APMS Terms of Use - General Terms and Conditions (GTC)

Date of last revision: February 17th. 2014


These Terms of Use (“Terms”) apply to the use of the APMS Application and Cloud Storage (“Service”) by you (“you” or “Customer”). The Service is provided by Headstart Media GmbH, 6362 Stansstad, Switzerland (“Headstart Media”). IF YOU WISH TO USE THE SERVICE, YOU MUST AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, ANY USE OF THE SERVICE IS UNOwnerIZED, AND YOU SHOULD STOP ACCESSING THE SERVICE IMMEDIATELY. YOUR CONTINUED USE OF THE SERVICE WILL CONSTITUTE ASSENT TO THESE TERMS. You represent that: (a) you have full legal capacity to contractually obligate yourself to these Terms; (b) you have read, understood and accepted these Terms; and (c) you have not violated these or other terms provided by Headstart Media previously.


1. Use of Service
Headstart Media operates a client/server application and cloud storage system named APMS ("Service"). The system consists of the client software ("Client Software"), the website ("Website") and the APMS server ("Network"). It enables its users to create APMS projects, store and access files over the Internet, and to share them with selected other users. The Client Software and the Website can differ in features and appearance, depending on which Service (the "Product") is used and the used system.
Headstart Media GmbH agrees that all files you store using the Service, including their metadata (file name, description, comments, thumbnail images, etc.), ("Data") will be encrypted such that they can neither be read by Headstart Media nor by any third party, unless the Data is explicitly shared or made public by you. Headstart Media has no access to your password, does not know it and cannot reset or recover it. You acknowledge that if you forget your password, your Data will be irrevocably lost.
The Client Software can consist of one or more different programs running on your PC and/or other devices. These programs can come pre-installed on your device or might need to be downloaded and installed by the Customer. You are responsible to keep the Client Software up to date. For some programs or pieces of the Client Software, updates are performed automatically. In other cases, you may need to download and install the latest version of the Client Software or the complete firmware of the device to keep the Client Software up to date. If the Client Software is not kept up to date, the Service may cease to be available or may not properly perform.
As part of the evolution of the Service, Headstart Media may discontinue, modify or add new features to the Service without prior notice to you.

2. Customer Obligations and Responsibilities
Customer shall use the Service in compliance with all applicable laws, including without limitation the laws of Switzerland, and in accordance with such usage policies and guidelines as Headstart Media may establish from time to time. Usage policies and guidelines are published on the Website.
Without limiting the foregoing, in connection with Customer’s use of the Service, Customer shall not: (a) use the Service to change, damage, delete or edit Data without ownerization; (b) attempt to access the Service with unownerized software;
Customer shall bear responsibility for all activities conducted under Customer’s account, whether by Customer or a third party.
Headstart Media does not monitor the data stored or distributed through use of the Service, and assumes no responsibility for such data. Customer acknowledges that in using the Service, Customer may be exposed to content which Customer may find to be insulting, offensive, or otherwise objectionable. Customer waives any claim against Headstart Media, its affiliates, and their officers, directors, agents, and employees based upon the content of data stored or distributed through use of the Service.
Customer agrees to maintain the accuracy of Customer’s account details at all times. Headstart Media will use the email address specified in your account details or suitable means of communication within APMS to inform you about legally binding declarations (for example modifications of these Terms, blocking/cancellation etc.) or send you other notices. It is your responsibility to regularly check your email account for new emails and to make sure emails from Headstart Media can pass your spam and/or other filters. ANY COMMUNICATIONS FROM HEADSTART MEDIA TO CUSTOMER SHALL BE DEEMED GIVEN IF SENT TO CUSTOMER AT THE EMAIL ADDRESS SPECIFIED IN THE CUSTOMER’S ACCOUNT DETAILS, INCLUDING WITHOUT LIMITATION ANY AMENDMENTS TO THESE TERMS AND ANY NOTICE THAT CUSTOMER’S ACCOUNT WILL BE BLOCKED OR CANCELLED.
It is the Customer’s responsibility to choose a secure password, to retain the password, and to maintain the password’s security. In case the password is lost, all data stored online becomes inaccessible and cannot be recovered.
Customer shall refrain from any activity which interferes or may interfere with the efficiency of the Service (for example through software or other scripts). This includes without limitation excessive use of the Service or using the Service in ways for which it is not intended.

3. Termination, Duration, Prices
All published prices are binding list prices. They are inclusive VAT. Introduction and support are not included in the product prices.
You may terminate your right to use the Service (your “Account“) by email without indication of reasons at any time.
Headstart Media has the right to terminate your Account: (a) if you have not accessed your account for at least 12 months; (b) if you exceed your available storage space of 1 GB; or (c) if Headstart Media elects to discontinue the Service completely or in part.
In case of termination Headstart Media shall provide at least thirty (30) days prior notice of termination. Such notice may be provided by email or by any other means. Notice shall be sufficient if emailed to you at the email address currently on file with Headstart Media.
In case of a termination of Customer's account, Customer shall: (a) cease all use of the Service and the Client Software; (b) delete all Client Software from any computer, disk, or other media under your control; (c) refrain from accessing the Network without the written consent of Headstart Media; and (d) refrain from using any other user account to regain access to the Network.
Return Policy: Headstart Media does not grant commercial customers the right to withdraw from the purchase of a license. Private consumers will receive a refund for the price at an effective termination within 14 days of purchase.
UPON TERMINATION OF YOUR ACCOUNT FOR ANY REASON, Headstart Media SHALL HAVE THE RIGHT TO DELETE ALL FILES AND DATA YOU HAVE STORED USING THE SERVICE. CUSTOMER AGREES TO MAINTAIN AN ADDITIONAL COPY OF ANY FILES SUBMITTED TO Headstart Media.

