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Terms of Service

§1 Applic­a­bil­i­ty

  1. The fol­low­ing terms of ser­vice (here­inafter only: the “TOS”) apply to all orders, offers, deliv­er­ies, and ser­vices per­formed by enclave.io // C³AI GmbH (here­inafter only: “enclaive.io”).
  2. With­in the con­text of an ongo­ing busi­ness rela­tion­ship, these TOS shall also apply with­out the explic­it inclu­sion of these, unless oth­er arrange­ments are explic­it­ly made.
  3. By accept­ing the ser­vices pro­vid­ed by enclaive.io, the cus­tomer agrees to the TOS. Devi­at­ing TOS of the cus­tomer do not become valid unless enclaive.io accepts them in writing.

§2 Sub­ject of Contract

The sub­ject mat­ter of the pro­gram­ming, devel­op­ment, mod­i­fi­ca­tion, and main­te­nance of IT infra­struc­ture and soft­ware direct­ly or indi­rect­ly relat­ed to the process of secur­ing and pro­vi­sion­ing of con­tain­er soft­ware, in each case in accor­dance with the con­tract con­clud­ed between enclaive.io and the cus­tomer. This also includes the devel­op­ment and imple­men­ta­tion of a Con­tin­u­ous Inte­gra­tion / Con­tin­u­ous Deliv­ery solu­tion or changes and main­te­nance of exist­ing Con­tin­u­ous Inte­gra­tion / Con­tin­u­ous Deliv­ery solu­tions. In the fol­low­ing, these ser­vices will be referred to as “Soft­ware Con­tain­er Ser­vices” only.

§3 Con­clu­sion of Con­tract, Offer and Acceptance

  1. All offers are — unless oth­er­wise stat­ed — non-binding.
  2. The con­tract is not con­clud­ed until enclaive.io con­firms the cus­tomer’s order in writ­ing or elec­tron­i­cal­ly by e‑mail.
  3. The respec­tive ser­vices as well as the ser­vice peri­od depend on the offer from enclaive.io and are indi­vid­u­al­ly agreed upon in advance between the cus­tomer and enclaive.io.
  4. The basis for the cre­ation of ser­vices is the writ­ten project descrip­tion with­in the order, which enclaive.io pre­pares based on the doc­u­ments and infor­ma­tion pro­vid­ed. The ser­vice descrip­tion must be checked by the cus­tomer regard­ing cor­rect­ness and com­plete­ness. By accept­ing the order, the cus­tomer con­firms the cor­rect­ness of the project description.
  5. enclaive.io can rely on the sup­port of third par­ties (sub­con­trac­tors) to ful­fill the order. The cus­tomer agrees to this.

§4 Changes to the Order

  1. In the event that the cus­tomer wish­es to change his require­ments (which includes exten­sions), enclaive.io will agree to this to the extent that it is rea­son­able for enclaive.io. If the ful­fill­ment of a change request affects the order, enclaive.io will demand an appro­pri­ate adjust­ment of the con­tract, this includes in par­tic­u­lar the increase of the remu­ner­a­tion and/or the post­pone­ment of the deliv­ery dates.
  2. Agree­ments on changes to the terms of the con­tract and on the adjust­ment of the con­tract must be in text form (e‑mail).
  3. Accep­tance of the change or adjust­ment order shall only come into effect with the order con­fir­ma­tion by enclaive.io.
  4. If the cus­tomer does not agree to the con­di­tions stat­ed in the order con­fir­ma­tion, the cus­tomer must object to the order con­fir­ma­tion with­in sev­en days, oth­er­wise, the order is con­sid­ered accepted.

§5 Terms of Payment

  1. All ser­vices are remu­ner­at­ed accord­ing to the cur­rent price mod­el or with­in the con­text of indi­vid­ual agree­ments unless oth­er­wise agreed upon.
  2. Pay­ments are due sev­en days after invoicing.
  3. The invoic­ing peri­od depends on the pay­ment cycle agreed upon in the offer.
    The invoice will be sent in the elec­tron­ic form to the e‑mail address pro­vid­ed by the customer.
  4. The cus­tomer is also in default with­out a reminder if he does not pay the invoice with­in sev­en days of receipt.
  5. In the event of late pay­ment, the cus­tomer shall owe addi­tion­al inter­est at the rate of 12% p.a. from the due date. The cus­tomer shall be per­mit­ted to prove that no inter­est loss or a sig­nif­i­cant­ly low­er loss has been incurred.
  6. enclaive.io is enti­tled to sus­pend its ser­vices if the cus­tomer is more than 30 days in default of pay­ment. Notwith­stand­ing this sus­pen­sion, the cus­tomer is oblig­ed to con­tin­ue pay­ment. This refusal to per­form caused by default of pay­ment does not con­sti­tute a rea­son for ter­mi­na­tion by the customer.
  7. The cus­tomer may only off­set against claims of enclaive.io with undis­put­ed or legal­ly bind­ing counterclaims.

