STACKIT

STACKIT Cloud Terms of Use

1. General

1.1 These terms of use (“Terms of Use“) govern the use of the STACKIT cloud portal (“Portal“) as well as the procurement and use of STACKIT cloud services (“STACKIT Cloud Services“).

1.2 The STACKIT Cloud Services offered via the Portal are intended solely for customers who are at least 18 years of age and entrepreneurs (Unternehmer) within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), namely natural or legal persons or partnerships with legal personality who or which, when entering into a legal transaction, act in exercise of their trade, business or profession.

1.3 The currently applicable Terms of Use can be retrieved online at any time and can be saved and printed out.

2. Registration on the Portal; Setting up a Customer Account

2.1 To use the Portal, customers must register with STACKIT GmbH & Co. KG, Stiftsbergstraße 1, 74172 Neckarsulm, Germany, Registry Court Stuttgart, HRA 741347 (“STACKIT“). However, customers have no right to registration.

2.2 Customers may apply to register on the Portal directly with STACKIT or through their Reselling Partner (see clause 3). The address and billing details as well as the customer’s VAT ID in particular are required for registration. Customers also select their own password upon registration, which, in combination with the e-mail address provided, enables them to log in to the Portal and access their customer account. Customers must handle their login data with care. In particular, customers are prohibited from disclosing their login data to third parties and/or allowing third parties to access their profile by bypassing the login data. When registering, the customer must provide all the required information truthfully and in full. Customers are responsible for keeping their details up to date and for ensuring that they can be reached at the address provided and that the e-mail address is not transferred to another person. If the customer’s details change, the customer must promptly amend and correct such details. If the information provided by the customer is incomplete or incorrect, and the customer continues acting in breach of contract even after a request for compliance, STACKIT may temporarily or permanently block the customer’s account as well as access to the Portal and delete the customer’s account.

2.3 Once the customer’s application for registration is received, the customer will receive confirmation that the application has been received, which will be sent to the e-mail address provided (“Confirmation of Receipt“).

2.4 Upon successful registration, a personal customer account that is accessible via the Portal will be created for the customer (“Customer Account“), and the customer will be notified accordingly. The activation of the Customer Account constitutes acceptance of the customer’s offer to register.

2.5 The transfer of the Customer Account to another (legal or natural) person requires STACKIT’s prior consent.

3. Content of STACKIT Cloud Services

3.1 The content of the STACKIT Cloud Services that the customer can procure is regularly and conclusively defined through a combination of the generally applicable service description and the special service level agreements issued for the relevant STACKIT Cloud Services:

Accordingly, a STACKIT Cloud Service usually consists of a combination of the generally applicable Service Description and the additional Service Certificate selected by the customer.

3.2 If and to the extent that the contents of these Terms of Use, the Service Description and the Service Certificate conflict, the content of the Service Certificate shall prevail over the contents of the Service Description and these Terms of Use, and the Service Description shall prevail over these Terms of Use.

4. Procurement of STACKIT Cloud Services by the Customer

4.1 The procurement of STACKIT Cloud Services requires the customer’s prior registration via the Portal in accordance with clause 2. of these Terms of Use.

4.2 Via the Portal, the customer is also able to view the Service Description as well as the Service Certificates of the STACKIT Cloud Services. It should be noted that the contents of the Service Description and the relevant Service Certificates of the STACKIT Cloud Services on the Portal do not constitute a legally binding offer but rather a non-binding schedule of services that is subject to change. The customer makes a binding offer to enter into a contract for the STACKIT Cloud Services selected by the customer by completing the online order process (“Order“).

4.3 The parties to a contract for the procurement of any STACKIT Cloud Services (“Subscription“) are the customer and the provider. The provider (“Provider“) is:

4.4 The Subscription between the customer and the Provider only enters into effect upon the Provider declaring acceptance, which usually takes place in the form of making the ordered STACKIT Cloud Services available to the customer.

