Cyando AG, Alte Steinhauserstrasse 1, 6330 Cham, Switzerland (hereinafter referred to as “uploaded” or “ul”) provides a cloud storage service (hereinafter “Service”) on the Internet under the domain uploaded.net enabling Users to upload their own files. The services provided under uploaded.net furnish Users with virtual storage space enabling them to store files such as videos, images or documents and to download them via a generated specific link.
- ul renders its services exclusively on the basis of these Terms of Service (“TOS”).
- ul reserves the right to amend the contents of these TOS without the User’s consent with future effect, provided that this is reasonable to the User, taking account of ul’s interests. ul shall give notice of corresponding amendments via this Service and furnish a new copy of the TOS under uploaded.net/legal. By using the services after the date on which the TOS were amended, the User is deemed to consent to the application of the amended TOS. Sec. 11.3 shall remain unaffected hereby.
- The terms and conditions contained in these TOS do not create any third party beneficiary rights.
- The User acknowledges that, as between ul and the User, ul is the exclusive owner of any and all rights to the products and services offered by it. This does not apply to files uploaded by Users. The User is not authorised to make use of these rights belonging to ul without ul’s prior express written consent (e.g. to copy ul’s Service in whole or in part and to use it on other websites) or to remove references to ul’s status as right holder.
|User||Any natural person using ul’s products and services.|
|Premium Account||Fee-based access of User with extended functions and options by contrast to those provided under the Free Account; the Premium Account and the Free Account entitle Users to participate in the ul Affiliate Programme.|
|Free Account||Free access of a User with limited functions and options but with the right to participate in the ul Affiliate Programme.|
|Affiliate Programme||ul shall structure the ul Affiliate Programme in its free discretion, pursuant to sec. 4 of these TOS.|
|Affiliates||Owners or operators of advertisements/ website that are linked on a fee-paying basis to the Affiliate Programme and/or Users who recruit new Users.|
|Advertising||Advertising by our Affiliates may be linked to the Service in any number of variations (sec. 8 of these TOS).|
2. General services of ul
- ul offers its Users access to its Service. ul is entitled to permit access to certain services only to registered Users.
- ul shall endeavour to keep the Service available 24 hours a day, seven days a week. Users shall have no entitlement to uninterrupted availability of the Service. In particular, ul reserves the right to impose temporary restrictions on its contractual services in view of measures it needs to take for operational or security reasons (in particular for preventive maintenance). ul shall endeavour to provide reasonable prior notice of such measures, to the extent that they are planned, and in all other respects it shall restore availability within a timeframe that is reasonable in view of the cause of disruption. To the extent that ul’s Service should not be available, this shall not give rise to any claims by Users for warranty or compensatory damages or reimbursement of expenditures.
- In the event of interruptions to availability, it is possible that – in exceptional cases – it may not be possible to record/log a small number of queries. Should this occur, this shall not give rise to any claims by Users against ul for deficiencies of the services (warranty) or compensatory damages or reimbursement of expenses.
- To the extent and for so long as an event of force majeure is present, ul shall have no obligation to perform its services. In particular, force majeure shall be deemed to include strikes, lock-outs, delays to or failure of supplies by suppliers, where such are caused by an event of force majeure, electrical power outages and disruptions to or destruction of data transmission lines lying outside of the scope of ul’s responsibility, orders or dispositions by public authorities or courts, attacks by Users or third parties (e.g. by malicious scripts such as computer viruses or DoS attacks) that ul would not have been in a position to prevent, even in the exercise of such care as is reasonable in the circumstances. Circumstances shall not preclude the presence of a force majeure event merely because ul is, as a general matter, obliged to carry out certain security measures.
- ul is entitled to make changes to its Service in terms of content and design. In particular, ul is entitled to make further developments to the Service to maintain or improve its services, and to adapt it to current technical developments.
3. Uploading of files
- As regards ul, files uploaded by Users and stored for them by ul are deemed third-party information. ul does not adopt such information as its own.
- To the extent the information uploaded by Users makes use of hyperlinks to external Internet publications (e.g. third-party websites) referring to ul (“external websites”), such references shall likewise be deemed third-party information as to ul. ul does not adopt any such information as its own. ul does not assume any warranty or responsibility for the availability of external websites.
- ul shall, in particular, not be responsible for information which, as to ul, is third- party information where ul
- has no knowledge of any illegal act or of the information, and in cases involving claims for compensatory damages, ul is unaware of facts or circumstances from which any such illegal act or information would be obvious, or
- ul has acted without delay to remove the information or to block access to it as soon as ul gained knowledge thereof. No third-party rights are created by the foregoing.
