General Terms and Conditions for the CloudEO AG Store
Section 1 – Scope
(1) The following General Terms and Conditions, as amended on the date of order, shall exclusively apply to the business relationship between CloudEO AG, of which the registered offices are located at Ludwigstrasse 8, 80539 Munich, Germany, registered with the District Court Munich Trade Registry under the No. 215923, VAT ID DE298735095 (hereinafter referred to as "CloudEO", "we", or "us") and you (hereinafter referred to as "Buyer", or "you").
CloudEO and Buyer are hereinafter also individually and collectively referred to as "Party" or "Parties".
(2) CloudEO will not accept different terms and conditions of the Buyer, unless their application had been approved by CloudEO in writing.
Section 2 – Contract Conclusion; Ordering Process; Policies
(1) Orders for products and services may be placed exclusively online at the website of the CloudEO Online Store. Before placing an order the Buyer may review and change the order data at any time. Orders of the Buyer constitute a binding offer to us to enter into a purchase agreement. However, orders may be placed and transmitted only, if the Buyer accepts these General Terms and Conditions by placing a checkmark in the appropriate check box, thereby including them into his offer. Once the Buyer has placed an order with CloudEO, we will send him an e-mail confirming receipt and listing details of the order (confirmation of receipt of order). This confirmation of receipt of order does not constitute acceptance of the offer, but is only intended to inform the Buyer that we have received his order. A contract of sale comes about only when we ship the ordered product to the Buyer and confirm shipping with a second e-mail (shipping confirmation). No contract of sale comes about for products or services from one and the same order not listed in the confirmation of receipt of order. CloudEO shall be the contracting party. The contract coming into effect subject to these General Terms and Conditions, including all exhibits pertaining thereto, is hereinafter also referred to as "Agreement". CloudEO does not offer products or services for purchase by minors and consumers.
(2) Your ordering process includes the following steps: Depending on the products or services you wish to order, we may first ask you to register certain company data. As a first step of the purchase order procedure you will choose the product or service you want to order. In a second step you enter your customer data including your billing address and, if applicable, delivery address. In a third step you choose your payment method and enter your respective payment data. In a fourth step you have the opportunity to check and, if required, amend all data you have entered. Finally you may order the product or service by clicking the respective order button.
(3) We will save the text of your order and the Agreement related thereto. You may print your order and the Agreement, if you click the respective print buttons during the final step of your ordering process.
(4) The agreements applicable to your purchase are available in English language.
(5) In order to protect the privacy of our customers we are seriously committed to comply with all applicable data protection laws. Any use of personal data is subject to our Privacy Statement as available at http://www.cloudeo-ag.com/privacy-policy. We are also committed to comply with our Company Policy as available at http://www.cloudeo-ag.com/company-policy.
Section 3 – Products and Services
(1) The products and services you purchase by concluding a contract of sale with us are specified in your order as confirmed by our confirmation of receipt of order. If you purchase a software license, certain geodata, results of geodata monitoring services or any other digital data, including any subscription services in relation to such products, you purchase a limited, non-exclusive and non-transferable license to use such software or data, as defined in your order and confirmed by our confirmation of receipt of order, and as further specified in this Agreement and any CloudEO or third party end user software license and/or subscription agreement pertaining to such product.
(2) If you purchase web services, including, but not limited to, access to certain software, geodata or geodata monitoring services, and the making available of storage space and/or an infrastructure for processing data, on a server hosted by CloudEO or any third party authorized by CloudEO to host such services, the Service Terms and Conditions as attached as Exhibit A hereto shall, in addition to these General Terms and Conditions, apply to such services. In the event of a conflict between the provisions of the Service Terms and Conditions and these General Terms and Conditions, the provisions of the Service Terms and Conditions shall control.
(3) Buyer acknowledges that the availability, quality and accuracy of current geodata are dependent on certain conditions, which are not under the control of CloudEO and/or its suppliers. In particular, the acquisition of geodata through aerial or satellite images is significantly influenced by weather conditions and acquisition capacity. Depending on such conditions, certain geodata may not always be available for delivery to Buyer. The quality of information extraction is particularly dependent on image quality and regional characteristics.
(4) Certain services are limited in time and by the volume of data included in a service. Any data volume unused will not be available anymore to Buyer beyond expiration of the time period applying to such services, and Buyer agrees that CloudEO does not owe to Buyer any compensation for such data volume unused.