4.5 Upon the Provider’s acceptance of the Order, the parties enter into a paid Subscription for the provision of the relevant STACKIT Cloud Service for use, with such Subscription being limited in time to the specific term agreed upon. The contents of these Terms of Use, the Service Description and the respective Service Certificate also form part of said Subscription.

4.6 If the Provider is a Reselling Partner, any arrangements to the contrary between the Reselling Partner and the customer with respect to these Terms of Use/the respective Subscription entered into shall remain unaffected and be controlling as between those parties.

4.7 Unless otherwise provided in the Service Description or the Service Certificate, from the date a Subscription is entered into, the resources required for the use of STACKIT Cloud Services will be made available in one or more data centers used by STACKIT and the customer will be granted access to the extent agreed upon in the Service Description and the Service Certificate. Where the specifications contained in the Service Description and the Service Certificates include the storing of own data, this will always entail both the saving and retrieving of data.

4.8 Suitable subcontractors may also be used to provide the STACKIT Cloud Services.

5. Term and termination of STACKIT Cloud Service subscribed and Customer Account

5.1 The Customer can choose between two different term options for the STACKIT Cloud Services:

5.2 Whether a STACKIT Cloud Service shown in the Portal is a Pay-As-You-Go STACKIT Cloud Service or a Reserved STACKIT Cloud Service, or whether the customer can choose between these two term options, is specified in relation to the respective STACKIT Cloud Service shown in the Portal.

5.3 Unless otherwise provided in the underlying Service Certificate or Service Description, Reserved STACKIT Cloud Services subscribed may be terminated by giving the Provider six (6) working days’ notice prior to the expiration of the agreed initial term. If neither the Service Certificate nor the Service Description provide otherwise, the term of a subscribed Reserved STACKIT Cloud Service is automatically extended by a further term, unless the customer exercises the above right of termination within the prescribed period. The above notice period also applies analogously to any terms after the initial term.

5.4 The Customer may terminate any subscribed Pay-As-You-Go STACKIT Cloud Services by the hour at any time via the Portal’s self-service section.

5.5 Unless otherwise provided in the underlying Service Description or the underlying Service Certificate, the Provider may also terminate the Subscription by giving notice of termination, whereby the following provisions apply:

5.6 A Subscription may be terminated by either party for good cause, without complying with any notice period. Good cause shall be deemed to exist where facts exist in view of which the terminating party cannot be reasonably expected to continue the contractual relationship, taking into consideration all the circumstances of the individual case and weighing up the respective interests of the parties (“good cause“). Where good cause is based on the breach of a contractual obligation, termination will only be permissible after a deadline set for remediation has expired without the breach having been remedied, or a warning was given to no avail, unless the setting of a deadline is not required under section 323 (2) BGB. Good cause entitling the Provider to terminate a Subscription exists, in particular, if:

5.7 Unless otherwise provided in the Service Description or the Service Certificate, the customer will no longer have access to the subscribed STACKIT Cloud Service when the termination enters into effect. With regard to any data stored via the STACKIT Cloud Service, the customer is obligated to securely backup this data outside the systems of STACKIT before the termination enters into effect. No later than 30 calendar days after the termination enters into effect, any data still stored via the STACKIT Cloud Service will be irretrievably deleted. In this context, the deletion includes in particular stored data in the customer’s environment, metadata and backups (if any) on the systems of STACKIT. Any such deletion will not affect any data which STACKIT is required by mandatory law to retain.

5.8 The Provider has the right to block the customer’s access to the subscribed STACKIT Cloud Services, whether temporarily or permanently, if there are specific indications that the customer is acting or has acted in breach of these Terms of Use and/or in violation of applicable law, or if the Provider has any other legitimate interest in blocking the customer (e.g., customer’s default in payment). In its decision to block one or more subscribed STACKIT Cloud Services, the Provider will duly consider the customer’s legitimate interests and warn the customer in text form, if possible, in advance, setting an appropriate deadline. The aforementioned provisions on blocking access to the subscribed STACKIT Cloud Services shall also apply to blocking the Customer Account.

