Last revised on 2nd of July 2013
1. Scope and Subject Matter of Agreement
1.1 The Software as a Service www.phraseapp.com (hereinafter referred to as "PhraseApp") is operated by Dynport GmbH (hereinafter referred to as "Dynport" or "we"), located at Große Theaterstraße 39, 20354 Hamburg, and registered in Hamburg, HRB 109537, Amtsgericht Hamburg Abt. 66.
1.2 Dynport offers PhraseApp to startups. Startups are individuals or legal entities or partnerships having legal capacity who act in their commercial or independent professional capacity when entering into a legal transaction.
1.3 By signing up for an account, providing your name, a password and a valid e-mail address, you accept Dynport's offer to enter into an agreement entitling you to use PhraseApp pursuant to these Terms of Service (this "Agreement").
1.4 PhraseApp lets you independently upload, download and edit translation key files ("Locale Files"), which are files containing phrases or identifiers and their translations, and PhraseApp lets you group those Locale Files in projects ("Projects") for access and editing by translators ("Users", e.g. your employees). PhraseApp offers access to basic services provided by Dynport (the "Services"), and may offer access to additional services provided by Dynport (the "Additional Dynport Services") and additional services provided by third parties (the "Third Party Services"), each as defined below.
1.4.1 The "Services" are the basic services made available by Dynport through PhraseApp, which include access to our website, use of our online Locale Files editor and our API, and may also include other software or services Dynport may at its discretion decide to integrate into PhraseApp from time to time. The Services may also include displaying third party offers for the use of Third Party Services as defined below.
1.4.2 The "Additional Dynport Services" are services made available by Dynport through PhraseApp subject in each case to acceptance of a separate order submitted via the according functionalities of PhraseApp, and subject in each case to the payment of separate fees.
1.4.3 The "Third Party Services" are all services made available by third parties through PhraseApp subject in each case to a separate agreement between you and such third parties, which may also be subject to separate fees. We are not responsible for the contents of any Third Party Additional Service. In respect of Third Party Services, we merely act as a commercial agent bringing you together with such third party vendors over Phrase.
1.5 Your use of PhraseApp, the Services and any Additional Dynport Services is exclusively subject to these Terms of Service. Your use of any Third Party Services is subject to separate agreements concluded between you and the relevant third party vendors. Regarding Third Party Services, we merely act as a commercial agent bringing you together with such third party vendors over our PhraseApp. Your general terms and conditions will become part of this Agreement only if expressly agreed in writing between you and Dynport.
1.6 Dynport reserves the right to modify these Terms of Service at any time, with the exception of the provisions determining the parties' primary contractual obligations hereunder. The parties' primary contractual obligations will not be changed in the manner described in this Sec. 1.6. Dynport will inform you of any proposed modification of these Terms of Service, provide you with the proposed new version of these Terms of Service and notify you of the date when these new Terms of Service will be implemented. Any change is subject to a prior written notice of four weeks. If you do not expressly refuse the respective modification within six weeks from the date on which the new Terms of Service are implemented, you are deemed to have approved the modification of these Terms of Service. In the aforementioned notice of the proposed modification, Dynport will inform you expressly and specifically about the right to object within the six weeks period and the consequences of not expressly refusing the proposed modification.
2. Dynport's Obligations
2.1 Dynport will provide the Services and grant access to PhraseApp subject to these Terms of Service.
2.2 Subject to Dynport’s acceptance of any separate offers submitted via the according functionalities of PhraseApp, and subject in each case to the payment of separate fees, Dynport will provide access to the Additional Dynport Services subject to these Terms of Service.
2.3 Dynport will enable third party users (i.e. members of the public that do not have to be registered users of Phrase) to contribute translations for your Locale Files over the Internet and use the PhraseApp functionalities (including functionalities implemented through any Additional Services) if you explicitely enable this on PhraseApp subject to these Terms of Service.
3. Your Obligations; Use of PhraseApp, Services and Additional Dynport Services
3.1 You will use the Services, PhraseApp and/or any Additional Services appropriately and reasonably. In particular, you will
3.1.1 keep current your registration data, including without limitation your e-mail address and, if applicable, billing information (including billing address).
