1. Field of application
1.1 The general terms and conditions of the elastic.io GmbH (hereinafter also: “we”/”us”) are not applicable as far as differing provisions are agreed upon between us and the customer by individual agreement. Otherwise these general terms and conditions are applicable as follows.
1.2 These general terms and conditions are applicable for companies and, as far as their business activities require a commercially organised business, legal persons under public law and special assets under public law. Elastic.io only signs agreements with companies, legal persons under public law and special assets under public law. Upon ordering clients warrant that their contracting party meets these requirements. With reasonable client cooperation, elastic.io is entitled to check these facts. elastic.io has the right to withdraw from the contract within two weeks after notice, if a consumer offer is inadvertently accepted. Legal rights of challenge remain unaffected.
1.3 These general terms and conditions are applicable within current business relations, also for all follow- up business without that we must reiterate each time their validity.
1.4 Our general terms and conditions are conclusive for our complete business transactions with the customer relating to the contractual object. In particular the general terms and conditions of the customer do not become an integral part of the contract, irrespective whether they contain differing or additional rules to these terms and conditions. A non-effected client refusal of terms and conditions does not constitute agreement.
1.5 Any modifications, additional agreements and supplements must be in writing to be legally effective. Individual agreements relating to the contractual object have priority over these general business terms and conditions and supplement these.
1.6 Contractual partner is elastic.io GmbH, Prinzenstrasse 2a, 42697 Solingen. The contract becomes effective upon ordering of the requested service package of the client (offer) and corresponding provision for the client (acceptance) by elastic.io.
2. Providing elastic.io and storage space
2.1 We provide the platform for use which is operated with the software elastic.io (hereinafter also named “elastic.io” and the “application” or the “software”) according to the agreed scope and from the agreed date on the data processing system (server) hosted by us in accordance with these general terms and conditions and against payment of the agreed charge in the current version. Our offer for use of elastic.io in various packages each with different scopes of services is contained in our specifications and available on http://www.elastic.io/. Specifications listed there include the platform’s complete condition.
2.2 Our offer includes providing elastic.io as well as providing storage capacity and computer power for data created by the customer through using elastic.io and/or required for using the software. Backups of elastic.io and the application data are made daily.
2.3 elastic.io is a flexible integration platform on which the customer can set up any individual integration solution. The provision of elastic.io including hosting is made as a Platform as a Service (“PaaS”). The access and the administration are provided via a programming interface and web interface.
2.4 The customer will use elastic.io for himself and his customers.
2.5 We provide the customer with open source software, including software developer kits, command line interfaces and also templates for their own projects. The open source software is subject to the respective valid licensing regulations (e.g. MIT, GPL) which the customer must comply with when using. We are not liable for open source software available free of charge. Our service facilitates access to the software as it is.
2.6 The handover point for elastic.io is the router port of the server computer centre of the respective hoster.
2.7 We are not responsible for the quality of the required hardware and software on the part of the customer as well as for the telecommunication connection between the customer and the provider up to the handover point (article 2.6).
2.8 We reserve the right during the contractual period to implement new versions, updates, upgrades or provide other new supplies regarding elastic.io. Applications developed by customers on the basis of an earlier version could hereby be affected in their functionality. This does not represent a fault in our services. We endeavour to ensure backward compatibility and will carry out any changes that impair the function of client applications, based purely on objective reasons that can include security enhancements and adjustments to latest technology. The customer must modify his application accordingly.
2.9 Unless otherwise specified in the contract we offer support services per email and / or telephone as included in the specifications for the respective service package. The service times are Monday to Friday except for public holidays from 9.00 a.m. to 7.00 p.m.
3. Registration, contract conclusion, trial period
3.1 To use elastic.io it is necessary that the user registers and opens a user account. The customer is committed to give true information.
3.2 The customer registers first for a free trial period of 14 days only. After the trial period has expired the customer must order a package subject to a charge in order to continue to use elastic.io.
3.3 elastic.io GmbH agrees to provide trial platform use only to individuals registering with organisational email domains. Trial registrations made using generic E-mail domains e.g. @gmail.com, @yahoo.com will be deleted.
4. Technical availability of elastic.io
4.1 elastic.io is always available 24 hours on 7 days a week; 99.9% on average.
4.2 Planned maintenance work to our systems are excluded from the availability. Planned maintenance work is work which is made for technical adjustment, to guarantee functionality and interoperability, technical further development and other changes to the platform. We will inform the customers in time in a suitable form of planned maintenance work stating the type, extent and period of the restrictions. Work will not be carried out, as far as possible, in the main business hours. The customer cannot claim based on liability of defects or claim damages if during use outputs are reduced and / or failure occurs during the planned down time.
4.3 Along with the planned maintenance work the availability can also be restricted through unplanned and unforeseen down time. Unplanned and unforeseen downtime is:
– Downtime which is due to malpractice of the customer
– Downtime which is caused by hardware and software of the customer or third party (e.g. virus attacks, downtime computer centre)
– Downtime with the access provider of the customer
– Downtime due to force majeure
4.4 The customer must inform us of downtime which occurs outside of the agreed non-availability time immediately by email at [email protected]. He must specifically state the date and time and prove the downtime by suitable evidence.
5. Use of the platform
5.1 The customer is entitled to use the platform and the application according to the agreed service package in the respective current version for himself and his customers.
5.2 The customer is not entitled to make changes to the platform himself. The customer is also not entitled to copy, distribute, publicly make available outside of the platform or otherwise use the software elastic.io for purposes not required for the contractually agreed use.
5.3 The permanent or temporary software provision (e.g. as application service provision) for non-affiliated companies or the use of software for training of non-customer and non-affiliated staff is subject to our prior written consent. All rights of use not explicitly transferred, especially distribution, rental, hiring, leasing, translation or publication remain with us.