5.9 Use of the Customer Account is granted for an indefinite term. The customer may terminate their Customer Account vis-à-vis STACKIT via the Portal itself with immediate effect (closure of customer Account). Such termination by the customer is only possible if no current Subscriptions for STACKIT Cloud Services exist between the customer and the Provider. Therefore, the customer must terminate any Pay-As-You-Go STACKIT Cloud Services subscribed prior to terminating the Customer Account. Reserved STACKIT Cloud Services subscribed can only be terminated with effect as of the end of the agreed term. STACKIT may also give notice of termination of the Customer Account in text form with immediate effect, provided that no Subscriptions exist between the Provider and the customer; such termination also entails closure of the Customer Account. However, prior to terminating the Customer Account, STACKIT will inform the customer of its intention to give notice of termination. The parties’ right to terminate the Customer Account for good cause remains unaffected. Valid termination of the Customer Account for good cause shall operate to simultaneously terminate all ongoing Subscriptions as of the effective date of termination for good cause.

5.10 The customer is expressly advised that any termination of the Customer Account would result in the customer irreversibly losing access to the Customer Account. Before terminating the Customer Account, the customer will be expressly advised of this consequence.

5.11 Upon receipt of a valid notice of termination of the Customer Account, STACKIT will delete all data associated with the Customer Account within the statutory deletion periods. Any such deletion will not affect any data which STACKIT is required by mandatory law to retain.

5.12 The customer can only validly terminate via the Portal.

6. Modification of Subscribed STACKIT Cloud Services by the Provider

6.1 The Provider has the right to modify subscribed STACKIT Cloud Services, with effect for the future, for a valid reason that was not foreseeable at the time of contracting and only to the extent that any such modification does not alter the balance of the parties’ respective material performance obligations and that such modification is deemed acceptable to the customer, i.e., that the cost/benefit ratio does not disproportionately shift to the detriment of the customer (in particular through upgrades). The Provider will notify the customer of any such modifications at least two (2) weeks in advance. If the customer does not object to any such modification by written notification to the Provider during the period from receipt of the above notice until said modification enters into effect, the specific modification will be deemed to have been approved and will become a contractual part of the Subscription. In its notice of modification, the Provider will expressly advise the customer of the legal consequences, the time limit and the date of entry into effect. In the event that the customer objects to the service modification, the Provider has a special right of termination with immediate effect with regard to the (i) Pay-As-You-Go STACKIT Cloud Services or (ii) the Reserved STACKIT Cloud Services and – to the extent that the modification relates to the Portal – (iii) with regard to all contracts (i.e., (i) or (ii) and these Terms of Use).

6.2 The Provider may effect any updates, patches, bug fixes or any other enhancements of subscribed STACKIT Cloud Services at any time without notification of the customer under the preceding clause 1. Insofar as this is technically feasible for the implementation of the aforementioned updates, patches, bug fixes or other enhancements, the customer shall install these patches, bug fixes or other enhancements without undue delay.

6.3 The Provider hereby advises the customer that, to the extent that the Service Description or the relevant Service Certificate contains provisions that conflict with the change in STACKIT Cloud Services, any such deviating provisions will prevail.

6.4 The Provider furthermore advises the customer that any measures under clauses 1 and 6.2 may result in the customer’s own hardware and software, or third-party hardware and software not provided by the Provider, being reduced in their functionality, or not being functional at all, when it comes to their interaction with the modified STACKIT Cloud Services. Except in the cases specified in clause 15.1, the Provider assumes no liability for the functionality of the customer’s hardware and software or third-party hardware and software or for restoring their functionality.

7. Adjustment of STACKIT Cloud Services by the Customer

7.1 Unless the Service Description or the Service Certificate contains a conflicting provision, the customer may adjust any subscribed STACKIT Cloud Services at any time via the configuration options made available in the Portal, i.e., increase or reduce capacities or utilize any other available modification options with regard to the underlying technical specifications of subscribed STACKIT Cloud Services (“Adjustment of the Subscription“). In these cases, the Subscription will be adjusted by way of the process specified in clause , which applies mutatis mutandis.

