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. Registration on the Portal; Setting up a Customer Account
2.1 To use the Portal, customers must register with Schwarz IT KG, Stiftsbergstraße 1, 74172 Neckarsulm, Germany, Registry Court Stuttgart, HRA 730995 (“SIT“). However, customers have no right to registration.
2.2 Customers may apply to register on the Portal directly with SIT 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, SIT 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 SIT’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:
- 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 is available at https://www.stackit.de/de/agb/servicebeschreibung (“Service Description“).
- In addition, service certificates specify the exact scope of the specific STACKIT Cloud Service; their current version can be retrieved from https://www.stackit.de/de/agb/leistungsscheine (“Service Certificates“).
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.
4. Procurement of STACKIT Cloud Services by the Customer
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:
- SIT, in the event that the customer obtains the STACKIT Cloud Services and receives access to the respective STACKIT Cloud Service directly from SIT;
- or the reselling partner (“Reselling Partner“) in the event that the customer receives access to the Portal for purposes of procuring STACKIT Cloud Services from SIT pursuant to a separate contractual relationship with a Reselling Partner.
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.
4.7 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 SIT 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:
- STACKIT Cloud Services in the “Pay-As-You-Go” format are billed as per the units of use specified in the Service Certificate 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 provided 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 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:
- Subscribed Reserved STACKIT Cloud Services with a minimum subscription period of up to twelve (12) months may be terminated by the Provider 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 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, the Provider 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, the Provider has the right to terminate the Subscription in text form subject to a notice period of four (4) weeks.
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:
- the customer is in default of payment with regard to a significant portion (≥ 20%) of the monthly bill and fails to pay the outstanding amount even after receiving notice of default;
- 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 uses the STACKIT Cloud Services in particular in connection with extremist content or content 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 the reputation of the Reselling Partner or SIT; or
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 SIT 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 SIT. Any such deletion will not affect any data which SIT is required by mandatory law to retain.
5.9 Use of the Customer Account is granted for an indefinite term. The customer may terminate their Customer Account vis-à-vis SIT 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. SIT 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, SIT 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, SIT will delete all data associated with the Customer Account within the statutory deletion periods. Any such deletion will not affect any data which SIT 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
6.2 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:
- access data made available to the customer must be protected against third-party access and may not be disclosed to unauthorized third parties;
- intellectual property rights and copyrights of third parties must be observed (e.g., when using third-party texts or data); clause 10.3 applies mutatis mutandis;
- services of the Provider and its vicarious agents may 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 the reputation of SIT or the Reselling Partner is prohibited;
- any attempt to access information or data without authority, also via unauthorized third parties, or to interfere, or to permit the interference, with programs operated by the Provider or its vicarious agents, or to infiltrate the data networks of the Reselling Partner or SIT or their customers without authority, is prohibited;
- the STACKIT Cloud Services may not be used in connection with games of chance or pornography;
- the STACKIT Cloud Services may only be used for deployment in high-risk environments (this includes, in particular, weapons systems, nuclear power plants, life support systems, aviation communications and navigation systems, and other critical areas of operation where the failure of STACKIT Cloud Services could directly or indirectly result in injury or death of people) subject to prior request and the execution of an addendum to the contract with SIT;
- the exchange of electronic messages may not be misused for the unsolicited transmission of messages or information to third parties for marketing purposes (spamming); and
- 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 the Provider 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 proper performance;
- report problems with the use of STACKIT Cloud Services and security incidents occurring in connection with the STACKIT Cloud Services to SIT without undue delay after discovery (via support.stackit.cloud);
- 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 occurring 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 or the Reselling Partner;
- 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 published in the Portal and perform any reasonable duties of corporation that may be stated in such notes; and
- where SIT’s or the Reselling Partner’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 or the Reselling Partner. For this purpose, the customer will take appropriate state-of-the-art measures to prevent virus infections and other interferences.
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.
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.
12.1 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
13.2 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.
15.1 Regardless of the legal grounds, the Provider shall be liable for damages in accordance with statutory provisions in cases of:
- willful or grossly negligent conduct;
- loss of life, bodily injury or injury to health caused by ordinary negligence;
- the assumption of a guarantee;
- 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 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
16.2 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 SIT 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.
17.1 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 execution of the Agreement 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 execution of the Agreement or subsequently enters the public domain without any culpable breach of the above obligation;
- 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 the customer or a company affiliated with the customer pursuant to section 15 et seq. of the German Stock Corporation Act (Aktiengesetz – AktG) to another company affiliated with the customer pursuant to section 15 et seq. AktG that is bound in writing to the same non-disclosure obligation stipulated above;
- disclosure is made by one company of Schwarz Group to another company of Schwarz Group 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 (Gesetz zum Schutz von Geschäftsgeheimnissen); 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.
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.
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).