Terms of Service

Note: These Terms and Conditions are originally drafted in German and the German version is legally binding. The following English text is provided as a non-binding translation for convenience.

1. Scope of Application

These terms and conditions apply to the provision of the software by the licensor, ContainerGrid GmbH (hereinafter "Software"), between the licensee and the licensor. These terms, together with the scope of services, apply to all services provided by the licensor in connection with the provision of the Software.

2. Subject Matter of the Contract

2.1 The subject of these General Terms and Conditions ("GTC") is the time-limited provision of the Software for the duration of the contract in accordance with the currently valid scope of services, including the granting of the rights necessary for its contractual use pursuant to § 6.

2.2 These GTC apply exclusively. Conflicting or deviating general terms and conditions of the licensee are not recognized unless their validity has been expressly agreed in writing. The GTC also apply if ContainerGrid GmbH performs its services without reservation despite being aware of conflicting or deviating terms of the licensee.

2.3 The contractual relationship between ContainerGrid GmbH and the licensee is governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.

2.4 Customization, configuration or implementation of the Software is not part of these terms. The Software is provided by the licensor as "Software as a Service" (SaaS). The licensor performs its service by enabling the licensee to access the Software. The owed properties of the Software result conclusively from the scope of services. Unless separately agreed, the Software is provided in its most current version. Any further properties or other guarantees are not owed unless expressly assured in writing by the licensor.

3. Scope of Services

3.1 ContainerGrid provides the licensee with the ordered Software in its respectively current version via the internet for paid use during the contract term. For this purpose, ContainerGrid hosts the Software in an ISO 27001-certified data center in Germany accessible to the licensee via the internet. ContainerGrid is entitled to adapt the Software at any time with regard to functionality and design. ContainerGrid will not remove functionality and will reasonably consider the legitimate interests of the licensee when changing functions.

3.2 The license refers to the agreed number of employees or users ("authorized users") who are entitled to use the Software simultaneously. The licensee may add any number of users to its account, but the Software may only be used concurrently by the agreed number of authorized users. Only employees and/or contractors acting on behalf of the licensee may be added as users.

3.3 The licensee is not entitled to make this Software available to third parties for use, whether for a fee or free of charge. Subleasing of the Software is expressly prohibited. The licensee shall structure any contractual relationships with third parties in such a way that free use of the Software is excluded.

4. Conclusion of Contract, Prices and Payment Terms

4.1 ContainerGrid will only submit a binding offer or accept the customer's binding offer if the customer is a company or a person acting in the exercise of their commercial or professional activity.

4.2 Where the contract is concluded via the licensor's website, it is formed as follows: by clicking a button labelled "Order now subject to payment" or wording to the same effect, the licensee declares acceptance of the licensor's contractual offer based on these GTC. All offers from ContainerGrid GmbH submitted in writing or by email are non-binding until final order confirmation. The licensee's order is a binding offer to ContainerGrid GmbH. The contract is concluded upon written order confirmation by ContainerGrid GmbH. Special agreements, side agreements or amendments require written confirmation by ContainerGrid GmbH. Terminations always require written or text form.

4.3 In cases of force majeure or other unforeseeable, exceptional and unintentional circumstances (e.g. operational disruptions, strike, lockout, governmental intervention, natural disasters), execution dates and deadlines are extended by the duration of the impediment plus a reasonable start-up period. ContainerGrid GmbH will promptly inform the licensee of the occurrence and expected end of such circumstances. If performance becomes wholly or partially impossible due to such circumstances, ContainerGrid GmbH is released from its obligation to perform to that extent. Any advance payments by the licensee will be returned without delay. Otherwise the licensee has no claim to damages for delay or impossibility not caused by fault.

4.4 The current price list of ContainerGrid GmbH applies, unless a special written price agreement has been made. All prices are exclusive of statutory VAT. During any free trial phase, the licensor's services are provided free of charge.

4.5 The commercial licensee defaults fourteen days after the due date and receipt of the invoice without the need for a reminder.

5. Obligations of the Licensee

5.1 The licensee shall ensure that the system and hardware requirements necessary for the operation of the Software are met in terms of performance and system security.

5.2 The licensee is obliged to:

• continuously maintain its system environment (hardware and software);
• promptly install provided updates, patches and maintenance. Such developments may necessitate upgrades of hardware or operating systems;
• create the prerequisites for performing support: notify ContainerGrid GmbH of peculiarities of the licensee's IT systems and document detected errors in a reproducible, comprehensible form and report them without delay;
• only deploy professionally and technically sufficiently qualified personnel for inquiries to the licensor;
• secure access credentials, in particular user IDs and passwords, against unauthorized access by third parties through suitable measures.