3.1.2 ensure the fulfillment of all legal regulations and licensing requirements and comply with all applicable data privacy laws and data security regulations;
3.1.3 keep your password confidential and inform Dynport immediately if you have reason to suspect your password has been disclosed to or otherwise obtained by any third party; and
3.1.4 notify Dynport about any experienced deficiencies or damages to the Services, PhraseApp and/or Additional Dynport Services (error notification) and reasonably assist Dynport in the identification of any such deficiencies or damages and their causes, and in the remedy of such deficiencies or damages.
3.2 In using the Services, PhraseApp and/or any Additional Services, you will not do or attempt to do any of the following:
3.2.1 abuse the access to Dynport’s Services and/or engage in any illegal or unlawful actions in relation to the Services, PhraseApp and the Additional Dynport Services in any form; In particular it is prohibited to use any Services and/or Additional Services that specifically provided to or in connection with third parties’ user accounts (e.g. Additional Services or storage space connected to such third parties’ user accounts) without such third parties’ permission;
3.2.2 upload to or create on PhraseApp any kind of malware, spyware, viruses, worms, Trojan horses or similar harmful code;
3.2.3 otherwise abuse or manipulate the Services or use the Services in a way that violates these Terms of Service;
3.2.4 extract / read / change the content or passwords / e-Mails, files or similar assets belonging to a system operator or other users of the Services, PhraseApp and/or Additional Dynport Services, unless it is through regular use of the intended functionalities of Phrase;
3.2.5 interrupt or block any communication features, e.g. causing overloads or distributing SPAM;
3.2.6 distribute or enable access to illegal content of any kind via Phrase; This applies without limitation to pornographic, racist, violent or any otherwise illegal or immoral content, especially if it attacks the free democratic basic order or the concept of international understanding, as well as to propaganda material of anti-constitutional groups or parties and their respective replacement organizations;
3.2.7 infringe any third party’s rights, including without limitation trademarks, copyrights, patents, business and trade secrets and/or any other intellectual property rights.
3.2.8 create multiple accounts for a single Project in order to circumvent the limits on free developer use (Section 9 of these Terms of Service).
3.3 Commercial use of PhraseApp is permitted, i.e. you may use PhraseApp to translate Locale Files that serve commercial purposes. This includes the manage Locale Files on behalf of third parties.
3.4 You may grant other Users permission to work on your Locale Files. You will however remain the owner of each Locale File you create through your account, and you will be fully responsible for such Locale File under these Terms of Service.
3.5 Dynport may modify or remove at its discretion any content you upload to PhraseApp that Dynport determines in its discretion to violate these Terms of Service.
4 Dynport’s License Grant; License Restrictions
4.1 Dynport grants you a non-exclusive, personal, worldwide, non-transferable, non-sublicensable license, limited to the term of this Agreement and subject to the payment of such fees as may be agreed upon regarding individual Services and/or Additional Dynport Services, to use the software provided to you by Dynport as part of the Services and/or Additional Dynport Services, except where such software is expressly provided under a different license (e.g. an Open Source License). This license is for the sole purpose of enabling you to use the Services and/or Additional Dynport Services, as permitted by these Terms of Service.
4.2 Dynport grants you a non-exclusive, personal, worldwide, royalty-free, non-transferable, non-sublicensable license, limited to the term of this Agreement, to display the Dynport and PhraseApp trademarks, limited to the blip and name mark description, for the sole purpose of promoting or advertising that you use the Services. You will refrain from any use of Dynport’s trademarks that could damage the goodwill, reputation or interests of Dynport.
4.3 You may not attempt to disable or circumvent any security mechanisms used by the Services, PhraseApp and/or any Dynport Additional Service, or copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services, PhraseApp or any Dynport Additional Service or any part thereof, unless (i) specifically authorized by Dynport, in writing (e.g., through an open source software license), (ii) permitted under Section 69e of the German Copyright Act ("Urheberrechtsgesetz"), or (iii) to the extent such acts are necessary to achieve interoperability with a third software, but only if (a) Dynport had not published details about the interfaces of the Service/Phrase/Additional Service before and has not provided such details upon your written request, (b) only those parts of the Service/Phrase/Additional Service are disassembled that are necessary to achieve interoperability (c) the gained information is only used to achieve interoperability, (d) the gained information is not made available in any way to any third party; and (e) the gained information is not used to develop or market a software which is similar to the Service/Phrase/Additional Service or for any other actions that infringe Dynport’s rights.
