GTC / SLA – SysEleven Stack

Preamble:

SysEleven GmbH (hereinafter referred to as “SysEleven”), Boxhagener Str. 80, 10245 Berlin, Germany, provides cloud computing services (Infrastructure as a Service, or “IaaS”). This includes compute resources, volume storage and floating IPs (FIPs), which can be controlled via the SysEleven Stack API. The client (hereinafter referred to as “the Client”) would like to make use of these services in accordance with the following contractual terms and conditions.

 

1.     Conclusion of the contract and scope

1.1.       A contract shall be deemed to be concluded if SysEleven accepts, by means of an order confirmation email, the order placed by the Client on the basis of a quote prepared by SysEleven (hereinafter referred to as “the Contract” regardless of whether one or more contracts are  concluded).

1.2.       The services provided by SysEleven are not intended for consumers within the meaning of Section 13 of the German Civil Code (BGB).

1.3.       These contractual conditions apply exclusively to the contractual relationship between SysEleven and the Client. Any general terms and conditions prepared by the Client shall not apply. Counterclaims made by the Client with reference to its own general terms and conditions shall be expressly rejected if such terms and conditions differ from these contractual conditions or contain provisions which conflict with those laid down herein.

2.     Object of the contract

2.1.       The object of this Contract is the provision of infrastructure and server capacity (Infrastructure as a Service, or “IaaS”) for the purposes of offering content on the cloud. Details concerning the scope and content of the specific service/services to be provided by SysEleven can be found in the appendices to this Contract.  The Client is obliged to procure the minimum amount stipulated in the quote or service certificate.

2.2.      SysEleven shall keep the infrastructure capacity booked by the customer ready for use in accordance with point 3. SysEleven cannot be held responsible for the success of the respective means of accessing the content made available to the Client via the infrastructure, unless problems are caused exclusively by the network operated by SysEleven, including the interfaces maintained by SysEleven to third-party networks.

2.3.      The Client shall gain access to the SysEleven Stack API (hereinafter referred to as “the Interface”), via which it can create its own setups as well as start and stop virtual systems. The Client must treat the access data to the Interface as confidential. The Client shall inform SysEleven without delay if it discovers that its access data are being used by unauthorised parties and should take reasonable measures to prevent unauthorised parties from using the data.

 

 3.     Availability

3.1       Unless agreed otherwise, the SysEleven Stack API shall be available for 99.9% (732 hours) of the month less the time required for the installation of updates, upgrades, new releases and/or other modifications, provided that redundant capacities are booked. If this is not the case, SysEleven shall not guarantee any specific availability.

3.2       SysEleven hereby draws the Client’s attention to the fact that the services it provides may be limited or impaired by factors beyond its control. In particular, these factors include the actions of third parties not acting on behalf of SysEleven, technical matters affecting the internet which are beyond SysEleven’s control and force majeure. The hardware and software or technical infrastructure used by the Client may also have an influence on the services provided by SysEleven. In the event of such circumstances having an impact on the availability or functionality of the services provided by SysEleven, this shall have no effect on the need for the services rendered to comply with the Contract. Malfunctions due to the aforementioned reasons shall not limit the contractual availability.

3.3       The Client is obliged to inform SysEleven immediately and as precisely as possible in the event of malfunctions, interruptions or limitations to the services. If the Client fails to report such incidents, Section 536 c of the German Civil Code (BGB) shall apply accordingly. Such limitations are to be reported via a ticket system, which can also be accessed by e-mailing cloudsupport@syseleven.de. To ensure support is received promptly, emergencies must also be reported by telephone on the respective up-to-date support number given to the Client. Telephone messages are received around the clock on +49 30 233 2012 700.

3.4       If SysEleven fails to comply with the availability obligation outlined above, the Client shall also be entitled to service vouchers as follows:

3.4.1    Reimbursable unavailability is the number of commenced minutes for which the SysEleven Stack API cannot be used, not including the circumstances described in points 3.1 and 3.2 above.

3.4.2    For every commenced minute of unavailability cumulated monthly, the Client shall automatically receive a service voucher in the following month for a percentage of the monthly fee to be paid, amounting to:

  • 10% of the fees payable monthly for the use of the SysEleven Stack Compute if the average availability of the storage systems in the month concerned was 99.0% or higher
  • 25% of the fees payable monthly for the use of the SysEleven Stack Compute if the average availability of the storage systems in the month concerned was less than 99.0%

If a termination becomes effective before the invoice is issued, the voucher shall be forfeited.

 

4.      Obligations of the Client

4.1.       The Client is obliged to provide SysEleven with the assistance it needs to render the agreed services. In particular, the Client shall provide free of charge all the necessary information and documents and shall appoint a sufficiently qualified point of contact with a sufficient level of authorisation for the execution of the contract. The information and documents provided shall form an essential basis for the services rendered by SysEleven. The Client shall be liable if it provides erroneous or incomplete information.

4.2.       The Client shall take steps to keep data and information secure. This includes data and information which it processes on IT systems for which SysEleven is responsible. SysEleven shall not create any backups of the Client’s systems or data.

