|§1 Scope of application
1.1 These General Terms and Conditions (GTC) apply to the business relationship of gridscale GmbH (hereinafter referred to as "gridscale") with customers, in particular for services, for orders, information and advice in connection with the products. These GTC only apply if the purchaser is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.2 Unless otherwise agreed, the GTC in the version valid at the time of the customer's order, or at least in the version most recently notified to the customer in text form, shall also apply as a framework agreement for similar future contracts without gridscale having to refer to them again in each individual case.
1.3 These GTC apply instead of any general terms and conditions of business of the customer - such as e.g. purchasing conditions - even if according to these the acceptance of the order is provided as unconditional acceptance of the general terms and conditions. By placing an order, the customer expressly acknowledges that he waives his objection derived from his own general terms and conditions.
1.4 In addition to these GTC, Service Level Agreements (SLA) for individual products or individual product parts only apply if they are agreed separately. Individual agreements made with the customer in individual cases (including other ancillary agreements, supplements and adjustments), in particular conditions stated in the order, shall take precedence over these GTC in all cases. Subject to evidence to the contrary, an agreement in text form or our confirmation in text form shall be authoritative for the content of such agreements.
1.5 Legally relevant declarations and notifications to be made by the customer to gridscale after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be in text form to be effective.
1.6 References to the validity of legal regulations have only clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
|In other words, these GTC are the framework agreement that applies to our services towards you. We exclude all other contract texts as a whole, unless we have explicitly and individually agreed otherwise with you.|
§2 Disclosure, specifications, service determination
2.1 Disclosures and advice as well as other services provided by gridscale are based exclusively on previous experience. The values given here are to be regarded as average values. All information on products and services, in particular the illustrations, contents and performance data and other information available in offers and on the gridscale website are to be regarded as approximate average values.
2.2 A reference to standards, similar technical regulations as well as technical data, descriptions and illustrations in offers, on the website in advertisements of gridscale only represent a statement of properties if the quality has been expressly declared as a "property"; otherwise it is a non-binding general description of services.
2.3 A guarantee shall only be considered accepted by gridscale if gridscale has designated a property or service as "guaranteed" in writing.
2.4 All services and products of gridscale are constantly updated and adapted to the state of the art. gridscale therefore reserves the right to make changes to services and products at its reasonable discretion (§ 315 BGB) even after the order or assignment.
2.5 Unless otherwise agreed in writing with the customer, gridscale shall not accept liability for the usability of gridscale's services and products for the purpose envisaged by the customer outside the legally binding liability.
2.6 gridscale reserves ownership rights and copyrights to illustrations, performance and other property descriptions as well as other documents concerning gridscale products and services. The customer agrees not to make the information and documents listed in the above sentence available to third parties unless gridscale has given its prior express written permission.
In other words,
We would be happy to support you with your projects that you would like to implement with gridscale. We are looking forward to advise you and share our experiences with you. If we advise you, we would like to be your sparring partner at eye level. We brainstorm with you and consider how your project can be optimally implemented. However, we do not want you to take us into any liability for our free advice.
Guarantees are therefore only valid if we expressly confirm this guarantee to you.
We maintain a very agile product development and regularly publish new and updated functions for our customers. This can change the properties of a product or service. Usually this means that you can get higher performance and use advanced features. In rare cases, however, it may happen that we remove a property from our product or replace it with a similar one.
§3 Conclusion of contract, start of contract, scope of services
3.1 The offers of gridscale are subject to change and non-binding.
3.2 The order by the customer is considered a binding contractual offer. Unless otherwise stated in the order, gridscale is entitled to accept this contractual offer within 7 days from the date of receipt by gridscale.
3.3 Acceptance by gridscale can either be declared in writing (e.g. by order confirmation) or implied by the provision of the service or the product to the customer.
3.4 The customer will first be set up a test account (so-called "trial account"). The trial account can be converted into a full access (so-called "paid account") by entering a valid payment method (e.g. bank account, credit card) that can be selected in our online customer area. The customer guarantees gridscale the availability of the required fees on the specified means of payment at the time of the contractual offer. The customer is only entitled to order payable services and products from gridscale with full access.