5.3 The licensee shall make regular systematic backups of its stored data in accordance with proven industry standards. Notwithstanding any backup by the licensor, the licensee is responsible for backing up its data with the diligence of a prudent businessperson, in particular immediately before any installation or other intervention by the licensor or third parties commissioned by it. Backups must be kept in such a way that restoration is possible at any time. The licensee shall further protect systems under its control against unauthorized access, storage, modification and other unauthorized access or attacks of any kind by employees or third parties, taking state-of-the-art measures (in particular against viruses and malware as well as against intrusion). For systems not under its control, it shall impose corresponding obligations on its contractual partners and regularly monitor compliance.

5.4 The licensee shall grant the licensor the right to use third-party systems insofar as necessary to provide the services owed under this contract.

6. Compliance with Statutory Provisions

6.1 The licensee undertakes not to store any content on the storage space provided by the licensor whose provision, publication or use violates applicable law or agreements with third parties. The licensor is entitled to immediately block the storage space if there is reasonable suspicion that the stored data is unlawful and/or infringes the rights of third parties. Reasonable suspicion exists in particular when courts, authorities and/or other third parties notify ContainerGrid. ContainerGrid shall promptly inform the customer of the removal and the reason. The block shall be lifted as soon as the suspicion is dispelled.

6.2 The customer undertakes to indemnify the provider against all third-party claims based on the data stored by the customer and to reimburse ContainerGrid for the costs incurred due to possible legal violations.

7. Granting of Rights

7.1 Subject to your unrestricted and continuous compliance with the general terms of this contract, in particular payment of the license fees per the order confirmation, ContainerGrid GmbH grants you a non-exclusive, non-transferable, non-assignable license to use the Software solely for the permitted purposes set out in this contract.

7.2 ContainerGrid GmbH is not obligated to provide updates, improvements, modifications, updates or supplements to the Software.

7.3 The rights to data stored, entered or read in by the licensee belong exclusively to the licensee. All rights to the Software, in particular copyrights, belong solely to the licensor in relation to the licensee, even if the Software or parts of it were created based on input or contributions from the licensee.

8. Liability

8.1 The licensor shall be liable without limitation

• in cases of intent or gross negligence,
• for injury to life, body or health,
• under the provisions of the Product Liability Act, and
• to the extent of any guarantee assumed by the licensor.

8.2 In the event of slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), the licensor's liability is limited in amount to the damage that is foreseeable and typical for the type of business in question. The parties agree that damages of up to a maximum of EUR 500,000 per damage event are typically foreseeable. If damage exceeding this amount threatens the licensee, it is obliged to notify the licensor immediately.

8.3 Any further liability of the licensor is excluded. In particular, the licensor is not liable for initial defects unless the conditions in paragraphs 1 and 2 are met.

8.4 The above limitation of liability also applies to the personal liability of the licensor's employees, representatives and corporate bodies.

8.5 During the free trial phase, the licensor's liability is governed, deviating from the foregoing paragraphs, by the provisions on gifts (donor's liability under § 521 BGB).

9. Confidentiality

9.1 The parties agree to maintain confidentiality of confidential information. This obligation continues for a period of five years after termination of the contract.

9.2 Excluded from this obligation is confidential information that:

• was demonstrably already known to the recipient at the conclusion of the contract or becomes known thereafter from a third party without violating a confidentiality agreement, statutory regulations or official orders;
• is publicly known at the conclusion of the contract or becomes publicly known thereafter without breach of this contract;
• must be disclosed due to legal obligations or by order of a court or authority. Where permitted and possible, the recipient required to disclose will inform the other party in advance and give it the opportunity to oppose the disclosure.

9.3 The parties will only grant access to confidential information to advisors who are subject to professional secrecy or who have been bound to confidentiality obligations equivalent to those in this contract. Furthermore, the parties will only disclose confidential information to those employees who need to know it for the performance of this contract and will bind these employees to confidentiality also for the time after their departure to the extent permitted by labor law.

10. Warranty

10.1 The licensor warrants the maintenance of the contractually agreed properties in accordance with the scope of services of the Software during the contract term. It is obliged to remedy defects in the Software occurring during the contract term in accordance with statutory provisions within the times stated in § 11. Beyond that, the licensor owes no further services, in particular no user support and no customization or maintenance services.

10.2 The licensee has no claims for defects if it has made interventions to the Software without the prior written consent of the licensor or if the Software is not used in accordance with the contract and the intervention or non-contractual use is solely responsible for the occurrence of the defect.

10.3 ContainerGrid does not warrant fulfilment of the customer's individual requirements. This applies in particular to the failure to achieve the intended commercial success.

11. Availability

11.1 The licensor guarantees a total availability of services of at least 99.5% per month at the handover point. The handover point is the router output of the licensor's data center.

11.2 Availability is the licensee's ability to use all main functions of the Software. Maintenance windows performed within the standard maintenance window outside Monday to Friday, 09:00 to 18:00, as well as periods of disruption within the resolution time, count as periods of Software availability. Periods of insignificant disruptions are disregarded for availability calculation. The licensor's measurement instruments at the data center are decisive for proof of availability.

