T&C

Below we inform you about our general terms and conditions for the use of our SaaS services as of November 3, 2018:

1. These General Terms and Conditions (hereinafter referred to as "GTC") shall govern the contractual relationship for the use of the services provided by wintercloud GmbH & Co KG, Emil-Maier-Straße 16, D-69115 Heidelberg, Germany, (hereinafter referred to as "Provider") and the persons ordering and using the service (hereinafter referred to as "Customer"). You can find detailed information about the Provider in our Imprint.
   The General Terms and Conditions in the version valid at the time of the Customer's order apply. The Provider and the Customer are each hereinafter referred to as “Party” and jointly referred to as the “Parties”.

2. The Provider exclusively offers the use of its service for entrepreneurs within the meaning of Section 14 German Civil Code [Bürgerliches Gesetzbuch − “BGB”]. By ordering the services, the Customer expressly assures that he/she uses these in the context of his/her commercial or freelance activity.
   The Customer is not entitled to a right of withdrawal, since the Customer does not conclude this legal transaction as a consumer, but as an entrepreneur.

3. There are no oral side agreements between the Parties. These GTC shall apply exclusively. Any and all terms and conditions of the Customer deviating from or conflicting with these GTC shall be excluded; this shall also apply if the Provider has not expressly objected to the terms and conditions of the Customer.

1. These GTC apply to the provision of software and the use of the Provider's SaaS (Software as a Service) services. The current range of services and a detailed product description can be found both on the Provider's website and in Annex I to these GTC.

2. The software is operated by the Provider as a web-based SaaS or cloud solution. The Customer is enabled to use the software stored and running on the servers of the Provider or of a service provider commissioned by the Provider via an Internet connection for his/her own purposes during the term of this contract and – depending on the service ordered and used – to store and process his/her data by using the software.

1. The Provider offers the Customer the choice between a free basic service and a fee-based service. Registration for the basic service is free of charge for the Customer. The fee-based service offers the Customer a significantly extended offer in return for a monthly usage fee.

2. For the free basic service, the following applies: The Provider is entitled to improve, change and, if necessary, discontinue the free basic service and the associated services at any time and without notice, provided that this is reasonable for the Customer. The Provider provides the free service and services including the associated software "as they are" and assumes no warranty for any defects (see Section 11). The Customer, who only uses the free basic service, has no claim to the availability of the services and the software (see Section 5), on data backup (see Section 6), and support (see Section 7).

3. For the fee-based service, the following applies: The Provider provides the Customer with a current version of the software for use at the router exit of the data center where the server running software is located ("Transfer Point"). The software, the computing power required for use and the storage and data processing space required are made available by the Provider. However, the Provider does not owe the establishment and maintenance of the data connection between the Customer's IT systems and the described Transfer Point.

1. By registering on the Provider's website with his/her name, e-mail and company, the Customer submits an offer to conclude a contract for the use of the Provider's SaaS services.

2. The Provider will then send the Customer an automatic confirmation of receipt by e-mail. The automatic confirmation of receipt only documents that the order of the Customer has been received by the Provider and does not represent an acceptance of the offer to conclude the contract.

3. The Provider will check the corresponding registration. In a next step, the user will receive a confirmation e-mail with his/her access data. Upon receipt of the confirmation e-mail, the contract shall be deemed concluded.

4. There is no right to the conclusion of the contract or to a permission to use the Provider's services. The Provider can reject the order or the offer of a Customer without giving reasons.

1. The Provider draws the Customer's attention to the fact that restrictions or impairments of the services provided may arise which lie outside the Provider's sphere of influence. This includes in particular, but is not limited to, actions of third parties who do not act on behalf of the Provider, technical conditions of the Internet that cannot be influenced by the Provider, and force majeure. The hardware, software, and technical infrastructure used by the Customer can also influence the services provided by the Provider. Insofar as such circumstances influence the availability or functionality of the service provided by the Provider, this has no effect on the contractual conformity of the services provided.

2. The Customer is obliged to report functional failures, malfunctions or impairments of the software to the Provider immediately and as precisely as possible. Should the Customer fail to cooperate, Section 536c BGB shall apply accordingly.

3. Customers who only use the Provider's free basic service do not have the right to the availability of the software.
   Customers who use the fee-based service are subject to a special Service Level Agreement (SLA), in which the availability of the software is described in detail; the SLA can be found in Annex II to these GTC.

