General terms and conditions

§1 Scope of application

1.1 These General Terms and Conditions (hereinafter “GTC”) apply to the booking and use of our services as well as to all contracts concluded with us in this context.

1.2 These GTC apply exclusively to companies within the meaning of § 14 BGB (German Civil Code) or persons who wish to use our services exclusively for commercial or professional purposes.

1.3 Within an ongoing contractual relationship, these GTC shall also apply to all contracts to be concluded in the future, even if we do not refer to them again when concluding the contract, unless expressly agreed otherwise.

1.4 Deviating general terms and conditions of the customer shall not be accepted unless we expressly agree to their validity in writing.

§2 Conditions of use

2.1 A prerequisite for ordering and using our services is the creation of an account with gridscale. This requires some personal and contact data such as an e-mail address, a name and a telephone number to be provided. After verification of the specified e-mail address, the registration process is completed.

2.2 The Account may initially be used as a test account (“Trial Account”) for a certain period of time in order to test our services free of charge.

2.3 In order to order specific services, the trial account must be converted into a “payment account”. For this purpose, payment data, usually a bank account or a credit card, must be entered and stored in the account.

§3 Order process, conclusion of contract

3.1 The contents on our website, in brochures, advertising or similar do not constitute a contractual offer in the legal sense.

3.2 With an order, the customer makes a contractual offer to gridscale. Unless otherwise stated in the order, gridscale is entitled to accept this contractual offer within 7 days of receipt by gridscale.

3.3 The acceptance of the contractual offer by gridscale is declared either in writing or in text form (e.g. by an order confirmation) or implied by the provision of the ordered service to the customer.

3.4 With the acceptance of the contractual offer by gridscale, a contract is concluded between the customer and gridscale.

§4 Scope of services, prices, time of service

4.1 gridscale provides the customer with a flexible virtualised infrastructure (“Infrastructure-as-a-Service” – “IaaS”) on servers, storage devices and networks that are not exclusively usable by the customer via the Internet. The customer configures his individual IaaS solution in his account via an interface (so-called API) provided by gridscale. The configuration is a contractual offer within the meaning of No. 3.2 of these GTC.

4.2 Unless otherwise agreed, the specific scope of services shall be based on the product description currently in force at the time of conclusion of the contract. Deviations, supplements or further details may be agreed in a supplementary Service Level Agreement (SLA).

4.3 A reference to standards, similar technical regulations as well as technical specifications, descriptions and illustrations on our website, in brochures, advertisements or similar shall only constitute a quality specification if this is expressly declared as a property in the respective current product description of the service concerned; otherwise, these are non-binding general service descriptions.

4.4 Unless otherwise agreed, the prices are based on the current price information on our website at the time of conclusion of the contract. Unless otherwise indicated, all prices are net prices and are subject to the applicable value added tax.

4.5 The specific data and prices for the scope of services requested by the customer are stored at gridscale. The service details can be called up in the account at any time and adjusted by the customer. In addition, the customer can contact gridscale’s customer service by e-mail to support@gridscale.io

4.6 Unless otherwise agreed, gridscale provides the contractual services in real time for the period specified by the customer (on demand).

§5 Changes in services

The services of gridscale are constantly updated, improved and adapted to the advancing state of technology. gridscale therefore reserves the right to change its services as well as the IT environment used for the provision of its services even after the order or during an ongoing contractual relationship at its reasonable discretion, insofar as this does not impair the functionality or security function of the services and the customer does not have to make more than insignificant subsequent investments for the continued use of the services.

§6 Duties and obligations of the customer, indemnification

6.1 The information provided when creating and using the customer account must be true, current, complete and accurate and must be adhered to. Changes can be carried out by the customer himself/herself in the account.

6.2 The creation of a customer account in the name of a third party is not permitted.

6.3 gridscale may demand the submission of evidence if there are doubts about the information provided by the customer.

