The Services Agreement incorporates the following documents by reference: (i) the
Services Description that describes the Services you are buying and related fees; (ii) these
General Terms and Conditions containing the general terms and conditions applicable to all
Services; (iii) the specific Product Terms and Conditions containing the additional terms for
the particular Cloud Services you are buying; (iv) the Acceptable Use Policy; and (v) if your
Cloud Hosted System will be provided from data centres located ourside German jurisdictions,
the Country Specific Terms that may be applicable in
those jurisdictions. When we use the term “Services Agreement” or “Agreement” in
any of these documents, we are referring collectively to all of them. The Agreement is
effective as of the date of the email sent to you by Cloudeteer expressly confirming
acceptance of your order or the date you accept the Agreement as part of Cloudeteer’s
Some words used in the Agreement have particular meanings:
“Affiliate” means a subsidiary or holding company of either party to this Agreement and any
subsidiary of such holding company (where “holding company” and “subsidiary” have the
meanings set out in section 1159 of the Companies Act 2006).
“Business Day” or “Business Hours” means 9:00 a.m. – 6:00 p.m. Monday through Friday,
excluding public holidays in Germany.
“Confidential Information” means all information disclosed by one of us to the other, whether
before or after the effective date of the Agreement, that the recipient should reasonably
understand to be confidential, including: (i) for you, all information transmitted to or from, or
stored on, your Hosted System, (ii) for Cloudeteer, unpublished prices and other terms of
service, audit and security reports, product development plans, solution diagrams, data
centre designs (including non-graphic information you may observe on a tour of a data
centre), and other proprietary information or technology, and (iii) for both of us, information
that is marked or otherwise conspicuously designated as confidential. Information that is
independently developed by one of us, without reference to the other’s Confidential
Information, or that becomes available to one of us other than through breach of the
Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Country Specific Terms” means the addendum or addenda that may be incorporated into
your Hosting Services Agreement if a portion of your Services are to be provided from a
nonUnited German jurisdiction for which we have special legal terms.
“Hosted System” means a combination of hardware, software and networking elements that
comprise an information technology system. Depending on the Services you are buying, the
Hosted System may consist of a dedicated system for your use only, or the right to use
certain parts of a shared system that Cloudeteer maintains for many customers, or a
combination of some dedicated elements and some shared elements.
“Hosting Services” means: (i) Cloudeteer’s provision for your use of the Hosted System
described in the Services Description, and (ii) Support.
“Product Terms and Conditions” means the terms and conditions for the particular Hosting
Services you are buying.
“Services Description” means a written description of the Hosted System and/or
Supplementary Services you are buying from Cloudeteer, and related fees, that is
incorporated by reference in the Agreement,
including any “plan” or other name given to a Services description that you submit to
Cloudeteer as part of an online order process.
“Service Level Guarantee(s)” means (i) a guarantee or guarantees identified as a “Service
Level Guarantee” or “Service Level Guarantees” in the applicable Product Terms and
Conditions or (ii) any provision which provides a specified credit or financial remedy for an
identified failure to deliver or provide the Services.
“Services” means Hosting Services and Supplementary Services, collectively.
“Supplementary Services” means those Services you purchase from Cloudeteer other than
the Hosting Services, including time and materials based professional or consulting services
(such as database administration or “DBA” services), one-time or non-recurring services
which are not part of the existing Support (such as support for the application that you
operate on your Hosted System), and any other services identified as “Supplementary
Services” on the applicable Services Description.
“Support” has the meaning stated in the applicable Product Terms and Conditions.
Cloudeteer’s obligation to begin providing Services is contingent on your satisfaction of
Cloudeteer’s credit approval criteria. Cloudeteer will provide the Consulting Services in
accordance with the Services Description, the Service Level Guarantees, and other
specifications in this Agreement. Cloudeteer will perform any Supplementary Services in a
good and professional manner. Cloudeteer will maintain security practices that are at least
as stringent as the minimum security practices described, and will provide the specific security
services described in your Services Description. Cloudeteer will perform all Services in
accordance with applicable law.
