C
L
O
S
E

X

Cloud&Heat Technologies GmbH
Zeitenströmung – Halle 15
Königsbrücker Straße 96
01099 Dresden
Germany

+49 351 479 367 00

Please confirm you have read and understood our Privacy Policy.

Terms and Conditions

GENERAL TERMS & CONDITIONS FOR HARDWARE & PRIVATE CLOUD | PUBLIC CLOUD

 

GENERAL TERMS & CONDITIONS FOR HARDWARE & PRIVATE CLOUD

 

 

1 Scope, form

(1) These General Terms and Conditions (AGBs/T&C) apply to all business relations with our customers („Buyers“). The General Terms and Conditions apply only if the Buyer is an entrepreneur (§ 14 BGB – German Civil Code), a legal entity under public law or a special fund under public law.

(2) The General Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods („Products“), regardless of whether Cloud&Heat manufactures the Products or purchases them from suppliers (§§ 433, 650 BGB – German Civil Code). The General Terms and Conditions expressly do not apply to public cloud services (IaaS services) offered by Cloud&Heat, which are subject to their own public cloud conditions. Unless otherwise agreed, the General Terms and Conditions in the version valid at the time of the Buyer’s order or in any case in the version Cloud&Heat last notified the Buyer of in written or text form shall also apply as a framework agreement for similar future contracts without Cloud&Heat having to refer to them again in each individual case.

(3) Cloud&Heat’s General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become an integral part of the contract if and to the extent that Cloud&Heat has expressly agreed to their validity. This requirement of consent shall apply in all cases, even when Cloud&Heat renders delivery without reservation despite having full knowledge of the Buyer’s general terms and conditions.

(4) Individual agreements with the Buyer associated with specific cases (including collateral agreements, supplements and amendments) always take precedence over these General Terms and Conditions. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or written confirmation from Cloud&Heat.

(5) Legally relevant declarations and notifications of the Buyer with regard to the contract (in particular setting a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form. Legal formal requirements and further evidence, particularly in cases of doubt as to the legitimacy of the declarant, remain unaffected.

(6) Any references to the application of statutory provisions are for the purposes of clarification only. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these General Terms and Conditions.

 

2 Conclusion of contract

(1) Cloud&Heat’s offers are subject to change and non-binding. This also applies when Cloud&Heat has already provided the Buyer with product descriptions, technical documentation and other documents – also in electronic form – to which Cloud&Heat reserves ownership rights and copyrights.

(2) The Buyer’s order of the products or services is considered a binding contract offer. Unless otherwise stated in the order, Cloud&Heat shall be entitled to accept this contractual offer within 1 week of its receipt by us.

(3) The acceptance can be declared either in writing or in text form to the Buyer.

(4) The Buyer has the option of concluding a service contract (e.g. monitoring, operations and private cloud services) for the Products ordered from Cloud&Heat.  Unless otherwise agreed in an individual contract, the service contract begins with the delivery of the Products and can be terminated with a notice period of 6 weeks. Cloud&Heat has no access to the Buyer’s data and is not responsible for data backup.

 

3 Delivery date and delivery delay

(1) The delivery date shall be agreed individually in writing or specified by Cloud&Heat upon acceptance of the order.

(2) If Cloud&Heat is unable to meet binding delivery dates for reasons out of its control (unavailability of performance), Cloud&Heat shall inform the Buyer thereof without delay and at the same time inform the Buyer of the expected new delivery date. If the Product or service cannot be provided within the new delivery period, the Seller (Cloud&Heat) shall be authorized to withdraw from the contract wholly or partially; compensation paid by the Buyer shall be returned without delay.The unavailability of performance in this sense particularly includes Cloud&Heat’s suppliers failing to deliver in good time, if Cloud&Heat has entered into a congruent coverage transaction, if neither Cloud&Heat nor its suppliers are at fault, or if Cloud&Heat is not obliged to procure in individual cases.