7.2 As a matter of precaution, the Provider hereby advises the customer that any Adjustment of the Subscription could, inter alia, result in an increase in the fee. The customer will be advised via the Portal of any change in the fee payable for the Subscription that would likely result from said adjustment.

7.3 The Customer should note that a reduction is not possible with regard to the subscription of Reserved STACKIT Cloud Services, as opposed to Pay-As-You-Go STACKIT Cloud Services.

7.4 The Customer should also note that an increase with regard to the subscription of Reserved STACKIT Cloud Services would result in an automatic extension of the originally agreed term.

8. Availability of STACKIT Cloud Services

STACKIT Cloud Services are available to the Customer to the extent specified in the respective Service Level Agreement on which the subscription is based. The availability is calculated by means of the methodology outlined in the Service Description.

9. Requirements for Use by the Customer

9.1 The use of STACKIT Cloud Services is subject to all other obligations associated with such use as well as any other obligations explicitly stated in the Service Level Agreement on which the subscription is based or in the Service Description.

9.2 The customer is responsible for any and all data which the customer transmits, the lawfulness and integrity of such data in particular. The Provider does not monitor or check the content of any such data.

9.3 The customer must ensure that the STACKIT Cloud Services will only be used by authorized persons. Authorized persons are any of the customer’s employees empowered for this purpose. The customer is responsible for the administration of authorizations and the monitoring of individual user’s rights of use. If there are any indications that the Customer Account has been or is being used by unauthorized third parties, the customer shall inform the Provider without undue delay. The customer is responsible for any and all activities conducted via the Customer Account.

9.4 In particular, the customer must observe the following:

10. Customer’s duties of cooperation

10.1 The customer shall reasonably assist the Provider in the procurement and performance of the STACKIT Cloud Services. Specifically, the customer shall:

10.2 The customer will ensure the proper installation and connection of any and all systems under the customer’s responsibility and will test and documented such systems to the customary extent.

10.3 The customer will ensure that he/she/it has any and all rights required to use the STACKIT Cloud Services for his/her/its data-processing purposes; this applies in particular to the use of software, applications and other third-party services which the customer uses in connection with the STACKIT Cloud Services subscribed. In particular, the customer must observe and comply with any and all license terms, copyright laws and/or other ancillary copyrights of the Provider or third parties.

10.4 As long as the customer’s cooperative assistance or any items required to be provided by the customer have not been rendered or provided as contractually agreed, the Provider will be released from its own respective duty to perform, in whole or in part, to the extent that the Provider is dependent on such assistance or items in order to perform the services owed under these Terms of Use or the Subscription purchased. The Provider will not be liable for any failure of performance brought about by the non-contractual performance of cooperative assistance or provision of requisite items on the part of the customer.

11. Prices and billing

11.1 The applicable prices for STACKIT Cloud Services are shown in the price list current at the time. The fee payable by the Customer for a subscription will be displayed to the Customer prior to placing the order pursuant to clause 2 and will be deemed to have been bindingly agreed upon when the subscription is purchased. The use of the Portal itself is free of charge.

11.2 Prices are shown exclusive of valued-added tax.

11.3 Unless otherwise agreed, Reserved STACKIT Cloud Services subscribed will be charged to the Customer on a monthly basis in arrears, and Pay-As-You-Go STACKIT Cloud Services subscribed will be charged to the Customer on a monthly basis in arrears after ascertaining the actual use; bills are due and payable without any deductions upon their receipt by the Customer.

11.4 Billing and settlement of charges will take place in accordance with the form of payment previously selected by the Customer.

11.5 The customer consents to the electronic transmission of invoices. Couriers or agents may also be used for billing purposes. Invoices will be sent to the customer’s e-mail address provided for general purposes.

11.6 If the market conditions have changed, or if the procurement costs have materially changed, the Provider has the right to adjust the prices for subscribed STACKIT Cloud Services in line with such changes, observing a notice period of no less than four (4) weeks; for Reserved STACKIT Cloud Services subscribed, any such increase will be permissible for the first time upon expiration of the agreed minimum term. Unless the customer objects to such price adjustment by written notification to the Provider within ten (10) days of receipt of the relevant notice, said adjustment will be deemed to have been accepted. In its notice of modification, the Provider will expressly advise the customer of the legal consequences, the time limit and the date of entry into effect.