3.4 gridscale provides the customer with flexible virtualized infrastructure (Infrastructure as a Service - IaaS) on servers, storage devices and networks over the Internet that cannot be used exclusively by the customer. These services are provided, managed and billed in real time.
3.5 The customer configures his individual IaaS solution via the website provided by us or alternatively via the provided programming interface (so-called API). When configuring the individual IaaS solution, the customer submits an offer within the meaning of Section 3.2 for the contractual service desired by him. Unless otherwise agreed, the performance data, conditions and prices stated on gridscale's website applicable at the time the contract is concluded shall apply. Further details can optionally be regulated in an SLA.
3.6 The concrete data and prices for the scope of services requested by the customer are stored at gridscale. The performance data can be called up at any time in the online customer area and adapted by the customer. Furthermore, the customer can contact gridscale's customer service via a contact form or by email to firstname.lastname@example.org.
3.7 Unless otherwise agreed, gridscale shall provide the contractual services for the period specified by the customer ("on demand").
In other words,
Our product is very versatile and can be individually adapted to your requirements. To convince yourself of our services, you start with a test account at gridscale. This access is completely free for you. In this access some of the functions are restricted to protect us from misuse. After you have convinced yourself that gridscale is the ideal partner, you can change your test access to a full-fledged account at any time. To do this, you simply deposit a payment method.
You can configure, start or stop the services you want to get from gridscale at any time via our user interface or our API interfaces. We provide you with the services in real time - i.e. OnDemand. Once you have configured and started an infrastructure, you will be charged according to the current price list. To give you a better overview, we always display the current prices in many places in the user interface and point out any fees that may arise.
§4 Duties and obligations of the customern
4.1 The customer assures that the data provided by him is correct and complete. He undertakes to reconfirm the correctness and completeness of the data to gridscale upon corresponding request from gridscale within 10 days of receipt.
4.2 The customer shall adequately support gridscale in the provision of services.
4.3 The customer must retrieve the messages received from gridscale in his e-mail inboxes, which he has stored with us as communication addresses, at regular intervals of no more than two weeks.
4.4 The customer undertakes to keep passwords received from gridscale for the purpose of access to its services strictly confidential, to inform gridscale immediately as soon as he becomes aware that unauthorised third parties are aware of the password and to change it immediately or have it changed by gridscale if he has reason to suspect that unauthorised third parties have gained knowledge of it. Should third parties use services of gridscale through misuse of passwords due to the fault of the customer, the customer is liable to gridscale for, among other things, the fees to be paid for the account as well as claims for damages resulting therefrom.
4.5 By way of an independent guarantee to gridscale, the customer is responsible for ensuring that the measures initiated by him in connection with the provision of services by gridscale, in particular with regard to the use and content of the infrastructure, do not violate legal prohibitions, morality and the rights of third parties (e.g. trademark, name, copyright, data protection rights).
4.6 If gridscale is held liable by third parties for any legal infringements which they assert due to the customer, in particular due to the customer's use and content of the infrastructure, the customer shall immediately release gridscale, offer gridscale the necessary support in legal defence and release gridscale from the costs of legal defense. The prerequisite for this is that gridscale informs the customer immediately about asserted claims, does not make any concessions or acknowledgements or similar declarations and enables the customer to conduct all judicial and extrajudicial negotiations on the claims at his own expense.
4.7. If claims are made against gridscale by third parties due to the customer, in particular due to the customer's use and content of the infrastructure and/or damages for violation of legal regulations, the customer shall immediately and unconditionally indemnify gridscale from damages (means of order, contractual penalties, costs of extrajudicial settlement of disputes etc.) due to violation of legal regulations, unless the customer proves that the violation is not based on his or his own conduct.
In other words,
you assure us that all the information you provide about your company and yourself is correct and complete. We usually communicate with you via e-mail, so it is important that we always have an up-to-date e-mail address and that you regularly check your e-mails.
Passwords that we tell you so you can use gridscale should be kept strictly secret. You can invite other people to your personal gridscale account at any time and thus retain full control over who has which access and when. But never share your personal passwords with a third party.
If we are contacted by third parties for possible violations you may have committed, you undertake to assist us in the investigation and to avert damage to gridscale.
