General Terms
and Conditions
for the Provision
of Cloud Services

The English version of this agreement is provided for convenience only;
in case of any discrepancies, the German version shall prevail and be legally binding.

1. Scope of application, exclusion of deviating terms and conditions
   1. The following General Terms and Conditions of Contract (hereinafter “GTC”) govern the contractual relationship between Cloudiax (hereinafter “Provider”) and the respective customer (hereinafter “Customer”, hereinafter Provider and Customer individually also “Party” and jointly “Parties”) who uses the software-as-a-service services (hereinafter “Cloud Services”) offered by the Provider at https://www.cloudiax.com/.
   2. Deviating, conflicting or supplementary contractual or business terms and conditions of the customer shall only become part of the contract if and insofar as the provider has expressly agreed to their validity in writing. This also applies if the provider has not expressly objected to the customer’s terms and conditions and/or provides services without objection.
2. Subject matter of the contract
   1. The subject of these GTC is the provision of cloud services in the respective current version for the use of their functionalities via the Internet. The current functionality, quality and scope of services of the cloud services are conclusively set out in the respective program description, which can be viewed under the respective current price list (available at https://www.cloudiax.com/price-list/; hereinafter “Price List”) and the respective order form; hereinafter “Order Form”.
   2. During the term of the contract (as defined in Section ‎3.1) the possibility of using the Cloud Services by means of remote access via the Internet. The cloud services, the computing power required for use and the necessary storage space for data shall be provided by the Provider or a data center commissioned by the Provider.
   3. The provider shall provide the customer with the access data required for identification and authentication in order to use the relevant cloud service. The customer is not permitted to disclose this access data to unauthorized third parties.
   4. The Provider shall be entitled to discontinue or modify free services at any time. The Provider is also entitled to adapt the Cloud Services or individual functions of the Cloud Services for technical reasons, insofar as this is reasonable for the Customer or is required by law.
   5. The provider’s services are aimed exclusively at entrepreneurs. An entrepreneur is a natural or legal person or a partnership with legal capacity who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
3. Conclusion of contract, opening an account
   1. The customer can order products from the provider by e-mail, via the portal https://portal.cloudiax.com or via the respective order forms. By sending the order form to the Provider, the Customer submits a legal offer to conclude a contract. By sending the invoice to the customer (hereinafter referred to as “confirmation”), the provider accepts the offer with legal effect, so that a contract (hereinafter referred to as “contract”) is concluded between the parties for the cloud services ordered on the basis of the order form, these GTC and the current price list. If confirmation is not received within 30 days, no contract shall be concluded between the parties.
   2. The provider shall register the customer for the ordered cloud services after conclusion of the contract and open a customer account (hereinafter “account”). The provider shall activate access to the ordered cloud services under the account.
4. Conditions of use
   1. To use the cloud services, the customer must have access to the Internet. The customer’s access to the Internet is not the subject of these GTC or the contract. The customer shall bear sole responsibility for the functionality of their Internet access, including the transmission paths and their own computer.
   2. Further technical requirements for the use of the cloud service are published in the price list or the release notes of the cloud service at https://portal.cloudiax.com.
5. Up- and downgrades
   1. The upgrade of a cloud service is possible to the intended extent (e.g. addition of further users) at any time by e-mail or via the ticket system (as defined in Section ‎13.2) is possible. In the event of an upgrade, the current term for the cloud service in question shall be adopted for the upgrade. Payment for the upgrade shall be made on a pro rata basis in relation to the remaining contract term.
   2. The downgrade of a cloud service is to be carried out to the intended extent (e.g. removal of users) by e-mail or via the ticket system (as defined in Section ‎13.2) at the end of the current term. If the customer performs the downgrade at an earlier point in time, the downgrade shall only begin at the end of the current term.
6. Prices and terms of payment
   1. The amount of remuneration for the provision of cloud services is based on the information in the price list.
   2. The Provider reserves the right to invoice all other services provided by the Provider at the Customer’s request (in particular preparation for use, demonstration, instruction, training and consulting) separately on a time and material basis. The provider shall inform the customer of this before providing the service.
   3. The remuneration

      a. for the provision of the cloud service is due for payment quarterly in advance;

      b. for the provision of cloud services offered by means of quotas in the price list is due for payment at the end of each calendar month;

      c. for further services provided by the Provider shall be due for payment at the end of each calendar month in which the service was provided, unless otherwise agreed between the parties. The Provider is entitled to invoice partial services in partial invoices.