(3) Delivery is considered officially delayed at the earliest four weeks following the scheduled delivery date and if the Buyer has issued with a written warning to the Seller (Cloud&Heat). The occurrence of a delay in delivery by Cloud&Heat shall be determined in accordance with the statutory provisions.

(4) The rights of the Buyer according to § 8 of these General Terms and Conditions and the statutory rights of Cloud&Heat, particularly in case of exclusion of the obligation to perform (e.g. performance and/or subsequent performance becomes impossible or unreasonable), remain unaffected.

 

4 Delivery, passing of risk, acceptance, default of acceptance

(1)  The delivery shall be conducted ex works (EXW) at the location of production, which is also the place of performance as well as the place of rectification.

(2) The risk of accidental loss and accidental deterioration of the products shall pass to the Buyer at the latest upon delivery. In the case of an FOB Shipping Point agreement, the Buyer assumes the risks of accidental loss, accidental deterioration, as well as the risk of delay as soon as the Products are handed over to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If an acceptance procedure has been agreed on, this is authoritative for the passing of risk. All statutory provisions governing contracts for work (§§ 631 et seq. BGB – German Civil Code) shall otherwise further apply mutatis mutandis  to the agreed acceptance. The handover or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.

(3) If the Buyer is in default of acceptance, fails to cooperate or delays a delivery from Cloud&Heat for reasons for which the Buyer is responsible, Cloud&Heat shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).

 

5 Prices and terms of payment

(1) Unless specifically agreed upon otherwise, Cloud&Heat’s prices current at the time of contract conclusion shall apply ex works (EXW), plus the statutory VAT.

(2) With an FOB Shipping Point agreement (§ 4 para. 1), the Buyer shall bear the transport costs ex works and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.

(3) Unless otherwise contractually agreed, the purchase price shall be payable in euros in advance and within 14 days of invoicing. Discounts are not granted.

(4) The Buyer shall be in default upon expiry of the aforementioned payment period. During the period of default, interest shall be charged on the purchase price at the respectively applicable statutory default interest rate. Cloud&Heat reserves the right to assert further claims for damages caused by default and to withhold deliveries and services during the period of default. Cloud&Heat’s claim against merchants, to demand the respectively applicable statutory interest rate arising from mutual commercial transactions (§ 353 HGB – German Commercial Code) remains unaffected.

(5) The Buyer is only entitled to set-off or to exercise any rights of retention to the extent its claim is legally established or undisputed. In the event of deficiencies of delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these General Terms and Conditions.

(6) If after signing the contract it becomes apparent to Cloud&Heat (e.g. by filing for the opening of insolvency proceedings) that its claim to the purchase price is at risk due to the Buyer’s lack of ability to pay, Cloud&Heat shall be entitled, in accordance with the statutory provisions, to refuse performance and, if necessary after issuing a deadline, to withdraw from the contract (§ 321 BGB – German Civil Code). In the case of contracts for the manufacturing of noninterchangeable items (custom-made items), Cloud&Heat may declare its withdrawal immediately; the statutory provisions on the dispensability of a deadline shall remain unaffected.

 

6 Retention of title

(1) Title to the Products shall remain vested in the Seller (Cloud&Heat) and shall not pass to the Buyer until all the Seller’s current and future claims within the purchase contract, as well as from ongoing business relationships (secured claims), have been paid in full and received by the Seller.

(2) The Products subject to retention of title may neither be pledged to third parties nor be subject to chattel mortgage prior to full payment of the secured claims. The Buyer must inform the Seller (Cloud&Heat) immediately in writing if an application is filed for the opening of insolvency proceedings or if the Products belonging to Cloud&Heat are seized by third parties (e.g. seizures).