§6 Duties of the Cus­tomer to Coop­er­ate, Noti­fi­ca­tion of Defects, Acceptance

  1. enclaive.io is striv­ing to meet the agreed ser­vice and deliv­ery dates as accu­rate­ly as pos­si­ble but is depen­dent on the coop­er­a­tion of the customer.
  2. Com­pli­ance with deliv­ery peri­ods and dead­lines requires that the cus­tomer ful­fills the ser­vices to be pro­vid­ed by him with­in the scope of the order and the oblig­a­tions to coop­er­ate. This includes, for exam­ple, reply­ing to e‑mails with­in 48 hours.
  3. With regard to all deliv­er­ies and ser­vices pro­vid­ed by enclaive.io in the exe­cu­tion of this con­tract, the cus­tomer assumes an oblig­a­tion to inspect and give notice of defects in accor­dance with § 377 of the Ger­man Com­mer­cial Code.
  4. After the agreed ser­vices have been per­formed, enclaive.io will declare com­ple­tion to the cus­tomer. After declar­ing com­ple­tion, the Cus­tomer shall, with­in a rea­son­able peri­od of time deter­mined by enclaive.io, check the exe­cu­tion of the soft­ware test­ing ser­vices and noti­fy enclaive.io of any mal­func­tions or defects.
  5. Accep­tance shall be deemed to have been made if the cus­tomer does not accept the ser­vice with­in a rea­son­able peri­od of time deter­mined by enclaive.io in accor­dance with para­graph 4, although he is oblig­ed to do so.

§7 Lia­bil­i­ty

  1. enclaive.io is liable for dam­ages only in the case of intent and gross neg­li­gence for itself and its agents.
  2. In the event of a breach of an essen­tial con­trac­tu­al oblig­a­tion (car­di­nal oblig­a­tion), which endan­gers the pur­pose of the con­tract, the lia­bil­i­ty is lim­it­ed to the typ­i­cal dam­age, which enclaive.io could rea­son­ably fore­see when con­clud­ing the con­tract unless the breach is inten­tion­al or gross­ly negligent.
  3. The lim­i­ta­tions of lia­bil­i­ty shall not apply in the event of injury to life, body, and/or health and in the event of lia­bil­i­ty under the Prod­uct Lia­bil­i­ty Act.
  4. If the cus­tomer is an entre­pre­neur, a legal enti­ty under pub­lic law, or a spe­cial fund under pub­lic law, lia­bil­i­ty is lim­it­ed to the sum of the total pay­ments of the last two cal­en­dar years from the spe­cif­ic con­trac­tu­al rela­tion­ship between the cus­tomer and enclaive.io, except in cas­es of intent and gross negligence.
  5. enclaive.io is not liable for exist­ing, remain­ing, and future errors in the cus­tomer’s soft­ware or for the result­ing and aris­ing dam­ages. This also applies to errors or mal­func­tions that enclaive.io has not dis­cov­ered dur­ing soft­ware test­ing services.
  6. Fur­ther­more, enclaive.io is not liable for lost prof­its, missed sav­ings, dam­ages from third-par­ty claims, and oth­er direct damages.