5.4 We are granted the right to copy applications developed by the customer on the platform, however, restricted to backup copies. We are entitled to remove applications as far as these applications developed by the customer interfere with the system integrity. Further rights of use are not granted to us.
5.5 If the customer violates his obligation out of the contract (article 7) for reasons he is responsible for or if he falls behind on payment of the monthly user fee for more than 30 days then we are entitled to block the customer’s access to the application after prior written notification and after setting a deadline for removing the breach of duty. Blocking is made without prior notification if the breach of duty endangers the security of our system.
6. Monthly user fees
6.1 The monthly fees for our various service packages are stated in our specification and are available at www.elastic.io as far as nothing else is explicitly agreed in writing. All prices are exclusive of the current value added tax.
6.2 The monthly user fee is to be paid proportionately beginning with the day of the operational availability for the rest of the calendar month. Afterwards it is to be paid in advance at the agreed frequency of billing. If a price for parts of a calendar month is to be charged then this is charged for each day at 1/30 of the monthly price.
6.3 As far as nothing else is agreed, the payment is only possible with credit card. The monthly user fee is debited on the first of each following month in which the elastic.io was used.
6.4 Offsetting is only possible with undisputed or legally established counterclaims, unless those counterclaims relate to claims of mutuality of obligation.
7. Obligations of the customer
7.1 The customer is obliged to check before use of elastic.io the technical requirements for use. These are included in the specification and available on www.elastic.io
7.2 The customer must ensure that elastic.io is not used in excess of the allowed right of use, in particular not used by unauthorised third parties. The agreed identification and authentication security codes must be kept secret by the customer, they must be protected from access by third parties and not passed on to unauthorised third parties. The customer must comply with the restrictions of his usage rights and keep us harmless of any of those claims made by third parties that are based on the unlawful use of elastic.io or that may result from litigation involving data protection, copyright or other disputes related to the use of elastic.io, all caused by the customer.
7.3 The customer is obliged to commit his employees on their part to comply with the applicable regulations of this contract.
7.4 The customer will abstain from any action that might endanger or disrupt the functionality, integrity or safety of the system.
7.5 Defects in the services are to be notified immediately by the customer.
7.6 The customer is not allowed to gain insight into the source code nor may he carry out any changes, make a new production thereof or duplicate it.
7.7 The customer agrees not to de-compile the software, unless a case satisfies § 69e UrhG (Copyright Act), nor to disassemble, reverse compile, reverse assemble or to reverse develop from object code to source code, nor to attempt the aforesaid or allow third parties to do this. The customer may decompile the software and carry out any reverse engineering only within the parameters of section 69e Copyright law, however, not until we have provided the required data and/or information upon request and after an appropriate period.
8. Data security, Data protection
8.1 We and the customer will comply with the respective applicable data protection provisions. To this end, we have familiarized our employees with the data protection provisions applicable to them and obligated them to maintain confidentiality.
8.2 If the customer collects, processes or uses personal data then he must ensure that he is authorised according to the applicable provisions, in particular data protection provisions and in the case of a breach he releases the provider from claims of third parties. The customer obtains the required consents from their employees, clients and other persons possibly concerned, providing relevant proof to us upon our request.
8.3 We will only collect and process customer data within the scope necessary to fulfil the contract. The customer agrees to data collection and processing to this extent, ensuring the legality of the data transfer and its contractual use by us.
8.4 Within the provision of services the customer commissions us to process personal data in accordance with Art. 28 GDPR. For this purpose we conclude with the customer a data processing agreement.
9.1 In case of defects the customer initially grants to us a reasonable period of time to clear the defect. For significant defects the customer has the right to appropriately reduce the user fees for the period of the defect.
9.2 The right of extraordinary termination for good cause remains unaffected.
9.3 Disruptions to functionalities of applications developed by the customer due to new versions, updates, upgrades or other new supplies regarding elastic.io do not represent a defect.
10.1 For all cases of contractual or extra-contractual liability we shall only pay compensation for damages within the following limits: Liability is limited to EUR 100,000 per case, with a maximum total of EUR 250,000 based on
this contract, for financial loss a maximum of up to 10% of the overall contract price. Liability for financial loss is limited to EUR 250,000 overall for this contract. This limitation does not apply inasmuch as diverging maximum liability limits were agreed.
In addition, to the extent that we are insured against the damages incurred, under the condition precedent of payment by the insurance.
We do not accept liability for indirect damages or consequential damages. We do not accept liability for loss of profit.
Claims as a result of negligently omitted failure to explain negative material characteristics of products are excluded if no material defect is justified by this unless we have assumed, in addition, explicit provision of advice to the customer.
Our liability for the loss of data shall be restricted to typical recovery efforts which would have arisen with the usual and precautionary making of back-up copies.
a. Liability on our part, irrespective of fault, for pre-existing defects (section 536a German Civil Code) is excluded.
b. Liability restrictions according to (a) shall not apply in the event of malicious concealing of a defect, in the case of intent, gross negligence, in case of fatal injury, damage to body or health, and for liability according to product liability law; also excluded is the absence of a feature we have guaranteed. Limits of liability according to (a) shall not apply to liability due to a breach of principle obligations whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place and in which the customer may trust.
c. We reserve the right of defense of contributory fault.
11. Final provisions
11.1 The applicable law is the German substantive law; application of the CISG is excluded.
11.2 If the customer is a business man, legal entity under public law or special assets under public law, the place of jurisdiction is agreed exclusively to be Bonn.
11.3 The customer is not allowed to assign rights from this contract to third parties without prior approval by us (non-assignment clause).