Scope of application, supplementary contract terms
•The General Terms and Conditions for Cloud Services "CD-AGB" of Wolkee Cloud GmbH ("Wolkee.Cloud") apply to contracts with customers for application service providing, software as a service (SaaS), cloud services, hosting contracts, hardware leasing contracts and contracts for the provision of software in the cloud (hereinafter "cloud services") and are deemed to be an integral part of the contract unless otherwise agreed in writing in an individual agreement between Wolkee.Cloud and the customer.
•These GTC apply exclusively with the restrictions in accordance with section I. paragraph (3). Deviating, conflicting or supplementary terms and conditions of business or contract of a customer shall only become part of the contract if and to the extent that Wolkee.Cloud has expressly consented to their validity in writing. This consent requirement shall apply in any case, in particular also if Wolkee.Cloud performs a delivery or service to the customer without reservation in the knowledge of the customer's terms of business or contract.
•For software or cloud services of third parties, their terms and conditions of licence or use shall have first priority with regard to their software or cloud services. The contractual terms and conditions of the respective data centre in whose server infrastructure the provided software is installed shall apply in the second rank after these licence or usage terms.
•These CD GTC also apply if the customer uses the cloud services with which these CD GTC are provided.
1. Services
•Cloud provides the cloud services to the customer in accordance with the rights of use specified in section III. of these GTC for online use via a data network (hereinafter referred to as "data network"). The cloud services are provided for this purpose by Wolkee.Cloud, also with the aid of hardware suitable for this purpose (thin clients, zero clients, etc.), on a server infrastructure which is accessible to the customer via the data network. A user manual for the cloud services is not owed unless this is expressly agreed in writing.
•The user interface or the service description indicates which functions and services the cloud services have when used in accordance with the contract. Public statements, recommendations or advertising do not constitute a statement of quality.
•Cloud undertakes for the duration of the contract to maintain the cloud services and to maintain and care for the software or hardware and their accessibility in accordance with section VI of these CD GTC.
•Remuneration and terms of payment
The remuneration to be paid by the customer to Wolkee.Cloud for services against payment and the terms of payment applicable thereto are specified separately for the respective services.
1.Rights of use
•Cloud grants the customer a simple, non-transferable, non-exclusive right, limited to the duration of the contract, to use the Cloud services for the purpose specified by Wolkee.Cloud for the respective Cloud service by natural persons via user interfaces. Automated use is not permitted.
•The type and scope of the rights of use for cloud services or for third party software provided to the customer by Wolkee.Cloud are governed by the terms of use of the third party and are limited to the duration of the contract. Wolkee.Cloud will provide the customer with the terms of use of the third party upon request.
•The Customer is not permitted to allow third parties to integrate the Cloud Services into systems other than the Customer's systems.
•The customer is not permitted to allow unauthorised persons and third parties online access and use of the cloud services.
•In the event of a breach of the provisions of section IV. Sections (1) to (4) and Section V. Sections (5) and (6) of these CD GTC by the customer or by a third party to whom the customer has made use possible, the rights of use shall expire.
•The rights of use granted to the Customer shall lapse if and as long as the agreed remuneration for the use of the cloud services has not been paid to Wolkee.Cloud or has not been paid in due time. Furthermore, in the event of non-payment or late payment of the agreed remuneration, Wolkee.Cloud has the right to block the cloud services and/or online access to the software immediately and without reminder.
1.Obligations of the customer
•The customer undertakes to perform all customary and reasonable acts of cooperation which are necessary for the use of the cloud services on his part and which lie within his sphere of influence or responsibility.
•The customer shall ensure that its hardware and software used within the scope of the contract is technically suitable for the use of the cloud services and is compatible with the hardware and software with which Wolkee.Cloud provides its services. Contractual services is compatible. Wolkee.Cloud shall in particular not be liable for the suitability, functionality and compatibility of the customer's hardware and software.
•The customer is in particular obliged to adapt its systems by means of which it accesses the cloud services to the respective new versions of the interface between the cloud services and the customer's systems on its own responsibility and at its own expense. The adaptation of the customer's systems to the new version must be carried out within six months of the release of the information and specifications for the interface. Upon expiry of the six-month period, the accessibility of the cloud services or the software is only guaranteed via the new version of the interface. Wolkee.Cloud assumes no liability for damages resulting from the fact that the Customer has not adapted its systems to the new versions of the interface or has not done so in good time.