6.4 Passing on passwords for access to the account and services of gridscale is prohibited. Passwords must be kept secure and inaccessible to third parties. If the customer suspects that his/her account access has been compromised, he/she should inform gridscale immediately and change the password or have gridscale change it. Otherwise, gridscale will relate every activity that occurs via a customer account to the customer registered for this purpose, with the consequence that the customer is liable for services used and activities carried out by unauthorised third parties via his account, for example by paying usage fees or compensating for damages incurred.

6.5 The customer must comply with the applicable legal regulations when using the services. In particular, he is not allowed to violate any rights of third parties, for example intellectual property rights or personal rights.

6.6 If a claim is made against gridscale by third parties due to any infringements of rights through the use of gridscale services by the customer, the customer shall provide gridscale with the necessary support in its legal defence and indemnify gridscale against the claims asserted and the costs of legal defence. The prerequisite for this is that gridscale informs the customer immediately about asserted claims, does not make any concessions or acknowledgements or declarations with the same or similar effect and enables the customer to conduct all judicial and extrajudicial negotiations about the asserted claims at its own expense.

6.7 In order to safeguard against possible data loss, it is the customer’s responsibility to carry out regular data backups himself, which may not be stored in the gridscale data centre, and thereby ensure that lost data can be restored with reasonable effort. The scope and frequency of the data backup shall be determined by the customer, taking into account the value of the data and its importance for his business operations.

§7 Contract period, termination

7.1 Unless otherwise agreed, a contract between gridscale and the customer is concluded for an indefinite period.

7.2 Unless otherwise agreed, the customer may terminate the contractual relationship as a whole or individual service-related contractual components or contracts at any time by giving 4 weeks’ notice to the end of the month.

7.3 gridscale may terminate the contractual relationship as a whole or individual service-related contractual components or contracts by giving 4 weeks’ notice to the end of the month. If a longer period of notice is prescribed by law for a service of gridscale, this longer period of notice shall apply in favour of the customer.

7.4 Both parties’ right to terminate without notice for good cause shall remain unaffected.

7.5 Good cause for termination exists for gridscale in particular if the customer is in arrears with the payment of the fees owed or a not insignificant part thereof, i.e. at least 50%, for a further 30 days despite a payment reminder. Furthermore, an important reason for gridscale exists if an application for the opening of insolvency proceedings has been filed against the customer’s assets or if such an application has been rejected due to lack of assets, if enforcement proceedings against the customer have been unsuccessful or if enforcement measures have been taken and have not been withdrawn within one month.

7.6 Any termination requires text form to be effective.

7.7 Upon termination of the contract – for whatever legal reason – all rights of use granted to the customer within the scope of gridscale’s service provision shall expire. The customer is responsible for deleting all data and settings via the interfaces described in 4.1 at the time of termination.

§8 Billing, payments, default of payment

8.1 The usage fee is payable monthly and in each case after invoicing by gridscale, unless otherwise agreed.

8.2 gridscale provides invoices in electronic form on a monthly basis. The invoices are made available for call-up in the account and, on request, sent to the e-mail address stored by the customer.

8.3 Insofar as billing is based on time and use, gridscale is entitled to issue a separate invoice, even within one month, if the current fee demand exceeds the usual invoice amount of the previous months by 50% or more and/or a threshold amount agreed with the customer or, insofar as nothing has been agreed, an invoice amount of €500.00.

8.4 Payment of the fees shall be made via the payment method specified in the account (usually credit card or direct debit). The customer authorises gridscale to collect due fees via the specified means of payment. The customer shall pay gridscale a flat-rate compensation per chargeback of €20.00 for costs incurred due to non-executable payment transactions (so-called chargebacks), unless the customer can prove that he exercised the required level of diligence or that the costs would have been incurred even if he had exercised this level of diligence.

8.5 All claims for payment are due and payable upon invoicing, unless gridscale specifies a payment period in the invoice. If the customer does not provide payment within 5 days after receipt of the invoice or within the payment period stated in the invoice, he shall be in delay without a reminder, with the consequence that interest on the delay shall be owed from this point in time at a rate of 9 percentage points p.a. above the base interest rate.

