Influma (referred to as “Influma” or “service”) is an Online-Service for Content and Influencer Marketing, developed and operated by ADENION GmbH (referred to as “ADENION“ or “we”).
1.1 These terms and conditions (“Terms of Service” or “Agreement”) govern your access to use of Influma services accessible via www.influma.com, including worldwide domain names or sites.
1.2 These terms of service (including the documents, texts, graphics and videos) govern the agreement on which you may make use of the Influma website and service, whether as a guest or a registered user.
1.3 By accessing or using the site and the service you do agree to these Terms of Service. If you do not agree to these terms of service, you must not use our websites and service.
1.4 If you are accessing and using our website and service on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service.
1.5 ADENION reserves the right, at any time, to update and change any or all of these Terms of Service, in its sole discretion, including but not limited to the fees and charges associated with the use of the service. If ADENION does change the Terms of Service, the modified Terms of Service will be posted on the site. You will be notified of any changes that, in our sole discretion, materially impact these Terms of Service. If you continue to use the website and Service after any such changes have been made you constitute your consent to such changes. Though, you are responsible for regularly reviewing the most current version of the Terms of Service, which are currently available at: http://www.influma.com/terms.
2. Use of the Influma Service
2.1 We offer two license versions of Influma:
2.1.1 Influma Free: Use of this version is free. The free license offers full functionality, but limited numbers of users, posts and social media network variety. (Further details can be found here http://influma.com/en/service)
2.1.2 Influma Pro: Use of this version is subject to a monthly subscription fee, which varies to the number of Authorized Users, Number of Searches and Influencers you wish to monitor, administrate, store or export. (Further details can be found here http://influma.com/en/service). In relation to the Authorized Users, you undertake that:
126.96.36.199 the maximum number of authorized Users that you authorize to access and use the Service shall not exceed the number of user subscriptions you have purchased under the applicable subscription plan;
188.8.131.52 you will not allow any user subscription to be used by more than one individual authorized user unless it has been reassigned in its entirety to another individual authorized User, in which case the prior authorized User shall no longer have any right to access or use the Service;
184.108.40.206 you shall permit us to audit use of the Service and, if any such audit reveals that:
(a) any password has been provided to any individual who is not an authorized user, then without affecting our other rights, you shall promptly disable such passwords and we shall not issue any new passwords to any such individual; or
(b) you have underpaid subscription fees to us, then without affecting our other rights, you shall pay to us an amount equal to such underpayment within ten days of the date of the relevant audit.
2.2 In both license versions we grant you a non-transferable, non-exclusive license to use the Influma Service subject to these terms. All rights reserved.
3. Paid License (Influma Pro): Fees, Terms and Termination
3.1 The paid license of the service is available under a variety of subscription plans. Details of the subscription plans, together with the subscription fees can be found here: http://Influma.com/de/service
3.2 Subject to which subscription plan you choose, you agree to subscribe for it for the initial subscription period, which is 2 month. The relevant period starts on the date we accept your offer for a subscription (the start date).
3.3 Auto-renewal and Cancellation: Influma Pro purchases and subscriptions are renewed automatically on a monthly basis. You agree that ADENION may process your credit card or PayPal account on each monthly or other renewal term (based on the applicable billing cycle).
3.4 After the initial subscription period you may terminate or downgrade your Influma Pro subscription on a monthly basis, upon a written notice. Upgrade fees are not refundable.
3.5 Late Payment: If any amounts due hereunder are not received by ADENION by the due date, then at ADENION’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 10 days' written notice, ADENION may suspend your access to the Service if ADENION does not receive the amounts invoiced hereunder at the expiration of such period.
3.6 Taxes and Withholdings: You are responsible for paying all taxes associated with the subscription to the paid services. If ADENION has the legal obligation to pay or collect taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you, unless you provide ADENION with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this agreement shall be made free and clear of and without deduction or withholding for any taxes. If you are required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, ADENION receives an amount equal to the sum it would have received had no such deduction or withholding been made.
We are entitled to increase the subscription fees at the start of each renewal period upon 90 days’ prior notice to you.
4. Intellectual Property
4.1 Influma. As between you and ADENION, ADENION retains all rights, title, and interest in and to the Service. ADENION is the owner and the licensee of all intellectual property rights in our site (and in the material published on it) and the Influma Service. Those works are protected by copyright laws and treaties around the world. All such rights are reserved. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Service or any of ADENION’s rights or interests therein or any other ADENION intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Service not expressly granted in this agreement are reserved by ADENION. You may from time to time provide suggestions, comments or other feedback to ADENION with respect to the Service (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for ADENION notwithstanding anything else. You shall, and hereby do, grant to ADENION a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit you feedback and suggestions for any purpose.
5. Acceptable Use Compliance and Responsability
5.1 be responsible for your and your authorized users compliance with these terms of service;
5.2 be solely responsible to prevent unauthorized access to or use of the Service, including keeping your password and user name confidential and not permitting any third party to access or youse your user name, password, or account for the Service;
5.3 be solely responsible and liable for all activity conducted through your account in connection with the Service;
5.4 use the Service only in accordance with applicable laws and government regulations;
5.5 comply in all respects with all applicable terms of the Third-Party Services that you subscribe to or otherwise access in connection with your use of the Service;
5.6 promptly notify ADENON if you become aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of your (or any Authorized User’s) user name, password, or account.