4. License and Proprietary Rights
Subject to these Terms, Headstart Media grants Customer a non-exclusive, non-transferable, non-sublicenseable license to download, install and use the Client Software on max. two (2) computers. The paid license includes the right to download and to install the Client Software on two computers and to print data and share data with other users via the APMS Network
The Client Software contains software or other technology that is licensed from third parties. Headstart Media may add, delete, or modify such third party software from time to time. Customer agrees to be bound by the terms of all applicable third party licenses.
The Service is protected by intellectual property laws. Title to the Client Software and all other software used by Headstart Media in the delivery of the Service, and any other intellectual property rights associated with the Service and the Software, shall remain in Headstart Media and its licensors. You may not modify, adapt, translate, reverse engineer, decompile, disassemble or create a derivative work based upon the Software. You may not duplicate the Software or permit the Software to be accessed through a public computer bulletin board or “shareware” distribution process. You may not remove from the Software or the Website any proprietary indications or legends, use the trademarks Headstart Media or APMS without ownerization, or sell, assign or sublicense any Software or any rights to the Software.

5. Available Storage Space
Headstart Media may provide the Customer with an amount of cloud storage of 1 GB at a charge as communicated on the Website. Addition cloud storage may be obtainable through Headstart Media. There amount of storage is only to be defined by Headstart Media and corresponds not with the purchased license.
By using the APMS Network and the customers accepts the Terms and Conditions of the storage service Amazon AWS. These Terms and Conditions can be viewed at http://aws.amazon.com/de/agreement/. The user undertakes to accept and comply with all prevailing conditions.
If you fill your cloud storage, no additional Data can be uploaded until the available storage capacity exceeds the amount of Data stored. In case the available storage is exceeded, Headstart Media may terminate your account.
All orders are subject to acceptance by Headstart Media. In case of errors or omissions in a published offer (e.g. on the Website), Headstart Media can correct them prior to acceptance of the order.

6. Abuse

If Headstart Media becomes aware of a misuse of the Service or any violation of these Terms, it may in its sole discretion: (a) inform involved users; (b) request a response from involved users; (c) block the data concerned; (d) delete the data concerned; (e) block the responsible user; (f) block or delete involved groups; (g) terminate Service to the responsible user without notice; (h) inform affected private parties and/or competent ownerities; (i) release data to government ownerities and/or private right holders; (j) take any suitable action to eliminate the misuse if applicable; (k) seek compensation for damages; or (l) take any other action Headstart Media considers appropriate.
Privacy Policy
The customer and Headstart Media are bound by the privacy policy of the Service. Headstart Media shall comply with applicable laws and regulations regarding data privacy.
Customer agrees that Headstart Media may transmit any data stored by Customer to a third party if Headstart Media believes in good faith that it is required to do so in order to: (a) comply with any law or order issued by any legal ownerity; (b) avoid infringement of the rights of a third party; or (c) protect the property of Headstart Media or the personal safety of its users and the public.

7. Disclaimer of Warranty
Customer acknowledges the inherent risks involved in online data storage, including without limitation the risk of destruction or loss of data. Headstart Media PROVIDES ALL SERVICES “AS IS” AND WITH ALL FAULTS. THE ENTIRE RISK ASSOCIATED WITH THE SERVICES IS ASSUMED BY CUSTOMER. HEADSTART MEDIA EXTENDS NO WARRANTIES TO CUSTOMER OR TO ANY OTHER PERSON, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY THAT THE SERVICES ARE OF ANY PARTICULAR QUALITY.

8. Limitation of Liability
IN NO EVENT WILL HEADSTART MEDIA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY LEGAL THEORY (INCLUDING FOR THE CONDITION, EXISTENCE, OR LOSS OF DATA SENT TO HEADSTART MEDIA OR THE DATA HEADSTART MEDIA RECOVERS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES REGARDLESS ON THE LEGAL THEORY ON WHICH THE CLAIM IS ASSERTED (INCLUDING, WITHOUT LIMITATION, CONTRACT, BREACH OF CONTRACT, AND TORT). Some states do not allow the exclusion or limitation of implied warranties or liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Headstart Media will not be liable to Customer or to any other person for failure to perform or any delay in the performance of the Service due to fire, flood, war, riot, strike, explosion, lock out, injunction, natural disaster, interruption of transportation, acts of war, terrorism, labor disputes, acts of civil or military ownerity, power blackouts, computer viruses, or any other event beyond Headstart Media’s reasonable control.
Customer agrees that the sole and exclusive remedy for unsatisfactory services shall be termination of the Service and a refund of any amount actually paid by Customer for the then current service term. HEADSTART MEDIA’S LIABILITY OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING ANY NEGLIGENCE ON ITS PART, SHALL BE LIMITED TO THE AMOUNT CUSTOMER HAS PAID HEADSTART MEDIA FOR THE SERVICES FOR THE THEN CURRENT TERM OF SERVICE.