(3) In the event of breach of contract by the Buyer, in particular non-payment of the purchase price due, Cloud&Heat shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand the return of the Products on the basis of retention of title. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; on the contrary, Cloud&Heat shall simply be entitled to demand the return of the goods and reserve the right to withdraw from the contract. Should the Buyer fail to pay the purchase price due, Cloud&Heat may only assert these rights after having set a reasonable deadline for the Buyer to pay, and such deadline has elapsed without payment being made, or where the setting of any such term is not required by law.

(4) Until revoked in accordance with (c) below, the Buyer shall be entitled to resell and/or install the products subject to retention of title in the ordinary course of business. In this case, the following provisions shall also apply.

(a) The retention of title extends to the full value of any and all Products resulting from the processing, installation or combination of our Products, whereby Cloud&Heat is deemed to be the manufacturer. If the ownership rights of third parties remain in force during processing, installation or connection with products of third parties, Cloud&Heat shall acquire co-ownership in proportion to the invoice values of the processed, installed or connected Products. For that matter, the same shall apply to the Products being manufactured as to the Products delivered under retention of title.

(b) The Buyer hereby assigns to Cloud&Heat as chattel mortgage all claims against third parties arising from the resale of the products or the product in the amount of Cloud&Heat’s possible co-ownership share in accordance with the above paragraph. Cloud&Heat will accept the assignment. The obligations of the Buyer stated in paragraph 2 shall also apply with regard to the assigned claims.

(c) Cloud&Heat and the Buyer are both authorized to collect any claim. Cloud&Heat pledges not to collect the claims as long as the payment obligations of the Buyer towards Cloud&Heat are met, no deficiencies in the Buyer’s capabilities are apparent and Cloud&Heat does not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, Cloud&Heat may demand that the Buyer informs Cloud&Heat of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In such a case, Cloud&Heat is entitled to revoke the Buyer’s authority to further sell and process the Products subject to retention of title.

(5) If the realizable value of the securities exceeds Cloud&Heat’s claims by more than 10%, Cloud&Heat shall release securities of its choice at the Buyer’s request.

 

7 Warranty claims of the Buyer

(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and legal deficiencies (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below.  In all cases, the statutory special provisions on final delivery of unprocessed Products to a consumer shall remain unaffected, even if the consumer has further processed them (supplier recourse §§478 – German Civil Code). Claims from supplier regress are excluded if the defective Products have been further processed by the Buyer or another business, e.g. by installation in another product.

(2) If the quality has not been specified, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 Paragraph 1 S. 2 and 3 BGB – German Civil Code). However, Cloud&Heat accepts no liability for public statements made by suppliers or other third parties (e.g. advertising statements) to which the Buyer has not informed Cloud&Heat as beeing a decisive point for purchase.

(3) The Buyer’s claims for defects presuppose that the Buyer has fulfilled its statutory obligations to inspect and give notice of defects (§ 377 HGB – German Civil Code). In the case of components and other Products intended for installation or other further processing, an inspection must always be carried out immediately prior to processing. If a defect becomes apparent upon delivery, inspection or at any later point in time, Cloud&Heat must be notified thereof in writing without delay. In any case, obvious defects must be reported immediately upon delivery and defects not recognizable during the inspection must be reported immediately upon discovery in writing. If the Buyer fails to properly inspect the goods and/or notify Cloud&Heat of defects, our liability for the defect not reported or not reported on time or properly shall be excluded in accordance with the statutory provisions.

(4) If the delivered item is defective, Cloud&Heat can first choose whether it provides subsequent performance through rectification of the defect (subsequent improvement) or through delivery of a defect-free item (replacement delivery). Cloud&Heat’s right to refuse subsequent performance under the statutory conditions shall remain unaffected.

(5) Cloud&Heat is entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

(6) The Buyer shall grant Cloud&Heat the time, opportunity and access necessary in order to inspect the rejected products and determine the subsequent performance owed. In the event of a replacement delivery, the Buyer shall return the defective item to Cloud&Heat in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item nor its re-installation if Cloud&Heat was not originally responsible for its installation.