§5 Pricing and Payment
5.1 The fee owed by the customer is determined by gridscale's prices valid at the time the contract is concluded. The prices can be viewed on the gridscale website. In principle, use-dependent prices are calculated in the indicated unit (e.g. time) plus the statutory value-added tax.
5.2 Cashing up and billing takes place monthly in arrears, at the earliest on the first day of the month following the billing month.
5.3 gridscale is also entitled to invoice separately within one month if the current claim exceeds the usual invoice amount of the previous months by 50% or more and/or the threshold amount agreed with the customer or, if nothing has been agreed, an invoice amount of 500.00 €.
5.4 gridscale issues an electronic bill on the customer data provided by the customer in the online customer area. The bills are available in the customer area and can also be sent to the customer's e-mail address on request. Dispatch of the bill by post requires a supplementary agreement.
5.5 Payment of the fees can be made via the means of payment offered at the time (usually credit card and direct debit). The customer authorises gridscale to collect any fees incurred via the declared means of payment. He shall reimburse all costs incurred by non-executable payment transactions (so-called chargebacks), unless the customer has exercised the necessary care or the damage would have been incurred even if such care had been exercised.
5.6 All claims are due and payable upon presentation of the bill, unless gridscale states a payment deadline in the bill. If the customer does not pay within 5 days after receipt of the bill or within the payment period stated in the bill, he shall be in default without further reminder pursuant to § 286 para. 2 no. 1 or 2 BGB, with the consequence that default interest amounting to 9 percentage points above the base interest rate shall be owed pursuant to § 288 para. 2 BGB.
In other words,
the billing amount you have to pay to gridscale is individually composed of all items you have used within a billing period (e.g. one month). Our bill is usually issued after one month for the previous period. We always make the bill available to you in your personal area at gridscale digital. Upon request, we will also send this bill to an e-mail address you have provided.
There are a few cases where we reserve the right to send you a bill before the end of a month. For example, if we are unsure whether you will pay our bills or if your growth at gridscale is unusually high.
If you receive a bill from us, we usually arrange for immediate charges to be made to your means of payment (e.g. your credit card). Please note that we can debit the bill from your payment method, otherwise our system could temporarily block your account.
If we first collect a bill from your means of payment but then make a chargeback, we will incur costs. We allow ourselves to pass these costs on to you in such a case.
$6 Contract terms, termination
6.1 A contractual relationship between the parties is generally deemed to have been concluded for an indefinite period.
6.2 There is basically no minimum contract term for the customer. The customer may terminate the contractual relationship as a whole or individually ordered contractual components at any time without notice with effect from the next working day.
6.3gridscale can properly terminate the contractual relationship as a whole or individually ordered contractual components subject to a period of notice of 4 weeks to the end of the month. If a longer period of notice is required by law for a service provided by gridscale, this longer period of notice shall apply in favour of the customer.
6.4 The right of both parties to terminate without notice for good cause remains unaffected.
6.5 An important reason for termination exists for gridscale in particular if the customer defaults on payment of the owed fees or a not insignificant part thereof (at least 50%) for a further 30 days despite reminder of payment. Furthermore, an important reason exists if an application for the opening of insolvency proceedings has been filed against the customer's assets or such an application has been rejected for lack of assets, enforcement proceedings against the customer have remained unsuccessful, or enforcement measures have been taken and have not been withdrawn within one month.
6.6 Any notice of termination must be in written form in order to be effective.
6.7 The validity of § 545 BGB is excluded.
6.8 If the content of individual provisions extends beyond the term of the contract (e.g. indemnifications, limitations of liability, copyrights, data protection), then these provisions shall also remain effective beyond the term of the contract.
6.9 Upon termination of the contract - for whatever legal reason - any rights of use or licenses granted by gridscale or third parties within the scope of the provision of services shall lapse.
6.10 Notwithstanding any existing right of termination, gridscale is entitled to withhold the performance of contractual performance obligations or several contracts linked in terms of time and content in whole or in part if the customer is in default of payment of the fees owed or a not insignificant part thereof (at least 50%) despite reminder of payment for a further 10 days and/or if there are concrete indications of a deterioration in the customer's financial circumstances. In this case, gridscale can demand payment or partial payment concurrently against performance, even if an advance performance obligation has been or is contractually agreed upon. This shall not affect any further claims for damages.
