Terms of Use

August 2023
  1. Scope of Application

    1. The following terms of use (hereinafter: “Terms of Use”) apply if you (hereinafter: "User” or “you") use licenses, products and services (hereinafter: “Products and Services”) of the Pomfort GmbH (hereinafter: “Pomfort” or “we”).
    2. In addition to these Terms of Use, other Pomfort-terms can apply at the same time (e.g. “Pomfort Account Terms” or if you have ordered directly from us: “Terms of Purchase” and the conditions of the order form). Terms and conditions of the User shall not apply.
  2. Agreement

    1. Pomfort and the User enter into an agreement for using the Products and Services (hereinafter: “User Agreement”) if the User uses Pomfort’s Products and Services. The language provided for the conclusion of the User Agreement is English.
    2. When you enter into the User Agreement with us, you must be fully legally competent and operate as a business client (not as consumer).
    3. Pomfort is entitled to change these Terms of Use within an existing contractual relationship if the User agrees. The User's consent shall be deemed to have been given if Pomfort has notified the User in text form no later than 6 weeks before the proposed date of its entry into force and the User has not objected in text form within 6 weeks after receiving the notice. In this notice, Pomfort informs about the respective changes by means of a special, highlighted reference to the relevant changes.
  3. Our Products and Services

    1. Pomfort provides various software products and cloud services on different time limited license models, on subscription models or permanently to you. Some Products and Services are web-based and can only be used online, others must be downloaded and can be used offline. Based on the respective model you choose, you are entitled to use the corresponding Products and Services in accordance with these Terms of Use.
    2. For some Products and Services, we offer a free trial version. In case we offer you to use a free trial of a specific product or service, we will make such free trial available to you on a time limited basis and free of charge. You are entitled to use this free trial version one time and only until (1) the end of the free trial period for which you agreed, (2) the start date of any chargeable subscription model or time limited license model you purchased; or (3) a possible termination of the free trial by us in our sole discretion (e.g. if you attempt to apply multiple times for free trial services). Notwithstanding anything to the contrary in these Terms of Use, a free trial service is provided on an “as is” basis.
    3. For new versions of our Products and Services, we occasionally and voluntarily provide beta versions. Beta versions are for evaluation purposes and not for production use. It is therefore only allowed to use beta versions for test-purposes in a test-environment. Pomfort may discontinue beta versions at any time in its sole discretion and has no obligation to make them generally available.
    4. If your license period or subscription period expires or is terminated, we offer for some of our Products and Services at our own discretion a “read only mode”. This allows you to view your projects even after expiration/termination. This is a voluntary service provided by us. We are not obligated to offer this service and do not grant the use of functionalities of our Products and Services or to access projects after expiration/termination to any extent whatsoever.
    5. With the exception of a permanent license (see below), you can use updates provided by us to the product you have purchased during the entire license or subscription period. For Users who have purchased a permanent license, updates are only available to a limited extent. You can contact our technical support via E-mail from Monday till Friday in our regular business hours (normally between 9 AM and 6 PM German time) during the entire license or subscription period. Please note that we do not guarantee any right to provide updates or to make our technical support available.
    6. In order to use our product “ShotHub”, you must first create an Account on our website (hereinafter: “Pomfort-Account”). If you use a Pomfort Account, the Pomfort Account Terms shall apply at the same time.
    7. The specific graphic and functional design of our Products and Services, the expansion of our Products and Services with additional features or their supplementation with additional services are at the sole discretion of Pomfort. Pomfort is entitled to modify and adapt the Products and Services at any time.
    8. You shall be solely responsible for the accuracy, quality, and legality of data that you place in our systems.
    9. If you use our web-based Products and Services, you shall be solely responsible for the quality of the internet connection on your technical device.
  4. Combining our products and services with other products

    1. Some of our Products and Services enable to connect your project with Products and Services from third parties. Thus, your project data can be passed to third party products via our Products and Services or third party products can access your project data. If you wish to use this feature, you must give your explicit consent before using it for the first time. By doing so, you allow us to share data from your project with third parties.
    2. Pomfort does not provide support or guarantee for Products and Services which are not Pomfort’s Products and Services.
  5. Transfer of data for statistical purposes

    We have the right to evaluate technical information on your film project you have entered into our systems for statistical purposes. Accordingly, we are entitled to pass on the information to third parties. The information consists of anonymized technical metadata (e.g. focal length or lenses used) which does not contain information concerning the specific film or film production. No personal data is passed on.