11.7 The customer’s right to set off may only be exercised with counterclaims that are uncontested, ripe for adjudication or have been declared final and binding by a court of law. Likewise, the customer’s right of retention may only be exercised with claims that are uncontested or have been declared final and binding by a court of law. Claims against the Provider may not be assigned; this does not apply within the scope of section 354a of the German Commercial Code (Handelsgesetzbuch – HGB).

11.8 The Provider has the right to only perform outstanding deliveries or services against advance payment or the provision of security if the Provider becomes aware of circumstances that are fit to materially impair the customer’s creditworthiness and that jeopardize the settlement of outstanding claims by the customer under the relevant contractual relationship.

12. Warranty

12.1 The contractually agreed quality of subscribed STACKIT Cloud Services is set out in the underlying Service Certificates and/or the Service Description, in particular the availability details contained therein.

12.2 The customer must report any defects without undue delay after having become aware of them. Any notices of defects communicated by the customer must contain, in particular, the following: (i) a detailed description of the incident; (ii) particulars regarding time and duration of the disruption; and (iii) number and location(s) of any persons affected. To the extent reasonable, the customer must take measures that would facilitate the identification of defects and their causes.

12.3 The customer’s right to remedy the defect itself (Selbstvornahme) in accordance with section 536a (2) BGB is excluded.

12.4 Where the availability details contained in the Service Certificate and/or the Service Description on which the subscribed STACKIT Cloud Service is based have not been complied with (“Availability Deficit“), the customer has the right to report the Availability Deficit in text form to the Provider within two (2) weeks of receipt of invoice for the respective billing period of the relevant Subscription, stating the subscribed STACKIT Cloud Service affected (“Availability Deficit Notice“). For accurately reported Availability Deficits, the Provider will provide the customer with a credit for the next following billing period, which credit will amount to a certain percentage of the agreed fee for the Subscription of the STACKIT Cloud Service, as shown in the Service Certificate and/or the Service Description; this credit will reduce the fee that the customer will have to pay for the next billing period. Any Availability Deficit Notices from the customer that the Provider receives late, or not at all, will not be taken into consideration.

12.5 The customer’s rights due to defects in the STACKIT Cloud Services are excluded if the customer has made changes to the STACKIT Cloud Services subscribed, or arranged for any such changes to be made, without the Provider’s consent, unless the customer demonstrates that these changes had no undue impact on the analysis and elimination of such defects.

13. Rights of use and licensing provisions

13.1 The customer is granted a non-exclusive, non-transferrable, non-sublicensable worldwide limited license to use the Portal and its contents for the duration of the Terms of Use for the customer’s own business purposes.

13.2 In addition, the customer is granted the right to access the subscribed STACKIT Cloud Service for the duration of the Subscription; this right is limited to the subscribed scope of use. The customer is not entitled to use the STACKIT Cloud Services beyond the use permitted under these provisions and the underlying Service Certificate and/or Service Description or permit third parties to use said services or make said services available to third parties. Specifically, the customer may not sell STACKIT Cloud Services, or parts thereof, or cede them to third parties; the foregoing shall not affect the customer’s right to use the subscribed STACKIT Cloud Services as a basis for its own products (e.g., Software as a Service) and then offer these to the customer’s end customers provided that the agreed terms of the Subscription so permit or are complied with; the customer accepts that its end customers’ conduct, whether in the form of an act, omission or forbearance, shall be attributed to the customer. Otherwise, clause 1 applies mutatis mutandis to the STACKIT Cloud Services subscribed.

13.3 If the subscribed STACKIT Cloud Service includes programs or software of third-party manufacturers, the license terms of these third-party manufacturers will also apply to such programs or software. The customer shall ensure compliance with the license terms of any third-party manufacturers. The customer can view the license terms of third-party manufacturers within the relevant Service Certificate of the respective STACKIT Cloud Service; the customer accepts them when entering into a Subscription.