(7) Cloud&Heat shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, as well as any dismantling and installation costs, in accordance with the statutory provisions, if a defect actually exists. If this is not the case, Cloud&Heat shall be entitled to demand reimbursement from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular testing and transport costs), unless the lack of defectiveness was not recognizable for the Buyer.

(8) If the supplementary performance has failed or a reasonable deadline for the supplementary performance to be set by the Buyer has expired without success or has become legally dispensable pursuant to the provisions of the law, the Buyer may cancel the purchase agreement or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.

(9) Claims of the Buyer for damages or reimbursement of futile expenses shall only exist in accordance with § 8 even in the case of defects and are otherwise excluded.

 

8 Miscellaneous liabilities

(1) Unless otherwise stated in these General Terms & Conditions, including the provisions set out below, Cloud&Heat is liable in case of any breach of contractual or non-contractual duties in compliance with the relevant statutory provisions.

(2) Cloud&Heat shall be liable – regardless of the legal basis – within fault-based liability for damages resulting from intent and gross negligence. In the event of simple negligence, Cloud&Heat shall only be liable, subject to statutory limitations of liability (e.g. due care in Cloud&Heat’s own affairs; insignificant breach of duty), in the following cases

  1. a) for damages resulting from injury to life, body or health,
  2. b) for damages caused by breach of an essential contractual obligation (the fulfilment of which is fundamental to the proper execution of the contract and may regularly and justifiably be relied upon by the contractual partner); in such case, Cloud&Heat’s liability shall, however, be limited to foreseeable damage typical of the contract.

 (3) The limitations of liability resulting from paragraph 2 shall also apply in the event of breaches of duty by or for the benefit of persons whose fault Cloud&Heat is responsible for in accordance with statutory provisions. They shall not apply if Cloud&Heat has maliciously concealed a defect or assumed a guarantee for the quality of the Products and for the Buyer’s claims under the Product Liability Act.

(4) The Buyer may only withdraw or terminate the contract due to a breach of duty that does not consist of a defect if Cloud&Heat is responsible for the breach of duty. A free right of termination by the Buyer (in particular according to §§ 650, 648 BGB – German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

 

9 Statute of limitations

(1) Contrary to § 438 Para. 1 No. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance procedure has been agreed, the limitation period shall commence upon acceptance.

(2) The above-mentioned limitation period shall also apply to the Buyer’s contractual and extracontractual compensation claims based on defective goods, except if the use of the standard legal limitation period (§§ 195, 199 BGB – German Civil Code) results in a shorter limitation period in individual cases. Damage claims of the Buyer according to § 8 para. 2 clause 1 and 2(a) as well as according to the Product Liability Act shall, however, lapse solely according to the statutory limitation periods.

 

10 Applicable law and place of jurisdiction

(1) These General Terms and Conditions and the contractual relationship between Cloud&Heat and the Buyer shall be governed by the laws of the Federal Republic of Germany and shall exclude the International Uniform Law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Cloud&Heat’s registered office in Dresden (Germany). The same applies if the Buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). In all cases, however, Cloud&Heat is also entitled to take legal action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the buyer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.

 

 

 

PUBLIC CLOUD TERMS & CONDITIONS

 

Foreword

Cloud&Heat Technologies GmbH, Königsbrücker Str. 96, 01099 Dresden, Germany (referred to as Cloud&Heat) offers the Customer flexible virtualized infrastructure (Infrastructure as a Service – IaaS) via the Internet on servers, storage devices and networks that are not exclusively available for the individual customer. All IT services are billed according to usage. The offer includes in particular a host on which an operating system is already pre-installed and on which additional software can be installed by the Customer (Compute Service), data storage by which the Customer can organize data in so-called buckets and retrieve it via an URL (Object Storage), block-based storage which can be used for the persistent storage of virtual instances (Block Storage), as well as a host on which the customer can install an operating system and additional software (GPU as a Service).