11.3 The licensee shall report disruptions immediately. Fault reporting and resolution is guaranteed Monday to Friday (excluding nationwide public holidays) within the business hours published on www.containergrid.de (currently between 8:00 and 19:00) ("service hours").

12. Defect Resolution Times

12.1 Defects occurring in the Software shall be classified into the following categories and processed according to the response and recovery times. The licensor will keep the licensee informed about the status and success of the resolution.

• Critical defect (Priority 1): disruption causing a failure of the entire system or essential parts thereof, making use wholly or almost entirely impossible. Operations are impaired such that immediate remedy is essential.
• Major defect (Priority 2): disruption that impairs use of the system such that reasonable work is no longer possible or only with disproportionate effort. The simultaneous occurrence of several major defects can result in a critical defect.
• Other defect (Priority 3): other disruption that does not, or only insignificantly, impair use of the system. The simultaneous occurrence of several such defects can result in a major or critical defect.

12.2 Classification of defects is made by the licensee at its reasonable discretion, taking due account of (i) the impact of the defect on its business operations and (ii) the licensor's interests.

12.3 The licensor will respond to a defect report within the following deadlines ("response time"):

• For critical defects within one hour of receiving the report.
• For major defects within two hours of receiving the report.
• For other defects within one business day of receiving the report.

12.4 The licensor will resolve defects within the following deadlines ("resolution time"):

• Critical defects within 24 hours of receiving the report.
• Major defects within two days of receiving the report.
• Other defects within ten days of receiving the report, at the latest with the next program version.

12.5 Where it is foreseeable that a critical or major defect cannot be resolved within the periods defined in paragraph 4 above, the licensor will provide a workaround within the deadlines stated there.

12.6 The licensor is entitled to provide support services by means of remote maintenance or remote diagnosis, provided this does not disadvantage the licensee, in particular does not exceed the time frame of providing the corresponding on-site support, no IT security risks exist and the technical prerequisites at the licensee are met.

13. Other Defect Resolution and Adaptation Services

Other defect resolution and adaptation services will be provided by the licensor solely on the basis of a separate order. Such services include:

• changes to the Software not subject to defect resolution, in particular adaptation to new products and services and to changed business processes of the licensee;
• adaptation of the Software to a changed hardware and/or software environment of the licensee, including new program versions (e.g. new releases, updates/upgrades) of third-party software used in the system;
• rectification of malfunctions caused by improper operation by the licensee, force majeure, third-party intervention or other influences not caused by the contractor;
• other adaptations, additions and extensions of the Software at the request of the licensee.

14. Compensation and Payment Terms

14.1 The licensee shall pay the compensation agreed in the order process or order form.

14.2 The fee payable is due in advance at the start of each term for the entire term. If the term exceeds 12 months, billing is in advance for a maximum of 12 months at a time.

14.3 If the licensee increases the number of authorized users during the term, the license fee for the remaining term will be adjusted in line with the increase and the prices valid at the time of the increase.

15. Termination of Contract

15.1 The contractual relationship ends at the agreed contract end without the need for termination. Early ordinary termination of the contract is excluded (§ 620 BGB).

15.2 The right of the parties to extraordinary termination for cause remains unaffected. Cause for immediate termination of this contract exists for ContainerGrid in particular when the customer

• becomes insolvent or insolvency proceedings have been refused for lack of assets,
• is in default with payment obligations from this contract amounting to at least one month's fee and has been unsuccessfully reminded with a grace period of two weeks and threat of contract termination,
• culpably violates legal provisions when using the contractual services or infringes copyrights, industrial property rights or naming rights of third parties,
• uses the distributed services for the purpose of promoting criminal, illegal or ethically questionable acts.

15.3 The licensor will irretrievably delete all licensee data remaining on its servers – subject to longer statutory retention obligations – 30 days after termination of the contractual relationship.

16. Data Protection; Confidentiality

16.1 The parties will comply with the applicable data protection regulations.

16.2 If and to the extent that the licensor has access to personal data of the licensee in the course of providing services, the parties will conclude a corresponding data processing agreement before the start of processing. In that case, the licensor will process the relevant personal data solely in accordance with these provisions and the licensee's instructions.

17. Miscellaneous

17.1 The licensee may only transfer rights and obligations from or in connection with the contractual relationship to third parties with the licensor's written consent.

17.2 Set-off is only permitted against undisputed or legally established claims of the licensor.

17.3 Amendments and supplements to the contract require written form. This also applies to the amendment or cancellation of this clause.

17.4 The parties are aware that software may be subject to export and import restrictions. In particular, authorization requirements may exist or the use of the Software or related technologies abroad may be subject to restrictions. The licensee will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The licensor's performance is subject to the proviso that no obstacles arise due to national and international export and import regulations or other legal provisions.

17.5 Place of performance is Munich. Exclusive place of jurisdiction is Munich, provided each party is a merchant or a legal entity under public law.

17.6 Where these GTC require written form, this is also satisfied by electronic form (§ 126a BGB) and text form (§ 126b BGB).