General Terms and Conditions of Kubedo GmbH
Kubedo GmbH (hereinafter “Kubedo”), Greifswalder Straße 209, 10405 Berlin, offers container management services. The customer (hereinafter “customer”) would like to use these services under the following contractual conditions.
Section 1. Definitions
1.1 Terms and Conditions: These Terms and Conditions of Kubedo GmbH
1.2 Order form(s): The order form(s) on the Kubedo GmbH Websites.
1.3 The Customer(s): Any (legal) person(s) that has an agreement with and/or purchased services from Kubedo GmbH
1.4 Customer Equipment: Equipment that is owned by the customer such as Racks, Servers, Switches, External Drives, cables, and other equipment of the Customer.
1.5 Bandwidth: The traffic generated by the client based on the 95-percentile method.
1.6 Traffic: All incoming and outgoing traffic generated by the Customer’s website, e-mail, dHost, kHost, Virtual Server, and/or equipment.
1.7 Denial of Service (DoS) attack: Overloading and/or limiting of the connection of one or more networks, systems, or applications thereon, by using a computer to access a network, system, or application excessively.
1.8 Service(s): Services as further detailed on the Kubedo GmbH websites and/or in a Concluded Agreement between Kubedo GmbH and the Customer such as for Kubedo dHost or kHost, Managed Database, Managed Server, and Managed kubernetes.
1.9 Distributed Denial of Service (DDoS) attack: Overloading and/or limiting the connection of one or more networks, systems, or applications thereon, by using multiple computers to access the network, system, or application excessively.
1.10 Domain name: A unique name for a website address.
1.11 Domain Registration: The registration of a domain name followed by an extension at the register kept for that purpose.
1.12 Downtime: An interruption or suspension of the Service with a negative effect on the use of the Service by the Customer;
1.13 Quotation(s): All quotations send by e-mail, fax, in writing, and/or oral proposals, and/or offers to the Customer by Kubedo GmbH
1.14 Storage: The disk space made available by Kubedo GmbH on one or more Kubedo GmbH servers.
1.15 Agreement: The agreements, recorded in a written record, by email, fax, through the order forms on the websites of Kubedo GmbH and/or oral agreements enabling Kubedo GmbH Service to the customer and for which the present Terms and Conditions apply.
1.16 Kubedo.com: Kubedo GmbH, located in Berlin, registered under file number 9999999 at the Chamber of Commerce in Berlin with VAT number 888888888888888
1.17 Kubedo.com Equipment: Equipment owned or hired by Kubedo GmbH such as Racks, Servers, Switches, Cables, and all other Kubedo GmbH equipment.
1.18 Dhost: Dhost is a product of Kubedo GmbH
1.19 Khost: Khost is a product of Kubedo GmbH
1.20 Spam: Sending unsolicited email messages.
1.21 Power: The power that is consumed by the Customer Equipment. Measured in amperes or kW/h.
1.22 Hosting: Providing storage space on Kubedo GmbH servers and making websites accessible on the Internet.
1.23 Working day(s): From Monday to Friday. Office hours are from 9.00 to 17.30 [CET/CEST]. Public holidays in the Germany are not included.
1.24 95 Percentile method: 95 percentile is the average value of the traffic measured over the month. With 5% of the highest peaks that cannot be calculated into the total average.
1.25 Standard SLA: Best effort will be applied to the problems, no pre-defined response time is guaranteed. The time frame is working days, which defined in 1.23 is the standard SLA. Unless the customer and Kubedo GmbH has defined a further SLA in a further agreement.
Section 2. Applicability of the Terms and Conditions
2.1 These Terms and Conditions apply to all offers, quotations, and proposals made by Kubedo GmbH and the Agreement and all other agreements with Kubedo GmbH as a party, insofar these Terms and Conditions weren’t modified in writing by Kubedo GmbH and the Customer.
2.2 If the conditions of these Terms and Conditions are conflict with or deviate from one or more conditions of the Agreement, the conditions of the Agreement apply.
2.3 Terms and Conditions of the Customer or third parties are not binding for Kubedo GmbH and do not apply.
2.4 In the event that both the Terms and Conditions and the Terms and Conditions of the Customer apply, the Terms and Conditions of Kubedo GmbH prevail.
Section 3. Establishment of the Agreement
3.1 All Quotations made by Kubedo GmbH are free of obligations unless stated otherwise.
3.2 All Quotations made by Kubedo GmbH have a period of seven (7) days from the date specified in the Quotations unless stated otherwise.