You must not
5.1 infringe our intellectual property rights or those of any third party in relation to your use of the Influma Service to the extent that such use is not licensed by these terms of service;
5.2 use the Influma Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms of service,
5.3 act fraudulently or maliciously, for example, by uploading to, or transmitting from, the Service any data, file, software, or link that contains or redirects to a virus, by hacking into or inserting malicious code, including viruses, or other harmful data, into the Influma Service or our sites;
5.4 transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Influma Service;
5.5 use the Influma Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; such as spam or other unsolicited content in violation of applicable laws;
5.6 make the Service available to anyone than the authorized users nor engage in any non-legitimate or excessive use of the Influma Service and, by way of illustration only, we consider the following to be indicative of non-legitimate or excessive use: (a) re-selling your subscription;
(b) sharing subscriptions between users; or
(c) making automated searches or unusual search patterns inconsistent with normal, individual subscription use;
5.7 collect or harvest any information or data from our systems or attempt to decipher any transmissions to or from the servers running the Influma Service.
5.8 access the Service in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Service;
5.9 attempt to gain unauthorized access to the Service or its related systems or networks; or authorize, permit, or encourage any third party to do any of the above.
If you violate the letter or spirit of these Terms of Service, abuse the Influma Service, or otherwise create risk or possible legal exposure to ADENION, ADENION can terminate or suspend your Influma Account at our sole discretion. ADENION will notify you by email or at the next time you attempt to access your account. You may also cancel or disable your Influma account at any time.
6. Disclaimers; Limitations of Liability
6.1 DISCLAIMER OF WARRANTIES: WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF OUR WEBSITE AND THE INFLUMA SERVICE, ALL DATA MADE AVAILABLE ON ANY SITE OR MATERIAL, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE FREE AND PAID SERVICES ARE PROVIDED 'AS IS' WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SYSTEM AND SERVICE, AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
6.2 NO INDRECT DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES. WE WILL NOT BE LIABLE TO ANY USER FOR ANY LOSS OR DAMAGE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, EVEN IF FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH
6.2.1 USE OF, OR INABILITY TO USE, THE SERVICE; OR
6.2.2 USE OF OR RELIANCE ON ANY CONTENT DISPLAYED ON OUR SITE OR THE RESULTS GENERATED BY THE INFLUMA SERVICE.
6.3 LIMITATIONS OF LIABILITY.
6.3.1 WE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ANY OF OUR OBLIGATIONS UNDER THESE TERMS OF SERVICE THAT IS CAUSED BY ANY ACT OR EVENT BEYOND OUR REASONABLE CONTROL, INCLUDING FAILURE OF PUBLIC OR PRIVATE TELECOMMUNICATIONS NETWORKS.
6.3.2 WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A VIRUS, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF OUR SITE OR THE INFLUMA SERVICE.
6.3.3 EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE, AND THE USE OF THE INFLUMA SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN ALL CIRCUMSTANCES BE LIMITED TO THE SUBSCRIPTION FEES AND THE THEN CURRENT RENEWAL FEES, AS THE CONTEXT REQUIRES.
6.4 We are only responsible for loss or damage you suffer that is a foreseeable result of our breach of these terms of service or our negligence up to the limit specified in the following paragraph, but we are not responsible for any unforeseeable loss or damage. Loss or damage is foreseeable if it is an obvious consequence of our breach or if they were contemplated by you and us at the time we granted you the terms of service.
6.5 Nothing in these terms of service excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by German law.
6.6 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an 'Action') brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you; (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that
(i) imposes an obligation on us;
(ii) requires us to make an admission; or
(iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
8.1 We may terminate your subscription to the Service (whether free or paid) at any time and without notice if you commit a material breach of these terms of service.
8.2 A material breach, for the purpose of the Service, includes but is not limited to, any unlawful attempt to copy the Service, services or data of Influma and any attempt to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Service or services of Influma.
8.3 On termination for any reason:
8.3.1 all rights granted to you under these terms of service shall cease; and
8.3.2 you must immediately cease all activities authorised by these terms of service, including your use of the Service.
9. Other Important Terms
9.1 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
9.2 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued
9.3 Marketing und PR rights: You agree that we can use your name, logo and trademarks in any promotion on our website, marketing materials or public relations. You can withdraw these rights by simply notifying us at firstname.lastname@example.org.
9.4 Transfer of Rights:
9.4.1 We may transfer our rights and obligations under these terms of service to another organisation, but this will not affect your rights or our obligations under these terms of service.
9.4.2 You may only transfer your rights or obligations under these terms of service to another person if we agree in writing.
9.5 Enforcement of Rights: If we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any applicable enactment or rule of law, such illegality, invalidity or unenforceability shall not affect the remainder of this Agreement, and the Parties shall in good faith attempt to substitute a legal, valid and enforceable provision which achieves to the nearest extent possible the same effect as would have been achieved by the illegal, invalid or unenforceable provision.
11. Governing Law / Jurisdiction
This Agreement shall be governed by and construed in accordance with the substantive laws of Germany, without regard to the Conflict of Laws provisions thereof. For the avoidance of doubt, the Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any dispute arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the ordinary courts of Grevenbroich, Germany.
Grevenbroich, 25. Mai 2015