•The customer's online connection to the Internet or to the contractually agreed data network and all related costs are the responsibility of the customer.
•The customer shall take appropriate precautions to protect its online access and access to the cloud services by unauthorised persons.
•The customer is obliged to refrain from anything that could endanger or jeopardises the cloud services or their performance. In particular, the customer shall refrain from automatically retrieving or sending data, e.g. by means of scripts, and thereby transferring data volumes or initiating calculation processes on servers which go beyond those carried out by users in the course of normal use.
1.Availability
(1) Wolkee.Cloud guarantees an accessibility of the cloud services from the server infrastructure of the data centre to the transfer point into the public or the agreed data network of 96% on an annual average for each calendar year. Excluded from this are times when the server cannot be reached due to technical or other problems which are not within the sphere of responsibility or influence of Wolkee.Cloud (e.g. force majeure, natural disasters, industrial action, strike, fault of third parties etc.).
(2)Wolkee.Cloud has the right to restrict or block access to the cloud services if technical changes, maintenance of the system, the security of network operation, the maintenance of network integrity, in particular the avoidance of disruptions of the network, the cloud services, the software or stored data require it or if the customer does not fulfil his obligations specified in section V. paragraphs (5) and (6) of these CD GTC or there is suspicion of a breach of these obligations.
•The accessibility of the cloud services may be limited due to the maintenance of the cloud services, the software or the server infrastructure, especially in Central European time between 21:00 and 07:00.
•Unless otherwise agreed, the cloud services or the software are made available for online use on a server infrastructure selected by Wolkee.Cloud.
•Cloud services free of charge may be discontinued at any time, in whole or in part, permanently or temporarily.
•Rights of use to updates and upgrades
For the use of updates or upgrades, the provisions of these CD GTC apply accordingly.
•Data backup
•The information provided by the customer in the
All rights to the content (e.g. texts, images, graphics, videos,
Sounds, animations) of the Cloud Services are the property of Wolkee.Cloud or the respective authors. This content may only be used within the scope of the authorised use of the cloud services in accordance with section IV of these CD GTC and under the terms and conditions of the respective copyright holder.
1.Trademark rights
The cloud services may contain names and trademarks that are protected by law. The rights to the names or trademarks belong exclusively to the respective owner. No licence is granted by the publication of the names and trademarks in the cloud services.
1.Data protection
•Cloud and the customer undertake to comply with the respective applicable data protection laws and data protection regulations.
•If the customer, as the responsible party in the sense of data protection law, collects, processes or uses personal data himself or through Wolkee.Cloud in the context of the use of the cloud services or the software, he must ensure in advance that he is authorised to collect, process or use this data in the specific manner in accordance with applicable law, in particular the data protection provisions, and shall indemnify Wolkee.Cloud against claims by third parties in the event of a breach of this.
XII. Warranty and liability
•The customer is aware that cloud services, especially software, are very complex and cannot be developed absolutely error-free.
•Any defects or malfunctions of software and/or hardware are to be notified to Wolkee.Cloud immediately in a comprehensible manner in writing, as an e-mail or fax. Wolkee.Cloud will remedy the defect within a reasonable period after receipt of such notification. Insofar as this is reasonable for the customer, Wolkee.Cloud is entitled to provide the customer with a new version of the Cloud services or the software and/or hardware which no longer contains the defect complained of or eliminates it or to develop an alternative solution.
•If and to the extent that tenancy law is applicable, Wolkee.Cloud's liability without fault pursuant to Section 536 I BGB is excluded. The customer's right of termination for non-granting of use pursuant to Section 543 (2) No. 1 BGB and the right to reduce the remuneration are excluded as long as the accessibility and/or use of the Cloud services is not restricted or excluded for more than 72 consecutive hours due to the rectification of defects.
•Cloud is not liable for defects based on operating errors and/or occurring after use contrary to the contract unless the customer proves that the defects have no causal connection with the above-mentioned events.
•Cloud is not liable for the correctness of the content of the customer's data contained in the cloud services or the software and the resulting defects and errors.