4.3.       The Client hereby agrees vis-à-vis SysEleven that it will not make any criminal content or data available via the SysEleven systems or any content or data which is otherwise completely unlawful or unlawful in relation to individual third parties. The Client shall be the responsible controller of the personal data and must therefore always check whether the processing of such data on the software is actually permitted.

4.4.       SysEleven shall not be required to provide its contractual services if and to the extent that the Client does not fulfil its obligations in accordance with this Contract. In such cases, SysEleven reserves the right to block the Client’s access to the Interface on a case-by-case basis and/or to shut down the Client’s running systems if this is necessary for the purposes of preventing a hazard. If the Client is responsible for breaching its obligations and if SysEleven incurs damages as a result, the Client shall be required to compensate for these damages.

4.5.       If the Client is culpable for breaching its obligations, it is obliged in this context to release SysEleven from any liability and to indemnify it against any costs, including possible and actual costs of legal proceedings if claims are made against SysEleven by third parties, including individual employees of the Client, as a result of alleged acts performed by or omissions made by the Client. SysEleven shall inform the Client of the claim and, provided that doing so is legally permissible, shall give it the opportunity to defend itself against the claim. At the same time, the Client shall immediately provide SysEleven with absolutely all of the information available to it concerning the circumstances surrounding the subject matter of the claim. Any additional claims for damages shall remain unaffected by this.

 

5.     Fee, payment and invoicing procedures

5.1.       The services shall be invoiced according to the booked quotas or by hour and equipment used. Booked quotas and agreed flat rates shall be charged for monthly in advance, while services billed according to the actual level of use or outlay shall be charged for retrospectively by hour commenced. The prices shall be in line with the price list valid on the date on which the Contract was concluded.

5.2.       Unless indicated otherwise, all prices stated by SysEleven do not include the applicable statutory value-added tax. The fees shall be in line with the price list valid on the date on which the contract was concluded. Additional chargeable services which the Client also decides to make use of following the conclusion of the Contract shall be charged for in accordance with the price list valid at this time or by agreement between the parties.

5.3.       In the case of fixed-term Contracts, SysEleven may – following the expiry of the initially agreed term – adapt its prices and its rates for services agreed to be paid for on the basis of actual use in line with general price trends. If the increase in fees is greater than 5%, the Client may terminate the contractual relationship with a notice period of five working days. The notice of termination must be given within 14 days of the Client being informed of the price increase.

5.4.       The provisions laid down in point 5 shall also apply accordingly to the agreed partial performance of services and partial invoices.

5.5.       Invoices shall be sent electronically in PDF format. A fee shall be charged for dispatch by post.Invoices must be paid in full immediately on receipt. The definition of what constitutes a delay in payment and the consequences of such a delay shall be in line with statutory provisions. If a payment owed by a Client is more than three months overdue or has been requested for the third time, SysEleven reserves the right to stop providing its services or to block the Client’s access to its services. If part of an invoice is being disputed, the undisputed amount must always be paid in full.

5.6.       Both parties to the Contract may only offset payments against payment requests which are legally binding or undisputed and against such payment requests which have originated from the same legal relationship and have developed from a claim which the party to which the counterclaim is due would be entitled to use to assert a right of retention or a right to refuse to perform service

 

6.     Liability

6.1.       SysEleven shall be liable in accordance with statutory provisions for damages incurred by the Client as a result of intent or gross negligence, the service concerned lacking a guaranteed feature, a culpable breach of essential contractual obligations (known as cardinal obligations; see point 6.2 below), the consequences of damage culpably caused to a person’s health, culpably caused physical injury or loss of life. Further, it shall be liable in accordance with statutory provisions for damages for which provision is made under the German Product Liability Act (Produkthaftungsgesetz).

6.2.       Cardinal obligations are contractual obligations which are a prerequisite for the due implementation of the Contract in the first instance and upon the fulfilment of which the party to the Contract can routinely rely. Conversely, the breach of cardinal obligations may put the achievement of the purpose of the Contract in jeopardy.

6.3.       Provided the damage is caused merely by ordinary negligence and does not involve harm to a person’s health, physical injury or loss of life, SysEleven’s liability shall be limited to damage which is foreseeable and which can typically be expected within the context of contracts such as that concluded between SysEleven and the Client.

6.4.       Liability due to interruptions, incidents or any other loss-causing events resulting from telecommunications services provided by SysEleven or third parties for which SysEleven is liable shall be limited to the extent of SysEleven’s possible recourse against the telecommunications service provider in question. SysEleven shall not be held liable for the functionality of the lines providing a connection with the servers forming the object of this Contract, nor shall it be liable in the event of power failures or server outages beyond its sphere of influence.

6.5.       The Client is not entitled to make any claims due to a loss of profit.

6.6.       SysEleven’s liability for loss of data shall be limited to the typical cost of data recovery which would have been unavoidable even if the Client had made backups commensurate with the risk on a regular basis.

6.7.       SysEleven and its vicarious agents shall not be held liable in any other respect irrespective of the legal grounds.

 

7.      Subcontractors, products provided by third parties

SysEleven may appoint subcontractors to provide the services due. In doing so, SysEleven shall ensure that sufficient infrastructure is available in Germany.

