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.
2.1 Customers must register in order to use the Portal. However, customers have no right to registration.
2.2 Customers may apply for registration by contacting SIT. The address and billing details as well as the Customer’s VAT ID 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 fails to clarify the situation within a reasonable period or continues acting in breach of contract even after SIT’s request for compliance, SIT may temporarily or permanently block the Customer’s account as well as access to the Portal and terminate this Agreement with immediate effect.
2.3 Immediately after receiving the offer to register with SIT, SIT will send confirmation of receipt of such offer to the e-mail address provided by the Customer (“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 by SIT constitutes SIT’s acceptance of the Customer’s offer to register.
2.5 The transfer of the Customer Account to another (legal or natural) person requires SIT’s prior consent.
3. Content and provision of STACKIT Cloud Services
3.1 The content of the STACKIT Cloud Services that the Customer can procure from SIT 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:
- The generally applicable service description of the STACKIT Cloud Services contains a summary of all the rules and parameters that apply to any and all STACKIT Cloud Services offered. The current version of the service description can be retrieved from https://www.stackit.de/de/agb/servicebeschreibung (“Service Description“).
- In addition, service level agreements specify the exact scope of the specific STACKIT Cloud Service in detail; their current version can be retrieved from https://www.stackit.de/de/agb/leistungsscheine (“Service Level Agreements“).
Accordingly, a STACKIT Cloud Service usually consists of a combination of the generally applicable Service Description and the additional Service Level Agreement selected by the Customer.
3.3 SIT is entitled to use suitable subcontractors in the provision of the STACKIT Cloud Services.
3.4 Unless otherwise provided in the Service Description or the Service Level Agreements, from the date of contract, SIT will make the resources required for the use of STACKIT Cloud Services available in one or more data centers used by SIT and will grant the Customer access to the extent agreed upon in the Service Description and the Service Level Agreements. Where the specifications contained in the Service Description and the Service Level Agreements include the storing of own data, this will always entail both the saving and retrieving of data.
4. Procurement of STACKIT Cloud Services by the Customer
4.2 Via the Portal, the Customer is able to view the Service Description as well as the Service Level Agreements of the STACKIT Cloud Services. It should be noted that the contents of the Service Description and the relevant Service Level Agreements of the STACKIT Cloud Services do not constitute a legally binding offer but rather a 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 contract between the Customer and SIT only enters into effect upon SIT declaring acceptance, which usually takes place in the form of SIT making the booked STACKIT Cloud Services available to the Customer.
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:
- STACKIT Cloud Services in the “Pay-As-You-Go” format are billed as per the units of use specified in the Service Level Agreement and may be terminated by the Customer by the hour (“Pay-As-You-Go STACKIT Cloud Services”).
- STACKIT Cloud Services in the “Reserved” format are purchased and billed in accordance with a fixed subscription term and may only be terminated by the Customer at the end of the subscription term (“Reserved 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 Level Agreement or Service Description, Reserved STACKIT Cloud Services subscribed may be terminated by giving SIT six (6) working days’ notice prior to the expiration of the agreed initial term. If neither the Service Level Agreement 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 Level Agreement, SIT may also terminate the contract by giving notice of termination, whereby the following provisions apply:
- Subscribed Reserved STACKIT Cloud Services with a minimum subscription period of up to twelve (12) months may be terminated by SIT vis-à-vis the Customer in text form (Textform) at the earliest after one (1) month of the subscription period, subject to a notice period of three (3) months to the end of a month; with regard to subscriptions of Reserved STACKIT Cloud Services with a minimum subscription period of longer than twelve (12) months, SIT has the right to terminate the subscription vis-à-vis the Customer in text form at the earliest after one (1) month of the subscription period, subject to a notice period of six (6) months to the end of a month.
- With regard to subscribed Pay-As-You-Go STACKIT Cloud Services, SIT has the right to terminate the subscription in text form subject to a notice period of four (4) weeks.