•Cloud is not liable for the operability of external data lines to its server, in the event of power failures and for service restrictions or service failures due to force majeure or events that significantly impede, restrict or render impossible performance. This includes, in particular, strikes, lockouts, official orders, the failure of communication networks of other operators, disruptions at the respective line provider as well as disruptions that occur in the
are within the risk range of other network providers.
•The customer may not enforce a reduction by deduction from the agreed remuneration. Claims for enrichment and damages remain unaffected.
•If it turns out that a defect reported by the Customer does not actually exist or is not based on the Cloud Services or the software and hardware, Wolkee.Cloud is entitled to charge the Customer for the expenses incurred in the analysis and other processing in accordance with its current price list for services.
•Cloud does not guarantee the timeliness, accuracy and completeness of the information provided in free Cloud services.
•Cloud is not liable for the information created or published by third parties and accessible via the Cloud (e.g. via a link/hyperlink). Wolkee.Cloud has no influence on the link text, the design, possible infringements of applicable rights (e.g. trademark rights and copyrights) and the third parties accessible via the Cloud services. Wolkee.Cloud therefore expressly dissociate themselves from all third-party content that can be accessed via the cloud services of Wolkee.Cloud.
•The liability of Wolkee.Cloud or a representative or vicarious agent, irrespective of the legal grounds, is limited to intent and gross negligence. In the event of intent and gross negligence, the statutory provisions shall apply.
•Wolkee.Cloud's liability for direct, indirect, special or other damages and consequential damages arising from the use of free cloud services or due to a defect in free cloud services is excluded.
•In the event of personal injury and breach of an essential contractual obligation (cardinal obligation), Wolkee.Cloud shall also be liable for slight negligence. In the event of a breach of an essential contractual obligation, the liability of Wolkee.Cloud is limited to the foreseeable damage typical for the contract. Material contractual obligations are obligations the fulfilment of which is essential for the proper performance of the contract and compliance with which the contractual partner may regularly rely on.
•Cloud is not liable for the loss of data if the damage would not have occurred in the event of proper data backup in the customer's area of responsibility. Proper data backup is to be assumed if the customer demonstrably backs up his data files daily in machine-readable form and thus ensures that this data can be restored with reasonable effort. The liability of Wolkee.Cloud for loss of data - unless caused intentionally or by gross negligence on the part of Wolkee.Cloud - shall be limited to the typical recovery expenditure which would have been incurred in the event of proper data backup.
•Cloud accepts no liability for the dissemination of confidential data stored in the Wolkee.Cloud IT system if and to the extent that the dissemination of such data is due to misuse of passwords and logins for which Wolkee.Cloud is not responsible.
•Insofar as the liability of Wolkee.Cloud is excluded or limited, this also applies to the personal liability of employees and workers of Wolkee.Cloud as well as third parties acting on behalf of Wolkee.Cloud.
•Liability under the Product Liability Act remains unaffected.
XIII. Control Rights of Wolkee.Cloud
•Cloud has the right to read and check the data transmitted and retrieved via the customer's online access if it is to be feared that such data is connected with illegal acts or the content of the data is contrary to good morals.
•Cloud is permitted access to the data transmitted and retrieved via the customer's online access if and to the extent necessary to check the system.
XIV Commencement, duration and termination of the contract (1) Unless otherwise agreed, the contract commences with the activation of the cloud service.
•The contract runs for an indefinite period. It may be terminated with six months' notice to the end of a contractual year. Minimum terms and periods of notice agreed in the contract shall have priority.
•The right to extraordinary termination for good cause remains unaffected. Wolkee.Cloud shall in particular have the right to extraordinary termination if the customer is in default of payment of the remuneration.
•Notice of termination must be given in writing.
1.Other
•The law of the Federal Republic of Germany shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
•As far as legally permissible, the place of jurisdiction for both contracting parties shall be Berlin.
•All agreements between the contracting parties must be in writing to be valid.
•Should individual provisions not be legally effective or lose their legal effectiveness due to a later circumstance or should a loophole be identified, the legal effectiveness of the remaining provisions shall not be affected thereby. In such cases, both contracting parties shall immediately replace the ineffective provisions with such effective provisions or fill in regulatory gaps with such provisions that correspond to the economic purpose of the contract. Should this
the contracting parties do not succeed despite proven serious efforts, the statutory provisions of the Federal Republic of Germany shall apply in place of the invalid provisions or loopholes.