Section 4 – Prices; Payment; Fees
(1) The prices of products or services listed on our website are exclusive of sales taxes, value added tax and import duties, shipping costs, and bank and credit card fees, which Buyer shall pay at the applicable rate (unless specified otherwise). Once your payment data has been entered, the total price will be indicated on the final cart page. This price includes all applicable taxes (including VAT). It includes the product's price as well as any shipping and delivery costs. Bank fees and fees, that become due when paying by credit card, are not included in the price listed on the confirmation of receipt of order.
(2) Payment becomes due upon purchase of the product or service except that for services which are subject to recurring payments of fees, payment of recurring service fees shall be due in advance on the third working day of each accounting period.
(3) CloudEO may change recurring fees by providing Buyer with thirty (30) days written notice in advance of the effective date of any change in such fees. In the event CloudEO increases such fees by more than five per cent (5%) Buyer may within thirty (30) days as of receipt of CloudEO's notice terminate the service upon two (2) months' notice to the end of the month; in case of such termination the fees remain unchanged.
Section 5 – Delivery
(1) Any products to be shipped to Buyer shall be delivered to Buyer or its carrier agent duty unpaid, and Buyer shall bear all applicable taxes, duties and similar charges that may be assessed after delivery to the carrier at CloudEO's or CloudEO's supplier's plant. Unless otherwise instructed in writing by Buyer, CloudEO or CloudEO's supplier shall select and instruct the carrier as to these agreed terms. All freight, insurance, and other shipping expenses, as well as any special packing expense, shall be paid by Buyer. Products shall be shipped CPT (Incoterms 2010) to the destination specified by Buyer in its order.
(2) Notwithstanding the foregoing, CloudEO reserves the right to fulfil software or digital data orders by making such products or services available to Buyer for download from a website designated by CloudEO, and (where applicable) by sending valid corresponding serial numbers for those products or services to Buyer. In this case, delivery shall occur when such electronic (remote) access to the products or services has been made available for download or has been made accessible via a link to Buyer, or (where applicable) valid corresponding serial numbers have been sent to the email address supplied by Buyer with the order. Where applicable, Buyer shall be responsible for importing products or services fulfilled electronically into the Buyer's country.
Section 6 – Warranties
If you purchase a product or a service, which is subject to statutory warranty laws, the following terms and conditions shall apply:
(1) In case of an obvious defect the Buyer shall promptly, in no event later than within ten (10) days as of receipt of the product, notify CloudEO in writing. In case of non-obvious defects the Buyer shall promptly, in no event later than within ten (10) days as of discovery of the defect, notify CloudEO in writing.
(2) In case of a defect CloudEO may in its own discretion eliminate such defect or provide a new product without a defect (hereinafter referred to as "Remedying a Defect"). In case of a delivery of software Remedying a Defect may include the delivery of an update or upgrade which does not have the defect, or a patch which eliminates the defect.
(3) If Remedying a Defect fails, Buyer shall be entitled to claim adequate reduction of the purchase price or, provided that the defect does not only impair the use of the product in accordance with the agreement insignificantly, withdraw from the respective contract. Such failure may only occur if CloudEO had been given sufficient and appropriate opportunities to remedy the defect within reasonable terms. The making available of a workaround as a preliminary solution shall be taken account of when calculating such reasonable terms.
(4) CloudEO provides no warranty for products or services which have been incorrectly used, serviced or installed by Buyer or third parties. In particular, CloudEO shall not be liable if a defect has been caused by the product's operation in a system environment which does not conform to the hardware and software systems which are specified in the product's documentation or as otherwise specified by CloudEO or its supplier.
(5) The liability for defects shall be statute barred after 12 months as of delivery of the product, or, if a product or service is subject to acceptance, as of acceptance, except that such limitation of the warranty period shall not apply to claims for damages and to liability in the event of fraudulent concealment of a defect.
(6) In the event of a defect of a third party product or service which has been resold by CloudEO to Buyer, Buyer's warranty claims under Subsections (2) and (3) above shall be subject to Buyer raising CloudEO's warranty claims against CloudEO's supplier. To that end CloudEO assigns its warranty claims to Buyer. Only to the extent that Buyer can enforce such claims neither out of court nor through court action, may Buyer also raise respective warranty claims, if any, against CloudEO. If Buyer's attempts to enforce warranty claims against the supplier have failed, Buyer shall reassign such warranty claims to CloudEO. Buyer shall keep CloudEO informed of any action it takes against a supplier in accordance with this Section 6 (6). CloudEO shall provide to Buyer all information and support, which are reasonably required by Buyer to raise warranty claims against a supplier, including detailed information on the warranty terms and conditions agreed upon between CloudEO and the supplier.