In other words,
we're going to get married indefinitely. However, you don't tie yourself to gridscale all your life. Rather, you can cancel your contract with us at any time the next day.
So that you have a certainty that we will not terminate the marriage with you one day in advance, we have the right of termination with four weeks to the end of the month, unless there are other deadlines provided for by law. An important exception to this rule is if you do not pay your bills from gridscale. Then we can make use of an immediate special right of termination or temporarily stop the services towards you.
§7 Rights of third parties
7.1 If a third party asserts claims against the customer due to the infringement of an industrial property right or copyright through the use of the services owed by gridscale in the Federal Republic of Germany and if their use is affected or prohibited by this, the following provisions shall apply.
7.2 gridscale shall, at its discretion and expense, either modify or replace the agreed services in such a way that the property right is not infringed, but substantially corresponds to the agreed service in a manner that is reasonable for the customer or exempt the customer from license fees towards the property right owner or third parties.
7.3 Prerequisites for gridscale's liability according to section 7.2 are that the customer immediately notifies gridscale of the assertion of claims of third parties, does not acknowledge the alleged infringement of property rights and leaves any dispute including any out-of-court settlements to gridscale or only conducts such dispute in agreement with gridscale. If the customer ceases use for damage mitigation or other important reasons, he is obliged to point out to the third party that the cessation of use is not connected with an acknowledgement of the alleged infringement of property rights.
7.4 If the customer is responsible for the infringement of property rights, the claim of third parties is based on the fact that the service content owed by gridscale was changed without their knowledge, processed in another way and not used with services provided by gridscale, claims against gridscale of the customer in accordance with this item 7. are excluded.
7.5 To the extent applicable, legally binding liability regulations or the regulations in section 8. remain unaffected by this.
|In other words, we don't actually need this paragraph and it's for your protection. However, if at any time a third party should take you into liability because you use gridscale itself or a technology provided by gridscale, then we will fight this dispute for you. In such a case, please inform us immediately so that we can jump to your side.|
8.1 gridscale is not liable to the customer for damages or reimbursement of expenses, for whatever legal reason.
8.2 The above exclusion of liability does not apply if liability is mandatory by law, as well as
8.3 In the event that gridscale, its legal representatives or its vicarious agents are only guilty of slight negligence and there is no case of the preceding Clause 8.2, third, fourth, fifth and sixth indent, gridscale shall only be liable for contract-typical and foreseeable damage, even in the event of a breach of essential contractual obligations.
8.4 Insofar as gridscale is liable in accordance with this Clause 8, its liability is limited to a maximum liability amount of EUR 100,000.00 for each individual case of damage. gridscale shall not be liable in the event of malice, intent or gross negligence, for claims due to injury to life, limb or health, or in the event of a claim based on an act of tort or an express, additional guarantee or the assumption of a procurement risk by gridscale or in the event of legally mandatory, deviating, higher liability amounts. Any further liability of gridscale is excluded.
8.5 Liability of gridscale for indirect damages (in particular in the form of lost profit) is excluded. The above Clause 8.4, sentence 2, applies accordingly.
8.6 Notwithstanding the cases mentioned in 8.1 to 8.5, gridscale is only liable for the loss of data or programs up to the amount of damage that would have occurred even with regular data backups. The above limitation of liability therefore applies in particular when the damage is based on the fact that the customer has failed to carry out regular data backups himself, which may not be stored in the gridscale data centre itself, and thereby ensure that lost data can be restored with justifiable effort. This does not apply if gridscale has taken over the data backup for the customer by contract.
8.7 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 any time according to the current state of the art. Liability for permanent and uninterrupted availability is therefore excluded, notwithstanding the cases mentioned in 8.1 to 8.5, unless a separate contractual agreement exists with the customer.
8.8 The above provisions do not imply a reversal of the burden of proof.
In other words,
we will not be liable to you for damages unless the law clearly provides otherwise. Regardless of this, we agree to limit the amount of any liability for anything.