 

1 Scope, form

(1) These Public Cloud Terms and Conditions (PCT&C) apply to all business relations with our Customers regarding the services offered by Cloud&Heat mentioned in the Foreword above. The Public Cloud Terms and Conditions apply only if the Customer is an entrepreneur (§ 14 BGB – German Civil Code), a legal entity under public law or a special fund under public law.

(2) The Public Cloud Terms and Conditions (PCT&C) apply exclusively to contracts for Public Cloud Services mentioned in the Foreword. For all other business relations with the Customer, the General Terms and Conditions (T&C) of Cloud&Heat apply. Unless otherwise agreed, the Public Cloud Terms and Conditions in the version valid at the time of the Customer’s initial contract or in any case in the version Cloud&Heat last notified the Customer of in written or text form shall also apply as a framework agreement for similar future contracts without Cloud&Heat having to refer to them again in each individual case.

(3) Cloud&Heat’s Public Cloud Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Costumer shall only become an integral part of the contract if and to the extent that Cloud&Heat has expressly agreed to their validity. This requirement of consent shall apply in all cases, even when Cloud&Heat renders delivery of services without reservation despite having full knowledge of the Customer’s general terms and conditions.

(4) Individual agreements with the Customer associated with specific cases (including collateral agreements, supplements and amendments) always take precedence over these Public Cloud Terms and Conditions. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or written confirmation from Cloud&Heat.

(5) Legally relevant declarations and notifications of the Customer with regard to the contract (in particular setting a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form. Legal formal requirements and further evidence, particularly in cases of doubt as to the legitimacy of the declarant, remain unaffected.

(6) Any references to the application of statutory provisions are for the purposes of clarification only. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these Public Cloud Terms and Conditions.

 

2 Conclusion of contract

(1) Cloud&Heat’s offers are subject to change and non-binding. This also applies when Cloud&Heat has already provided the Customer with product descriptions, technical documentation and other documents – also in electronic form – to which Cloud&Heat reserves ownership rights and copyrights.

(2) The ordering of our services by the Customer is regarded as a binding contract offer. Unless otherwise stated in the order, Cloud&Heat shall be entitled to accept this contractual offer within 1 week of its receipt.

(3) The acceptance can be declared either in writing or in text form to the Customer.

(4) The contract for Public Cloud Services is concluded for an indefinite period of time. It can be terminated in writing or in text form by the Customer at any time without notice, and by Cloud&Heat with a notice period of two weeks. The customer may give notice of termination in text form to: support@cloudandheat.com.

 

3 Registration and user account

(1) To make use of the Public Cloud services, the Customer shall contact Cloud&Heat by e-mail or via the contact form on the website. Cloud&Heat will specify the Customer’s order through an email or telephone call and, if the conditions are agreed, will send a non-binding offer to the Customer together with the Public Cloud Terms and Conditions, Service Level Agreement and Data Processing Contract (PCT&C, SLA and DPC) valid at the time. Once the Customer has placed an order, Cloud&Heat may accept the order in accordance with § 2 Para. 2 and set up the Customer’s user account which enables the use of the Infrastructure.  To register, a valid e-mail address and a password chosen by the Customer are required. In addition, the Customer must provide the company name, its registered office location as well as the invoice recipient and a responsible IT contact.

(2) The password chosen during registration is unique to the Customer. This password enables access for the Customer to the Public Cloud Services. The password must correspond to the criteria specified in the registration process. Should the password be forgotten or lost by the Customer, a new password can be requested from Cloud&Heat. Following an appropriate security check by Cloud&Heat, a new password will be issued. The Customer is obligated to adequately protect its access against unauthorized use by third parties. The password must not be disclosed. The Customer shall be liable for damages resulting from unauthorized access to areas requiring registration that are made possible by its conduct.