(7) Buyer may only claim damages on the grounds of a defect if and to the extent liability is not excluded or limited under Section 7 of these General Terms and Conditions.
Section 7 – Limitation of Liability
(1) Except for CloudEO's liability in accordance with statutory laws in the event of intent as well as in case of an injury to life, body and health, CloudEO's liability is restricted or excluded as follows: In case of negligence the liability of CloudEO towards Buyer is restricted to a reimbursement of typical, foreseeable damages. However, in case of slight negligence CloudEO shall only be liable for damages, if it infringed a duty the performance of which is necessary to adequately perform this Agreement, in particular, if taking account of both Parties' interests, a duty the performance of which is necessary to allow an adequate delivery of the products and services, and in the performance of which Buyer may trust.
Section 8 – Duration and Termination of services
(1) The duration of services purchased by Buyer, including subscription services and web services as specified in Exhibit A hereto, shall be specified in Buyer's order pertaining to such services as confirmed by CloudEO's confirmation of receipt of such order. Such order may provide that the services may be automatically renewed for certain successive periods. In the event that a service is subject to renewal either Party may terminate the service at the end of the initial or of any renewal period by notice given in writing not less than three (3) months before the date of expiry.
(2) Upon termination of a service any license to a product covered by the service shall automatically terminate on the next available expiry date and not renew, and Buyer's obligation to pay service fees shall expire, except for fees which are due for services provided prior to such expiry date.
(3) Nothing in this Agreement shall affect each Party's right to terminate the service for an important reason. A termination for an important reason shall include, but not be limited to, CloudEO's right to terminate the Agreement (i) if CloudEO's relationship with a third party partner who supplies a product covered by the services, or with a hosting provider whose services are required to make a product available, terminates or requires CloudEO to change the way CloudEO provides the services, (ii) if providing the services could create a material security risk for CloudEO, or (iii) in order to comply with the law or requests of governmental entities.
Section 9 – Confidentiality
(1) CloudEO and Buyer shall: (i) protect any information provided by the disclosing Party that is identified as confidential or that reasonably should be considered confidential; and (ii) use the information provided for the sole purpose of fulfilling its obligations under the respective contract.
Section 10 – Miscellaneous
(1) This Agreement is subject to German law with the exception of its conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded. The courts of Munich shall have sole jurisdiction over all legal disputes arising out of or in connection with this Agreement. CloudEO, however, shall remain entitled to commence court proceedings at any other statutory place of jurisdiction.
(2) Except as provided otherwise in this Agreement, neither this Agreement nor any rights and/or obligations hereunder may be assigned by either Party without the other Party's prior written consent, and any such assignment shall be void. Notwithstanding the foregoing, CloudEO may, without the consent of Buyer, assign this Agreement and any of its rights and/or obligations hereunder upon written notice to any of its affiliates or to an entity with or into which it is merged or consolidated or to which it sells all or substantially all its capital stock or assets associated with the operations related to this Agreement.
(3) Severability. If any portion of this Agreement is or becomes unenforceable or illegal, such portion shall be modified so that it is enforceable and legal and reflects, as closely as possible, the intent of the Parties or, if such modification is not possible, deemed eliminated, and the remainder of this Agreement shall remain in effect in accordance with its terms so modified.
(4) Entire Agreement. This Agreement completely and exclusively states the entire agreement of the Parties regarding the subject matter herein, and supersedes, and its terms govern, all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter.
Exhibit A to General Terms and Conditions for the CloudEO AG Store**
Service Terms and Conditions
These Service Terms and Conditions shall apply to Buyer's orders under the Agreement being subject to the General Terms and Conditions for the CloudEO AG Store. The General Terms and Conditions for the CloudEO AG Store are incorporated herein by reference. In the event of any conflict between the General Terms and Conditions for the CloudEO AG Store and these Service Terms and Conditions, these Service Terms and Conditions shall prevail.