8.6 Without prejudice to a right of termination, gridscale is entitled to withhold the provision of contractual services in part or in full if the customer is in delay with the payment of the owed fees or a not insignificant part thereof (at least 50%) from the contract concerned or from one or more temporally and factually connected contracts for a further 10 days despite a payment reminder and/or if there are concrete indications of a deterioration in the financial circumstances of the customer. In this case, gridscale can demand payment or partial payment contemporaneously with the provision of the service owed, even if an advance service obligation has been contractually agreed. Further claims of gridscale remain unaffected by this.

§9 Intellectual property, right of utilisation

9.1 gridscale remains the owner of the intellectual property rights to the services provided by gridscale. The customer is responsible for compliance with the requirements of the BDSG and other regulations on data protection and is deemed to be the “responsible party” within the meaning of Section 3 (7) BDSG. Likewise, gridscale declares that the technical and organisational measures according to § 9 in connection with the annex to § 9 BDSG are basically complied with.

9.2 gridscale grants the customer the unrestricted right to use the gridscale services for the duration of the contract, limited to the scope of the services. The usage right comprises the utilisation within the scope of business operations. The usage right does not include the right to modify the gridscale services nor the right to grant sub-licences.

§10 Third party rights

10.1 If a third party legitimately asserts claims against the customer for infringement of an industrial property right or copyright through the use of gridscale’s services in the Federal Republic of Germany and if the customer is thereby impaired or prevented from using gridscale’s services, the following terms and conditions shall apply.

10.2 gridscale shall, at its own choice and at its own expense, either modify or replace the services owed in such a way that the asserted industrial property right or copyright is no longer infringed, but essentially corresponds to the service owed in a way that is reasonable for the customer, or indemnify the customer from licence fees vis-à-vis the third party.

10.3 The prerequisites for gridscale’s measures according to provision 10.2 are that the customer informs gridscale immediately of the assertion of the claims, does not acknowledge the alleged infringement of property rights and leaves any disputes with the third party, including any out-of-court settlements, to gridscale or conducts or conducts them only in agreement with gridscale. If the customer discontinues the use of gridscale’s services in order to mitigate damages or for other important reasons, the customer is obliged to inform the third party that the discontinuation of use does not constitute an acknowledgement of the alleged infringement of property rights.

10.4 Insofar as the customer is responsible for the asserted infringement of property rights, for example because he has modified or manipulated the services of gridscale without authorisation, or has used the services of gridscale in an inadmissible manner, claims of the customer against gridscale are excluded in accordance with provision 10.2.

§11 Exclusion of liability, limitation of liability

11.1 The liability of gridscale is limited, insofar as fault is involved in each case, in accordance with the following regulations.

11.2 gridscale is not liable in the case of simple negligence of its organs, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of essential contractual obligations. Essential contractual obligations are the obligation to provide the gridscale services on time, the absence of legal faults in the services provided, the usability of the gridscale services, in particular the absence of faults that impair the functionality or usability more than insignificantly, as well as advisory, protective and custodial obligations that are intended to enable the customer to use the services in accordance with the contract or to protect the life and health of the customer’s personnel or to protect the customer’s property from significant damage.

11.3 Insofar as gridscale is liable on the merits for damages in accordance with provision 11.2, this liability is limited to damages that gridscale foresaw as a possible consequence of a breach of contract at the time the contract was concluded or that gridscale should have foreseen by exercising due care. Indirect damages and consequential damages that are the result of defects in the services of gridscale are also only compensable insofar as such damages are typically to be expected. The above provisions of this clause 11.3 do not apply in the case of intentional or grossly negligent behaviour by members of gridscale’s executive bodies or its executive employees.

