MetaKube Accelerator
Terms and Conditions MetaKube Accelerator
Preamble:
With MetaKube Accelerator, the company SysEleven GmbH (hereinafter referred to as “SysEleven”), Boxhagener Str. 80, 10245 Berlin, Germany offers a platform that assists the rapid commissioning and easy maintenance of IT services such as databases, load balancing or monitoring. The client (hereinafter referred to as “the Client”) would like to make use of these services in accordance with the following contractual terms and conditions. Insofar as the Client procures additional services from SysEleven, the contractual terms agreed for these services apply in addition. The Client is aware that certain additional services of SysEleven are required in order to make proper use of the MetaKube Accelerator.
1. Conclusion of the Contract and scope
1.2. The services provided by SysEleven are not intended for consumers within the meaning of Section 13 of the German Civil Code (BGB). SysEleven reserves the right to request suitable proof of the classification of the Client as a business.
1.3. These contractual conditions apply exclusively to the contractual relationship between SysEleven and the Client. Any general terms and conditions prepared by the Client shall not apply. Counterclaims made by the Client with reference to its own general terms and conditions are hereby expressly rejected if such terms and conditions differ from these contractual terms and conditions or contain conflicting provisions.
2. Object of the Contract
2.1. The object of the Contract is the provision of development tools and scripts (“Products”) based on a subscription. Upon signing the Contract designated in Clause 1.1, the Client acquires the right to choose any number of products from a catalogue of tools and scripts (“Products”) in order to use, download (the entire offering is hereinafter referred to as the “Catalogue”) and produce results with them. For each of the downloaded Products licensed by SysEleven, the Client acquires the simple, revocable right, restricted to the duration of this Contract, to use the Products for their respective intended purpose in combination with the infrastructure provided by SysEleven and to prepare the required number of copies for this purpose. Upon termination of this contract, the right of use granted for all Products in use at the time of termination automatically lapses. The Client must erase or otherwise destroy the Products in use at the time of termination and confirm the erasure and/or destruction in writing to SysEleven on request. Clause 3.3 remains unaffected. Some Products are not provided by SysEleven, but by third parties (“Community Products”). SysEleven will designate such Products in a suitable manner.
For Community Products, the provider is not SysEleven but rather the company designated as such.
2.2. For technical reasons, SysEleven is unable to guarantee that the entire Catalogue of Products is available around the clock; however, SysEleven endeavours to achieve maximum availability. The services offered by SysEleven are also dependent in part on third-party services, which could lead to restrictions in availability. The Client acknowledges this and will only use the offered services with sufficient lead time in order to avoid suffering any damages in the event of a temporary shutdown. More extensive services of SysEleven are based on a Service Level Agreement (SLA) to be concluded separately.
3. Guarantee
3.1. SysEleven guarantees that the Products offered by SysEleven are free from material defects (bugs etc.). The elimination of material defects for Products offered by SysEleven is provided free of charge within the first year after download and after that period in exchange for a fee. If it is determined afterwards that the defect concerned was caused by the Client or occurred in the sphere of responsibility of the Client, the Client must pay the costs for its elimination even within the first year after download.
3.2. SysEleven guarantees that the Products offered by SysEleven are not impaired by third-party rights. If third parties assert rights with regard to the Products, particularly with regard to the infringement of such rights owing to use by the Client of the Products, the parties must inform one another of these circumstances in writing without undue delay. If it is legally established or otherwise determined beyond doubt that the contractual services or parts therefore, in particular software, are subject to third-party rights, SysEleven will (i) either acquire these rights from the third party that holds the rights and grant corresponding rights to the Client, or (ii) modify the affected work results in such a manner that they no longer infringe the third-party rights.
3.3. Parts of the Products offered by SysEleven are licensed under open source licence terms. Open source licence terms are terms that fulfil the definition of the Open Source Initiative, Version 2007 (https://opensource.org/osd). The Client may acquire additional rights to these parts from the respective rights holder subject to the terms of the applicable licence. SysEleven will inform the Client about any software licensed in this way as well as about the respectively applicable licenses at an appropriate point and in a licence-compliant manner. For software that is subject to open source licence terms, Clauses 3.1 and 3.2 do not apply; instead, the terms of the respective licence shall apply.