- Unless otherwise agreed, the User shall have no claim for compensation in exchange for uploading information.
- Impermissible files:
- The User is not authorised to store and/or make publicly available files on ul’s Service which are not compatible with these TOS and/or with applicable law.
- In particular, all files shall be deemed incompatible with these TOS which contain information and/or content which:
- can adversely affect, damage or destroy software or hardware and, in particular which contains malicious code such as computer viruses;
- infringes on intellectual property rights, in particular patent, trade mark or copyrights;
- satisfies the elements of libel, slander or defamation;
- stores or publishes personal data without the consent of the affected party or without legal permission;
- is racist, glorifies violence or war, trivialises violence or incites sedition;
- denies or trivialises acts committed under National Socialist rule;
- incites hatred against sections of the population or against a national, racial, religious or ethnic group, invites violent or capricious acts against such groups or attacks human dignity of other persons by insulting, maliciously ridiculing or defaming sections of the population or one of the above-referenced groups;
- offends human dignity, such as by displaying dying or severely physically or mentally ill persons;
- is pornographic, in particular contains depictions involving children or minors in inappropriate, sexually suggestive positions, sexual abuse or displays sexual acts of humans with animals.
- is obviously apt to constitute a grave risk to the development of children and minors or their upbringing as responsible members within the community, taking into account the particular influence of the medium of dissemination.
- The User hereby warrants to ul that the User has all such rights as are required with respect to the uploaded files, in particular that the User has the right to store, process, publish and/or transmit them (whether as the author thereof or the holder of a right of use thereto) to such extent as is required pursuant to those TOS. The User hereby further warrants that no third-party rights or laws which may be applicable in the individual case will be infringed or violated by the upload, in particular by the associated storage, processing and publication or transmittal of such files.
- In particular, ul is entitled without prior notice and in its free discretion to block or delete files in whole or in part where such files violate these TOS and/or constitute violations or applicable law
- where ul receives notice from a third party or learns by its own proactive measures of any infringement of rights or violation, in particular due to storage and/or public disclosure of information and/or content as per sec. 3.5.2 hereof or
- where public authorities or courts direct ul to cease storing and making publicly available such information.
- In the event of a serious or repeated violation of these TOS or of applicable law, ul shall be entitled to block the User’s access to the Services of ul, to terminate the contract with the User without notice and to withdraw from the User any benefits granted under the Affiliate Programme in whole or in part, including any credit balances.
- In the event that the User violates applicable law or these TOS and ul or any Affiliate incurs losses or expenses as a result of such violation, the User shall be obliged to pay compensation for such losses and expenditure except where the User does not bear responsibility for them. The User shall indemnify and hold ul harmless against all claims third parties may assert against ul for infringement of their rights by the User or due to violations of law by the User.
- To the extent it is possible and reasonable to do so, ul shall pursue measures to protect third-party rights to intellectual property, including, in particular, in order to identify, eliminate and prevent infringements of rights. Where the User knows or becomes aware of facts which, upon an informed assessment, would furnish grounds to suspect or to know that uploaded files contain information and/or files and content which violate these TOS (in particular sec. 3.5.2) or applicable law, the User shall notify ul without delay of the links to such files by means of a Takedown Notice. ul is entitled to block access to such files, to delete such files and to include such files in a list of ul’s data filter.
- In order to comply with the prerequisites imposed by several payment providers, ul is obliged to provide assurances that certain content is not downloadable from ul’s servers. Types of such undesirable content include (but are not limited to) e.g. compelled sexual acts (e.g. by hypnosis, drugs, violence etc.), paedophilia, zoophilia, incest and necrophilia. File names which advert to a breach of such guidelines will be automatically blocked by our systems.
4. Affiliate Programme
- Any registered User is authorised to participate in ul’s Affiliate Programme. ul is entitled to design the substance of the Affiliate Programme and the remuneration models in its free discretion, and to modify such at any time with prospective effect. sec. 11.3 shall not apply in respect thereof. In particular, ul shall be entitled to restrict the validity of benefits in time and to specify a period at the end of which such benefits shall lapse. No interest shall be payable on any benefits, in particular on the ul credit account.
- ul publishes the current and updated contents of its Affiliate Programme and the remuneration models at http://uploaded.net/products
- The ul Affiliate Programme consists of the following remuneration models:
- Commission credit for first-time orders:
- Subsequent commission:
In addition, subsequent commission will be credited (see sec. 4.2) provided that a Premium Account User who was previously referred extends the term of his account. Subsequent commission will be counted as such if it is earned within a maximum of seven days from the date on which the premium term of the first order expires.