3.3 Any stipulations deviating from the provisions in the General Conditions apply only if they have been established in consultation with Kubedo GmbH in writing and/or via e-mail and have been accepted by Kubedo GmbH as such.
3.4 An Agreement is concluded at the time that one of the following conditions are met; i) a completely truthfully completed order form on one of the Kubedo GmbH websites with a digital acceptance of the Terms and Conditions. ii) an order made by e-mail, fax, or in writing containing the acceptance of the Terms and Conditions and expenses mentioned. iii) a completely truthfully completed and signed Agreement containing the Quotation or acceptance of the Terms and Conditions sent to Kubedo GmbH by e-mail, fax, or in writing.
3.5 Kubedo GmbH reserves the right, for whatever reason, to refuse the requests for the provision of Services.
3.6 The Customer accepts and agrees with Kubedo GmbH that Kubedo GmbH immediately after the conclusion of the Agreement will begin the fulfilment thereof. If Kubedo GmbH does not immediately begin with the implementation after the conclusion of the Agreement, the Customer, provided that he is the consumer, is given five (5) working days from the time the Agreement is concluded to dissolve the Agreement free of charge, unless Kubedo GmbH began with the execution within the five (5) working days mentioned above.
3.7 Kubedo GmbH and the Customer are free to prove the establishment of the Agreement by other means.
3.8 Additions and modifications to the Agreement can exclusively be made by e-mail.
Section 4. Duration and Termination
4.1 The Agreement for K-Host and D-Host is concluded for an indefinite period with a minimum term of one (1) month unless agreed otherwise.
4.2 The agreement for K-Host and D-Host can only be terminated by registered letter, fax, or e-mail (from an email address that is known to us) in accordance with a notice period of one (1) Month. Your cancellation is final only after Kubedo GmbH sends a confirmation of receipt.
4.3 In case of cancellation, termination, or dissolution for any reason, Kubedo GmbH is entitled to immediately delete all stored data or make it inaccessible, and to remove all accounts of the Customer. In that case, Kubedo GmbH is not required to provide the customer with a copy of this data.
4.4 Kubedo GmbH has the right to terminate the Agreement without proof of default or judicial intervention if the Customer is declared bankrupt, suspension of payments has been requested or obtained, has become involved in a statutory debt on his debts, or otherwise lost the free management over his capital. In this case, the latter party has no right to any compensation.
4.5 Notwithstanding the provisions of Section 19 Kubedo GmbH has the right to terminate the Agreement with immediate effect and without judicial intervention if: i) the Customer makes improper use of the Internet; ii) the Customer spreads information that violates international laws and regulations; iii) the Customer disseminates information that is contrary to the accepted norms and values; iv) the Customer spreads information that discriminates regarding appearance, race, religion, sex, culture, heritage or that can otherwise be called offensive. It is also not allowed to place so-called mp3 pages or pages related to this on Kubedo GmbH servers, and) the Customer sends spam.
4.6 If in the reasonable opinion of Kubedo GmbH a hazard to the operation of the Kubedo GmbH network and/or services to the Kubedo GmbH Customer(s) originates, including, but not exclusively, by sending spam, open relay, open resolver, port scan, or hacking by the Customer (s) and/or on account of the Customer(s) or otherwise, Kubedo GmbH may provide directions to the Customer(s), that must be completed within the prescribed period.
4.7 If a server and/or website if the Customer is subject to a so-called DoS or DDoS attack, Kubedo GmbH can provide instructions to the Customer that must be completed within the prescribed period.
4.8 If the instructions as stated in Paragraphs 4.6 and 4.7 are not followed within the prescribed time frame, Kubedo GmbH has the right to temporarily halt the server and/or website of the Customer.
4.9 If the Customer is a natural person not acting in the exercise of profession or business, the Customer has the right, without giving reasons, to terminate the Agreement within seven working days after the establishment, unless Kubedo GmbH already in agreement with the Customer within this period has already begun to implement the agreement. Domain names are excluded from this cooling-off period because a domain name based on the specifications of the Customer is fixed or personal in nature (see Article 7:46d CC).
4.10 If the Customer fails to comply with any of his obligations under the Agreement Kubedo GmbH has the right to terminate all Agreements established with the Customer without the requirement of proof of default or judicial intervention and without prejudice to the right of Kubedo GmbH to compensation for damages, lost profits and interest.
4.11 Besides K-Host and D-Host managed services, the minimum contract term is 12 months after signing the contract. The term is extended by a further twelve months if the contract is not terminated in writing after the minimum contract term has expired with a notice period of six months to the end of the month.