§8 War­ran­ty

  1. The cus­tomer shall noti­fy enclaive.io imme­di­ate­ly upon becom­ing aware of any defects and shall sup­port enclaive.io to the full extent of its pos­si­bil­i­ties in elim­i­nat­ing the defect. The cus­tomer shall grant enclaive.io access to all rel­e­vant doc­u­ments from which the detailed cir­cum­stances of the alleged or occurred defect can be derived.
  2. In the event of rec­ti­fi­ca­tion of defects, the cus­tomer shall take all mea­sures to secure data. enclaive.io is not respon­si­ble for any loss of data due to the rec­ti­fi­ca­tion of defects. In the event that main­te­nance and ser­vice have been ordered sep­a­rate­ly by the cus­tomer, data will be backed up by enclaive.io accord­ing to the service.
  3. If enclaive.io is oblig­at­ed to pro­vide sup­ple­men­tary per­for­mance due to defects, this can be pro­vid­ed by enclaive.io by way of a rem­e­dy of the defect or sub­se­quent deliv­ery, at enclaive.io’s dis­cre­tion. If the sup­ple­men­tary per­for­mance is pro­vid­ed by way of removal of defects, it may — at the free dis­cre­tion of enclaive.io and sub­ject to avail­abil­i­ty — also be pro­vid­ed by deliv­ery of a new ver­sion, an update, upgrades, patch­es, or releas­es. If such is not yet avail­able but will be avail­able in the fore­see­able future, enclaive.io may refer the Cus­tomer to a workaround solu­tion for the appro­pri­ate peri­od of time, unless a workaround solu­tion is not rea­son­able for the Customer.
  4. If the exam­i­na­tion of a notice of defects shows that there is no claim for defects, enclaive.io may invoice the costs and expens­es incurred accord­ing to hourly rates cus­tom­ary in the industry.
  5. The lim­i­ta­tion peri­od for claims for defects is one year. With regard to the begin­ning of the lim­i­ta­tion peri­od, the statu­to­ry pro­vi­sions shall apply, except in the case of fraud­u­lent con­ceal­ment or gross neg­li­gence of a defect by enclaive.io as well as in the case of dam­age to life, limb, and health caused by a defect and in the case of a qual­i­ty guarantee.
  6. enclaive.io strives to meet the high­est qual­i­ty stan­dards in its ser­vices and to avoid and/or detect pos­si­ble errors in the cus­tomer’s soft­ware through soft­ware test­ing ser­vices. How­ev­er, enclaive.io can­not guar­an­tee that the test­ed soft­ware is com­plete­ly free of errors with the suc­cess­ful exe­cu­tion of the soft­ware test­ing services.
  7. enclaive.io does not pro­vide any war­ran­ty if the Cus­tomer has made changes or adjust­ments to the meth­ods or soft­ware used to per­form the Soft­ware Test­ing Ser­vices or to the devel­oped or mod­i­fied IT infra­struc­ture or soft­ware direct­ly or indi­rect­ly relat­ed to the Soft­ware Test­ing Ser­vices process. This shall not apply if these changes or adjust­ments are not the cause of the defect in question.
  8. enclaive.io points out that, accord­ing to the cur­rent state of the art, it is not pos­si­ble to cre­ate soft­ware in such a way that it can work error-free in all appli­ca­tion com­bi­na­tions or be pro­tect­ed against any manip­u­la­tion by third par­ties. enclaive.io also does not guar­an­tee that soft­ware used or pro­vid­ed by third par­ties meets the require­ments of the cus­tomer, is suit­able for cer­tain appli­ca­tions, and fur­ther­more that it is free of crash­es, errors, and mal­ware. enclaive.io only war­rants to the cus­tomer that the soft­ware used or pro­vid­ed by third par­ties will func­tion essen­tial­ly in accor­dance with the per­for­mance spec­i­fi­ca­tions of the third par­ty at the time of trans­fer, under nor­mal oper­at­ing con­di­tions and under nor­mal main­te­nance, and that enclaive.io will not take any con­scious mea­sures to lim­it this to the dis­ad­van­tage of the cus­tomer. In par­tic­u­lar, enclaive.io does not assume any war­ran­ty for lat­er mal­func­tions of the cor­re­spond­ing soft­ware due to changes or updates by third parties.

§9 Exemp­tion

The cus­tomer shall exempt enclaive.io from any claims of third par­ties in the inter­nal rela­tion­ship that are based on ille­gal or infring­ing actions of the cus­tomer or errors in the con­tent of the infor­ma­tion pro­vid­ed by the cus­tomer. This applies in par­tic­u­lar to vio­la­tions in the area of indus­tri­al prop­er­ty rights, copy­right, com­pe­ti­tion law, and all oth­er vio­la­tions accord­ing to sec­tion 7. The cus­tomer shall reim­burse enclaive.io for the costs of legal defense incurred in this context.