9. Trial license, Freeware and Support
A 30-days APMS Financing and Cost Control trial license and a APMS Budgeting license are provided to you free of charge and without warranty. Thus, Headstart Media will not give you any warranty with respect to the Client Software nor the Network. Headstart Media provides for such licenses no support (email or phone) and the use of the software in a production environment is expressly at your own risk.
Headstart Media offers technical support services. The provision of technical support is in the sole discretion of Headstart Media and comes with no guarantee or warranty. Support services are expressly not included in the license fee. It is your responsibility to back up all your existing data, software, and programs before you receive technical support from Headstart Media. Headstart Media reserves the right to deny, suspend or terminate the support in its sole discretion.

10. Indemnification
CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS HEADSTART MEDIA AND ITS EMPLOYEES, AFFILIATES, CONTRACTORS, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, SUITS, ACTIONS, DEMANDS, PROCEEDINGS (WHETHER LEGAL OR ADMINISTRATIVE), AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) ARISING FROM OR RELATED TO (A) ANY BREACH OF THIS AGREEMENT BY CUSTOMER; (B) ANY USE OF THE SERVICE BY CUSTOMER; OR (C) ANY CLAIMS FOR INFRINGEMENT OF ANY THIRD PARTY RIGHTS ARISING FROM OR RELATED TO CUSTOMER’S DATA.
Compliance with Laws
The transactions contemplated hereby may be subject to the customs and export control laws and regulations of your country of residence and the countries where our data recovery facilities are located. You agree to comply with all customs and export laws and all other applicable laws, statues, ordinances and regulations relating to use of the Service. You acknowledge that violations of these Terms could subject you to criminal or civil penalties.
Modifications
CUSTOMER AGREES THAT HEADSTART MEDIA SHALL HAVE THE RIGHT IN ITS SOLE DISCRETION TO AMEND THESE TERMS AND CONDITIONS FROM TIME TO TIME AND THAT ANY SUCH AMENDMENT SHALL BE EFFECTIVE AS OF THE EARLIER OF THE DATE HEADSTART MEDIA SENDS CUSTOMER AN EMAIL TO THE ADDRESS SPECIFIED IN THE CUSTOMER'S ACCOUNT DETAILS OR THE DATE HEADSTART MEDIA OTHERWISE NOTIFIES CUSTOMER OF THE CHANGE (E.G., BY DISPLAYING THE NOTICE IN THE CLIENT Software). NOTWITHSTANDING THE FOREGOING, IF CUSTOMER HAS PURCHASED STORAGE AND IS USING SUCH ADDITIONAL STORAGE AT THE TIME OF THE CHANGE, CUSTOMER MAY OBJECT TO ANY CHANGE IN THESE TERMS BY PROVIDING HEADSTART MEDIA WITH NOTICE WITHIN 10 DAYS OF THE DATE OF THE NOTICE TO CUSTOMER. UPON RECEIPT OF SUCH OBJECTION, HEADSTART MEDIA SHALL, AT ITS OPTION, HAVE THE RIGHT TO: (A) TERMINATE THE SERVICE AND REFUND TO CUSTOMER A PRO RATA PORTION OF ANY FEES CUSTOMER HAS PAID FOR STORAGE NOT YET USED; OR (B) CONTINUE TO PROVIDE THE SERVICE PURSUANT TO THE TERMS IN EXISTENCE PRIOR TO THE CHANGE, IN WHICH EVENT THE CHANGE WILL BECOME EFFECTIVE UPON ANY RENEWAL OF THE SERVICE BY CUSTOMER.


11. General
If any provision of these Terms is held invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions shall not be affected thereby.
The failure of either party to exercise any rights provided for in this Agreement shall not be deemed a waiver of any rights under this Agreement.
You may not assign your rights or obligations under these Terms without Headstart Media’s express written consent.
Both parties agree that except for claims related to the indemnification obligations above, all claims arising under or related to the Terms must be brought within 2 years after the date the cause of action arose.
In the event either party brings an action against the other to enforce any term of the Agreement, the prevailing party in such action shall be entitled to recover the court costs and reasonable attorney’s fees at trial and on any appeal.
This agreement and all associated documentation has been written in the English language and the parties agree that the English language version will govern. All communications and any dispute associated with this agreement shall be in the English language. (For France and Canada: Les Parties aux présentes confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s’y rattache, et toute la communication écrite et de vive voix, soient rédigés en langue anglaise.)
These Terms and the dealings between the parties shall be governed by the laws of Switzerland, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The parties consent that the courts of Basel, Switzerland shall be the exclusive forum for all disputes arising or related to these Terms.