Section 5. Delivery
5.1 The agreed delivery dates do not have the purport that Kubedo GmbH after its expiration is legally in default, for this still a further written notice of default is required, for which Kubedo GmbH will be awarded a period of at least fourteen (14) days to fulfil its obligations.
5.2 With the failure to meet a delivery, the Customer shall never be entitled to any compensation, to dissolve the agreement, or to undertake any other action against Kubedo GmbH This is different only in cases of intent or gross negligence on behalf of Kubedo GmbH or its managerial staff or if the delivery is exceeded by more than one month. In this case, the Customer has the right to cancel the agreement, but without entitlement to any compensation.
5.3 The periods stated by Kubedo GmbH are not to be considered as deadlines. Kubedo GmbH is not liable in case of the adverse consequences for exceeding customer delivery dates unless there is intent or gross negligence on behalf of Kubedo GmbH
Section 6. Interference and Force Majeure
6.1 Kubedo GmbH is entitled to temporarily put its systems out of use for maintenance, including the Websites, or parts thereof, for the purpose of adjustment or improvement. Kubedo GmbH will attempt to let such a possible decommissioning take place outside office hours and will endeavour to provide the Customer with timely notice of the planned decommissioning. Kubedo GmbH is not liable for compensation for damages in respect of such decommissioning.
6.2 Kubedo GmbH is entitled to modify its systems from time to time, including the Websites, or parts thereof, to improve functionality and correct errors. If an adjustment results in a significant change in functionality, Kubedo GmbH will endeavour to notify the Customer thereof. In the case of modifications that are relevant to multiple customers, it is not possible to abandon a particular change just for the Customer. Kubedo GmbH is not liable for any damages caused by such a modification.
6.3 In case of unavailability of the Service, by failures, maintenance, or other causes, Kubedo GmbH will make an effort to inform the Customer about its nature and expected duration of the interruption.
6.4 In case of force majeure, which in any case include illness of employees and/or absence of key personnel, malfunctions or failure of the Internet and/or failure of the telecommunications infrastructure, synflood, network attacks, DoS or DDOS attacks, power failures, civil disturbance, mobilisation, pandemic, war, the blocking of transport, strikes, lockouts, business interruptions, interruption in supply, natural disasters, fire, flood, import and export hindrances and in the event that Kubedo GmbH by its own suppliers, regardless of the reason, is not enabled to deliver and whereby the fulfilment of the Agreement by Kubedo GmbH cannot reasonably be required, the implementation of the Agreement will be suspended, or the Agreement will be terminated if the force majeure persists for more than sixty (60) days, without any obligation for compensation of damages.
Section 7. Interruptions
7.1 Immediately after the discovery of a Downtime, Kubedo GmbH shall inform the Customer by e-mail and telephone about the Downtime and provide information on: i) the nature of the Downtime; ii) the Service(s) affected by the Downtime; iii) the name of the Customer´s company; iv) the name, phone number and email address of the contact of the Customer, and v) any possible instructions for Kubedo GmbH employees.
7.2 Upon notification of the Customer in accordance with Paragraph 7.1, Kubedo GmbH will give an estimate for restoration of the Downtime and will endeavour to end the Downtime as soon as possible.
7.3 The Customer may only appeal to response and recovery times based on the standard SLA unless agreed otherwise in the agreement. If an interruption is outside of the SLA, the customer is not entitled to a discount.
7.4 Instead of restoring the Service, Kubedo GmbH is entitled to substitute the Service with another reasonably comparable service.
7.5 The Customer is solely granted the rights under this section in case of Downtime. Any other rights, including but not limited to the right to compensation, are explicitly excluded.
Section 8. Liability
8.1 The liability of Kubedo GmbH for direct loss suffered by the Customer as a result of a fault in the compliance by Kubedo GmbH of the obligations under this Agreement, explicitly also including any failure to comply with a warranty agreed with the Customer, or by an unlawful act of Kubedo GmbH, its employees or third parties engaged, per event or a series of related events, is limited to an amount equal to the amount annually paid by the Customer under this Agreement. However, in no event will the total compensation for direct damages exceed one thousand (1,000) Euros.
8.2 Kubedo GmbH has no liability for indirect damages, including consequential damages, lost profits, lost savings, loss of (business)data due to business interruption.
8.3 Besides the cases referred to in Paragraph 8.1 Kubedo GmbH has no liability for damages, regardless of the reason the action for damages would be based on. The maximum amount specified in Paragraph 8.1 will be removed if and insofar as the damage caused by intent or gross negligence on behalf of the executive managers of Kubedo GmbH
8.4 The liability of Kubedo GmbH for a breach of compliance with the Agreement arises only if the Customer immediately and properly communicates a written notice of default to Kubedo GmbH, stating a reasonable period for remedying the deficiency, and Kubedo GmbH after that period attributable continues to fail to fulfil its obligations. The notice must contain a detailed description of the shortcoming, so Kubedo GmbH will be able to respond adequately.