(3) The Customer must provide full and honest disclosure of the data required for the registration process.  The Customer is obligated to immediately inform Cloud&Heat of any and all changes to the data through an e-mail to: support@cloudandheat.com.

(4) Customer registration is free of charge. There is no entitlement to approval. Registration entails no further obligations beyond the declaration of consent to the application of these Public Cloud Terms and Conditions.

(5) Upon successful registration, the Customer gains access to the Customer Area. With the help of a graphical user interface in the Customer Area, Cloud&Heat provides the Customer with an overview of the services used by the Customer as well as the control and configuration of these services. The commissioned service components obligated to pay (CPU/GPU power, RAM, server, storage, etc.) can be flexibly viewed and configured by the Customer in the Customer Area.

 

4 Services provided by Cloud&Heat

(1) Cloud&Heat provides the Customer access to a flexible virtualized infrastructure (Infrastructure as a Service – IaaS) as well as encrypted data storage on non-exclusive servers, storage devices, and networks and makes these available to the Customer. To maintain the security of the Customer’s data center, 24/7 monitoring is performed by automated monitoring tools that are regularly maintained by system administrators. Insofar as no deviating conditions have been stipulated in individual contracts, the performance characteristics valid at the time of the conclusion of the contract shall apply.

(2) Cloud&Heat provides the availability of Public Cloud Services as described in the Service Level Agreement („SLA“). Excluded from this are times in which the availability cannot be maintained due to technical or other problems beyond Cloud&Heat’s control (e.g. force majeure, fault of third parties as well as planned maintenance work, etc.).

(3) Cloud&Heat may temporarily suspend or restrict access to the services if the security of network operation, the maintenance of network integrity, in particular the avoidance of serious disturbances to the network, the interoperability of services and data protection requirements so require.

(4) Cloud&Heat will perform necessary maintenance work, as far as possible, during periods of low use. Maintenance work shall not exceed 4 hours per calendar quarter. Should longer temporary performance adjustments or limitations be necessary, Cloud&Heat will inform the Customer of the type, extent and duration of the impairment immediately, or if possible, in advance.  Informing the Customer is dispensable if this significantly reduces the performance limitation.

(5) The Customer is aware that the services offered by Cloud&Heat are subject to change due to new technical developments as well as possible legal and/or gorvernmental regulations. The Public Cloud Services of Cloud&Heat can therefore be adapted to the current state of technical development. However, this shall only apply insofar as the performance of the agreed services is neither unreasonably impaired nor impossible and the adjustment is tolerable for the Customer, taking into account all circumstances and the the Customer’s legitimate interests.

(6) Cloud&Heat shall, within the frame of technical and organizational possibilities, implement applications used for the provision of services in the latest and most stable version provided by the manufacturer, if this is tolerable for the Customer (equal fulfillment of the performance characteristics). Unless otherwise specified, Cloud&Heat shall inform the Customer prior to a version change, observing a reasonable period of advance notice.

(7) Performance deadlines are binding if they have been confirmed in writing by Cloud&Heat and the Customer has provided Cloud&Heat with all information and documents required for the performance of the services in good time, has paid any agreed down payments as per agreement, has granted approvals and clearances and has otherwise carried out any obligation to cooperate. The agreed service deadlines begin with the provision of the commissioned service. In the case of additional or extended orders placed at a later date, the deadlines shall be extended accordingly. If the Customer does not sufficiently comply with his notification and cooperation obligations and if the execution of Cloud&Heat’s contractual obligations is delayed as a result, the agreed deadlines shall automatically be extended appropriately, but at least by the period of the delay.

(8) Wherever Cloud&Heat provides additional services free-of-charge (e.g. the API), the Customer has no entitlement to their provision. Cloud&Heat will inform the Customer in advance about the discontinuation of any free-of-charge services.