5 License Grant from You
5.1 You grant Dynport a non-exclusive, worldwide, royalty-free, transferable and sublicensable license, limited to the term of this Agreement, to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any content, including any Locale File, you upload or create on PhraseApp, for the sole purpose of enabling Dynport to provide you with the Services and otherwise perform its obligations hereunder.
5.2 You agree that Dynport, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.
6 Term and Termination; Inactive Projects or Locale Files
6.1 This Agreement is concluded for an indefinite term.
6.2 Dynport may terminate the agreement in writing (e-mail sufficient) at any time with 90 days’ notice effective at the end of a month without stating reasons. You may terminate the agreement immediately by deleting any Projects on PhraseApp and then deleting your user account using the appropriate functionality within the user account or by email to info at phraseapp.com .
6.3 To the extent that Dynport provides services voluntarily (i.e. services which are not mandatory under the definition of "Services" under this Agreement), Dynport reserves the right to discontinue those voluntary services at any time. No claim to a reduction or compensation will result from this discontinuation.
6.5 Dynport may terminate the Agreement effective immediately if the user (i) breaches any of the obligations stated in Section 3.2 of this Agreement, or (ii) does not pay any amount owing under Section 9 of this Agreement within 14 days of the due date, or (ii) breaches any other obligations hereunder and does not remedy such breach upon a warning setting a reasonable time period for such remedy.
6.6 Dynport may delete any data stored on PhraseApp by the user after any effective termination of the Agreement.
6.7 Both parties’ right of extraordinary termination for good cause remains unaffected.
7 Additional Services
7.1 The functionalities of PhraseApp may be extended by Additional Services (i.e. translation services, machine translation, crowd translation, framework integrations, testing tools, etc) or Support Agreements (i.e. support packages comprising more services than the default free support plan available to any user). Additional Services apply to one individual account. Details and options are defined on the product page of each Additional Service. Support Agreements apply to a specific billing addresses determined and booked by you in the customer interface. Details and options of the support agreements are defined on the support plan page.
7.2 Additional Services are either provided by Dynport or by third parties. Third Party Services are provided by third party providers under separate agreements that you conclude with such third parties. Dynport merely acts as a commercial agent bringing together the parties of such agreements through Phrase. The provider of each Third Party Service is solely responsible for that Service, the content therein, and any claims that you or any other party may have relating to that Service or your use of that Service.
7.3 Additional Services can be ordered and added to the user’s account as follows: You must first visit the relevant product description or support plan page on PhraseApp and chose the Additional Services you require. You can then place a binding order for an Additional Service either by using the relevant functionality on PhraseApp (accessed via the Website or the "phrase" Client Software, e.g. the phrase ruby gem) or - in some cases - by implementing and running an according API call. The order is accepted by Dynport or the third party provider (as applicable) by a confirmation message, actual provision of the Additional Service or actual provision of login data for the Additional Service (as required), whichever occurs first. The price/fees and the contractual scope of functionality of each Additional Service are determined by the description on the relevant product description or support plan page at the time of the order.
7.4 Dynport handles the collection of payment for providers of Third Party Services. This means that all payments you make will be to Dynport. You acknowledge and agree that Dynport may submit claims in the name of such third party providers.
8 Free Use; Fees
8.1 Dynport lets you use PhraseApp for free during the trial period and up to a certain amount of unique translation units (keys). The free pricing plan is defined under https://phraseapp.com/en/pricing.
8.2 For Services provided beyond such free use, Dynport charges fees on the basis of the number of Projects, Locale Files and Amount of unique Keys in Locale files, according to the pricing plans specified under https://phraseapp.com/en/pricing.
8.3 Additional Dynport Services (Section 7) may be subject to additional fees as stated on the relevant product description or support plan page.
8.4 Prices stated include the applicable German VAT rate. The payable fees are billed monthly. All invoices are payable immediately, and must be paid without deduction.
9 Limited Warranty ("Gewährleistung")
9.1 This Section 9 does not apply to the Support Agreements. In this Section 9, the term "Dynport Additional Service" specifically excludes Support Agreements. Support Agreements may have separate warranty provisions. To the extent they do not have separate warranty provisions, the statutory rules apply.