 

8.      Confidentiality

8.1.       The Client agrees to keep permanently confidential all information about SysEleven which has come or will come to its attention in connection with this Contract and which is marked as confidential or, in view of other circumstances, is clearly a trade or company secret (e.g. the design and implementation of programming work by SysEleven and other technical and technological knowledge of SysEleven; hereinafter referred to as “Confidential Information”), not to disclose such information to third parties, nor to record it or use it in any other way, unless SysEleven gives its express and written consent for this information to be disclosed or used or the information has to be disclosed by law or under a court ruling or administrative decision.

8.2.       Where appropriate, the Client shall make suitable contractual agreements with its employees and any other people working for it to ensure that these individuals also refrain from disclosing, using, passing on or recording the Confidential Information in any way.

8.3.       Information shall not be regarded as Confidential Information within the meaning of point 8 if it

  • was already previously known to the Client without being subject to any confidentiality obligations,
  • is public knowledge or becomes public knowledge without the confidentiality obligations assumed being breached,
  • is disclosed to the Client by a third party without any breach of a confidentiality obligation.

8.4.       SysEleven may terminate the Contract for good cause if the Client breaches one of the obligations laid down in this clause. In such an event, SysEleven reserves the right to assert further and more extensive claims, in particular claims for compensation.

8.5.       The obligations laid down in point 8 shall remain in place even once this Contract comes to an end.

 

9.      Use of the Client’s details for advertising purposes

When providing lists of existing clients for advertising purposes on its own website or in its own documents, SysEleven may indicate the services which are to be or have already been provided for the Client and may also use the Client’s logo and company name (abbreviated if necessary) for this purpose. In addition, SysEleven may publish press releases about the Client’s order and the project.

 

10.   Data protection

10.1.     If SysEleven collects, processes and uses personal data from within the Client’s sphere during the negotiation, formulation and execution of the Contract, it shall do so in accordance with the applicable statutory provisions on data protection and, in particular, shall only do so within the scope of the purpose of the Contract.

10.2.     The Client shall not process any personal data on IT systems for which SysEleven is technically responsible. If the Client commissions SysEleven to perform services in the context of which it cannot be ruled out that SysEleven will come into contact with personal data for which the Client is responsible, an agreement on the processing of project data shall be concluded.

 

11.    Duration, termination

11.1.      Unless agreed otherwise for individual services, the minimum term of the Contract shall be 24 months from the date on which the Contract is signed. The term shall continue to be extended by an additional twelve months unless the Contract is terminated in writing after the expiry of the minimum term with a notice period of six months to the end of the month. If the Client makes use of designated on-demand services, no minimum Contract term shall apply.

11.2.     This shall not affect the ability of SysEleven or the Client to terminate fixed-term contracts in writing if the respective other party continues to breach essential contractual obligations despite having received a written warning from the other party to the Contract, persists in violating the Contract even after a reasonable period of time, and it cannot be reasonably expected for the party terminating the Contract to continue the contractual relationship until such a time when it may terminate it ordinarily as outlined above.

11.3.     The right to terminate the Contract for exceptional reasons shall remain unaffected by this.

 

12.   Procedure following the termination of the Contract

12.1.     If this agreement is fully or partially terminated, SysEleven shall be required to hand over to the Client, or destroy at the Client’s request, all data, documents and materials in its possession which contain business, organisational or technical data or information from or concerning the Client. This shall not apply if the information is required to be kept by law, constitutes SysEleven’s intellectual property, or if the data, documents, etc. to be handed over or destroyed are still required by SysEleven for it to continue executing the Contract.

12.2.     SysEleven shall continue to be entitled to receive payment for its work in the form of its monthly fee and shall continue to be reimbursed for all other costs until the systems are definitively shut down. Depending on the individual case, it may be agreed that the fee to be paid for each calendar month, the agreed level of availability and the guarantee conditions be reduced for this period.

12.3.     Following receipt of the written notification that the Client has been able to read and process all the data transferred, the data stored on the systems at SysEleven’s data centre shall be deleted and SysEleven shall inform the Client of this deletion in writing.

 

13.   Non-solicitation clause

The Client agrees for the duration of this Contract not to employ, hire or poach any individuals employed by SysEleven or working for it in any other way or to make any attempt to do so.

 

14.   Miscellaneous

14.1.     If the Client is a business person within the meaning of German commercial law, a legal entity under public law or a special fund under public law, the place of fulfilment of all obligations arising from the respective Contract shall be SysEleven’s registered office.

14.2.     The Contract shall be governed exclusively by the law of the Federal Republic of Germany. The application of German private international law and the Rome I and Rome II EC regulations is hereby excluded.

14.3.     If the Client is a business person within the meaning of German commercial law, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for any legal disputes arising directly or indirectly from or in connection with the contractual relationship shall be Berlin. This shall also apply in the event of proceedings concerning cheques or bills of exchange.

14.4.     If a provision of this Contract is or becomes ineffective, this shall not affect the effectiveness of any of the remaining provisions.

 

Last updated: December 2018