 

5 Customer Obligations

(1) The Customer bears sole responsibility for any and all data that the Customer transmits, including its contents. The Customer shall be solely responsible for damages arising from a breach of the Customer Obligations as defined here in § 5. There is no obligation and no possibility for Cloud&Heat to check the contents of the Public Cloud for their legality.

(2) The Customer shall ensure that the data transmitted by the Customer are harmless to the Cloud&Heat infrastructure, in particular to the computers used, and that the data transmitted into the Cloud or coming into contact with Cloud&Heat computers are checked for the absence of malware by appropriate programs based on the state of the art in science and technology.

(3) The Customer is solely responsible for creating a backup of the transmitted Customer Data on a data carrier other than the Cloud&Heat computers and storage devices. Cloud&Heat has no access to the Customer’s data and is not responsible for data backup.

(4) The infrastructure provided by Cloud&Heat may not be used for purposes not related to the contract.  Such misuse includes in particular:

  1. a) the use of the services under pretense of a false identity of the Customer, be it towards Cloud&Heat, other customers, or third parties,
  2. b) the sending of advertising messages („spam“), unless the respective recipient has expressly agreed beforehand to receive such messages in compliance with data protection regulations,
  3. c) the posting or sending of content that violates a national or international legal prohibition,
  4. d) the posting or sending of text, image, video, audio or other files in violation of copyright, trademark, name, competition or personality rights,
  5. e) the posting or sending of pornographic or youth-endangering works,
  6. f) the use of personal data from other customers, unless the other customers concerned have expressly agreed to the specific type of use beforehand,
  7. g) the manipulation of Cloud&Heat services, servers or computers by means of technical devices, interventions, other measures or data.

(5) In the event of misuse as stipulated in paragraph 4, Cloud&Heat is entitled to suspend the provision of its services and to terminate without notice the existing contract with the Customer.

(6) The Customer shall be obligated to mark an Internet presence that may be connected with the services of Cloud&Heat as well as the contents concerned that are accessible to the public in compliance with the corresponding applicable regulations (in particular imprint obligations pursuant to the following German statutes: § 5 TMG – Telemedia Act, § 55 RStV – Interstate Broadcasting Agreement and the DL-InfoV – Ordinance on Service Providers‘ Duty to Inform). The Customer shall exempt Cloud&Heat from all claims based on a breach of the aforementioned obligations.

(7) The Customer declares and guarantees that (i) the Customer or its licensee has all rights to the data uploaded to the Public Cloud or to computers of Cloud&Heat, including but not limited to copyright, trademark and name rights and (ii) that none of the data uploaded to the Cloud or to computers of Cloud&Heat violates any provisions of these Public Cloud Terms and Conditions (PCB/PCT&C) or applicable laws.

(8) The Customer shall inform Cloud&Heat immediately after becoming aware of any disruptions in the Public Cloud or in the computers or data centers of Cloud&Heat.

(9) Should the Customer be subject to export restrictions (in particular so-called „dual use goods“, embargos) within the scope of the services requested by the Customer, the Customer shall be responsible for compliance with the provisions of foreign trade laws. After recognizing any such violations, Cloud&Heat shall not be obligated to provide the respective contractual services.

(10) If the Customer culpably violates paragraphs 2, 4, 6 and/or 7, for each individual violation of this undertaking, the Customer agrees to pay a contractual penalty in the amount of 5,000.00 Euro to Cloud&Heat.  Cloud&Heat shall be entitled to demand the contractual penalty in addition to the contractual payment and at a minimum, the amount of damages owed by the Customer in accordance with the statutory provisions; the assertion of further damages shall remain unaffected.

 

6 Prices and terms of payment

(1) Unless otherwise agreed in an individual contract, our prices valid at the time of conclusion of the contract plus the statutory VAT shall apply.

(2) The billing of fees for the commissioned Public Cloud Services is based on the time period from the first to the last day of each calendar month. If the contract is not concluded on the first day of a calendar month, the fee to be paid for the first month shall be calculated pro rata according to the remaining days of the month. The invoice will be issued by the 15th day of the following month.