1. As a general rule, the Customer is responsible for the backup of his/her data, unless this is expressly part of the service of the Provider.

2. Customers who only use the Provider's free basic service are not entitled to backups of their data.
   For Customers using the fee-based service, backups or backups of their data are carried out in accordance with the following provisions.

3. The Provider secures the Customer's data on the server under its responsibility by means of regular backups. As far as technically possible, the Customer can download this data at any time for its own backup purposes and is obliged to do so at regular intervals (see also Section 9 (2) and Section 12 (6)).

4. The Customer grants the Provider the right to reproduce the data to be stored by the Provider for the Customer for the purposes of contract execution, insofar as this is necessary for the provision of the services owed under this contract. The Provider is also entitled to store the data in a failure system or a separate failure computer center. The Provider is also entitled to make changes to the structure of the data or the data format in order to eliminate malfunctions.

1. Customers who only use the Provider's free basic service are not entitled to support.
   Customers who use the fee-based service, can benefit from support in accordance with the following regulations.

2. It constitutes a support case if the software does not fulfill the contractual functions according to the product description.

3. If the Customer reports a support case, he/she must provide a description of the respective malfunction as detailed as possible in order to enable the Provider to provide troubleshooting as efficiently as possible.

4. The reports must be sent by e-mail; these will be viewed and processed depending on the support level booked by the Customer.

5. A current and detailed description of the Provider's support can be found in Annex III to these GTC.

1. Customers, who only use the free basic service of the Provider, do not owe any fee.
   Customers, who use the fee-based services undertake to pay the Provider the agreed monthly fee plus statutory VAT for the provision of the software and the granting of the storage place. Unless otherwise agreed, the fee shall be based on the price list of the Provider valid at the time the contract is concluded; the price list can be found both on the Provider’s website and in Annex I to these GTC.

2. The Customer shall raise any objections against the accounting of the services rendered by the Provider in writing within a period of eight weeks after receipt of the invoice; the objections shall be sent to the recipient indicated on the invoice. After expiry of the aforementioned period, the invoice shall be deemed to have been approved by the Customer. In its invoice, the Provider will draw the Customer's attention to the significance of his/her reaction.

1. The Customer shall support the Provider in the provision of the contractual services to an appropriate extent.

2. The Customer is responsible for the proper and regular backup of his/her data. This shall also apply to documents provided to the Provider in the course of the execution of the contract.

3. For the use of the software, the Customer’s system must comply with the system requirements set forth in the product description. The Customer bears the responsibility for his/her compliance.

4. Insofar as the Customer entrusts the Provider with protected content (e.g. graphics, trademarks, and other contents subject to copyrights or trademarks), he/she grants the Provider any and all rights necessary for the performance of the contractual agreement. This includes in particular, but is not limited to, the right to make the corresponding contents accessible to the public. In this context, the Customer assures that he/she possesses any and all necessary rights to the customer material provided in order to be able to grant the Provider the corresponding rights.

5. The Customer must keep the access data made available to him/her secret and ensure that any and all employees who gain access to the access data also comply with this obligation. The Provider's service must not be made available to third parties unless expressly agreed by the parties.

1. In general, the Provider uses open source software for its services. Accordingly, the Customer shall keep this in mind when using the software. Insofar as the software runs exclusively on the servers of the Provider or of a service provider commissioned by the Provider, the Customer generally does not need any copyright rights to the software and the Provider does not grant any such rights.

2. Should licenses be required for the use of software; the Provider will expressly point this out. The Customer has the option of using licenses already purchased within the scope of the Provider's services ("bring your own license").

1. The Provider makes the free services including the associated software available "as they are" and assumes no warranty for any defects. In particular, the Provider does not guarantee that the use of the services, including the software, meets the needs of the Customer and will be available at all times, as well as safe and error-free; furthermore, the Provider does not guarantee that any errors are eliminated and that any and all information made available within the scope of the service is available at all times, as well as precise, on time, accurate, and complete.

2. The Provider is not liable for damages resulting from unsuitable, improper or non-compliant use of the services, including the software, and those damages outside the Provider's area of responsibility. In particular, the Provider assumes no liability for modifications to the software modules made by the Customer or a third party.

