Terms and Conditions of Use

1. SCOPE OF APPLICATION AND CONCLUSION OF CONTRACT

These General Terms and Conditions of Use (“Terms and Conditions of Use”) govern the terms and conditions for a customer’s use of the platform “myCloudogu” (“Platform”). The customer is represented by the owner of the account (“Owner”) and by the other “users” of an account operated by Cloudogu GmbH, Brabandtstraße 9-10, 38100 Braunschweig (“We”, “Us”). This is intended in particular for managing the Cloudogu EcoSystem (“CES”) and the software tools (“Dogus”) used in the context thereof. In addition, various services are offered on the Platform for the Dogus. These Terms and Conditions of Use do not contain any provisions for the CES, the Dogus themselves or the services offered on the Platform.

Any general terms and conditions of purchase or other terms and conditions of business of the customer shall not apply, unless We explicitly agree to their inclusion in writing.

A customer may use the contact form at “myCloudogu” to submit an offer for the conclusion of a contract of use for an account in a certain edition. An account in “myCloudogu” fundamentally allows for use of a Cloudogu EcoSystem. A customer acknowledges these Terms and Conditions of Use, as amended, at the time of the contract offer and submits a contract offer for the conclusion of the contract of use. We accept this contract offer by activating the respectively ordered access to the Platform and to the contents and functions available there, which are only provided for registered customers.

We reserve the right to change the Terms and Conditions of Use as necessary from time to time in accordance with Clause 8.

Customers with a Premium or Enterprise Edition account must be entrepreneurs. Customers using a Community Edition account, by contrast, may be entrepreneurs or consumers. A consumer is any natural person concluding a legal transaction for purposes that for the most part cannot be attributed to their commercial or independent professional work (Section 13 of the German Civil Code [Bürgerliches Gesetzbuch, BGB]). An entrepreneur is any natural person or legal entity or a partnership with legal capacity that acts in their commercial or independent professional capacity upon conclusion of a legal transaction (Section 14 of the German Civil Code).

2. REGISTRATION ON “MYCLOUDOGU”

After concluding a contract of use for a Community, Premium or Enterprise Edition by registering with an email address on the Platform, the Owner can create a user account and thus manage the CES and the selected Dogus in each case.

A maximum of 50 users can be included in the Community Edition of the Cloudogu EcoSystem. This edition cannot be expanded to accommodate more users.

The two fee-based editions (Premium and Enterprise) are fundamentally limited to a maximum of 50 users as well. However, there are options in these editions to acquire additional instances for adding more users.

If a customer would like to use more than one instance of the CES with selected Dogus and manage via “myCloudogu,” the customer must request the number of instances required. After requesting a certain number of instances, the customer may register multiple instances under one account on the Platform in the Premium and Enterprise Edition.

3. USE AND SERVICE OFFER OF “MYCLOUDOGU”

The Platform offers the customer the opportunity to manage the CES and various Dogus (free Dogus, free Premium Dogus and fee-based Premium Dogus). Furthermore, this includes various free and fee-based services such as a public forum (“Community”), team management and maintenance and support services that can be used or requested directly through “myCloudogu.”

The (Premium) Dogus available on the Platform free of charge are exclusively third-party software packages and tools based on Free Software, i.e. Open Source Software, Freeware and/or Public Domain Software, which are in principle also publicly available via the respective project pages of a software or via software repositories (e.g. via Github), but are offered by Us as a broker via “myCloudogu” for simple and convenient use within the framework of the CES. A contractual agreement on the use of these Dogus is not included in the use of the Platform. The customer as user of the software is therefore responsible for use in accordance with the license, in particular with respect to the copyright holder.

If a customer registered with a user account at “myCloudogu,” the Platform grants the Owner and the users included by them in their account a selected number of free Community Dogus for use in their personal CES. We offer free maintenance service for these Dogus. At our own discretion, We provide the customer with updates of the used Dogus, which the customer can make use of in their CES. This free service is, however, a voluntary service by Us and can be revoked at any time without providing reasons.

The fee-based Premium Dogus are also fee-based third-party tools that the customer can obtain directly from the respective manufacturer/provider and integrate via the development platform. The respective contractual and license terms of the manufacturer/supplier shall apply to these, and the customer will be informed thereof when ordering these Dogus. Here, too, We are solely brokers of the products; a contract of use materializes between the customer and the respective manufacturer/provider of the Dogus for the most part..