(3) Unless otherwise contractually agreed, the fee is due in Euro and payable within 14 days of invoicing. Discounts are not granted. For Customers located in the Federal Republic of Germany, the fees may be paid by SEPA Direct Debit Mandate or bank transfer, whereas for Customers located abroad fees may only be paid by bank transfer. The Customer authorizes Cloud&Heat to collect accrued fees via the specified account. The Customer shall reimburse all costs incurred as a result of a returned direct debit or non-executable payment transactions, unless the Customer has exercised requisite care, or the damage would have occurred even if such required diligence had been exercised.

(4) The Customer shall be in default upon expiry of the aforementioned payment period. During the period of default, interest shall be charged on the purchase price at the respectively applicable statutory default interest rate. Cloud&Heat reserves the right to assert further claims for damages caused by default and to withhold deliveries and services during the period of default. Cloud&Heat’s claim against merchants, to demand the respectively applicable statutory interest rate arising from mutual commercial transactions (§ 353 HGB – German Commercial Code) remains unaffected.

(5) The Customer is only entitled to set-off or to exercise any rights of retention to the extent its claim is legally established or undisputed. In the event of deficiencies of delivery, the Customer’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these Public Cloud Terms and Conditions.

(6) If after signing the contract it becomes apparent to Cloud&Heat (e.g. by filing for the opening of insolvency proceedings) that its claim to the purchase price is at risk due to the Customer’s lack of ability to pay, Cloud&Heat shall be entitled, in accordance with the statutory provisions, to refuse performance and, if necessary after issuing a deadline, to withdraw from the contract (§ 321 BGB – German Civil Code). In the case of contracts for the manufacturing of noninterchangeable items (custom-made items), Cloud&Heat may declare its withdrawal immediately; the statutory provisions on the dispensability of a deadline shall remain unaffected.

 

7 Miscellaneous liability

(1) Unless otherwise stated in these Public Cloud Terms and Conditions, including the provisions set out below, Cloud&Heat is liable in case of any breach of contractual or non-contractual duties in compliance with the relevant statutory provisions.

(2) Cloud&Heat shall be liable – regardless of the legal basis – within fault-based liability for damages resulting from intent and gross negligence. In the event of simple negligence, Cloud&Heat shall only be liable, subject to statutory limitations of liability (e.g. due care in Cloud&Heat’s own affairs; insignificant breach of duty), in the following cases

  1. a) for damages resulting from injury to life, body or health,
  2. b) for damages caused by breach of an essential contractual obligation (the fulfilment of which is fundamental to the proper execution of the contract and may regularly and justifiably be relied upon by the contractual partner); in such case, Cloud&Heat’s liability shall, however, be limited to foreseeable damage typical of the contract.

 (3) The limitations of liability resulting from paragraph 2 shall also apply in the event of breaches of duty by or for the benefit of persons whose fault Cloud&Heat is responsible for in accordance with statutory provisions. They shall not apply if Cloud&Heat has maliciously concealed a defect or assumed a guarantee for the quality of the Products and for the Customer’s claims under the Product Liability Act.

(4) The Customer may only withdraw or terminate the contract due to a breach of duty that does not consist of a defect if Cloud&Heat is responsible for the breach of duty. A free right of termination by the Customer (in particular according to §§ 650, 648 BGB – German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

 

8 Applicable law and place of jurisdiction

(1) These Public Cloud Terms and Conditions and the contractual relationship between Cloud&Heat and the Customer shall be governed by the laws of the Federal Republic of Germany and shall exclude the International Uniform Law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Cloud&Heat’s registered office in Dresden (Germany). The same applies if the Customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). In all cases, however, Cloud&Heat is also entitled to take legal action at the place of performance of the delivery obligation in accordance with these Public Cloud Terms and Conditions or a prior individual agreement or at the Customer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.

 

June 14 2019