8.5 Kubedo GmbH is not liable for any damages deriving from installing and/or use of software developed by Kubedo GmbH or third-party software provided or recommended by Kubedo GmbH
8.6 Kubedo GmbH is never liable for damage caused by force majeure as described in section 6.
8.7 Condition for the existence of any right to claim compensation is that the Customer reports the claim to Kubedo GmbH in writing and by registered post within five (5) business days after the occurrence.
8.8 The Customer indemnifies Kubedo GmbH for all claims for liability arising from a defect in the Service by the Customer to a third party and which partly consisted of Kubedo GmbH delivered goods, materials, or results.
8.9 Changes in the data of the Customer, immediately need to be communicated to Kubedo GmbH by the Customer in writing or by e-mail. If the Customer does not do so, the Customer is liable for any damages Kubedo GmbH may suffer as a consequence.
8.10 Kubedo GmbH is responsible for backing up e-mail, websites, and databases unless otherwise expressly stated on the websites of Kubedo GmbH and/or if agreed otherwise, but assumes no responsibility for any loss of data and the resulting damage thereof. The backups are for their own preservation. The Customer is expected to also safeguard important information on his own account.
8.11 Kubedo GmbH can only be held liable for the maximum insured amount in the Liability Insurance.
Section 9. Customer Obligations
9.1. The customer undertakes towards Kubedo GmbH to carry out the cooperative actions required for the provision of the agreed services. In particular, the customer provides all necessary information and documents free of charge and designates a technically qualified contact person with sufficient authorization for the implementation of the contract. Submitted information and documents serve as an essential basis for the implementation services of Kubedo GmbH. The provision of incorrect or incomplete information is at the expense of the customer.
9.2. The customer will back up data and information himself, including those that he processes on IT systems for which Kubedo GmbH is responsible. In addition, for Kubedo GmbH responsible systems, daily backups are created and will be stored for seven days.
9.3. If Kubedo GmbH receives materials, data and other information (“customer materials”) from the customer in the course of executing the contract, the customer must ensure that a copy of the data remains with him for backup purposes. The customer also ensures that data stored on Kubedo GmbH systems is free of any malware.
9.4. If the customer leaves protected content to Kubedo GmbH (e.g. graphics, trademarks and other content protected by copyright or trademark law), the customer grants Kubedo GmbH all the rights required for the implementation of the contractual agreement. This includes in particular the right to make the corresponding content accessible to the public. In this context, the customer assures that he has all the necessary rights to the customer materials provided in order to grant Kubedo GmbH the corresponding rights.
9.5. Kubedo GmbH is released from the obligation to provide the contractual services if and to the extent that the customer does not meet his obligations to cooperate. Any existing schedules are automatically adjusted accordingly. If the customer is responsible for the failure to provide the cooperation service and if Kubedo GmbH suffers damage as a result, the customer must compensate for this damage.
Section 10. Awards
10.1 All prices in these Terms and Conditions and on the websites of Kubedo GmbH exclude sales tax (VAT) unless stated otherwise.
10.2 All prices are in Euros unless stated otherwise.
10.3 All prices on Kubedo GmbH websites, quotations, brochures, and other Kubedo GmbH documentation are subject to programming and typing errors. For the consequences of such errors, no liability will be assumed.
10.4 Kubedo GmbH is entitled to change current rates at any time. Kubedo GmbH will notify the Customer of rate changes at least one (1) month in advance, via the Kubedo GmbH Websites, in writing, or by e-mail. The Customer has the right to terminate the Agreement due to a price increase, subject to a notice period of one (1) Month.
10.5 All costs for Kubedo GmbH arising from this Agreement shall be borne by the Customer, provided that they can be attributed to the Customer.
Section 11. Terms of Payment
11.1 The total price, depending on the term established in the Agreement, will be charged in advance. The fees will be billed standard for a month unless otherwise agreed in the Agreement.
11.2 Kubedo GmbH will send an invoice to the Customer in the form of e-mail (PDF) for the amounts due. The payment of this bill is minimal fourteen (14) days before the due date of the invoice unless otherwise indicated on the invoice or otherwise agreed in the Agreement.
11.31If the Customer has not paid invoices on time, defined as within the due date specified on the invoice, the customer will be informed by email. If the invoice is not paid within that period, the Customer will be in default without further notice of default. As a consequence, the service provided will be suspended until the payment is received.