   4. The provider is entitled to increase the respective remuneration by up to 3% (three percent) per contract year after the expiry of 12 months following the conclusion of the contract by giving one month’s notice in text form to the end of the month.
   5. The customer agrees to receive invoices exclusively in electronic form (PDF format) or in another legally prescribed digital form.
   6. The Customer may be charged costs by third parties in connection with the use of the Cloud Services (e.g. for the use of telecommunications networks); the Provider has no influence on such costs.
   7. All prices are subject to the applicable statutory value added tax.
   8. Withholding tax, if it has been lawfully deducted by the customer or the customer’s bank, must be refunded to the provider. A refund of the withholding tax may be waived if a valid double taxation agreement exists between the country of the provider and the respective country of the customer and the receipts for the withholding tax deduction are provided to the provider in English and in full within 14 days of the deduction of the withholding tax.
7. Rights of use to the cloud services and protection against unauthorized use
   1. The Provider grants the Customer a non-exclusive right to use the Cloud Services and the associated documentation for the duration of the contract, by means of remote access, for the Customer’s internal business purposes, to the extent specified in the price list.
   2. If and to the extent that the Provider makes adaptations or further developments to the Cloud Services for the Customer, the Provider shall grant the Customer the simple, non-exclusive right to use the adaptations and developments within the scope and to the same extent as the original Cloud Services upon full payment of the remuneration for these services.
   3. The provider is entitled to take appropriate technical measures to protect against non-contractual use.
8. Account use, sanctions and blocking of the account
   1. The customer undertakes to use the cloud services in accordance with the statutory provisions. The customer also undertakes to

      a. not to make any false statements regarding his data;

      b. not to use the cloud services for purposes that are racist, discriminatory, pornographic, endanger or violate the protection of minors, are politically extreme or otherwise unlawful or violate official regulations or requirements;

      c. not to use any legally protected content within the cloud services without being authorized to do so;

      d. not to use any content within the cloud services that violates copyrights, trademark rights, other property rights or personal rights;

      e. against subsections a–d, to upload content to the Cloud Services, or otherwise store or use such content within the Cloud Services.

   2. User actions are attributed to the customer.
   3. Provider is entitled to irretrievably change or delete content and information that violates the GTC or statutory provisions or is otherwise offensive and/or inappropriate. In this respect, the customer has no claim to reinstatement of content that has already been changed or deleted.
   4. If the customer violates the GTC or statutory provisions or if there is any other important reason, the provider may

      a. restrict or permanently block the use of the cloud services and the account;

      b. terminate the contract with the customer concerned without notice.

   5. The provider may impose these sanctions without prior notice and without consulting the customer, even against the customer’s express will. After imposing sanctions, the provider shall give the customer the opportunity to comment and shall re-examine the sanctions after receiving a counterstatement.
9. Obligations of the customer
   1. The customer has informed himself about the essential functional features of the cloud services and bears the risk as to whether these meet his wishes and requirements. In case of doubt, the customer shall seek advice from the provider or a competent third party before concluding the contract.
   2. The customer shall ensure that expert personnel are available to support the provider and use the cloud services during the term.
   3. The customer shall designate a security manager in writing with first and last name, telephone number and e-mail address, who shall be available to the provider as a central contact for all security-related questions and decisions. Security-related decisions include, among other things, granting access rights to the customer’s data or deleting the customer’s data.
   4. The Customer shall be obliged to notify the Provider immediately of any defects in the Cloud Services. The Customer shall support the Provider to the extent necessary in remedying defects, in particular by describing the defect as precisely as possible, including in writing if requested by the Provider, and by providing the necessary data, documents and information. The Customer shall take into account the Provider’s instructions for problem analysis and defect rectification to the extent reasonable.
   5. The customer shall be solely responsible for setting up a functional hardware and software environment for the cloud services at the customer’s premises (e.g. client PC or tablet) that is sufficiently dimensioned, also taking into account the additional load caused by the cloud services.
   6. The customer may not do anything that could encourage unauthorized use. The customer shall inform the provider immediately if it becomes aware that unauthorized access is imminent or has occurred in its area.
   7. The customer shall bear all costs incurred due to the fulfillment of the obligations to cooperate. The customer shall also bear all additional costs incurred by the provider due to the (partial) non-fulfillment or delayed fulfillment of the obligations to cooperate.
   8. The Customer shall download the backup provided by the Provider once a month on its own responsibility and save and store it locally on its own premises or on a storage location other than that of the Provider in order to fulfill its obligations (e.g. statutory retention periods).
10. Runtime
    1. Unless otherwise agreed between the parties, the contract has a term of twelve (12) months and is automatically extended by a further twelve (12) months in each case if the contract is not terminated by one of the parties with one (1) month’s notice before the end of the respective term.
    2. Notwithstanding the above provisions, the provider may terminate contracts without notice if