3. Regardless of the legal grounds, the Provider, its legal representatives or vicarious agents shall only be liable for damages caused intentionally or by gross negligence, or if the damage is caused by the Provider, its legal representatives or vicarious agents by culpable conduct resulting in an injury to life, limb or health, if a defect was fraudulently concealed, or in the case of culpable breach of an essential contractual main or cardinal obligation. A "cardinal obligation" within the meaning of this provision is an obligation of the Parties, the fulfillment of which renders the proper performance of the contractual relationship between the parties possible, the breach of which endangers the achievement of the purpose of the contract, and the observance of which the Parties regularly rely on.

4. In the event of a breach of an essential primary obligation under the contract or a cardinal obligation, which results from simple negligence, the liability of the Provider is generally excluded in accordance with Section 521 BGB, and, at any rate, shall be limited to the typical, foreseeable damage.

5. Any further liability of the Provider shall be excluded. The liability pursuant to the German Product Liability Act [Produkthaftungsgesetz − “ProdHaftG”] remains unaffected by these GTC.

1. As a general rule, the legal regulations for warranty in rental agreements shall apply. The Sections 536b BGB (Lessee knows of the defect upon entering into the agreement or upon acceptance), 536c BGB (Defects occurring during the lease period; notice of defect by the lessee) shall apply. However, the application of Section 536a (2) BGB (lessee’s right to remedy the defect) shall be excluded. Furthermore, the application of Section 536a (1) BGB (liability of the lessor for damages) shall also be excluded, insofar as the standard provides for liability without fault.

2. Without any limitation, the Parties shall be liable to each other in case of intent or gross negligence for any and all damages caused by them, their legal representatives or vicarious agents.

3. The Parties shall be liable without limitation in the event of injury to life, limb or health caused by slight negligence.

4. In all other respects, a Party shall only be liable if it has violated an essential contractual obligation. Essential contractual obligations are those obligations which are of particular importance for the achievement of the contractual objective, as well as all those obligations which, in the event of a culpable breach, may endanger the achievement of the contractual objective. In these cases, the liability is limited to the compensation of the foreseeable, typically occurring damage. The strict liability of the Provider for damages (Section 536a BGB) for defects existing at the time of conclusion of the contract shall be excluded; subsections (2) and (3) of this provision remain unaffected by this.

5. The liability pursuant to the German Product Liability Act remains unaffected by this.

6. If damage to the Customer results from the loss of data, the Provider shall not be liable for this if the damage could have been avoided by a regular and complete backup of all relevant data by the Customer. The Customer will carry out a regular and complete data backup himself/herself or through a third party or have it carried out and is solely responsible for this.

1. Depending on the service ordered and used, the Provider stores content and data for the Customer, which the Customer enters and stores when using the software and which the Customer makes available for retrieval. Vis-à-vis the Provider, the Customer undertakes to refrain from posting any criminal content and data or any other illegal content and data, either in general or in relation to individual third parties, and to refrain from using any programs containing viruses or other malware in connection with the software. In particular, he/she undertakes to refrain from using the software to offer illegal services or goods.

2. The Customer is solely responsible for any and all contents and processed data used by him/her or his/her users as well as for any legal positions required for this. The Provider is not aware of the contents of the Customer or his/her users and does not check the contents used with the software.

3. In this context, the Customer undertakes to indemnify the Provider from any liability and any costs, including possible and actual costs of legal proceedings, and to hold the Provider harmless if the Provider is held liable by third parties, including the own employees of the Customer, as a result of alleged actions or omissions of the Customer. The Provider will inform the Customer about the claim and, as far as this is legally possible, give him/her the opportunity to defend against the asserted claim. At the same time, the Customer shall immediately provide the Provider with any and all information available to him/her about the facts forming the basis of the claim.

4. Further claims for damages by the Provider shall remain unaffected.

1. The contract is concluded for an indefinite period. The contractual relationship begins with the registration by the Customer and can be terminated by both Parties at any time in writing with a period of 7 days to the end of a month.
   Customers who only use the free basic service of the Provider can terminate the contractual relationship at any time without observance of a period of notice.

2. The right of each Party to terminate the contract without notice for good cause remains unaffected. In particular, the Provider shall be entitled to terminate the contract without notice, if the Customer fails to make due payments despite a reminder and a grace period or violates the contractual provisions on the use of the SaaS services. In any case, termination without notice presupposes that the other Party is reminded in writing and requested to eliminate the alleged reason for termination without notice within a reasonable period of time.