11.4 If the Customer considers that the price on the invoice is incorrect, the Customer may give notification within five (5) business days after the date on the invoice to notify Kubedo GmbH by e-mail. After receiving the complaint, Kubedo GmbH will investigate the accuracy of the invoiced amount and will give an answer within five (5) working days.
11.5 Payment of charges can occur through the available payment options on the site which the Customer authorized at the start of the Agreement or subsequently.
11.6 In case of direct debit, the Customer must ensure there is sufficient balance in his account.
11.7 The Customer is in default from the time the fee at the hands of the customer cannot be collected by or is not paid to Kubedo GmbH
11.8 If payments are not timely paid, or if debited amounts have to be made again, an amount of fifteen (15) Euros will be charged for administrative work.
11.9 If a higher amount is received by mistake, then Kubedo GmbH shall return the overcharged amount immediately to the KubedoWallet balance of the customer.
11.10 When a payment is overdue, the Customer, in addition to the amount owed and the interest due thereon, is required to complete compensation of both judicial and extrajudicial collection costs, including costs for lawyers, bailiffs, and collection agencies.
11.11 The claim for payment is due immediately if the Customer is in a state of bankruptcy, suspension of payment or complete seizure of assets of the client is placed, if the customer dies, and furthermore if he goes into liquidation or is dissolved.
11.12 In the above cases Kubedo GmbH asserts the right to the implementation of the Agreement or to terminate or suspend any not performed part thereof without notice of default or judicial intervention, without entitlement to compensation for damage to the Customer that might occur.
Section 12. Hosting and Related Services
12.1 If the Service is (also) aimed at services for storage or transmission of material supplied by the Customer to third parties, such as for web hosting or e-mail services, the following in this Section applies.
12.2 The Customer shall not publish or provide information through the servers of Kubedo GmbH in conflict with German law. This includes in particular but not exclusively offered information without permission from the copyright owner(s), information that is defamatory, threatening, abusive, racist, hateful, or discriminatory, information that contains child pornography, and information that affect the privacy of third parties or poses a form of stalking, as well as links, torrents or other references to such information on third party sites anywhere in the world (even if this information would be legal in the jurisdiction in question).
12.3 Kubedo GmbH operates a complaints procedure by which third parties (“complainants”) may file a complaint that they believe there is a dispute. When a complaint is warranted in the opinion of Kubedo GmbH, Kubedo GmbH is entitled to remove or disable access to the material. In that case, Kubedo GmbH is also entitled to provide personal information of the Customer to an informer or to the competent authorities. Kubedo GmbH will inform the Customer about the course of those proceedings.
12.4 In the case there is possible criminal information, Kubedo GmbH is entitled to report this. Kubedo GmbH may include all relevant information about the Customer and hand over the information to the competent authorities and perform all other acts which that authority requests of Kubedo GmbH within the framework of the investigation.
12.5 If repeated complaints about the information provided by the Customer, Kubedo GmbH is entitled to annul the Agreement and/or terminate it.
12.6 The Customer indemnifies Kubedo GmbH for any damages resulting from the above. Kubedo GmbH is not liable for any damages whatsoever suffered by the Customer by an intervention Kubedo GmbH within the scope of the complaints procedure.
12.7 The Customer will refrain from interfering with other customers or Internet users or harming the servers. The Customer is not allowed to initiate any processes or programs, whether or not through the server, where the client knows or reasonably suspects that this interferes with or can cause damage to Kubedo GmbH, customers, or other Internet users. Kubedo GmbH will inform the Customer(s) of any possible measures.
12.8 The Customer will comply with the generally accepted rules of conduct on the Internet as defined in RFC1855 ftp://ftp.ripe.net/rfc/rfc1855.txt and future adaptations hereof.
12.9 Without permission by Kubedo GmbH the Customer is prohibited to provide the Kubedo GmbH username or password or user names and passwords to any third party.
12.10 The Customer may not resell and/or re-lease the Service unless otherwise agreed in the agreement.
12.11 Kubedo GmbH can place a maximum amount of storage that the customer may use in connection with the Service. On exceeding this limit Kubedo GmbH is authorized to charge an additional amount, according to the amount of additional storage listed on the Kubedo GmbH websites. No liability exists for the consequences of the inability to send, receive, store or modify data if an agreed limit for storage is reached.