- Download remuneration:
A credit will be applied per download, which shall be dependent on the country and size of the download.
- Limitation on commission credit:
Commissions will be credited depending on the method of payment used for making payment;
- Users are not permitted:
- To procure benefits or cause ul to grant benefits under ul’s Affiliate Programme by violating applicable law or breaching these TOS, or
- to obtain the grant of benefits under the Affiliate Programme by fraud or
- to circumvent the terms and conditions of the Affiliate Programme.
- In the event of a breach of sec. 4.5 hereof, ul is entitled to withdraw benefits which have been granted and – to the extent necessary and appropriate – to temporarily block that User’s access or to exercise extraordinary termination of its agreement with the User in cases of repeated breach and after having given a warning to no avail.
5. Modes of payment
- Application for payment
- The assertion of a claim for payment is predicated on the User’s submission of an application for payment to ul, containing such details as are necessary to enable ul to review the fulfilment of prerequisites of the payment and to facilitate the payment.
- ul is entitled to determine in its free discretion how payment shall be effected. In particular ul is entitled to stipulate that payment shall be made by specified methods of payment. The User shall notify ul in his or her application for payment which of the payment methods offered by ul he or she is selecting.
- The User is only entitled to submit an application for payment where the User has accumulated a minimum credit balance. The amount of the minimum credit balance is governed by the payment method selected by the User in his or her application for payment.
- ul shall commence its provision of the contract services immediately after the parties’ contract is concluded. The User shall have no claim whatsoever for a refund of any fees. All orders shall be deemed final. If you are unsatisfied, please contact our customer support with respect to compensation.
- ul shall immediately review the User’s application for payment. ul’s review shall also include a review of the User’s compliance with ul’s TOS. ul shall prepare a statement of account for each application for payment submitted by a registered User. Where, following ul’s review, ul determines that there are no obstacles to payment, ul shall timely pay the amount determined upon completion of its review (where possible within 30 business days) by such method of payment as the User has selected.
- Where the User so requests and it is necessary for tax reasons, ul shall generate a receipt which comports with the requirements of tax law for each payment to the User.
6. Backup storage and deletion of files
- Where the User has obtained a Free Account, from such time as that account is provided to the User he or she shall have a defined backup storage volume at his or her disposal for a specified term. At http://uploaded.net/products, the User may download a product overview which also provides details of the storage volume and the term of storage.
- Where a User acquires a Premium Account, from such time as the account is provided to the User he or she shall have expanded backup storage volume (relative to what is provided under a Free Account) for the agreed contract term as well as a limited contingent of traffic and hybrid traffic. More particular details of this are shown in the product overview which may be downloaded from http://uploaded.net/products. Moreover a credit note will be applied in the amount of up to 30 Gigabyte per day, if the download volume amounts to less than 500 Gigabyte. The credit note always will be applied such that 30 Gigabyte will be credited or the maximum download volume in the amount of 500 Gigabyte will have been reached.
- Subject to any amendment to these TOS, ul shall be entitled:
- to delete any file uploaded by a Free Account User (i) where such User exceeds the volume provided to him or her and he has not purchased any backup storage or (ii) where the contract has come to an end, e.g. due to the expiry of the fixed contract term or as a result of ordinary or extraordinary termination; ul wishes to point out that the technical environment and requirements may change and that Users have no claim to any “permanent” storage of data without limitation as to time.
- To delete the files uploaded by a Premium Account User (i) to the extent the User consumes more than 10 Gigabytes of storage in his or her account and he has not paid for any backup storage or (ii) where the contract has come to an end.
- Notwithstanding what is set forth under sec. 6.1 to 6.3 hereof, ul is entitled to decline to upload information including files, to block or to delete information or to store information under another link than the one initially indicated where the files uploaded by the User or the release thereof to the public breaches applicable law or these TOS. This shall apply in particular in respect of files containing information and/or content as per sec. 3.5.2 of these TOS or in cases in which ul receives a well-founded third-party demand or is obliged to block, delete or otherwise store files.
7. Security of stored files
- ul does not open or view the uploaded files of Users except where ul bears a statutory obligation to do so or is required to do so by order of a regulatory authority or a court. ul neither catalogues nor lists the files in tables of contents. ul does not furnish any search function by which anyone may conduct searches of files in ul’s Service.
- ul has no control over who downloads files stored on ul’s Service by a User’s upload. ul does not provide information to third parties as to the web address under which files are stored on ul’s Service except where ul bears a statutory duty to do so or is required to do so by regulatory or court order.