5.6 Where good cause exists, the Parties may at any time terminate any subscription within four (4) weeks of becoming aware of the reasons for termination, without having to observe a 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 SIT to terminate a subscription exists, in particular, if:
- the Customer is in default of payment of the monthly bills with regard to two (2) consecutive payment dates, or with regard to a significant portion of the monthly bills, or is in default of payment of the monthly bills for a period extending over more than two (2) payment dates and in an amount that equates to the amount of two (2) monthly bills;
- the Customer has committed numerous or serious breaches of contract;
- the Customer has caused harm to the Portal through actions for which the Customer is responsible;
- the Customer transmits information that violates the law or good morals or makes reference to information that serves to incite hatred, or encourages criminal acts or glorifies or downplays violence, or is fit to seriously compromise the morals of children or young people or to jeopardize their welfare, or could damage SIT’s reputation; or
- the Customer uses subscribed STACKIT Cloud Services to operate nuclear plants or weapon systems.
5.7 Unless otherwise provided in the Service Description or the Service Level Agreement, 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 before the termination enters into effect. Upon the termination entering into effect, any data still stored via the STACKIT Cloud Service will be irretrievably deleted.
5.12 The Customer can only validly terminate via the Portal.
6. Modification of subscribed STACKIT Cloud Services by SIT
6.2 SIT 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 Customer should note that, to the extent that the Service Description or the relevant Service Level Agreement contains provisions that conflict with the change in STACKIT Cloud Services, any such deviating provisions will prevail.
6.4 The Customer should also note that any measures under clauses 1 and 6.2 may result in the Customer’s own hard- and software, or third-party hard- and software not provided by SIT, 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 No. 15.1, SIT will not be liable for the functionality of the Customer’s hard- and software or third-party had- 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 Level Agreement 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 clauses 2 to 4.4, which applies by analogy.
7.2 The Customer should note that any Adjustment of the Subscription could, inter alia, result in an increase in the service 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. Other obligations of 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. SIT 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 SIT 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:
- Access data made available to the Customer must be protected against third-party access and may not be disclosed to unauthorized third parties.
- Industrial property and copyrights of third parties must be observed (e.g., when using third-party texts or data); clause 10.3 applies analogously.
- The services of SIT and its vicarious agents must not be misused or made available for misuse; in particular, the transmission of, or reference to, information that violates the law or good morals or serves to incite hatred, or encourages criminal acts or glorifies or downplays violence, or is fit to seriously compromise the morals of children or young people or to jeopardize their welfare, or could damage SIT’s reputation is prohibited.
- Any attempt to retrieve information or data without authority, also via unauthorized third parties, or to interfere, or to permit the interference, with programs operated by SIT or its vicarious agents, or to intrude in the data networks of SIT or its customers without authority, is prohibited.
- The exchange of electronic messages must not be misused for the unsolicited transmission of messages or information to third parties for marketing purposes (spamming).
- Prior to transmitting data or information, these must be checked for viruses by means of state-of-the-art antivirus programs. Systems used by the Customer and STACKIT Cloud Services as well as any other applications and data owned by the Customer must be protected against misuse and kept free of malware (e.g. by using appropriate firewall settings, installing current security updates and software, or using malware scanners).
10. Customer’s duties of cooperation
10.1 The Customer shall reasonably assist SIT in the procurement and performance of the STACKIT Cloud Services. Specifically, the Customer shall:
- meet – under the Customer’s own responsibility – any and all technical and organizational requirements to enable SIT’s proper performance;
- report any problems in the use of STACKIT Cloud Services without undue delay upon their detection;
- in the event of error messages, carefully monitor any symptoms, the program functionality as well as the system and hardware environment and report any problems to SIT in writing (e.g., by letter or e-mail), including any information relevant to troubleshooting, such as the number of users affected, description of the system and hardware environment, any third-party software simultaneously loaded, as well as any documentation;
- post the name of an administrative contact person to the platform, who has all the decision-making powers and authorities required in connection with the performance of the services. The Customer shall also post any change in the nominated administrative contact persons to the Portal without undue delay;
- assist SIT in its troubleshooting efforts and instruct the Customer’s staff to collaborate with any staff instructed by SIT;
- independently perform any extensions or reductions of subscribed STACKIT Cloud Services via the Portal that may be required for the Customer’s application scenarios;
- read any release notes that SIT publishes in the Portal and perform any reasonable duties of corporation that may be stated in such notes; and
- where SIT’s access to a Customer system is necessary or expedient to limit or remedy a problem, the Customer will, if applicable at the Customer’s own costs (including connection costs), make remote access (VPN connection or remote desktop sharing) or another type of administrative access available to SIT. For this purpose, the Customer will take appropriate state-of-the-art measures to prevent virus infections and other interferences with SIT’s system by the Customer’s systems.
