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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 GmbH.
  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 the customer agrees to the TOS. Deviating TOS of the customer do not become valid unless enclaive 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 confidential cloud computing software and infrastacture. In the following, these services will be referred to as “Confidential Compute 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 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.cloud and are individually agreed upon in advance between the customer and enclaive.cloud.
  4. The basis for the creation of services is the written project description within the order, which enclaive.cloud 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.cloud 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 will agree to this to the extent that it is reasonable for enclaive. If the fulfillment of a change request affects the order, enclaive 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.
  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.cloud 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.cloud with undisputed or legally binding counterclaims.

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

  1. enclaive 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.cloud 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.cloud will declare completion to the customer. After declaring completion, the Customer shall, within a reasonable period of time determined by enclaive.cloud, check the execution of the software testing services and notify enclaive.cloud 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.cloud in accordance with paragraph 4, although he is obliged to do so.

§7 Liability

  1. enclaive 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.cloud 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.cloud, except in cases of intent and gross negligence.
  5. enclaive.cloud 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.cloud has not discovered during software testing services.
  6. Furthermore, enclaive.cloud 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 immediately upon becoming aware of any defects and shall support enclaive to the full extent of its possibilities in eliminating the defect. The customer shall grant enclaive 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 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 according to the service.
  3. If enclaive is obligated to provide supplementary performance due to defects, this can be provided by enclaive by way of a remedy of the defect or subsequent delivery, at enclaive’s discretion. If the supplementary performance is provided by way of removal of defects, it may — at the free discretion of enclaive 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.cloud 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.cloud 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.cloud 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.cloud 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.cloud cannot guarantee that the tested software is completely free of errors with the successful execution of the software testing services.
  7. enclaive.cloud 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.cloud 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.cloud 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.cloud 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.cloud will not take any conscious measures to limit this to the disadvantage of the customer. In particular, enclaive.cloud 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 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.cloud 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 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 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 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 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 grants the customer a simple, spatially, and temporally unlimited right to use the software created by enclaive 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 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 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 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.cloud reserves the right to name the client as a reference.

§14 Further Provisions

  1. Changes, additions, or 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. The TOS are subject to the law of the Federal Republic of Germany.
  4. Should a provision become invalid or these TOS contain a gap, the legal validity of the TOS shall not be affected. The parties are obliged to replace an ineffective provision with 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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