11.4 gridscale uses TSL/SSL encryption for certain security-relevant data transmissions and connections. Despite this, data communication via the Internet cannot be guaranteed to be error-free and/or available at all times according to the current state of the art. Liability for constant and uninterrupted availability is therefore excluded, unless there is a separate contractual agreement with the customer.

11.5 The customer is obliged to inform gridscale insofar as a loss of stored data can cause a damage sum of more than EUR 100,000.00. In this case, the parties may agree on a higher liability sum in an individual contract. gridscale may demand the assumption of the additional costs for a corresponding higher insurance from the customer. Insofar as gridscale is liable for damages in accordance with the provisions of 11.2 and 11.3, its liability for each individual case of damage is limited to a maximum liability sum of EUR 100,000.00.

11.6 Insofar as gridscale is liable for damages for the loss of data or programs in accordance with provisions 11.2 and 11.3, its liability is limited to the amount of damage that would have occurred even if regular data backups had been made. The above limitation of liability shall therefore apply in particular if the damage is due to the fact that the customer failed to carry out regular data backups himself, which are not to be stored in the gridscale data centre, and thereby to ensure that lost data can be restored with reasonable effort. The above limitation of liability does not apply insofar as gridscale has contractually assumed data backup for the customer.

11.7 The above exclusions and limitations of liability shall apply to the same extent in favour of gridscale’s executive bodies, legal representatives, employees and other vicarious agents.

11.8 Apart from that, customers are entitled to the legal rights in case of shortcomings.

§12 Limitation period

12.1 The limitation period for all contractual and statutory claims against gridscale is one year.

12.2 The shortening of the limitation period pursuant to clause 12.1 shall not apply if a longer limitation period is prescribed by law. In this case, the longer limitation period shall apply.

12.3 The shortening of the limitation period pursuant to clause 12.1 shall also not apply to claims which are based on intentional or grossly negligent action by gridscale and to claims due to injury to life, body or health.

§13 Transfer of rights and obligations to third parties, set-off

13.1 gridscale may transfer its rights and/or obligations arising from the contractual relationship to one or more third parties (e.g. assumption of contract and/or debt, assignment).

13.2 The customer may only set off against gridscale’s claims for payment with claims that have been legally established or accepted by gridscale or are undisputed.

13.3 The assignment or pledging of claims or rights to which the customer is entitled against gridscale is excluded without the consent of gridscale.

13.4 The assignment of use (in whole or in part) to third parties is only permissible with the prior consent of gridscale.

§14 Data protection, data processing

14.1 With respect to personal data that the Customer processes by means of gridscale’s services, he is the sole responsible party in terms of the German Data Protection Regulation (DS-GVO). The customer must ensure compliance with all data protection requirements himself.

14.2 Insofar as gridscale processes personal data with the provision of its services for the customer, this requires a separate order processing contract. This shall be finalised at the latest upon conclusion of a contract.

§15 Confidentiality

15.1 Confidential information means the information made accessible between the parties in connection with the conclusion, execution and termination of a contract in writing, orally or in any other form to the other contracting party (receiving party) within the meaning of section 2 no. 1 GeschGehG. Making accessible in this sense shall also be deemed to be the handing over of objects containing or embodying such information, irrespective of the effort required to extract the information from the object.

15.2 The Receiving Party is obliged to keep Confidential Information secret. The Receiving Party warrants that the confidentiality obligations, prohibitions of exploitation and protective obligations are also complied with by its representatives.

15.3 The receiving party is not entitled to dispose of the information received. It commits itself to use Confidential Information only for the purpose of executing the Contract.

15.4 The Receiving Party commits not to obtain any Confidential Information of the Secrecy Holder by observing, examining, deconstructing or testing products or items of the Secrecy Holder without the consent of the Secrecy Holder or to use or disclose any Confidential Information so obtained by its own or third parties’ actions. This applies to products/items that have not yet been made publicly available as well as those that are already publicly available.

