STACKIT

STACKIT Cloud Terms of Use

1. General

1.1 These terms of use (“Terms of Use“) apply to the use of the STACKIT cloud portal (“Portal“) as well as the purchase and use of STACKIT Cloud services (“STACKIT Cloud Services“) between the customer (the “Customer“) and Schwarz IT KG, Stiftsbergstraße 1, 74172 Neckarsulm, Registry Court Stuttgart HRA 730995 (“SIT“) (individually referred to as the “Party” and collectively referred to as the “Parties“).

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 and acceptance of Terms of Use

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:

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.

3.2 If and to the extent that the contents of these Terms of Use, the Service Description and the Service Level Agreement conflict, the content of the Service Level Agreement 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.

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

4.1 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 as well as their acceptance.

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.

4.4 Upon SIT’s acceptance of the Order, the Parties enter into a non-gratuitous contract for the provision of the relevant STACKIT Cloud Service for use, with such contract being limited in time to the specific term agreed upon. The contents of these Terms of Use, the Service Description and the Service Level Agreement selected also form part of said contract (“Subscription”).

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 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:

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:

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.

5.8 SIT has the right to block the Customer’s access to the Customer Account and the subscribed STACKIT Cloud Services, whether temporarily or permanently, if there are specific indications that the Customer violates or has violated these Terms of Use and/or applicable law, or if SIT has any other legitimate interest in blocking the Customer (e.g., Customer’s default in payment). In its decision to block the Customer Account or one or more subscribed STACKIT Cloud Services, SIT will duly consider the Customer’s legitimate interests and warn the Customer, if possible, in advance, setting an appropriate deadline.

5.9 These Terms of Use are entered into for an indefinite period of time. The Customer may terminate these Terms of Use vis-à-vis SIT via the Portal itself with immediate effect (closure of Customer Account). This type of termination of these Terms of Use by the Customer is only possible if no current subscriptions for STACKIT Cloud Services exist between the Customer and SIT. Therefore, the Customer must terminate any Pay-As-You-Go STACKIT Cloud Services subscribed prior to terminating these Terms of Use. Reserved STACKIT Cloud Services subscribed can only be terminated with effect as of the end of the agreed term. SIT may also terminate these Terms of Use in text form and with immediate effect, so long as no subscriptions exist between SIT and the Customer; such a termination also entails closure of the Customer Account. However, prior to terminating these Terms of Use, SIT will inform the Customer of its intention to terminate these Terms of Use. The Parties’ right to terminate these Terms of Use for good cause remains unaffected. Where these Terms of Use are terminated for good cause, this will automatically result in the termination of all current subscriptions.

5.10 The Customer should note that any termination of these Terms of Use would result in the Customer irreversibly losing access to any STACKIT Cloud Services. Prior to completing any termination of the Customer Account, the Customer will be expressly advised of this consequence and also made aware of the provisions of clause 10.

5.11 Upon receipt of a valid notice of termination of these Terms of Use, 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 SIT

6.1 SIT 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). SIT will notify the Customer of any such modifications at least two (2) weeks in advance. As long as the Customer does not object to any such modification by written notification to SIT 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, SIT will expressly advise the Customer of the legal consequences, the time limit and the date of entry into effect. In case the Customer objects to such service modification, SIT 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 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:

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:

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.

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, SIT will be released from its own respective duty to perform, in whole or in part, to the extent that SIT is dependent on such assistance or items in order to perform the services owed under these Terms of Use or the subscription purchased. SIT 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 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. Warranty

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

13.1 SIT grants the Customer a simple (i.e., non-exclusive), non-transferrable, non-sublicensable global limited right 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 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. Liability

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

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

16.1 If SIT provides the Customer with free services for trial purposes, (in particular preview versions, alpha or beta versions, free trials, trial access, etc.) (“Free Services for Trial Purposes“), 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 for Trial Purposes have priority.

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. 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. Amendment of the Terms of Use

18.1 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, SIT 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.

18.2 SIT shall notify the Customer 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. SIT shall specifically advise the Customer 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 effect. In case the Customer objects to the amendment of the Terms of Use, SIT 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).

19. Miscellaneous

19.1 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 Level Agreement 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 SIT does not expressly object to them.

19.2 The legal relationships between the Customer and SIT that arise under these Terms of Use and the subscriptions purchased are governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

19.3 Should any provision of this Agreement 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, to the extent legally permissible, most closely reflects the economic intention and the purpose of the void, invalid or unenforceable provision. This shall apply analogously to any unintended omissions in these Terms of Use or the subscription.

19.4 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.

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).

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