3.4. Notifications of defects concerning the Products offered by SysEleven must be submitted by email to
support@syseleven.de and must contain a description of the reported fault. Reported faults must be reproducible. Insignificant faults that have no impact or only a minor impact are not considered to be defects within the meaning of Clause 3 of this document. To ensure support is received promptly, emergencies must also be reported by telephone on the respective up-to-date support number given to the Client. The Client must always report identified defects without undue delay.
3.5. SysEleven accepts no responsibility for the results produced by the Client with the Products.
4. Obligations of the Client, Community Products
4.1. SysEleven shall not be required to provide its contractual services if and to the extent that the Client does not fulfil its obligations in accordance with this Contract. In such cases, SysEleven reserves the right to block the access by the Client to the Catalogue, on a case-by-case basis, if this is necessary for the purposes of averting danger. If the Client is responsible for breaching its obligations and if SysEleven incurs damages as a result, the Client shall be required to compensate for these damages.
4.2. If the Client is culpable for breaching its obligations, it is obliged to release SysEleven from any liability and to indemnify it against any costs, including possible and actual costs of legal proceedings if claims are made against SysEleven by third parties, including by individual employees of the Client as a result of alleged acts performed by or omissions made by the Client. SysEleven shall inform the Client of the claim and, provided that doing so is legally permissible, shall give it the opportunity to defend itself against the claim. At the same time, the Client shall immediately provide SysEleven with absolutely all of the information available to it concerning the circumstances surrounding the subject matter of the claim. Any additional claims for damages shall remain unaffected by this.
4.3. Clients can offer their own Community Products via the platform. If they do so, they bear sole and individual responsibility vis-à-vis third parties for the legality of the Products. This particularly applies for compliance with applicable open source licences. SysEleven does not review the legality of the components uploaded by the Client in any respect. If a Client downloads a Community Product via the platform, SysEleven accepts no liability whatsoever for this product, because SysEleven is not the provider of the product. Clause 4.2 applies accordingly. When uploading a Community Product, the Client grants SysEleven all rights of use required for its provision. If SysEleven would like to use or further develop a Community Product beyond this scope this requires a separate agreement with the Client.
5. Fee, payment and invoicing procedures
5.1. The prices shall comply with the price list valid on the date of the respective purchase. SysEleven conducts invoicing at the end of each calendar month and issues a proper invoice to the Client.
5.2. Unless indicated otherwise, all prices stated by SysEleven do not include the applicable statutory value-added tax. Additional chargeable services which the Client also decides to make use of following the conclusion of the Contract shall be charged for in accordance with the price list valid at this time or by agreement between the parties.
5.3. Invoices must be paid in full immediately on receipt. The definition of what constitutes a delay in payment and the consequences of such a delay shall comply with statutory provisions. If a payment owed by the Client is more than three months overdue, SysEleven reserves the right to stop providing its services or to block access by the Client to its services. If part of an invoice is being disputed, the undisputed amount must always be paid in full.
5.4. Both parties to the Contract may only offset payments against payment requests which are legally binding or undisputed and against such payment requests which have originated from the same legal relationship and have developed from a claim which the party to which the counterclaim is due would be entitled to use to assert a right of retention or a right to refuse to perform services.
6. Liability
6.1. SysEleven shall be liable in accordance with statutory provisions for damages incurred by the Client as a result of intent or gross negligence, the service concerned lacking a guaranteed feature, a culpable breach of essential contractual obligations (known as cardinal obligations; see Clause 6.2 below), the consequences of damage culpably caused to a person’s health, culpably caused physical injury or loss of life. Further, it shall be liable in accordance with statutory provisions for damages for which provision is made under the German Product Liability Act (“Produkthaftungsgesetz”).
6.2. Cardinal obligations are contractual obligations that are a prerequisite for the due implementation of the Contract in the first instance and upon the fulfilment of which the party to the Contract can routinely rely. Conversely, the breach of cardinal obligations may put the achievement of the purpose of the Contract in jeopardy.