13.4 Whenever the customer’s license to use programs or software for a limited term expires, the customer must delete all such programs and software, including any copies, and confirm deletion in text form upon the Provider’s request. If statutory retention obligations require the customer to retain any such software and programs, the customer’s obligation to delete will arise when the statutory retention obligations end.

13.5 The customer understands that the STACKIT Cloud Services and the associated software applications and data may be subject to restrictions under export laws, foreign trade laws, sanctions regimes and other regulations (“Trade Regulations”). The customer hereby agrees to comply with the applicable Trade Regulations. By submitting its offer to register for the Portal, the customer warrants in particular that it is not based in a country or region that is subject to extensive trade restrictions or embargoes (e.g., Cuba, Iran, North Korea, Syria). Notwithstanding any licensing arrangements to the contrary, the customer also agrees not to provide any STACKIT Cloud Services to natural or legal persons subject to restrictions under the applicable Trade Regulations. The Provider is not required to meet any existing performance obligations owed to the customer if doing so would violate applicable Trade Regulations.

14. Breach of third-party rights, indemnification claims

14.1 Where STACKIT Cloud Services infringe third-party rights, the Provider will, at its choice, either procure, at its own cost, the required license to use the infringed rights or modify the relevant services in such a way that they no longer infringe rights but are still in concordance with the contractual agreements. If the Provider is unable to achieve this within an appropriate period of time, the customer will be entitled to terminate the affected Subscription with immediate effect (special right of termination).

14.2 Provided that the Provider has acted culpably with regard to such infringement of third-party rights in connection with the provision of STACKIT Cloud Services, and the customer has informed the Provider without undue delay about the assertion of claims for an alleged infringement of third-party rights by STACKIT Cloud Services, and the customer cedes the entire legal defense to the Provider upon request and assists the Provider to a reasonable extent in defending against any such claims, the Provider shall indemnify the customer against any and all third-party claims that have been declared final and binding by a court of law as well as the associated costs of the legal defense incurred by said third parties. The limitation of liability as to the amount pursuant to clause 15 also applies mutatis mutandis under this clause 2.

14.3 Provided that the customer has acted culpably with regard to any infringement of third-party rights in connection with the use of STACKIT Cloud Services (particularly in connection with clause 3) and the Provider informs the customer without undue delay about any claims asserted by third parties for an alleged infringement of third-party rights, the customer shall indemnify the Provider from and against any such third-party claims asserted in this context.

15. Liability

15.1 Regardless of the legal grounds, the Provider shall be liable for damages in accordance with statutory provisions in cases of:

15.2 Without prejudice to the terms of clause 1 the Provider shall be liable for other damage only if it was caused by the negligent breach of a material contractual obligation; material contractual obligations are obligations, the satisfaction of which is essential for the due and proper performance of the agreement, and on the performance of which the customer would usually, and is entitled to, rely and which protect the customer’s material legal positions under the contract. In such cases, the Provider’s liability shall be limited to compensation for typical and foreseeable loss or damage.

15.3 The Parties assume that any typical loss or damage that is foreseeable at the time of contracting will not exceed an amount of EUR 25,000 per individual event of loss or damage.

15.4 The Provider shall only be liable for the loss or destruction of data if such loss or destruction was caused willfully or through gross negligence or by a breach of a material contractual obligation by the Provider. In terms of the amount, the Provider’s liability is limited to the loss or damage that would also have occurred if the customer had properly backed up the data affected.