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 licensing requirements, copyright laws and/or other ancillary copyrights of SIT or third parties.
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 Where SIT performs services for which SIT may request additional remuneration (such as professional services), such services will be payable in accordance with the provisions of a separate agreement.
11.6 The Customer consents to the electronic transmission of bills. SIT may also use couriers or agents for billing purposes. Bills will be sent to the Customer’s e-mail address provided for general purposes.
11.7 If the market conditions have changed, or if the procurement costs have materially changed, SIT 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 expiry of the agreed minimum term. Unless the Customer objects to such price adjustment by written notification to SIT within ten (10) days of receipt of the relevant notice, said adjustment will be deemed to have been accepted. In its notice of modification, SIT will expressly advise the Customer of the legal consequences, the time limit and the date of entry into effect.
11.8 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 vis-à-vis SIT with claims that are uncontested or have been declared final and binding by a court of law. Claims against SIT may not be assigned; this does not apply within the scope of section 354a HGB.
11.9 SIT has the right to only perform outstanding deliveries or services against advance payment or the provision of security if SIT becomes aware of circumstances that are fit to materially impair the Customer’s creditworthiness and that jeopardize the settlement of SIT’s outstanding claims by the Customer under the relevant contractual relationship.
12.1 The contractually agreed quality of subscribed STACKIT Cloud Services is set out in the underlying Service Level Agreements and/or the Service Description, in particular the availability provision 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; (iii) number and location(s) of any persons affected; and (iv) a description of the Customer’s attempts to remedy the defect after its occurrence. 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 (Selbstvornahme) in accordance with section 536a (2) BGB is excluded.
12.4 Where the availability details contained in the Service Level Agreement 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 SIT 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, SIT 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 Level Agreement and/or the service agreement; 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 SIT receives late, or not at all, will not be taken into consideration.
12.5 The Customer’s rights due to defects of 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 SIT’s consent, unless the Customer demonstrates that these changes had no undue impact on SIT’s analysis and elimination of such defects.
13. Rights of use and licensing provisions
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 Level Agreement 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. Otherwise, clause 1 applies analogously to the STACKIT Cloud Services subscribed.
13.3 If the subscribed STACKIT Cloud Service includes programs or software of third-party producers, the licensing provisions of these third-party producers will also apply to such programs or software. The Customer shall ensure compliance with the licensing provisions of any third-party producers. The Customer can view the licensing provisions of third-party producers when ordering a STACKIT Cloud Service; the Customer must accept them when purchasing a subscription.
13.4 Whenever the Customer’s rights of use to programs or software end that are limited in time, the Customer must delete all such programs and software, including any copies, and confirm deletion in text form upon SIT’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 and regulations. The Customer hereby agrees to comply with the applicable export laws.
14. Breach of third-party rights, indemnification claims
14.1 Where STACKIT Cloud Services breach third-party rights, SIT 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 SIT 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 termination right).
14.2 Provided that SIT has acted willfully or negligently with regard to such breach of third-party rights in connection with the provision of STACKIT Cloud Services, and the Customer has informed SIT without undue delay about the assertion of claims for an alleged breach of third-party rights by STACKIT Cloud Services, and the Customer cedes the entire legal defense to SIT upon request and assists SIT to a reasonable extent in averting any such claims, SIT will indemnify the Customer from and 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 analogously under this clause 2.