6.3. Provided the damage is caused merely by ordinary negligence and does not involve harm to a person’s health, physical injury or loss of life, the liability of SysEleven shall be limited to damage that is foreseeable and that can typically be expected within the context of contracts such as that concluded between SysEleven and the Client.
6.4. Liability due to interruptions, incidents or any other loss-causing events that were caused by third parties and that lead to unavailability of the contractual services shall be limited to the extent of possible recourse by SysEleven against the third party in question. SysEleven shall not be held liable for server outages beyond its sphere of influence.
6.5. The Client is not entitled to make any claims due to a loss of profit.
6.6. The Client is not entitled to make any claims due to damages incurred indirectly.
6.7. The liability of SysEleven for loss of data shall be limited to the typical cost of data recovery that would have been unavoidable even if the Client had made backups commensurate with the risk on a regular basis.
6.8. SysEleven and its vicarious agents shall not be held liable in any other respect irrespective of the legal grounds.
6.9. SysEleven shall not be held liable for the legality of Community Products. SysEleven is not the provider for such Products.
7. Subcontractors, Products provided by third parties
SysEleven may appoint subcontractors to provide the services due.
8. Confidentiality
8.1. The parties agree to maintain secrecy concerning confidential information that they become aware of in connection with this Contract and to neither disclose such information to third parties nor to use it otherwise outside of the scope of this Contract. This obligation continues to apply after the term of this Contract. A holder of confidential information in the following refers to anyone who has control over the confidential information in question. Recipient refers to the other party to whom the confidential information is disclosed.
8.2. Confidential information within the meaning of this Contract refers to all information (whether written, electronic, verbal, digitally represented or in another form) that is disclosed by the holder to the recipient or an affiliated company of the recipient within the meaning of Sections 15 et seq. of the German Stock Corporation Act (“Aktiengesetz”, AktG) in connection with the performance of this Contract. The following in particular is considered confidential information:
8.2.1. Trade secrets, products, manufacturing processes, know-how, inventions, business relationships, business strategies, business plans, financial planning, personnel matters, digitally represented information (data);
8.2.2. All documents and information of the holder that are the object of measures concerning technical and organisational secrecy and that are designated as confidential or to be considered as confidential due to the type of information or the circumstances of transfer; or
8.2.3. The existence of this Contract and its content.
8.3. The recipient is aware that the confidential information described above was not previously general knowledge or readily accessible either as a whole or in specific detail, and is therefore of commercial value and is protected by the holder through suitable confidentiality measures. Insofar as confidential information in accordance with Clause 8.3 of this document does not fulfil the requirements of a trade secret within the meaning of the German Trade Secrets Act (“Geschäftsgeheimnisgesetz”), this information is nevertheless still subject to the obligations under Clause 8.3 of this document.
8.4. The following information is not considered confidential:
8.4.1. Information that was public knowledge or generally accessible before the notification or transfer by the holder, or that takes on such a character at a later point in time without violation of a confidentiality obligation;
8.4.2. Information of which the recipient was already demonstrably aware before disclosure by the holder and without violation of a confidentiality obligation;
8.4.3. Information that was obtained by the recipient without use or reference to the holder’s confidential information; or
8.4.4. Information that was transferred or made accessible to the recipient by an entitled third party without violation of a confidentiality obligation.
8.5. The recipient in question is obliged
8.5.1. To treat the confidential information as strictly confidential and only to use it in connection with the purpose of this Contract;
8.5.2. Only to disclose the confidential information to third parties who rely on knowledge of this information for the performance of this Contract, provided that the recipient ensures that the third parties comply with this agreement as if they themselves were bound by this agreement;
8.5.3. To secure the confidential information against unauthorised access by third parties using appropriate security measures and to comply with the statutory and contractual regulations concerning data protection when processing the confidential information. This also includes technical and organisational security measures adapted to the state of the art (Article 32 GDPR) and obliging employees to maintain confidentiality and comply with data protection (Article 28 [3][b] GDPR);
8.5.4. Insofar as the recipient is obliged to disclose the confidential information in whole or in part due to applicable statutory regulations, orders issued by courts or authorities, or due to relevant regulations of stock market law, the recipient must promptly inform the holder (where legally possible and feasible in practice) of these circumstances in writing and undertake all reasonable efforts to restrict the scope of disclosure to a minimum and if necessary to arrange for the holder to receive all reasonable support intended to obtain a protection order against the disclosure of all the confidential information or parts thereof.