- These TOS do not give rise to any duty on the part of ul to disclose or provide any indices or directories of files available on ul’s Service.
- ul is entitled to superimpose or overlay Advertising (the design and content of which ul may determine in its free discretion) on its Service. In particular, ul is also entitled to do so during the downloads of files the User has uploaded to the Service. Within the meaning of this section, Advertising shall, in particular, include banners, links, buttons, videos and pop-ups.
- ul hereby excludes liability for reimbursement of expenses or compensatory damages or other claims for recourse against ul, including claims for compensation of lost profits, consequential losses and compensation for indirect damages. The foregoing shall not apply with respect to ul’s liability on the basis of mandatory provisions of law, nor shall it apply to damage or losses which ul or its legal representatives or vicarious agents cause by intentional act or omission or gross negligence.
10. Data protection
- For purposes of information, ul makes a data protection notice available for download at www.uploaded.net/privacy.
11. Special rules with respect to registered Users
- General duties of Users
- The User is responsible for correctly supplying the information necessary in order to perform this agreement and/or to use ul’s services. The User shall inform ul without delay of any changes to such information.
- The User shall ensure that he or she regularly checks his or her e-mail account, that the storage space in that e-mail account shall at all times suffice to receive incoming e-mail and that he or she is able to timely learn of the contents of any incoming e-mail. The User shall not use an e-mail account to which other individuals have access (including e-mail accounts from which others have the right to send e-mail).
- The User shall ensure that he or she meets the necessary preconditions in order to properly use ul’s services, in particular with respect to hardware, operating system software, necessary application software and Internet connection deployed by the User. The User shall bear the costs of his or her own hardware and software and Internet connection.
- The User shall not impair ul’s ability to perform its services by using ul’s Service or by making use of ul’s services.
- The User shall take such precautions as are necessary to secure his or her own system. The User shall secure his or her data at reasonable intervals and shall make use of software which affords protection from malicious software such as computer viruses. ul shall not be responsible for any losses caused by malicious software.
- The User shall inform ul without delay in written or electronic form of any complaints with respect to ul’s services.
- Special duties of User with respect to User’s access data
- User membership requires the User to register. Following registration, the User shall receive his or her access data.
- The User is responsible for handling his or her access data in a confidential fashion. The User may not provide his or her access data to third parties and shall keep the same secure from access by third parties.
- The User shall inform ul without delay if there are grounds to suspect that unauthorised persons have gained knowledge of the User’s access data.
- The User is not authorised to grant a third party the right to use his or her Free or Premium Account(s), whether on a gratuitous basis or for consideration (e.g. “Rental” or “Sale”).
- The User is not authorised to permit third parties to download files via his or her Free or Premium Account(s) or to download files for third parties. In particular, the User is not authorised to utilise his or her Free or Premium Account(s) in connection with any so-called multi-hosting service or any comparable service.
- Amendment of registration agreement
- ul and the User may amend these TOS with respect to an existing registration agreement in line with the procedures set out below:
- ul shall offer an amendment to these TOS amending an existing registration agreement. The subject-matter of such offer to amend the TOS may not be any major elements of the contract between the parties which are material to the contractual equilibrium between the parties (e.g. type and scope of agreed mutual services and consideration as well as term and termination notice periods), and the amendments must be reasonable to the User. In particular, an amendment or modification to these TOS will be deemed necessary in order to eliminate difficulties in performing the registration agreement with the User due to contract gaps which have arisen after the conclusion of the agreement. This will, for example, be the case where one or more of the terms of these TOS are found by court decisions to be invalid or ineffective or any legislative amendment causes one or more of the terms of these TOS to become invalid.
- An offer to amend these TOS must, in particular, contain the following information :
- the proposed amendment to the TOS;
- the date of the amendment (i.e. the date on which the amendment is intended to take effect);
- the User’s right to submit an objection to ul in written or electronic form within a period of six weeks from the date the User receives the amendment offer, and the legal consequences of failing to register such objection.
- ul shall notify the User in writing or by e-mail of its offer to amend these Terms of Service.
- The User’s consent to the proposed amendment to the TOS shall be deemed to have been granted where the User has not objected to ul in the proper form and within the required period. In addition, the effectiveness of the amendment to these TOS shall be subject to the condition precedent that, in its notice of the amendment, ul has expressly and especially pointed out the legal consequences of failing to register an objection.
- Where a User exercises his or her right of objection, then ul’s amendment offer shall be deemed rejected. The registration agreement shall then be continued without the proposed amendments.