§10 Duties of the Customer

  1. The cus­tomer is oblig­ed to pro­vide the data required for his order truth­ful­ly and com­plete­ly. This includes his full name, the cor­rect com­pa­ny with legal form, a sum­mon­able postal address (no P.O. Box or oth­er anony­mous address), the e‑mail address, and a tele­phone num­ber. The cus­tomer shall inform enclaive.io imme­di­ate­ly of any changes to his data. The noti­fi­ca­tion can be sent by tele­phone or e‑mail.
  2. The cus­tomer under­takes to reg­u­lar­ly change any pass­words received from enclaive.io for the pur­pose of access to its ser­vices and to keep them strict­ly con­fi­den­tial and pro­tect them from access by third par­ties. The cus­tomer shall inform enclaive.io imme­di­ate­ly as soon as he/she becomes aware that unau­tho­rized third par­ties know the password.
  3. The cus­tomer is sole­ly respon­si­ble for all con­tent that he saves or makes avail­able for retrieval. enclaive.io does not check the con­tents for pos­si­ble vio­la­tions of law or con­tract. With­in the scope of his oblig­a­tion to com­ply with the legal and con­trac­tu­al reg­u­la­tions, the cus­tomer is also respon­si­ble for the con­duct of third par­ties who act on his behalf, in par­tic­u­lar of vic­ar­i­ous agents. This also applies to oth­er third par­ties whose con­duct enables them to vio­late the law.

§11 Rights of Use (Copy­right)

  1. enclaive.io grants the cus­tomer a sim­ple, spa­tial­ly, and tem­po­ral­ly unlim­it­ed right to use the soft­ware cre­at­ed by enclaive.io for the cus­tomer. Oth­er rights must be express­ly agreed upon differently.
  2. The cus­tomer has no right to sub­li­cense (trans­fer to third par­ties) or mod­i­fy the deliv­ered software.
  3. enclaive.io is enti­tled to use the work results and the acquired know-how also in oth­er ways in com­pli­ance with data protection.
  4. The release of pos­si­ble source code by enclaive.io of soft­ware devel­oped explic­it­ly for a cus­tomer shall only take place with the express per­mis­sion of the customer.

§12 Copy­rights, pun­ish­able contents

The cus­tomer express­ly assures that the pro­vi­sion and pub­li­ca­tion of the con­tents of the soft­ware or data post­ed by him do not vio­late Ger­man or oth­er rel­e­vant nation­al and inter­na­tion­al law, in par­tic­u­lar copy­right, trade­mark, name, data pro­tec­tion, and com­pe­ti­tion law.

§13 Data Pro­tec­tion, Ref­er­ence, Confidentiality

  1. enclaive.io will inform the cus­tomer sep­a­rate­ly about the col­lec­tion, pro­cess­ing, and use of per­son­al data or oth­er data.
  2. The par­ties com­mit them­selves mutu­al­ly to treat busi­ness secrets, con­cep­tions, ideas, which become known in the con­text of a co-oper­a­tion, absolute­ly con­fi­den­tial­ly, and to keep them with the nec­es­sary care.
  3. How­ev­er, enclaive.io reserves the right to name the client as a reference.

§14 Fur­ther Provisions

  1. Changes, addi­tions, or the can­cel­la­tion must be in writ­ten form to be effec­tive. This also applies to the can­cel­la­tion or amend­ment of the afore­men­tioned writ­ten form requirement.
  2. Place of juris­dic­tion and place of per­for­mance is — as far as legal­ly per­mis­si­ble — Berlin, Germany.
  3. Only the Ger­man ver­sion of this TOS is bind­ing; the Eng­lish ver­sion only serves for infor­ma­tion­al purposes.
  4. The TOS are sub­ject to the law of the Fed­er­al Repub­lic of Germany.
  5. Should a pro­vi­sion be or become invalid or should these TOS con­tain a gap, the legal valid­i­ty of the TOS shall not be affect­ed. The par­ties are oblig­ed to replace an inef­fec­tive pro­vi­sion by an effec­tive one or to agree to the inclu­sion of a gap-fill­ing pro­vi­sion that comes clos­est to the eco­nom­ic sense and pur­pose of the inef­fec­tive or miss­ing pro­vi­sion. This also applies to the can­cel­la­tion or amend­ment of the afore­men­tioned writ­ten form requirement.

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