9.2 Subject to this Section 9, Dynport warrants ("gewährleistet") that PhraseApp, Services and Additional Dynport Services will perform essentially as agreed and Dynport will remedy Defects. The term "Defect" means any error and/or fault that revokes ("Substantial Defect") or reduces the suitability for the specified purpose of use ("Minor Defect").
9.3 Dynport assumes no warranty that PhraseApp, Services and Additional Dynport Services will work in every respect without interruption and without errors and that the functions contained therein can be executed in every conceivable combination, to the extent that any such interruption, error or restriction does not materially impair the suitability of PhraseApp, Services and Additional Dynport Services for normal use or the use envisaged by contract ("Immaterial Defect" / "unerhebliche Minderung der Tauglichkeit").
9.4 If and to the extent a Substantial Defect occurs, and until it is remedied, usage or consumption based Services will not be charged. If and to the extent a Minor Defect occurs, and until it is remedied, charges for usage or consumption based Services will be reduced by reasonable amounts.
9.5 You are not entitled to claim damages for Defects of PhraseApp, Services and Additional Dynport Services that (i) exist at the time of conclusion of the Agreement, or (ii) that occur later but that Dynport is not responsible for.
10 Copyright Policy and Privacy
10.2 If your Projects or Locale Files contain third party personal data, you are solely responsible for complying with applicable data protection law. For this purpose, you may conclude a separate data processing agreement with Dynport.
11 Limitation of Liability
Dynport’s liability, on whatever legal grounds, whether arising from the breach of the contract or tortuous act, is exclusively determined in accordance with the following provisions:
11.1 To the extent that Dynport provides the respective Service, PhraseApp and/or Additional Service giving rise to liability free of charge, Dynport is only liable for intent and gross negligence.
11.2 In case of fee-based Services and/or Additional Dynport Services, Dynport’s liability is unlimited in cases of intent and gross negligence.
11.3 In case of slight negligence, Dynport is only liable for the breach of Essential Contractual Obligations. The liability in the event of breach of such an essential obligation is limited to the typical contractual damage foreseeable upon conclusion of the contract on account of the circumstances known at that time. "Essential contractual obligations" are those obligations whose fulfillment is essential to enable the proper implementation of the contract and the achievement of its purpose and whose observation the Customer may therefore generally rely upon.
11.4 Dynport is not liable for disturbances within the network that are not caused by Dynport.
11.5 You are responsible for regularly backing up your data. Dynport is liable for loss of data in accordance with the foregoing paragraphs only to the extent that such a loss could not have been avoided by adequate backup measures by you.
11.6 The limitations of liability of this section 16 are not applicable to any damage of life, body or health, for breaches of a guarantee (German; "Garantie"), which has to be explicitly designated as such, or for fraudulently concealed defects. Liability under the Product Liability Act (German: "Produkthaftungsgesetz") remains unaffected.
11.7 This limitation of liability also applies to Dynport’s officers, employees, representatives and agents.
You will indemnify and hold Dynport harmless for any and all expenses and damages, including reasonable attorneys’ fees, incurred or suffered by Dynport in connection with any breach of this Agreement by you, including without limitation any damages caused by any content, including Apps, you upload to PhraseApp, and further including without limitation any damages caused by any alleged infringement of third party rights by your use of the Services, PhraseApp or any Additional Service.
13.1 Place of performance is Dynport’s registered office in Hamburg, Germany.
13.2 The Agreement is subject to German law, excluding of the UN Convention on Contracts for the International Sale of Goods. The Parties submit to the jurisdiction of the courts at Dynport’s registered head office for all disputes arising out of or in connection with this Agreement. Dynport is also entitled to bring claims at the user's place of performance.
13.3 Should one or more individual parts of this Agreement be or become void, invalid or unenforceable entirely or partly, the validity of the remaining Agreement shall remain unaffected. The provisions thus rendered void, or invalid or unenforceable shall be replaced by valid and enforceable provisions in a manner which ensures that the legal and economic purposes intended with the invalid provisions are achieved to the greatest extent possible. The same shall apply to any gaps in the contract.
13.4 The English language version of these Terms of Service shall control, however giving full effect to any German terms contained therein.
Hamburg, July 2nd 2013