8.6. Notwithstanding the rights to which the holder is entitled under the German Trade Secrets Act, the holder is in possession of all rights of ownership, use and further rights regarding the confidential information, unless otherwise regulated in this Contract. The holder reserves the exclusive right to apply for industrial property rights. The recipient does not obtain any ownership or, with the exception of use for the purpose described in this agreement, other rights of use to the confidential information (particularly to know-how, patents applied for or granted based on this information, copyrights or other industrial property rights) due to this Contract or by other means owing to implied conduct.
8.7. The recipient must refrain from commercially using or imitating confidential information independently outside the purpose in any way (particularly through reverse engineering) or from allowing third parties to use or imitate confidential information and in particular from applying for industrial property rights concerning the confidential information, particularly trademarks, designs, patents or utility models.
8.8. This confidentiality obligation continues to apply after termination of the Contract with regard to all confidential information, if and insofar as this confidential information is not and does not become public knowledge.
9. Use of Client details for advertising purposes
When providing lists of existing clients for advertising purposes on its own website or in its own documents, SysEleven may indicate the services that are to be or have already been provided for the Client and may also use the logo and company name of the Client (abbreviated if necessary) for this purpose. In addition, SysEleven may publish press releases about the order by the Client and the project.
10. Data protection
The Client and SysEleven are obliged only to collect and process personal data in compliance with the respective applicable provisions of data protection law.
11. Duration, termination
11.1. Unless agreed otherwise for individual services, the minimum term of this framework contract shall be 24 months from the date on which the Contract is signed. The term shall continue to be extended by an additional twelve months unless the Contract is terminated in writing after the expiry of the minimum term with a notice period of six months to the end of the month. If the Client makes use of designated on-demand services, no minimum Contract term shall apply.
11.2. This shall not affect the ability of SysEleven or the Client to terminate this Framework Contract in writing if the respective other party continues to breach essential contractual obligations despite having received a written warning from the other party to the Contract, persists in violating the Contract even after a reasonable period of time, and it cannot be reasonably expected for the party terminating the Contract to continue the contractual relationship until such a time when it may terminate it ordinarily as outlined above.
11.3. The right to terminate the Contract for exceptional reasons shall remain unaffected. Section 314 of the German Civil Code (BGB) shall apply.
11.4. Upon effective termination, SysEleven blocks the access to the Catalogue. The Client loses all rights regarding the Products downloaded and licensed by SysEleven and may not use them further. In all other respects, Clause 2.1 applies. Clause 3.3 remains unaffected. Community Products provided by the Client must be erased by the Client without undue delay.
12. Non-solicitation clause
The Client agrees for the duration of this Contract not to employ, hire or poach any individuals employed by SysEleven or working for it in any other way or to make any attempt to do so.
13. Miscellaneous
13.1. If the Client is a business person within the meaning of German commercial law, a legal entity under public law or a special fund under public law, the place of fulfilment of all obligations arising from the respective Contract shall be the registered office of SysEleven.
13.2. The Contract shall be governed exclusively by the law of the Federal Republic of Germany. The application of German private international law and the Rome I and Rome II EC regulations is hereby excluded.
13.3. If the Client is a business person within the meaning of German commercial law, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for any legal disputes arising directly or indirectly from or in connection with the contractual relationship shall be Berlin. This shall also apply in the event of proceedings concerning cheques or bills of exchange.
13.4. If a provision of this Contract is or becomes ineffective, this shall not affect the effectiveness of any of the remaining provisions.
These General Terms and Conditions have been translated. Only the German-language General Terms and Conditions (https://www.syseleven.de/agb-sla-metakube-accelerator/) are legally valid.
Version: September 2022