Please note that we are especially not liable for the loss of your data at gridscale if you fail to perform a suitable data backup yourself. We offer you numerous tools and functions that can protect (even fully automated) your data from unusual dangers. Use these functions!
§9 Confidentiality, data protection
9.1 The customer and gridscale mutually undertake to treat all confidential information and trade secrets of the respective other contractual partner, which the other contractual partner makes accessible on the basis of the initiation and fulfilment of the contract, as confidential for an unlimited period of time and to use them only within the scope of the agreed purpose and to observe the applicable provisions of data protection and data security.
9.2 All personal data provided (such as salutation, name, address, date of birth, e-mail address, telephone number, fax number, bank details) are collected, processed or used exclusively in accordance with the applicable data protection conditions.
9.3 As far as personal data are necessary for the establishment, content arrangement or change of the contractual relationship (inventory data), these are used exclusively for the completion of the concluded contracts. Any other contractually required use of inventory data for advertising or market research purposes requires the express consent of the customer. It is possible to give your consent before declaring registration or claiming benefits. The declaration of consent is voluntary and can be revoked at any time.
9.4 Personal data, which are necessary to enable the use of the offers and billing (traffic/usage data), are used to process the concluded contracts. Such traffic data are in particular the characteristics for identifying the customer as a user, information on the beginning and end as well as the extent of the respective use of the service.
9.5 Furthermore, subscriber-related traffic data can be used for the purposes of advertising, market research, for the demand-oriented design of gridscale's services and for the creation of user profiles using pseudonyms, provided that the customer has consented to this use. The customer is entitled to object to this use of the data at any time.
9.6 gridscale expressly points out to the customer that data protection for data transfers in open networks, such as the Internet, cannot be fully guaranteed according to the current state of the art.
9.7 The customer is aware that the provision of services may involve order data processing in accordance with §§ 11, 9 BDSG. In this case, the customer is responsible for compliance with the provisions of the BDSG and other data protection regulations and is considered a "responsible party" within the meaning of § 3 paragraph 7 BDSG. gridscale also declares that the technical and organisational measures in accordance with § 9 in connection with the Annex to § 9 BDSG are complied with in principle.
9.8 If the customer collects, processes or uses personal data, he shall be liable to gridscale by way of an independent guarantee that this is done in accordance with the data protection regulations and shall indemnify gridscale in full in the event of a violation of third-party claims. Sections 4.6 and 4.7 apply accordingly.
9.9 gridscale will forward complaints as well as claims for information, correction, deletion and blocking to the customer (in particular § 6 BDSG). 42a BDSG applies accordingly to the customer and leads to an obligation to notify gridscale.
In other words,
we trust each other and protect all the secrets we learn from each other from the curious eyes of others. Data that we collect from you and your company in order to provide our services will be used exclusively for this purpose and will never be passed on to third parties.
If you use our services yourself to process or store personal data, we can conclude a so-called agreement on order data processing. This ensures that you behave in accordance with the law and fulfil your control obligations.
§10 Statute of Limitation, Place of Performance, Other
10.1 The limitation period for all contractual and legal claims against gridscale is one year.
10.2 The shortening of the limitation period pursuant to Section 10.1 shall not apply if a longer limitation period is prescribed by law. In this case the longer limitation period applies.
10.3 In accordance with the statutory provisions, claims based on intentional or grossly negligent acts of gridscale, a legal representative or vicarious agent of gridscale as well as claims for damages resulting from injury to life, body or health based on intentional or negligent breach of duty by gridscale, a legal representative or vicarious agent shall become statute-barred.
10.4 gridscale can transfer its rights and/or obligations from the contractual relationship to one or more third parties (e.g. assumption of contract and/or debt, assignment). In this case and the simultaneous impairment of his interests, the customer has the right to terminate the contract extraordinarily.
10.5 Waiver declarations by gridscale (such as for the assertion of contractual penalties) must be in writing. If gridscale does not insist on full and/or partial compliance or fulfilment of one of the conditions or provisions of these GTC and the supplementary provisions, this is not to be understood as an acknowledgement of the act of infringement or a waiver of a future application of the relevant condition, provision, option, law or legal remedy.