12.12 The Customer hereby provides Kubedo GmbH an unlimited license to all Customer materials distributed, stored, transmitted or copied on Kubedo GmbH systems, in any manner deemed appropriate by Kubedo GmbH, but only to the extent reasonably necessary for the compliance of the Agreement by Kubedo GmbH
12.13 In addition to the requirements of the law, damage arising from incompetence or failure to act in accordance with the above points, is on behalf of the Customer.
12.14. As a technical service provider, Kubedo GmbH stores content and data for the customer, which the customer enters and stores when using the contractual services and makes them available for retrieval. The customer undertakes towards Kubedo GmbH not to post any content and data that is criminal or otherwise illegal in absolute terms or in relation to individual third parties. The customer remains responsible with regard to personal data and must therefore always check whether the processing of such data via the use of the software is based on corresponding permissions
12.15. The customer is solely responsible for all content made available and processed data as well as any legal positions required for this. Kubedo GmbH takes no notice of the customer’s content and does not check it in any way.
12.16. In this context, the customer undertakes to indemnify Kubedo GmbH from any liability and any costs, including possible and actual costs of legal proceedings, if claims are made against Kubedo GmbH by third parties, including employees of the customer personally, as a result of alleged actions or omissions by the customer will. Kubedo GmbH will inform the customer about the claim and, as far as this is legally possible, give him the opportunity to defend himself against the asserted claim. At the same time, the customer will immediately provide Kubedo GmbH with all information available to him about the facts that are the subject of the claim.
12.17. Claims for damages beyond this remain unaffected.
12.18. Kubedo GmbH keeps the data contractually stored by the customer (in particular its website) on the Internet via the network maintained by Kubedo GmbH and the Internet connected to it constantly, worldwide and generally publicly accessible. Kubedo GmbH assumes no responsibility for the success of the respective access to the website, unless only the network operated by Kubedo GmbH, including the interfaces to third-party networks maintained by Kubedo GmbH, is affected.
12.19. The customer receives access to the Kubedo GmbH server to the extent defined between the parties. For this purpose, Kubedo GmbH provides him with the appropriate certificates(SSL/SSH). The certificates must always be kept secret and may not be made available to unauthorised third parties. They are also personal, but if desired, a customer can receive several personalised access authorizations to enable employees to access them. The customer will inform Kubedo GmbH immediately if third parties have obtained his access data. In individual cases, third parties are also companies affiliated with the customer. The customer is solely responsible for all activities in connection with the certificates made available to him.
Section 13. Domain Names And IP Addresses
13.1 If the Service (also) extends to Kubedo GmbH mediating for the Customer in obtaining a domain name and IP address, the following in this section applies.
13.2 Allocation, and possible use of a domain name and IP address are dependent on and subject to the rules and procedures of the relevant registration authorities. The relevant body decides on the granting of a domain name and IP address. Kubedo GmbH only plays a mediating role in the application and does not guarantee that a request will be honoured.
Section 14. Storage, Power usage, Bandwidth, And Traffic
14.1 Storage, Power, Bandwidth, and/or data transfer that is not consumed is not transferable to another month and/or equipment unless agreed otherwise.
14.2 Kubedo GmbH sets a limit to the amount of Storage, Power, Bandwidth, and/or data transfer per month that the Customer may use in connection with the Service. On exceeding this limit is Kubedo GmbH authorised to charge an additional amount, according to the amounts for extra Storage, Power, Bandwidth, and/or Data traffic listed on the Kubedo GmbH websites. No liability exists for the consequences of the inability to send, receive, store or modify data if an agreed limit is reached.
14.3 Kubedo GmbH Each quarter, Kubedo GmbH will control actually consumed Storage, Power, Bandwidth, and Traffic. When exceeding the maximum Storage, Power, Bandwidth, and/or Traffic, Kubedo GmbH will charge this to the Customer. In addition, if the log files and records of Kubedo GmbH show compelling evidence of the excess of the amount of Storage, Power, Bandwidth, and/or data traffic, they are therefore definite, subject to proof by the Customer.
14.4 Bandwidth Fair Use Policy: The bandwidth provided by Kubedo GmbH should be used proportional over a month without any irregular bandwidth usage behavior. When the customer is not using its bandwidth according to the Fair Use policy, Kubedo GmbH is allowed to limit the speed or suspend the server.
Section 15. Availability of Services
15.1 Kubedo GmbH will strive to ensure and achieve uninterrupted availability of its systems and networks, and access to data stored by Kubedo GmbH and this guarantee has been defined in the standard SLA.
15.2 Kubedo GmbH will endeavor to maintain its software up to date. Nevertheless, Kubedo GmbH depends on its suppliers, and Kubedo GmbH is entitled not to install certain updates or patches if it deems that it does not benefit the proper delivery of the Service.