       a. it is a contract for a free cloud service;

       b. (i) the customer is in arrears with the payment of the remuneration or a not insignificant part of the remuneration for two (2) consecutive months or (ii) in a period extending over more than two (2) months, with the payment of the remuneration in an amount equal to the remuneration for two (2) months; or

       c. the provider has notified the customer of overuse and the customer does not discontinue the overuse within 14 days of receipt of the notification (e.g. by upgrading to a higher-value license).

    3. In addition, the contract can be terminated without notice for good cause.
    4. Any termination must be in text form, e.g. by e-mail or ticket system (as defined in Section ‎13.2).
11. Settlement after termination
    1. The data stored by the customer and the account shall be deleted by the provider thirty (30) days after the end of the contract. If the provider is not entitled to delete data for legal or other reasons, the provider may alternatively block it. As soon as the provider is entitled to delete the aforementioned data, this data will also be deleted by the provider.
12. Service level
    1. The provider shall provide the cloud services with an availability of 99.5% on a monthly average. This does not include the following fixed maintenance windows, which are deducted as excused downtime when calculating availability.
    2. The following maintenance windows are defined:

       a. The maintenance window for the Gudow data center (Germany) is every first Sunday of the month from 00:00 to 04:00 CET/CEST.

       b. The maintenance window for the Singapore data center is every fourth Friday of the month from 16:00 to 20:00 CET/CEST.

       c. The maintenance window for the Toronto (Canada) data center is every second Monday of the month from 06:00 to 10:00 CET/CEST.
       The aforementioned maintenance windows in item ‎a to c are available to providers as general maintenance windows.

       d. One (1) hour per calendar week for maintenance work on the customer’s individual systems. The day and time will be agreed between the parties in advance.

    3. Furthermore, other excused downtimes for unavoidable maintenance work are not included in the calculation of availability if the provider informs the customer of this at least one week in advance. The information is provided on the status page https://status.cloudiax.com/.
    4. Furthermore, times that are necessary to install security patches that cannot be postponed (elimination of zero-day risks) and for which individual services or the entire data center must be taken into maintenance are not included in the availability as excused downtimes. In extreme cases, such maintenance is carried out without prior notice. The provider shall subsequently inform the customer of this and justify the maintenance.
    5. Availability is measured and calculated on the basis of a calendar month. Availability is calculated using the following formula:
       