  6. Requirements when using our products and services

    1. The User shall use Pomfort’s Products and Services only on the basis of its purpose, only for the User’s media project and only in line with these Terms of Use. The User is therefore prohibited from any improper use beyond this purpose.
    2. You shall in particular not directly or indirectly: (1) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from our Products and Services; (2) sell, lease, sublicense or otherwise transfer our Products and Services or any results thereof to any third party; (3) copy, modify or make derivative works based on our Products and Services; (4) use our Products and Services to store or transmit malicious code; (5) use our Products and Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (6) frame or mirror any of our website pages or other content which is accessed as, or forms part of, our Products and Services; (7) interfere with or disrupt the integrity or performance of our Products and Services or the data contained therein; (8) attempt to gain unauthorized access to our Products and Services; or (9) access our Products and Services in order to build or to assist a third party to build a competitive product or service.
    3. The number of Users is limited according to your order. Unless explicitly agreed otherwise, a license for our Products and Services may be used by one User only. The User is entitled to transfer his right to use to other persons within his organization or to other participants of his film project (the original User may then not use the license for the duration of the transfer). If you use ShotHub, you are entitled to invite other Users according to the ShotHub-Plan you ordered. If you purchased a license pool, you are entitled to use the licenses in your organization according to your order for different Users.
    4. You agree to promptly notify Pomfort upon your discovery of any unauthorized use of our Products and Services or of any infringement of our proprietary rights therein.
  7. Our intellectual property

    1. Our Products and Services are protected by intellectual property rights (such as copyrights, patents or trademarks). All intellectual property rights, and the underlying source codes regarding our Products and Services are reserved exclusively to Pomfort and are its exclusive property.
    2. If you have purchased Products and Services directly from us or one of our resellers or if you use a free trial version or beta version of our Products and Services, Pomfort grants you during the respective term a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right and license to access and use the product or service for the intended purposes of the respective product and service and in line with these Terms of Use (in particular with clause 6).
    3. The license duration depends on which duration you have selected in the order form. The license in our free trial version is valid 10 days. Other licenses are valid 14 days, 1 month or 2 months. If you have chosen a subscription model, your license is valid until your subscription ends. In case of a permanent license, the license duration is unlimited (except it is terminated according to clause 11). A deletion of the Pomfort Account by the User has no influence on the license term.
    4. It is prohibited to assign the license, to sublicense the license or to conclude any kind of agreements with third parties with regard to the rights arising from our Products and Services. With regards to the transfer of a right to use, clause 6.3 sentence 2 shall apply.
  8. Submitted data

    1. For providing our Products and Services, we may in limited cases process data which you have introduced to our systems (especially meta data and thumbnails) and which may be protected by Intellectual Property law (especially by copyright law), trade secret law or other law (hereinafter “Submitted Data”): If you use ShotHub online (and your Submitted Data is stored by us via a cloud solution), we process your Submitted Data. All other Products and Services can only be used offline and we do not process your Submitted Data except you send us a crash or bug report. In any case, we have no access to your IT-systems.
    2. If the User uses ShotHub, he entitles Pomfort to use the Submitted Data provided by him to the extent necessary for the provision of Pomfort’s Products and Services. If the Submitted Data is protected by immaterial property rights (e.g. by copyright law), the User grants Pomfort a worldwide, non-exclusive, non-transferable, royalty-free right to use the Submitted Data provided by the User. This includes especially the right to copy, modify, adapt, convert, reproduce, distribute, display, perform, disclose, transmit, store and cache the Submitted Data. Your Submitted Data remains in your property. Pomfort does not claim ownership of the Submitted Data or intellectual property that the User uses with our Products and Services.
    3. If you give us your explicit consent, we are also entitled to access to or disclose your Submitted Data to third parties (see clause 4).
    4. In addition to clause 6 the User is prohibited in particular to (1) store, publish and/or transmit content that infringes the rights of third parties, in particular patents, trademarks, copyrights or ancillary copyrights, trade secrets, personal rights or property rights when using Pomfort’s Products and Services and (2) to store, post and/or transmit any material that contains software viruses or any other information, files or programs designed or effective to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment when using Pomfort’s Products and Services.
    5. The responsibility for all Submitted Data lies with the User. The User guarantees that he owns all the necessary rights in relation to the Submitted Data he provides when using Pomfort’s Products and Services. If the User is not himself the right owner, he guarantees that he has effectively obtained all necessary transfers of rights, licenses, consents or other necessary permissions.
    6. The User shall indemnify Pomfort upon first request against all claims asserted by third parties against Pomfort in relation to an infringement committed by the User and for which the User is responsible. In this regard, the User shall reimburse all necessary costs, including lawyers´fees, upon first request.
  9. Liability