15.5 The Provider shall not be liable for the content and consistency of the customer’s data.

15.6 The Provider shall not be liable for any impossibility to provide STACKIT Cloud Services or any delays in such provision, provided that such impossibility was caused by force majeure or other events that were unforeseeable at the time of contracting (e.g., operational disruptions of whatever kind, disruptions of the Internet or other publicly accessible telecommunication networks, difficulties in obtaining necessary official permits, actions taken by the authorities) for which the Provider is not responsible pursuant to clause 1 or 15.2. Where any such events render the provision of STACKIT Cloud Services considerably more difficult or even impossible for the Provider and such hindrance is not just of a temporary nature (e.g., customer’s failure to provide the necessary interface), the Provider has the right to rescind the contract if no exchange of service and consideration has taken place yet, or otherwise to terminate the contract for the purchase of the affected Subscription. Where hindrances are of a temporary nature, the delivery or performance deadlines will be extended, or the delivery or performance dates will be postponed by the period of the hindrance plus an appropriate start-up time. If the customer cannot reasonably be expected to accept the subscribed STACKIT Cloud Service in view of its delayed provision, the customer may terminate the contract for the purchase of the affected Subscription by notice to the Provider in text form, which must be communicated without undue delay.

15.7 Any strict liability under section 536a (1) limb 1 BGB on the part of the Provider for defects that already existed at the time of contracting is excluded, unless the defect relates to a characteristic that the Provider has warranted.

15.8 The Customer’s claims for damages or reimbursement of nugatory expenditure are subject to a one-year limitation period. This does not apply to claims under clause 1.

15.9 In all other respects, the Provider’s liability – for whatever legal reason – is excluded.

15.10 To the extent that the Provider’s liability to the customer is either limited or excluded, this also applies mutatis mutandis to the Provider’s legal representatives, employees, contractors and other vicarious agents.

15.11 For damage or loss solely related to the use of the free Portal (i.e., without Subscriptions being also affected at the same time), the Provider shall only be liable under clause 1; any liability beyond this is excluded.

16. Use of free services for trial purposes

16.1 If the Provider provides the customer with free services or free services for trial purposes, (in particular preview versions, alpha or beta versions, free trials, trial access, etc.) (“Free Services“), the following provisions also apply. Where the following provisions conflict with any of the other provisions of these Terms of Use, the provisions regarding the use of Free Services have priority.

16.2 Free Services which can be accessed via the Portal will not be listed in the cost calculation on the Portal or billed to the customer.

16.3 Special free services for trial purposes are identified as such on the Portal (e.g., as beta, free trial, trial access) (“Free Services for Trial Purposes“).

16.4 Free Services for Trial Purposes are not fully developed products and may cause errors, loss of functionality, bugs or other problems in the form of data loss, data corruption, disruptions, delays and damage, for example.

16.5 The Provider has the right to cease, modify or alter a Free Service for Trial Purposes at any time without notice.

16.6 The customer has no entitlement to (continue to) receive the Free Service for Trial Purposes; the Provider is under no obligation to further develop the Free Service for Trial Purposes or to offer it as a final product.

16.7 STACKIT or the Reselling Partner has the right to use the feedback provided by the customer with regard to the Free Service for Trial Purposes for the development, enhancement or other improvements of products and services.

16.8 The Provider shall be liable for any loss or damage caused by the use of Free Services for Trial Purposes in analogous application of clause 1. In all other respects, liability shall be excluded.

16.9 The Provider shall be liable for any loss or damage caused by the use of Free Services for Trial Purposes in analogous application of clause 1. In all other respects, liability shall be excluded.

17. Confidentiality

17.1 The Parties shall treat confidential information disclosed by the other Party as confidential during the contractual term plus five (5) years after termination of the contractual relationship; specifically, they shall not disclose such information to third parties, shall protect it against unauthorized access by implementing appropriate technical, organizational and legal non-disclosure measures, and shall use it solely within the scope of the cooperation. The right of termination subject to a notice period with respect to this non-disclosure obligation shall be excluded.

17.2 In this context, confidential information shall include trade and business secrets (as defined in section 2 of the German Act on the Protection of Trade Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen – GeschGehG)) as well as any other information that must reasonably be regarded as confidential, and any and all information and documents that is disclosed to one Party by the other Party or a Schwarz Group company, or about the other Party or a Schwarz Group company, in connection with the cooperation.

17.3 This non-disclosure obligation shall not apply if and to the extent that:

17.4 Companies of the Schwarz Group shall include D. Schwarz Beteiligungs-KG as well as any and all domestic and foreign entities in which the aforementioned entity holds a direct or indirect majority capital interest.