- The right of each party to terminate the registration agreement shall remain unaffected by the foregoing.
- Change of counterparty
- ul reserves the right to transfer and assign the rights and duties arising out of these TOS and from agreements concluded on the basis of these TOS to a third party (Contractual Assignment).
- ul shall inform the User of its intention to transfer and assign the agreement and of the date upon which the amendment is to take effect (Date of Amendment) at least eight weeks prior to the Date of Amendment (Notification of Amendment) and shall advise the User that he or she is entitled to object to the Contractual Assignment within six weeks of receiving Notification of Amendment by sending a statement of objection by letter, facsimile or e-mail.
- Where the User raises an objection in the proper form and within the proper time, or if ul has failed to properly refer in its Notification of Amendment to legal consequences of the User’s failure to object, then the transfer and assignment shall not take effect. In such case, either party shall be entitled on or before the Date of Amendment to exercise a special right of termination effective as of the Date of Amendment.
- Where the User fails to object in the proper form and in the proper time, and where ul has properly advised the User in its Notification of the Amendment to the legal consequence of the User’s failure to object, then the Contractual Assignment shall take effect on the Date of Amendment.
- Consent under data protection law
In the event of a Contractual Assignment, the User consents to ul’s transmission of the User’s stored personal data to the assignee. If the User refuses to give consent to such transmission of data, ul shall be entitled to refuse to enter into the registration agreement with such User. The User is entitled to revoke consent with prospective effect. In the event of a revocation of the consent by the User, ul shall have a special right of termination with immediate effect.
- Registration agreements are made for an indefinite term, except where a fixed contractual term (e.g. 48 hours, 1 month, 3 months, 6 months, 1 year, 2 years) has been agreed.
- Where the parties have not agreed to a fixed contractual term, the User may exercise an ordinary right of termination at any time without notice and ul may exercise a right of ordinary termination upon 14 calendar days’ notice to the end of the calendar month. Where a fixed contractual term has been agreed the registration agreement shall terminate upon the expiry of such fixed term.
- The parties’ right to exercise extraordinary termination, their right of special termination, and ul’s right to block the User’s access remain unaffected by the foregoing. This applies even if a fixed term has been agreed.
- ul is entitled to deactivate the profile of the User on ul’s Service at such time as the contract with that User comes to an end and to delete all of the User’s data without prior notice to the User. Statutory duties of storage or archiving shall remain unaffected hereby. The User shall have no right to demand that ul surrender his or her data.
- Blocking of User access
- ul is entitled to block the access of any User to the Service in whole or in part. In particular, ul is entitled to block the access of a User in whole or in part to ensure IT security, e.g. after a User’s access data have been entered incorrectly three times in succession, and in order to combat infringements of applicable law and violations of these TOS. ul shall furthermore be entitled to issue a warning (“Formal Warning”) to the User in the event of a violation of contract obligations or legal duties of the User, to block the User’s access, or to exercise extraordinary termination of the agreement with the User. ul’s claims for compensation of damages and expenditures shall remain unaffected by the foregoing. Where ul becomes aware of facts which, upon a reasoned assessment, would suggest misuse of the User’s access data or a violation by the User of applicable law and/or of these TOS, and to the extent it is necessary and appropriate to do so, ul shall be entitled to temporarily block the User’s access. ul is entitled to demand reimbursement from the User of all costs for necessary measures incurred by ul in prosecuting misuse or the violation of applicable law and/or of these TOS.
12. General terms and conditions
- These TOS and agreements concluded on the basis of these TOS shall be governed by the law of the Swiss Confederation, excluding application of the UN CISG and excluding international choice of law rules, in particular excluding any choice of law rules referring to the law of another country or providing for renvoi.
- Jurisdiction and venue for all disputes on the basis of these TOS shall lie (to the extent permitted by law) with the courts located at ul’s registered office. However, ul is entitled to assert legal remedies against Users at Users’ domicile, and in particular to bring actions against Users in the courts of their domicile.
- If any provision of this agreement should be or become invalid or impracticable in whole or in part, the validity or performance of the remaining provisions of this agreement shall remain unaffected thereby.
- Translations of these TOS are provided exclusively as an accommodation to Users. The relevant source of the content of the parties’ agreement shall be the German-language version of these TOS.
- Waiver of right of withdrawal
Immediately after entering into this agreement, ul shall commence furnishing the contract services. For this reason, the customer waives any right of cancellation which he or she may have as a result of special legal rules governing distance selling (including in particular, but not limited to, the E-Commerce Directive of the European Union). If you should be dissatisfied, please contact our customer support with respect to compensation.