3. After termination of the contract, the Provider shall delete any and all data stored by the Customer, unless storage obligations or rights need to be observed.

1. The Parties are obliged to keep secret any and all information about the other Party which has already become known to them or becomes known to them in connection with this contract and which is marked as confidential or is recognizable by other circumstances as business and trade secrets (hereinafter referred to as "Confidential Information") for an indefinite period of time, furthermore, to refrain from passing it on to third parties and from recording or otherwise exploiting it in any other way, unless the other Party has expressly consented in writing to its disclosure or use or unless the information must be disclosed by law, court order or administrative decision.

2. The information shall not constitute Confidential Information within the meaning of this subsection if it

   • was previously known to the other Party without the information having been subject to any confidentiality obligation,

   • is generally known or becomes known without violation of the assumed confidentiality obligations,

   • is disclosed to the other Party by a third party without breach of any confidentiality obligation.

3. The obligations under this subsection shall also apply after termination of the contract.

1. The Provider complies with the statutory data protection provisions and in particular with the requirements of the General Data Protection Regulation (GDPR). Detailed explanations on data privacy can be found on the Provider's website under: https://wintercloud.de/en/data-privacy/

2. With regard to personal data of himself/herself and his/her users, the Customer is the responsible body and must therefore always check whether the processing of such data on the use of the software is based on corresponding permissions.

3. If and insofar as the Customer processes personal data of third parties on IT systems for which the Provider is technically responsible, a data processing contract in compliance with Art. 28 GDPR is required. In accordance with Art. 28 (9) GDPR, the Provider shall provide a contract in electronic form for this purpose.

1. The Provider is entitled to change or amend the GTC subsequently. In this case, the Provider shall inform the Customer of the changes in writing or text form. If the Customer does not object within one month of receipt of the notification of the change, the changed conditions shall become part of the contract. In the event of an objection, the original provision shall apply. In the notification, the Provider shall inform the Customer of the deadline and the consequences of non-compliance with it.

2. Insofar as the Provider makes new services available, they can be based on supplementary general terms and conditions.

1. The contractual relationship between the Parties shall be governed by German substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

2. There are no side agreements to this agreement. Changes or additions to this agreement must be made in writing to be effective. This also applies to the waiver of the written form requirement.

3. To the extent permitted by law, the Parties agree that the regional court of Heidelberg (Germany) shall have exclusive jurisdiction over any and all disputes arising out of or in connection with this Agreement.

We offer the following SaaS services:

• GitLab Runner as documented (https://docs.gitlab.com/runner) and implemented (https://gitlab.com/gitlab-org/gitlab-runner) in the following versions:

  • Basic configuration
    Performance: 2GB RAM, 2CPU cores, 1 concurrent execution, server location Frankfurt at the Swiss cloud provider Exoscale
    Price: free

  • Customer configuration
    Performance: according to customer requirements
    SLA: for detailed description see Annex II
    Price: upon request to contact@wintercloud.de

We offer SLAs for the following services:

• GitLab Runner with 98% service availability

We have set ourselves the goal of offering you an uninterrupted service as far as economically feasible and do not want to fall short of the service availability described above, with the exception of the following causes:

• Planned and announced maintenance windows from us or our cloud providers

• Events of force majeure beyond our control

• Error in third-party software on which our Software as a Service service is based

Should we fail to comply with the service availability, you are entitled to request a refund. The amount of the service reimbursement will be based on the actual service availability per month and will be divided into the following categories:

• Service availability per month equal to or greater than 96% but less than 98%: 10% service refund

• Service availability per month less than 96%: 50% service refund

The application must be submitted at the latest in the month following the service failure and must be addressed to contact@wintercloud.de. The request must include the downtime (date and time) and the service in question.

The support levels described below are optional and apply to any service booked by the Customer. At present, we offer the following support levels:

• Standard
  Service: Response during business hours; response time within 2 working days
  Price: upon request to contact@wintercloud.de

Support requests shall be directed to support@wintercloud.de.
Business hours are from 9 am to 6 pm on working days. Working days are Monday to Friday except for public holidays in the federal state of Baden-Württemberg.