Nations Convention on Contracts for International Sale of Goods will not apply.