15.3 Kubedo GmbH will endeavor to ensure that the customer can use the networks that are directly or indirectly connected to the Kubedo GmbH network. Kubedo GmbH cannot at any time guarantee that these networks (of third parties) are available.
15.4 If in the opinion of Kubedo GmbH a hazard arises to the functioning of the computer systems or Kubedo GmbH network or third parties and/or services via a network, in particular by excessive e-mail sending or the sending of other data, poorly protected systems, or activities of viruses, trojans and similar software, Kubedo GmbH is entitled to take any measures which it reasonably considers necessary to avert or to prevent this danger.
Section 16. Personal Data and Confidentiality
16.1 Kubedo GmbH stores personal data for the following purposes: i) billing of services; ii) to analyse and identify the use of the scope of supply and the Kubedo GmbH network, and iii) to identify, detect and prevent abuse of the Services.
16.2 Except to the extent reasonably necessary for the purposes set out in the preceding paragraph, will Kubedo GmbH give the personal information to third parties except to the extent that Kubedo GmbH is legally required to do so.
16.3 Kubedo GmbH and the Customer will treat the information they exchange before, during, or after the execution of the Agreement as confidential information when it is marked as confidential or if the receiving party knows or should reasonably suspect that the information provided is confidential. Kubedo GmbH and the Customer impose this requirement on their employees and third parties hired by them to implement the Agreement.
16.4 Kubedo GmbH will not take cognizance of the store data and/or distributed by the Customer on systems of Kubedo GmbH, unless necessary for the proper execution of this Agreement or if Kubedo GmbH is obliged to do so under a statutory provision or court order. In that case, Kubedo GmbH will endeavor to limit the examination of the data as much as possible, to the extent within its power.
16.5 If Kubedo GmbH suspects that the personal information of the customer is incorrect, the customer is obliged to send a copy of its passport or identification card. This should contain a copy of the front and backside of the passport or identification card. In addition to this, the customer has to send a most recent utility bill, water bill, or home phone bill with matching personal information.
16.6 Insofar as Kubedo GmbH collects, processes and uses personal data from the sphere of the customer in the course of contract initiation, establishment and execution, this is done in accordance with the applicable statutory provisions on data protection, and in particular only within the scope of the purpose of the contract.
16.7 The customer will not process any personal data on IT systems for which Kubedo GmbH is technically responsible. If the customer commissions Kubedo GmbH with services in the context of which it cannot be ruled out that Kubedo GmbH comes into contact with personal data for which the customer is responsible, an order data processing agreement must be concluded.
16.8 Kubedo GmbH is entitled to refer to services to be provided or provided for the customer on its own website and in its own documents when providing references for advertising purposes and to use the customer’s logo and company (possibly abbreviated) for this purpose. In addition, Kubedo GmbH may publish press releases about the customer’s order and the project.
Section 17. Intellectual Property Rights
17.1 All intellectual property rights of any part of the developed or provided Service materials, software, analysis, designs, documentation, opinions, reports, quotations, and preparatory materials, rest solely with Kubedo GmbH or its licensors.
17.2 The Customer shall only acquire the user rights and responsibilities arising from the scope of the Agreement or that are granted in writing and otherwise, the Customer cannot reproduce or publish software or other material.
17.3 The Customer is not allowed to remove or alter any indication regarding copyrights, trademarks, trade names, or other intellectual property rights in the materials, including notices regarding the confidentiality and secrecy of the materials.
17.4 Kubedo GmbH is permitted to take technical measures to protect the materials. If Kubedo GmbH has secured the materials through technical protection, the Customer is not permitted to remove or avoid this protection.
17.5 Any use, reproduction, or publication of materials outside the scope of the Agreement or use issued, shall be regarded as a violation of copyright. The Customer will immediately be charged a fine that is not subject to judicial mitigation, of one thousand (1,000) Euros per infringing act, to be paid to Kubedo GmbH, notwithstanding the right of Kubedo GmbH to get its damage through the breach reimbursed or to undertake other legal action that may be taken in order to put the breach to an end.
Section 18. Modifications in Terms and Condition
18.1 Kubedo GmbH reserves the right to modify or supplement these terms and conditions.
18.2 Modifications also apply to existing agreements subject to a period of thirty (30) days after publication of the modification on the Website or by electronic notification of Kubedo GmbH Minor modifications may be made at any time.
18.3 If the Customer does not wish to accept a change in these conditions, he can terminate the agreement until the date when the new conditions apply, against this date.