18. Non-disclosure Obligation

The Provider is aware of the statutory non-disclosure obligation of persons subject to professional secrecy under section 203 of the German Criminal Code (Strafgesetzbuch – StGB). The Provider and its staff are subject to a non-disclosure obligation with respect to the data uploaded by the customer in connection with using the STACKIT Cloud Services (“Contents of Communication“). When using subcontractors who could potentially become privy to Contents of Communication in the course of performing their services for the Provider, the Provider must ensure that they are bound to secrecy and are only able to gain access to such information to the extent necessary to perform the respective service. If any subcontractor engaged by the Provider subcontracts its work to another subcontractor, the Provider shall ensure that the subcontractor engaged by it imposes the same non-disclosure obligations on that subcontractor as those to which the subcontractor engaged by the Provider is itself subject.

19. Amendment of the Terms of Use

19.1 If there is a valid reason to amend these Terms of Use that was not foreseeable at the time of contracting and such amendment does not unreasonably disadvantage the customer, in particular because the cost/benefit ratio does not disproportionately shift to the detriment of the customer, STACKIT or the Reselling Partner shall be entitled to amend these Terms of Use, in whole or in part, with prospective effect. Such valid reasons shall include regulatory or legal reasons, security reasons, enhancing, optimizing or adding services, making technical adjustments and ensuring the functionality of the Portal.

19.2 The customer will be notified of any amendments to the Terms of Use by e-mail at least eight (8) weeks before they enter into effect. Amendments shall be deemed approved if the customer, after having received the notice of amendment, does not expressly object to them on or before the date on which they enter into effect. The customer will be specifically advised in the notice of amendment of this legal consequence, the start of the period, the deadline and the date on which the amendment enters into force. In the event that the customer objects to the amendment of the Terms of Use, STACKIT or the Provider has a special right of termination with immediate effect with regard to the (i) Pay-As-You-Go STACKIT Cloud Services to the extent they are affected by the amendment, or (ii) the Reserved STACKIT Cloud Services to the extent they are affected by the amendment, and – to the extent that the modification relates to the Portal – (iii) with regard to all contracts (i.e., (i) or (ii) and these Terms of Use).

20. Miscellaneous

20.1 These Terms of Use constitute the sole contractual basis for registering as a customer for the Portal. In addition to the present Terms of Use and the Service Description and/or Service Certificate underlying the relevant STACKIT Cloud Service, deviating or supplementing provisions may also apply to the use of the STACKIT Cloud Services offered; the customer can view these provisions via the Portal prior to contracting. Any conflicting standard terms and conditions of the customer shall be excluded, even if they are not expressly objected to.

20.2 The legal relationships between the customer and the Provider that arise under these Terms of Use and the Subscriptions purchased are governed by German law to the exclusion of the conflict of law rules and the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).

20.3 Should any provision of these Terms and Conditions or any Subscription be or become void, invalid or unenforceable, either in whole or in part, this shall not affect the validity or enforceability of the remaining provisions of the Terms of Use or the Subscription. The void, invalid or unenforceable provision shall be replaced by a provision that most closely reflects the economic intent and the purpose of the void, invalid or unenforceable provision to the extent permitted by law. This shall apply mutatis mutandis to any unintended omissions in these Terms of Use or the Subscription.

20.4 The exclusive place of jurisdiction for any and all disputes arising out of or in connection with these Terms of Use or any Subscriptions of STACKIT Cloud Services shall be Stuttgart, Germany.

20.5 In the event of a dispute, the parties are entitled to conduct conciliation proceedings under the applicable conciliation rules of the competent conciliation office (for IT disputes) of the International Chamber of Commerce (ICC) before conducting court proceedings. Where the competent arbitration board does not provide conciliation rules for IT disputes, the conciliation proceedings will be conducted in accordance with the IT Conciliation Rules of the German Association of Law and Informatics (Deutsche Gesellschaft für Recht und Informatik – DGRI).

Version: 1.2, valid from 28.10.2024