We also offer fee-based services for used Dogus to customers with the Premium or Enterprise Edition, e.g. maintenance or maintenance plus support, via “myCloudogu.” The customer can request these services directly through the Platform, as necessary. Separate terms and conditions of business apply to such services if a contract is concluded, and the customer will be informed about them separately as part of the engagement. These Terms and Conditions of Use do not contain any provisions relevant thereto. Use of the Platform for purposes other than those laid out in these Terms and Conditions of Use is not permitted, unless We have given our explicit consent in advance.

4. COSTS

Registering on “myCloudogu” and using the Platform and the free services available there, such as the community and the CES instance management, in accordance with the terms and conditions governed in these Terms and Conditions of Use is free of charge in the Community Edition. When you register on our “myCloudogu” Platform, you agree that We may send you information on interesting products, services and other product- or service-relevant activities of Cloudogu via the contact data provided by you in return for the provision of services.

In regards to the products available on the Platform and the fee-based services, the provisions in Section 3 of this contract and the corresponding provisions on use and in accordance with the license of the respective manufacturers/providers shall apply.

The Premium Edition and the Enterprise Edition contain services that are not included in the Community Edition, e.g. Premium Dogus, Private Dogus, extended support or a guided setup. The contractually agreed costs are incurred for these editions.

5. DATA PROTECTION AND “MYCLOUDOGU”

The collection of personal data or data related to a person should be avoided to the greatest extent possible during use of the Platform, even if it cannot be prevented entirely. The registration by the Owner required for using the Platform is done by providing an email address. To register additional users, the Owner must also provide the email address of the respective users. The personal data provided by the Owner during registration is also provided for other users inside the community and the team management if the user should make contributions in these areas inside the community or join a team or set one up. Furthermore, by providing your email address during registration, you have authorized Us to send you information on interesting products, services and other product- or service-relevant activities of Cloudogu via the contact data provided by you.

All other information and explanatory remarks on data protection can be found in our privacy policy https://static.cloudogu.com/privacy/.

6. FEATURES AND AVAILABILITY OF “MYCLOUDOGU”

The content and features of the Platform are determined by these Terms and Conditions of Use. If not governed otherwise in these Terms and Conditions of Use, We will take adequate measures and security precautions to prevent the Platform from having a harmful impact on the user environment and guarantee sufficient data security.

100% availability of “myCloudogu” is not technically achievable. However, We naturally try with the standard market professionalism to keep disruptions in operation of the Platform to a minimum. If the user requested a fee-based additional service through the Platform, they can also contact Us at any time in the event of non-availability of the Platform by using the address support[at]cloudogu[dot]com.

In particular, We are not responsible for malfunctions of the Platform that

• are due to causes that are outside of our control (e.g. natural disasters, wars, terrorist attacks, riots, labor disputes, government actions, network or equipment failures, among others, at the user’s location or between the user’s location and the location of the data center used);
• arise from the use of services, hardware or software not provided or explicitly acknowledged by Us, including, but not limited to, problems related to insufficient bandwidth or third-party software or services;
• are caused by an unauthorized act (including erroneous entries) or omission to act required of the customer or their employees, representatives, users, owners, contracting partners or suppliers, or by other persons who have gained access to the Platform, or otherwise caused by the customer’s failure to follow reasonable security procedures;
• are caused by the customer’s failure to comply with required configurations or due to use of the Platform inconsistent with the Platform’s features and functions (e.g., attempts to perform unsupported operations) or not in accordance with our published help guides.

7. SUPPORT FOR “MYCLOUDOGU”

Should a user have technical problems or questions about using the Platform, they can contact Us by email at the address support[at]cloudogu[dot]com and submit a request if the user has a license for the Premium or Enterprise Edition. We will try to answer these requests as quickly as possible during our normal business hours from Monday to Friday between 8:00 am and 5:00 pm, with the exception of statutory holidays in Lower Saxony, Germany.

If the customer requests fee-based services through the Platform, additional provisions and service levels apply to this. The customer shall be informed about this separately as part of the order for additional service.

If not explicitly agreed otherwise, support services in connection with access and general use of “myCloudogu” (not in regard to fee-based services) are solely provided by remote communication or remote data transfer.