10.6 The customer may only offset claims for remuneration of gridscale against claims which have become res judicata or are recognised by gridscale.
10.7 The assignment or pledging of claims or rights to which the customer is entitled towards gridscale is excluded without the consent of gridscale.
10.8 The transfer of use (in whole or in part) to third parties is only permitted with the prior consent of gridscale.
10.9 The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the provisions of the EGBGB concerning private international law. The contractual languages are German and English.
10.10 The place of performance and place of jurisdiction for all disputes arising from or in connection with this contract is gridscale's registered office. gridscale is also entitled to sue the customer at its general place of jurisdiction. Any exclusive place of jurisdiction shall remain unaffected.
10.11 gridscale and the customer are entitled, in the event of a dispute arising from the contractual relationship, to carry out a conciliation in accordance with the conciliation rules of the competent IHK arbitration body for IT disputes in the version valid at the time a conciliation procedure is initiated (if there is no such version on the basis of the conciliation rules of the Hamburg arbitration body for IT disputes) before carrying out legal proceedings. The purpose of the conciliation procedure is to settle the dispute in whole or in part, provisionally or definitively.
In other words,
we agree on a limitation period of one year, unless the law explicitly stipulates otherwise.
We live in Cologne. Therefore we agree on Cologne as place of jurisdiction, should there ever be a dispute between us. So that we both don't put an endless amount of money into costly legal proceedings, we can both insist on calling in a mediator to try to settle amicably before a court is called.
§11 Subject to change without notice
11.1 We are entitled to change these GTC and the other contractual conditions with a period of 6 weeks in advance. We will notify the customer of the respective change by e-mail or in any other text form. At the same time, the customer is expressly informed that the respective amendment will become the subject matter of the existing contract between the contracting parties if the customer does not object to this amendment in text form within a period of 4 weeks from notification of the amendment. If the customer objects, each party has the right to terminate the contract with the period applicable to the ordinary termination.
11.2 Insofar as the amendment pursuant to Section 11.1 above relates to the promised services of the contractual relationship, a change to the GTC is permissible if the agreement of the change is reasonable for the customer taking into account the interests of gridscale. The same applies if gridscale reserves the right to unilaterally change a service at any time in these GTC.
11.3 By continuing to use a service or product after it has been announced and changed without notice from the customer, the customer declares his agreement with the contractual conditions and general terms and conditions valid at that time, currently available at https://gridscale.io/en/agb/.
|In other words, we can change these terms and conditions. We will then notify you of this change in good time so that you can inform yourself about the changed content. If you continue to use gridscale after changing the terms and conditions, you automatically accept the new terms and conditions.|
§12 Final clauses
12.1 Should a provision of this contract be or become wholly or partly ineffective/non-executable or unfeasible for reasons of the law of the General Terms and Conditions according to §§ 305 to 310 BGB, the statutory provisions shall apply.
12.2 Should a current or future provision of the contract be or become wholly or partially invalid/non-executable for reasons other than the provisions concerning the law of the General Terms and Conditions in accordance with §§ 305 to 310 BGB, this shall not affect the validity of the remaining provisions of this contract, unless the execution of the contract - also taking into account the following provisions - would constitute an unreasonable hardship for one party. The same applies if there is a gap that needs to be filled in after conclusion of the contract.
12.3 Contrary to the case law of the Federal Court of Justice, according to which a Salvatorian Preservation Clause is only intended to reverse the burden of proof in the absence of express declarations to the contrary by the parties, the validity of the remaining contractual provisions is to be maintained under all circumstances and thus § 139 BGB is to be waived in its entirety.
12.4 The parties shall replace the invalid (void) or unenforceable provision or any gap that needs to be filled for reasons other than the provisions concerning the law of the General Terms and Conditions according to §§ 305 to 310 BGB with an effective provision that corresponds in its legal and economic content to the invalid (void) or unenforceable provision and to the overall purpose of the contract. 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 agreed with a legally permissible measure closest to the original measure.
|In other words, this is only a general conclusion clause. In the event that we have forgotten to regulate something or individual components of our terms and conditions are or become ineffective, this clause shall apply. We commit ourselves to finding an arrangement with which we can both live well.|