Section 1 – Scope of Service Terms and Conditions
(1) These Service Terms and Conditions apply to all services provided by CloudEO to Buyer, including, but not limited to, the making available of storage space and/or an infrastructure for processing data, and of software or data owned by CloudEO and its licensors for use by Buyer through an internet connection. Such software or data together with any copies, revisions, modifications, updates, upgrades or enhancements thereto, as may be made available from time to time by CloudEO to Buyer, shall hereinafter be referred to as "Licensed Product(s)". The services as described in this Section 1 shall hereinafter be referred to as "Service(s)".
Section 2 – Making Available of Service
(1) Subject to an average of ninety-nine per cent (99%) network availability during one calendar year, CloudEO shall make available the Service on a server (hereinafter referred to as "Server") operated by CloudEO or any third party authorized by CloudEO to host the Service (hereinafter referred to as "Hosting Provider") for use by Buyer. CloudEO may at any time modify, update or upgrade the Service, or elect another Hosting Provider, provided the implementation of such amended Service or authorization of another Hosting Provider is reasonable and takes due account of Buyer's interests.
(2) Various license types for Licensed Products are described in Annex 1 to this Exhibit A (hereinafter referred to as "License Type(s)"). In the event that the Service includes the making available of a Licensed Product, CloudEO hereby grants to Buyer, subject to these Service Terms and Conditions and any other end user license agreement pertaining to a Licensed Product, and within the scope of the License Type specified in the Agreement, a limited, worldwide, non-exclusive and non-transferable license to display and operate the Licensed Product through the Server designated by CloudEO.
(3) The Service may be used by Buyer and its employees only. Any use by a third party shall be subject to CloudEO's written approval. Buyer shall not use the Service for the benefit or purposes of a third party whether by means of lease, loan, data processing services (e.g. service bureau or ASP services), time sharing arrangements or otherwise.
(4) Buyer hereby grants to CloudEO a non-exclusive, non-transferable license to access and reproduce Buyer data to the extent that such access and reproduction is necessary to fulfil CloudEO's obligations, including maintenance and support, under the Agreement. Such license may include the reproduction of data in a reserve data processing centre. If the calculation of fees owed by Buyer to CloudEO and/or by CloudEO to CloudEO's suppliers is based on certain data related to Buyer's use of Services, CloudEO may monitor and collect such data for the purpose of calculating such fees and/or measuring such data against the data reported by Buyer (if any). CloudEO may share such data with a CloudEO supplier only for the purpose of reporting, verification and settlement of fees owed by CloudEO to such supplier.
Section 3 – Access to Server; Security Measures; Acceptable Use; Back Up
(1) The Service shall include a firewall protecting the Server and network monitoring.
(2) Use of the Services requires an internet connection and an internet browser, as may be reasonably specified by CloudEO. Buyer shall be responsible for such internet connection and browser. CloudEO does not owe to Buyer the installation or maintenance of an internet connection from Buyer's computer to the exchange node operated and designated by CloudEO or Hosting Providers. Subject to reasonable prior notice to Buyer, CloudEO or Hosting Providers may change such exchange node at any time.
(3) To allow Buyer access to the Server for the purpose of using the Service, CloudEO shall provide to Buyer an access authorization which may consist of a user name and password or any other authorization tool as reasonably requested by CloudEO.
(4) Buyer shall maintain, and shall procure that any of its employees accessing the Server maintain, an adequate level of security measures in order to prevent unauthorized access to the Service. Such measures shall include Buyer's designation of a system administrator being in charge of and responsible for compliance with respective security standards, including measures ensuring that authorized employees leaving Buyer's company may not access the Service anymore as of the date of termination of their employment relationship with Buyer (or first day of release of duties during the notice period, if any). If an unauthorized access to the Service comes to the attention of Buyer, Buyer shall promptly notify CloudEO thereof. In the event Buyer cannot satisfactorily resolve any issue of unauthorized access, CloudEO may, in conjunction with any other remedies it may have under this Agreement or under statutory laws, suspend Buyer's access to the Service until the issue is resolved.