8. CHANGES IN CONNECTION WITH “MYCLOUDOGU”

We are authorized to amend these Terms and Conditions of Use, individual functions of the Platform and/or the system requirements applicable to use of the Platform with the approval of the customer. The approval of the change in contract is deemed to be granted if the customer, represented by the Owner, receives the amended Terms and Conditions of Use in text form with a notification of amendment and the customer does not object to the amendment within 30 (thirty) days after receipt of the notification of amendment. The customer is authorized to terminate this contract within 30 days free of charge if the customer is impeded by the amendment, unless this impediment is only minor. We are obligated to separately inform the customer of the amendment and their right to object as well as the consequences of failing to object.

In the event of an objection by the Owner, We are entitled to a right of extraordinary termination in regards to the contract of use. The Owner will also be separately informed of this consequence when the amendment(s) is/are announced.

9. RESPONSIBILITY, DUTIES AND COOPERATION DUTIES OF THE CUSTOMER

In addition to the cooperation duties of the customer as agreed in these Terms and Conditions of Use or otherwise in a legally binding manner, the duties and obligations specified below shall apply.

The customer is responsible for ensuring that the system requirements applicable to the use of the Platform are met in the operating environment of the customer, in the form of a functioning internet connection and in the use of the latest version of a standard browser at the time of the conclusion of the contract.

The customer is solely responsible for the use of the Platform in conformity with the law and the contract. In particular, the customer shall ensure that the Platform is used exclusively by the Owner or the users included by the Owner.

The customer shall take the measures required in each case for the protection and security of the data provided by the Owner or by Us and other contractual items (especially access data) handed over to the customer. This includes, inter alia, sufficient security against access by unauthorized parties or misuse, automatic locking, virus scanners and firewalls as well as the implementation of other technical and organizational protective measures required.

If there is unauthorized access or use, an illegal copy, impermissible forwarding or other unlawful actions in connection with the Platform, the customer shall inform Us thereof immediately in text form and will take all required measures immediately and cover the costs to remedy the respective breach.

The customer is responsible for backing up the data of their own CES. In particular, the customer is obligated to make backups of the data records on the development platform at regular intervals so as not to suffer any disadvantages on account of data loss or non-availability of the data in the case of the temporary unavailability of the Platform. Furthermore, the customer is obligated to use redundant hardware to ensure that no relevant data is lost.

The customer is also obligated to ensure that their production and/or the operation of their company does not depend on the availability of the Platform or is not negatively affected by temporary unavailability of the Platform.

10. BREACHES OF DUTY BY THE CUSTOMER

In the event that the customer, Owner and/or users included in the account by the Owner breaches material contractual duties – especially in the event of a breach of their cooperation duties (Section 9) or duties related to data (Section 5), a breach of confidentiality (Section 11) – or a breach of statutory provisions, We are authorized to block the customer’s access to the Platform for the length of the breach or the violation. Additional claims and rights to which We are entitled, especially termination and damage compensation, irrespective of the legal reason, remain unaffected hereby.

The customer shall indemnify Us against all claims, demands, expenses, costs and damages caused by acts and omissions of the customer, the Owner and/or the users included in the account by the customer in connection with the exercising or non-exercising of the customer’s cooperation duties (Section 9) or the unauthorized or illegal use of the Platform and the functions and/or data offered there. The customer shall immediately inform Us in writing about asserted or pending demands, claims or fines and shall defend Us – if requested by Us – against the respective assertion.

11. CONFIDENTIALITY

The information, findings, results, data and documents (hereinafter referred to as “Information Subject to Secrecy”) communicated to or learned by a customer, the Owner or the users included by them in the account as part of the contract and/or its implementation shall be subject to secrecy, regardless of how they are embodied, the manner in which they are disclosed or learned (e.g. also by unencrypted email) or whether they are explicitly marked as requiring secrecy (e.g. “confidential” or “secret”).

This includes in particular

• know-how, industrial property rights and other intellectual property that is shared in connection with the contract and/or its implementation, and
• other, non-public information that comes into the possession of the customer, the Owner or the users included by them in the account as part of the contract and/or its implementation, and
• business secrets within the meaning of the Act on the Protection of Business Secrets [Gesetz zum Schutz von Geschäftsgeheimnissen, GeschGehG]

The customer is obligated to preserve the confidentiality of the Information Subject to Secrecy within the meaning of a business secret and to use such only for the purposes of this contract and its implementation and only within the limits laid out in this contract. Its disclosure within the company is limited to the amount required for the implementation of the contract (“need-to-know”).