13. Service Center, rectification of defects in the cloud services
    1. The Provider shall set up a service center for the Customer. The Service Center shall process the Customer’s inquiries in connection with the technical requirements and conditions of use of the Cloud Service as well as individual functional aspects and defect reports. The Service Center shall not provide any services in connection with the use of the Cloud Service in non-approved deployment environments or with changes to the Cloud Service by the Customer or third parties.
    2. A prerequisite for the acceptance and processing of inquiries is that the Customer designates to the Provider appropriately qualified professional and technical personnel who are assigned internally by the Customer to process inquiries from users of the Cloud Service. The Customer shall be obliged to submit inquiries to the Service Center only via this personnel designated to the Provider and to use forms provided by the Provider. The Service Center shall accept such inquiries via the ticket system (available at https://portal.cloudiax.com/; hereinafter “ticket system”) and, in the case of serious defects, also by telephone.
    3. The Service Center shall process proper inquiries in the normal course of business and answer them as far as possible. The Service Center may refer to documentation and other training materials available to the Customer for the Cloud Service in order to provide an answer.
    4. The Provider shall receive requests that contain defects in the cloud services, assign them to the agreed defect categories and carry out the agreed measures to analyze and rectify defects on the basis of this assignment.
    5. The provider will assign accepted defect reports to one of the following categories after an initial review:
       Serious defect: The defect is due to an error in the cloud services that makes the use of the cloud services impossible or only possible with serious restrictions. The customer cannot reasonably work around this problem and therefore cannot complete tasks that cannot be postponed.
       Other defect: The defect is based on an error in the cloud services that restricts the customer’s use of the cloud services more than insignificantly without there being a serious defect.
       Other requests: Requests that do not fall into the aforementioned categories are assigned to other requests. Other requests are only handled by the provider in accordance with the agreements made for them.
    6. In the event of reports of serious defects and other defects, the Provider shall immediately initiate appropriate measures based on the circumstances communicated by the Customer in order to first localize the cause of the defect. If the reported defect is not found to be a defect in the cloud services after initial analysis, the Provider shall inform the Customer of this without delay. Otherwise, the Provider shall initiate appropriate measures for further analysis and rectification of the reported defects or – in the case of third-party components – forward the defect report together with its analysis results to the distributor or manufacturer of the components with a request for remedial action. The Provider shall provide the Customer with measures available to it to circumvent or rectify a defect in the cloud services, such as instructions for action, within a reasonable period of time. The Customer shall immediately adopt such measures to circumvent or rectify defects and immediately report any remaining defects to the Provider again if they are used. The Customer shall only have claims for defects if reported defects are reproducible or otherwise verifiable by the Customer.
14. Claims for defects by the customer
    1. The tenancy agreement’s law on defects applies to claims for defects.
    2. Defects in the Cloud Services shall be remedied by the Provider as described in Clause ‎13 described above.
    3. The Provider shall not assume any warranty for the suitability of the Cloud Services for a purpose specified by the Customer, unless otherwise specified in the service description of the Cloud Services. Specifications set out in the service description of the cloud services or other documentation shall not constitute guarantees unless they are expressly designated as such.
    4. In the event of a warranty claim, the Provider shall, at its own discretion, remedy defects by rectifying errors, procuring replacements, updates or releases of a new version of the cloud services.
    5. The customer may not enforce a reduction in remuneration by deducting it from the agreed remuneration. Corresponding claims for enrichment or damages shall remain unaffected.
    6. The customer’s right to terminate the contract for failure to grant use is excluded unless the establishment of use in accordance with the contract is deemed to have failed.
    7. The provider shall only be liable for infringements of third-party rights by its service if the service is used unchanged in accordance with the contract and, in particular, in the contractually agreed environment, otherwise in the intended environment of use. The provider shall only be liable for infringements of third-party rights at the place where the service is used in accordance with the contract.