(5) Buyer shall not use the Services (i) to offer, for sale or otherwise, or to sell, any illegal or unlawful items or services which would be illegal or unlawful to sell in the jurisdiction in which it is sold or offered, (ii) to provision any content into the storage space that contains or constitutes illegal or unlawful content or promotes hate or incitements to violence, or the use of which infringes or misappropriates any third party's rights, or (iii) to perform any act which, directly or indirectly, causes to be transmitted to, uploaded by or downloaded by, the storage space or any end user any "junk mail," "spam," "chain letters," "pyramid schemes," or any other like form of solicitation. If Buyer becomes aware of any violation of this Section 3 (5), Buyer shall immediately notify CloudEO and provide CloudEO with assistance, as reasonably requested, to stop or remedy the violation.
(6) Buyer agrees to indemnify, defend and hold harmless CloudEO and CloudEO's officers, directors, shareholders, employees, accountants, attorneys, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party claims, arising out of or related to any alleged or actual breach of Section 3 (5) of this Agreement.
Section 4 – Temporary Suspension of Services
(1) Notwithstanding CloudEO's right of temporary suspension under other provisions of this Agreement and under the applicable law, Buyer's right to access or use any portion or all of the Services may be suspended immediately upon notice to Buyer if:
(a) Buyer's use of or registration for the Services (i) poses a security risk to the Services or any third party, (ii) may adversely impact the Services or the systems or content of any other customer of CloudEO or third party provider, or (iii) may subject CloudEO or any third party to liability;
(b) Buyer is in material breach of this Agreement; or
(c) Buyer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
(2) CloudEO's right to suspend Buyer's right to access or use the Services is in addition to CloudEO's right to terminate the Service pursuant to the General Terms and Conditions for the CloudEO AG Store.
Annex 1 to Exhibit A – License Types
For the purpose of this Annex 1 the following definitions shall apply in addition to the definitions set forth in the General Terms and Conditions for the CloudEO AG Store and Exhibit A thereto:
(1) Derivative Product (DP): Means any product, including derivative information, where data of the Geodata Product cannot be retrieved from the product neither directly nor by reverse engineering.
(2) Geodata Product: Means any geodata made available to Buyer in accordance with the Agreement and any updates, upgrades, enhancements or successor products thereof.
(3) Supplier: Means a supplier of Geodata Products which are made available or distributed through the Server in accordance with a Geodata Partner Agreement between CloudEO and such supplier.
(4) Product Delivery: Means delivery of Geodata Products, VAPs and DPs that enables a user to access such products in his IT-environment. Product Delivery may be realized through web-service, including, but not limited to, Web Map Service (WMS) and Web Feature Service (WFS), or any other access through application specific clients, or via download.
(5) Value-Added Product (VAP): Means any product based on the Geodata Product, where the Geodata Product is significantly modified through technical manipulation and/or addition of other data. The product may contain still significant data from the Geodata Product.
2. License Types
2.1 CloudEO Project Licence
(1) If the Agreement identifies the License Type as a CloudEO Project License, buyer has a license to use the Licensed Product on the Server for commercial or R&D projects.
2.2 CloudEO Service Development Licence
(1) If the Agreement identifies the License Type as a CloudEO Service Development Licence, Buyer has a time-limited licence to use the Geodata Product on the Server to develop Value Added Products or Derivative Products with the goal of subsequently offering these products as a commercial service. Under a Service Development Licence Buyer may in no event use a Licensed Product for commercial purposes. Neither Geodata Products nor any VAP or DP based on the Geodata Products may be downloaded or distributed under a CloudEO Service Development Licence. Buyer shall regularly and / or at CloudEO's request report to CloudEO in writing about the goals and status of the service developments based on the Geodata Products made available to Buyer. CloudEO may report such information to the Suppliers of such Geodata Products for the purpose of confirming to such Suppliers Buyer's compliance with the terms and conditions of the Geodata Product's use, and of determining, in CloudEO's and Supplier's sole discretion, licensing models for Buyer's commercial use of VAPs and DPs based on the Geodata Products. Buyer may at any time notify CloudEO of its intention to transfer the developed service to a commercial service operation on the Server under a CloudEO Service Operations Licence. Upon such notification CloudEO shall approach the Supplier of the respective Geodata Product in an attempt to agree with the Supplier on the commercial terms of such CloudEO Service Operations Licence as between CloudEO and Supplier. Only upon conclusion of such agreement may CloudEO grant a licence to Buyer for commercial service operation.
2.3 CloudEO Service Operations Licence
(1) If the Agreement identifies the License Type as a CloudEO Service Operations License, Buyer has a license to use the Services and Licensed Products for production, selling and Product Delivery of VAPs and DPs.