    1. Pomfort shall be liable to the User acting as legal entities as follows: For contractual and other claims of the User on the merits only for damages of the User (1) which Pomfort, Pomfort's legal representatives or vicarious agents have caused intentionally or by gross negligence, (2) from injury to life, body or health which is based on a breach of duty by Pomfort or Pomfort's legal representatives or vicarious agents, (3) in cases of liability under the German Product Liability Act (“Produkthaftungsgesetz”), the assumption of a guarantee or due to fraudulent misrepresentation and (4) arising from the breach of an obligation the fulfillment of which is a prerequisite for the proper performance of the contract and on the observance of which the Supplier regularly relies and may rely (so-called cardinal obligation).
    2. The liability of Pomfort is in cases (1), (2) and (3) of the above paragraph unlimited in amount. Otherwise, liability is limited to the foreseeable damage typical for the contract.
    3. In cases other than those mentioned in 10.1. and 10.2. and without prejudice to the following paragraph, liability on Pomfort's part is excluded irrespective of the legal grounds.
    4. The above limitations of liability shall apply accordingly to all of Pomfort's organs, employees and vicarious agents. They do not effect any change in the statutory burden of proof.
  10. Marketing

    Pomfort is entitled to list you as its customer for marketing purposes, including but not limited to its website. In particular, Pomfort is permitted to use the name and brand of your company for this purpose.

  11. Expiration/Termination

    1. The User Agreement ends if (1) the license term or the subscription expires or (2) if the User Agreement is terminated by you or us.
    2. In case you choose a license-model which is limited in time, your license to use our Products and Services ends as soon as the license-term expires. In case you choose a subscription model, the term of the User Agreement will be automatically renewed, unless you notify us about your intention not to renew the subscription, for example, by clicking the corresponding link in your account, until 1 day before the end of the running subscription period. Please note that in a time limited license model or a subscription model, you have no right to terminate except as provided by statutory law.
    3. We are entitled to terminate the User Agreement without notice if (1) you use our Products and Services in breach of our applicable terms, (2) you do not comply with your payment obligations (in case you have purchased directly from us) or (3) you are engaging in fraudulent or illegal activities or other conduct by using our Products and Services. This does not affect the statutory provisions on termination.
  12. Data protection

    We process data from you within the framework of the provisions of the GDPR. More information is available in our Privacy Policy

  13. Final provisions

    1. Other verbal or written agreements do not exist.
    2. The complete text of the User Agreement is not stored by us for you. Before entering into the User Agreement, you can print the contract data can or save it electronically.
    3. The headings of these Terms of Use have been included for convenience only and shall have no meaning for the interpretations of these Terms of Use.
    4. The laws of the Federal Republic of Germany shall apply exclusively. The UN Convention on Contracts for the International Sale of Goods is excluded. The exclusive place of jurisdiction for all disputes between Pomfort and the User is Munich, Germany
    5. Cancellation, amendments or additions to the User Agreement must be made in writing. Verbal agreements, including the verbal agreement of the cancellation of the written form are invalid.
    6. If individual provisions of the User Agreement are or become invalid in whole or in part, the contract shall remain valid. The invalid provision shall be replaced by the statutory provision.