15.5 The Receiving Party commits to keep all documents, objects, materials, substances or electronic data containing Confidential Information secure in order to protect them against unauthorised acquisition, use and disclosure. The Receiving Party shall be bound by the instructions of the owner of the Secret when handling storage medium containing Confidential Information.

15.6 In the event that the Receiving Party is under an obligation to disclose Confidential Information, it shall promptly notify the Secrecy Holder of such obligation in text form and assist the Secrecy Holder in protecting the Confidential Information or having it protected by court order to the extent possible.

15.7 The Receiving Party is obliged to return all documents, objects, materials, substances or electronic data in its possession or ownership which contain or embody the Confidential Information to the Secrecy Holder at the first request of the Secrecy Holder. A right of retention is excluded.

§16 Supplementary Agreements, Declarations, Form, Miscellaneous

16.1 Supplementary Service Level Agreements (SLA) for individual products or individual product parts shall only apply if they are agreed separately.

16.2 Individual agreements including ancillary agreements, supplements and amendments to these GTC must be made in text form to be effective. This shall also apply to any amendment of this formal requirement.

16.3 Unless a strict form, such as the written form, is provided for in these GTC, legally relevant declarations by the customer towards gridscale, such as setting deadlines, notices of shortcomings or declarations of withdrawal, must be in text form in order to be effective.

16.4 Declarations of renunciation by gridscale must be in writing to be effective.

16.5 If gridscale does not insist on full and/or partial compliance or fulfilment of any of the provisions of these GTC and/or any supplementary agreements, or does not assert a right to which gridscale is entitled against the customer, this shall not be construed as a renunciation of any future application of the provision or agreement in question or of exercising the right concerned.

§17 Applicable law, place of jurisdiction, contractual languages

17.1 All disputes arising from or on the basis of these GTC or contracts concluded with us concerning our services are governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods and the provisions of the EGBGB on private international law.

17.2 The courts in Cologne shall have exclusive local jurisdiction for disputes under provision 17.1.

17.3 In deviation from provision 17.2, gridscale is entitled to sue customers at their general place of jurisdiction.

17.4 Any exclusive places of jurisdiction are not affected by the provisions of 17.2 and 17.3.

§18 Modification of these GTC

18.1 We reserve the right to amend these General Terms and Conditions. The customer will be informed of any changes to the GTC.

18.2 More than insignificant changes, in particular those affecting the rights of the customer, shall only become effective if the customer has agreed to them or does not oppose them within 4 weeks of being informed of the changes.

§19 Ineffectiveness of individual provisions of these GTC

19.1 Should any provision of this contract be or become invalid/void or unenforceable in whole or in part for reasons of the law of general terms and conditions pursuant to §§ 305 to 310 BGB, the statutory provisions shall apply.

19.2 If any present or future provision of the contract is or becomes invalid/void or unenforceable in whole or in part for reasons other than the provisions concerning the law of general terms and conditions pursuant to Sections 305 to 310 of the German Civil Code (BGB), this shall not affect the validity of the remaining provisions of this contract, unless the execution of the contract – also under consideration of the following provisions – would constitute an unreasonable hardship for one party. The same shall apply if a loophole requiring supplementation arises after conclusion of the contract.

19.3 Contrary to the case law of the Federal Court of Justice, according to which a severability preservation clause in the absence of explicit declarations to the contrary by the parties is only intended to reverse the burden of proof, the validity of the remaining contractual provisions is to be upheld in all circumstances and thus § 139 BGB is to be waived in its entirety.

19.4 The parties shall replace the invalid/void/unenforceable provision or gap requiring filling for reasons other than the provisions concerning the law of general terms and conditions pursuant to sections 305 to 310 of the German Civil Code (BGB) with a valid provision which corresponds in its legal and commercial meaning to the invalid/void/unenforceable provision and the overall purpose of the contract. § Section 139 BGB (partial invalidity) is expressly excluded. If the invalidity of a provision is based on a measure of performance or time (period or date) specified therein, the provision shall be reconciled with a legally permissible measure that comes closest to the original measure.