Section 19. Decommissioning
19.1 Kubedo GmbH is entitled to decommission provided Services (temporarily) and/or limit their use if the Customer does not fulfill his obligations to Kubedo GmbH deriving from the Agreement or acts in violation of these Terms and Conditions. Kubedo GmbH will give prior notice to the Customer unless this cannot reasonably be expected of Kubedo GmbH The obligation to pay the amounts due to remains during decommissioning operations.
19.2 The service will be reactivated if the Customer meets his obligations on the subject within a period prescribed by Kubedo GmbH and has paid the amount of twenty-five (25) Euros for reactivating services.
19.3 Kubedo GmbH has the right to temporarily disable the provided Services for maintenance.
Section 20. Complaints
20.1 Objections in general and complaints about invoices should be made known to Kubedo GmbH in writing, within eight (8) days after receipt of the products or invoices, or within eight days after any defect in the product is discovered or detected, with a proper description the complaint. After the expiry of this period, Kubedo GmbH is deemed to have fulfilled its obligations properly, and it is assumed that the Customer acknowledges the products or invoices as correct.
20.2 Complaints never give the Customer the right to suspend payments.
20.3 If a complaint is justified by Kubedo GmbH, Kubedo GmbH has the right at its option;
a) to revise the invoice and to adjust the invoice amount accordingly;
b) to replace the delivery by one thing with the same specifications or to repair it, involving the handing over of the replacement products or parts to Kubedo GmbH;
b) to take back the delivery and dissolve the agreement, including a refund of the paid invoice to the Customer without any obligation to pay damages;
d) Customer shall provide Kubedo GmbH an appropriate opportunity to immediately repair any deficiencies;
e) any return of products to or from the Customer is at the expense and risk of the Customer. Kubedo GmbH only accepts product returns if and insofar as the return notice in writing or by e-mail has Kubedo GmbH’s consent and only where these products are delivered to the address indicated by Kubedo GmbH in the original packaging and in the condition Kubedo GmbH delivered these products to the Customer;
f) software whose seal is broken, can never be returned.
Section 21. Warranty
21.1 Kubedo GmbH guarantees the quality of its services provided to its best knowledge and ability and the relevance and quality of the products it sells, except that the guarantee does not exceed the following provisions mentioned.
21.2 On a performed repair a two (2) month warranty applies. On products supplied a two (2) year warranty applies unless agreed otherwise in the agreement.
21.3 If the Customer has contracted Kubedo GmbH for a repair and has not collected the issued case within three months after the issue date, or the due examination or repair amount has not been collected, the Customer shall be deemed to have waived the issued repair in favor of Kubedo GmbH. The Customer will then indemnify Kubedo GmbH against any claims by third parties relating to this matter.
21.4 The culpable errors, defects, or faults on behalf of Kubedo GmbH proven by the Customer that are covered by the warranty, where covered by the warranty described in this Section, shall be borne by Kubedo GmbH and repaired, replaced, or as soon as possible, or returned for credit.
21.5 The Customer must deliver eligible products for replacing or repair at his own account and risk to an address that is to be specified by Kubedo GmbH
21.6 For products with an attached certificate of guarantee other than that of Kubedo GmbH, insofar as it deviates from the conditions stated in these Terms and Conditions.
21.7 The Customer may not invoke the warranty if:
a) the Customer neglected the products;
b) Customer has made changes to the products, including any repairs that are not performed by or made on behalf of Kubedo GmbH;
c) improper or careless use, incorrect connection, wrong voltage, lightning, damage due to moisture or other external causes or calamities;
d) the unit is not maintained in the usual manner or as described in the user manual;
e) the device is used with unsuitable or incorrect accessories, and
f) if the Customer has an otherwise negligent proper treatment of the products.
Section 22. Subcontractors, Third Party Products
22.1. Kubedo GmbH may use subcontractors to provide the services owed. Kubedo GmbH ensures that the hosting service is provided from Germany.
Section 23. Final clause
23.1 If by court order one or more of these items will be declared invalid, all other sections of this agreement shall remain in full force and Kubedo GmbH and the Customer will conclude a new agreement in order to replace the invalid or void provisions for new provisions, taking into account as much as possible the purpose and intent of the invalid or void provisions.
23.2 For each agreement between the Customer and Kubedo GmbH only German law applies.
23.3 These General Conditions are filed at the Chamber of Commerce in Berlin. Applicable is always the last registered version or the version valid at the time of realization of the Agreement.
23.4 Kubedo GmbH reserves the right to issue a summons against the customer before another authorized court of law.
23.5 Should a provision in these general terms and conditions, the special terms and conditions or another contractual document be or become invalid, the validity of all other provisions shall not be affected.