    8. If third-party rights are infringed by a service provided by the Provider, the Provider shall, at its own discretion and expense, (i) procure the right for the Customer to use the service or (ii) design the service without infringing rights or (iii) take back the service, reimbursing the remuneration paid by the Customer (less reasonable compensation for use), if the Provider cannot achieve any other remedy with reasonable effort. The interests of the customer shall be taken into account appropriately.
    9. There shall be no claims for material defects in the event of only insignificant deviation of the provider’s services from the contractual quality. Claims for defects shall also not exist in the event of improper use, non-reproducible errors or damage caused by special external influences that are not provided for in the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties, unless this does not make it more difficult to analyze and rectify a material defect.
    10. The limitation period for claims for material defects is one year.
    11. The Provider may demand compensation for its expenses if (i) it takes action on the basis of a report without a defect being present, unless the Customer was unable to recognize with reasonable effort that there was no defect, or (ii) a reported defect cannot be reproduced, or (iii) additional expenses are incurred due to improper fulfilment of the Customer’s obligations (see also Section ‎9) is incurred.
    12. If the customer is entitled to compensation for damages or reimbursement of futile expenses due to warranty, this is subject to the limitation of liability in the following section‎15.
15. Limitation of liability
    1. Subject to the further provisions of this clause ‎15 the Provider shall only be liable if and to the extent that the Provider, the legal representatives, executives, employees or other vicarious agents of the Provider are guilty of intent or gross negligence. However, in the event of default by the Provider or impossibility of performance for which the Provider is responsible, as well as in the event of breach of material contractual obligations (so-called cardinal obligations), the Provider shall be liable for any culpable conduct of its own and that of the Provider’s legal representatives, executives, employees or other vicarious agents. Essential contractual obligations are abstractly defined as those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely.
    2. Except in the case of intent or gross negligence on the part of the provider, legal representatives, executives, employees or other vicarious agents of the provider, the liability of the provider is limited to the amount of damages typically foreseeable at the time of conclusion of the contract. For a single case of damage, the liability is limited to the contract value, in the case of ongoing remuneration to the amount of remuneration per contract month.
    3. The strict liability of the provider for damages (§ 536 a BGB) for defects existing at the time of conclusion of the contract is excluded.
    4. In the event of loss of data, the Provider shall only be liable for the expenditure required to restore the data with proper data backup in accordance with §9.8.
    5. The exclusions and limitations of liability regulated in the above paragraphs shall not apply in the event of the assumption of express guarantees, in the event of claims due to the absence of warranted characteristics and for damages resulting from injury to life, limb or health and in the event of mandatory statutory provisions. The limitations set out in Clause ‎15.2 shall also not apply in the event of a debtor’s default on the part of the provider, for claims for default interest, for the default lump sum pursuant to Section 288 (5) BGB and for compensation for the damage caused by default, which is based on the costs of legal action.
16. How AI cloud services work, limitation of liability
    1. Some cloud services are provided using artificial intelligence (AI) (hereinafter referred to as “AI cloud services”). The AI is able to recognize and process the most common content, formats and (graphical) contexts. The more training data has already been incorporated into the training of the AI, the higher the probability that content can be correctly recognized and processed. The more often a certain combination of content, formats and (graphical) contexts (so-called patterns) or adjacent or related patterns have been trained, the more reliable the processing will be. If, on the other hand, a pattern occurs rarely and/or is not sufficiently known to the AI algorithm, it is possible that the pattern will not be recognized and assigned by the AI with sufficient certainty, resulting in incorrect or faulty processing. It can therefore happen that content that is easy for a natural person to process manually is not processed correctly by the AI and, conversely, content that is difficult for a natural person to process manually can be processed by the AI with ease. Customer feedback on the quality and defectiveness of the processed data and the results achieved is therefore essential for training the AI.
    2. On the basis of the provisions set out in ‎16.1 described above, the AI Cloud Services,