14.3 Provided that the Customer has acted willfully or negligently with regard to any breach of third-party rights in connection with the use of STACKIT Cloud Services (particularly in connection with clause 3) and SIT informs the Customer without undue delay about any claims asserted by third parties for an alleged breach of third-party rights, the Customer shall indemnify SIT from and against any such third-party claims asserted in this context.
15.1 Regardless of the legal grounds, SIT shall be liable for damages in accordance with statutory provisions in cases of:
- willful or grossly negligent conduct;
- ordinary negligence for injuries to life, limb or health;
- a warranty having been given;
- fraudulent concealment of a defect; and
- for claims of the Customer under the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG).
15.2 Without prejudice to the terms of clause 1 above, SIT shall only be liable for other damage if it was caused by the negligent breach of a material contractual obligation; material contractual obligations are obligations that are 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, SIT’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 SIT shall only be liable for the loss or destruction of data if such loss or destruction was caused willfully or grossly negligently or by a breach of a material contractual obligation by SIT. In terms of the amount, SIT’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 SIT shall not be liable for the content and consistency of the Customer’s data.
15.6 SIT 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 SIT 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 SIT and such hindrance is not just of a temporary nature (e.g., Customer’s failure to provide the necessary interface), SIT 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 rescind the contract for the purchase of the affected subscription by notice to SIT in text form, which must be communicated without undue delay.
15.7 Any strict liability under section 536a (1) alt. 1 BGB on the part of SIT for defects that already existed at the time of contracting is excluded, unless the defect relates to a characteristic that SIT 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, SIT’s liability – for whatever legal reason – is excluded.
15.10 To the extent that SIT’s liability to the Customer is either limited or excluded, this also applies analogously to SIT’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), SIT shall only be liable under clause 1; any liability beyond this is excluded.
16. Use of free services for trial purposes
16.2 Free Services for Trial Purposes that can be obtained via the Portal are designated as such in the Portal (e.g., beta, free trial, trial access, etc.).
16.3 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.
16.4 SIT has the right to cease, modify or alter a Free Service for Trial Purposes at any time without notice.
16.5 The Customer has no entitlement to (continue to) receive the Free Service for Trial Purposes; SIT is under no obligation to further develop the Free Service for Trial Purposes or to offer it as a final product.
16.6 SIT 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.
16.7 SIT 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.
16.8 If SIT grants the Customer a free trial access to use the STACKIT Cloud Services, the above provisions shall apply mutatis mutandis for all STACKIT Cloud Services used by the Customer during the agreed free trial phase
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:
- the confidential information was already known to the other Party prior to the conclusion of the contract or is subsequently disclosed to it by a third party lawfully, i.e., without breach of any non-disclosure agreement, statutory provision or official order;
- the confidential information was in the public domain prior to the conclusion of the contract or subsequently enters the public domain without any culpable breach of the above obligation;
- the confidential information was independently discovered or created by the other Party or acquired using a product that had already been made publicly available;
- disclosure is required in the context of the cooperation or to protect the legal interests of the Party, and such disclosure is made to agents who are bound in writing to the same non-disclosure obligation stipulated above or to advisors who are subject to a professional duty of confidentiality;
- disclosure is made by one Schwarz Group company to another Schwarz Group company that is bound in writing to the same non-disclosure obligation stipulated above;
- the disclosing party has released the receiving party from the non-disclosure obligation;
- in cases involving section 5 of the German Act on the Protection of Trade Secrets; or
- disclosure is mandated by or under law or by court or official order. In such case, the Party subject to disclosure shall without undue delay notify the other Party of the disclosure in writing or in text form, and together the Parties will determine the extent to which they may limit disclosure within the bounds of the law.
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.
19.5 In the event of a dispute, SIT and the Customer are entitled to conduct an arbitration under the applicable arbitration rules of the competent arbitration board (for IT disputes) of the International Chamber of Commerce (ICC). Where the competent arbitration board does not provide arbitration rules for IT disputes, the arbitration 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).