The customer must take all the measures required to prevent third parties from gaining access to such information. Gaining access means in particular direct or indirect, fee-based or free sharing or viewing by third parties.

The customer is obligated to ensure that all natural persons and legal entities that learn about Information Subject to Secrecy in the implementation of this contract are obligated to preserve secrecy in accordance with these provisions. To the extent permitted by law, these duties are also imposed on employees and, where applicable, the aforesaid natural persons and legal entities for the period of time after departure or after any other ending of the ability to gain knowledge of this information.

The obligation to preserve confidentiality and not to utilize Information Subject to Secrecy shall not apply if such

• was known to the customer prior to communication, or
• was known to the public prior to communication or was generally available or becomes so after communication without the user being at fault, or
• mainly corresponds to information that was disclosed or made available to customers at any time by an authorized third party.

The obligations to preserve secrecy shall remain in effect after the end of the contract, irrespective of the kind of termination, for a period of three (3) additional years.

12. LIABILITY FOR “MYCLOUDOGU”

We are liable without limitation in the event of intent, gross negligence and culpable loss of life, physical injury or harm to health.

Notwithstanding the cases of unlimited liability pursuant to the preceding paragraph, We are liable in the event of a slightly negligent breach of duty only in the case of a breach of material contractual duties, i.e. duties whose fulfillment is a prerequisite for the proper implementation of the contract or whose breach jeopardizes the achievement of the purpose of the contract and whose observance the customer may regularly rely on, but limited to the damage foreseeable at the time of the conclusion of the contract and typical for the contract.

The above limitations of liability shall not apply to liability under the German Product Liability Act (Produkthaftungsgesetz) or to guarantees given by Us in writing.

The above provisions on liability also apply for the benefit of our employees, representatives and bodies.

We are also not liable for the non-uninterrupted availability of the Platform, especially due to server failures on account of technical or other problems that are not in our sphere of influence.

We do not assume any liability for any defects of third party Dogus available on the Platform, regardless of whether they are free or fee-based Dogus. In this regard, the customer must contact the appropriate manufacturer/provider of the Dogus and thus their contracting partner in accordance with the contractual conditions relevant for the respective Dogus.

13. TERM, TERMINATION

The use relationship established with registration for the Platform is concluded for the term agreed in each contract.

In the Community Edition, both the customer and We have the option to terminate the use of the Platform at any time in an ordinary manner without providing reasons by giving notice of 30 (thirty) workdays to the respective end of the month.

In the Premium and Enterprise Edition, there is this termination right only after the end of a one-year minimum contractual term.

The right to termination for good cause remains unaffected. There is good cause if there are circumstances that make it unreasonable for the terminating contracting partner to continue use of the Platform in light of all circumstances and with consideration given to mutual interests.

Notice of ordinary termination is given by the customer in text form. Notice of extraordinary termination must be given in written form to be effective.

14. DECLARATIONS, COMMUNICATIONS

If text form is required for declarations or communications under these Terms and Conditions of Use, such can be made by email.

If written form is required for declarations or communications under these Terms and Conditions of Use in exceptional cases, such are to be signed by one of the authorized representatives of the contracting partner making the declaration or communication and delivered to the other contracting partner by mail or fax.

Declarations related to Us are to be sent to:

15. FINAL PROVISIONS

Neither of the contracting partners is entitled to assign any rights or claims arising from the contractual relationship without the prior written consent of the other contracting partner, unless otherwise laid out in these Terms and Conditions of Use or mandatory statutory provisions.

These Terms and Conditions of Use and their interpretation are subject to law in the Federal Republic of Germany. The validity of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. The exclusive place of jurisdiction for all disputes regarding rights and duties arising from these Terms and Conditions of Use, including their validity, is our registered office. This does not apply if the customer is a consumer within the meaning of Section 13 of the Civil Code.

If any provision of these Terms and Conditions of Use is or becomes invalid or unenforceable in whole or in part, the validity of the remaining provisions of these Terms and Conditions of Use shall not be affected thereby. The aforesaid applies mutatis mutandis to any contractual loopholes.