       a. the customer is obliged to check the data processed and provided via the AI Cloud Services without delay, in particular before using the data for customers or in the context of products;

       b. any lead and processing times stated are not fixed dates, but merely time estimates;

       c. there is a possibility that data cannot be processed or cannot be processed correctly and requests may be rejected by the provider or incorrect results may be obtained. The customer is accordingly obliged to provide an alternative type of processing which the customer can fall back on (i) in the event of insufficient or incorrect processing, (ii) if the processing takes longer or (iii) if the request is rejected.

    3. The Provider assumes no liability for the data and results provided via the AI Cloud Services; in particular, the Provider is not liable to the Customer’s customers and end customers with regard to the data or results provided via the AI Cloud Services or the products generated by the Customer from these.
    4. The Provider also assumes no liability if the Customer fails to fulfill its obligations under the above Section ‎16.2 above, not in good time or not in full.
17. Confidentiality
    1. Each party shall keep in strict confidence all confidential information, proprietary information and trade secrets of the other party that it obtains in connection with this Agreement. Each party shall treat this Agreement and its terms and conditions as Confidential Information. The parties shall provide confidential information to their employees or third parties only to the extent necessary to fulfill their obligations under this Agreement and only on the condition that such persons are bound by an appropriate confidentiality obligation.
    2. Confidential Information does not include information that: (1) becomes generally known or publicly available through no fault of the receiving party; (2) was in the possession of, known to, or acquired in rem by the receiving party prior to receipt from the disclosing party without breach of a confidentiality obligation; (3) was independently developed by the receiving party without use of the Confidential Information; (4) was lawfully disclosed to the receiving party by a third party not bound by any confidentiality obligation with respect to the information; (5) disclosed by the receiving party with the prior written consent of the disclosing party; (6) required to be disclosed by law or administrative regulation if the disclosing party is notified of such requirement without unreasonable delay and the scope of disclosure is limited as much as possible, or information required to be disclosed by court order if the disclosing party is notified of such order without unreasonable delay and there is no opportunity to appeal the order.
    3. The aforementioned confidentiality obligations shall survive the termination of this agreement.
18. Data protection, exemption
    1. The parties shall comply with the applicable data protection regulations, in particular those applicable in Germany.
    2. For the service provision of the provider, please refer to the privacy policy (available at: https://www.cloudiax.com/privacy-policy/).
    3. For the provision of services by the provider, the order processing contract available under Cloudiax AG – Contract Data Processing – Cloud protected in Germany (Art. 28 para. 3 GDPR) applies, provided that the facts of order processing are present .
19. Reference citation
    1. The customer grants the provider the revocable right to name the customer as a reference customer in connection with the use of the cloud services using the company logo. The revocation must be made in text form. The revocation shall not invalidate the legality of the naming in the past. References on the Internet shall be removed from the Provider’s website within two weeks of revocation.
20. Amendment of the GTC
    1. The Provider reserves the right to amend these GTC unilaterally if this appears objectively justified. Changes are objectively justified, for example, if the functions of the cloud services are expanded, if the legal or statutory situation changes (e.g. if a clause is declared invalid by case law) or if unforeseeable changes, which are not caused by the Provider and over which the Provider has no influence, disrupt the equivalence relationship existing at the time the contract was concluded to a not insignificant extent. The prerequisite for a change is always that it is reasonable for the customer.
    2. Customers shall be notified of amendments to the GTC. They shall be deemed approved if the customer has not objected to the validity of the amended GTC in text form to the provider within four (4) weeks and the provider has pointed out the legal consequences of a failure to object.
21. Miscellaneous
    1. The customer shall be responsible for observing any import and export regulations applicable to the services. In the case of cross-border services, the customer shall bear any customs duties, fees and other charges incurred. The customer shall handle legal or official procedures in connection with cross-border services on its own responsibility, unless expressly agreed otherwise.
    2. German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
    3. Amendments and supplements to the GTC or this contract must be made in writing. Ancillary agreements do not exist.
    4. The written form requirement under these GTC is also met if the parties provide their signatures at least by means of electronic signatures within the meaning of Article 3 No. 10 of the European eIDAS Regulation (i.e. data in electronic form that is connected or logically linked to other electronic data and that the signatory uses to sign); e.g. via DocuSign.
    5. The place of jurisdiction is the registered office of the provider. The provider may also sue the customer at the customer’s registered office.
22. Severability clause
    1. Should a provision of these GTC or a provision included herein in the future be wholly or partially invalid or unenforceable or lose its legal validity or enforceability at a later date, this shall not affect the validity of the remaining provisions of these GTC. The same shall apply if it should transpire that these GTC contain a loophole. In place of the invalid or unenforceable provision or to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes closest to what the parties intended or would have intended in accordance with the meaning and purpose of these GTC if they had considered the point when concluding the contract or when subsequently including the provision in question. The parties are aware of the case law of the Federal Court of Justice, according to which a severability clause merely reverses the burden of proof. However, it is the express intention of the parties to maintain the validity of the remaining contractual provisions under all circumstances and thus to waive Section 139 BGB in its entirety.

Status: December 10, 2024