You must use reasonable security precautions in connection with your use of the Services.
You must comply with the laws applicable to your use of the Services and with the
Acceptable Use Policy. You must cooperate with Cloudeteer’s reasonable investigation of
Service outages, security problems, and any suspected breach of the Agreement. You are
responsible for keeping your account permissions, billing, and other account information up
to date using your Cloudeteer ITSM-portal or via another Cloudeteer defined process. You
must pay when due the fees for the Services stated in the Services Description or other
agreement between us. If there is a dispute with respect to any portion of an invoice, you
shall pay the undisputed portion of the fees promptly and provide written details specifying
the basis of any dispute. Each of us agrees to work together to promptly resolve any
PROMISES WE DO NOT MAKE
1. We do not promise that the Services will be uninterrupted, error-free, or completely
secure. You acknowledge that there are risks inherent in Internet connectivity that could
result in the loss of your privacy, Confidential Information and property.
2. We disclaim any and all warranties not expressly stated in the Agreement to the
maximum extent permitted by law, including the implied warranties relating to satisfactory
quality and fitness for a particular purpose. You are solely responsible for the suitability of
the services chosen. Any services that we are not contractually obligated to provide but that
we may perform for you at your request and without any additional charge are provided on
an ‘AS IS’ basis.
3. We do not have knowledge of the data you store within your Hosted System, including
the quantity, value or use of the data. You are therefore responsible to take all reasonable
steps to mitigate the risks inherent in the provision of the Services, including loss of your
data, including any PII (as defined in the applicable Product Terms and Conditions) or
“cardholder data” as that term is defined in the Payment Card Industry-Data Security
Standard. The Services that Cloudeteer has agreed to provide to assist you to mitigate such
loss (if required) are set out in the Services Description, which may include backup services
and geographically redundant servers. Cloudeteer does not promise to back up your data.
In all events, you release Cloudeteer
from liability for loss of data to the extent that the data has changed since the time that we
were last required by the Agreement to perform a backup.
4. We will provide Support only to your administrative or technical contacts listed on your
account. We will not provide support directly to your end users unless specifically agreed in
5. Certain Cloudeteer Services are designed to help you comply with various regulatory
requirements that may be applicable to you. However, you are responsible for understanding
the regulatory requirements applicable to your business and for selecti
UNAUTHORISED ACCESS TO YOUR DATA OR USE OF THE SERVICES
Cloudeteer is not responsible to you or any third party for unauthorised access to your data
or the unauthorised use of the Services unless the unauthorised access or use results from
Cloudeteer’s failure to meet its security obligations stated in Section (Our Obligations) of
these General Terms and Conditions or the Services Description. You are responsible for
the use of the Services by any employee of yours, any person you authorise to use the
Services, any person to whom you have given access to the Services, and any person who
gains access to your data or the Services as a result of your failure to use reasonable
security precautions, even if such use was not authorised by you.
TAXES ON SERVICES
1. Sales Taxes. Unless otherwise expressly provided in the Agreement or included in the
invoice for the services, all amounts due to Cloudeteer under the Agreement are exclusive of
any value added, goods, services, sales, use, property, excise and like taxes, import duties
and/or applicable levies (collectively, “Tax”). If Cloudeteer is required by law to collect Taxes
on the provision of the Service, Cloudeteer will invoice you for such Tax and you must pay
Cloudeteer the amount of the Tax that is due or provide Cloudeteer with satisfactory
evidence of your exemption from the Tax. The obligation to pay any Taxes that Customer
may be required to pay in connection with Customer’s use of Services or Customer’s
payment of amounts due to Cloudeteer under the Agreement shall be borne exclusively by
Customer. You must provide Cloudeteer with accurate factual and adequate information and
documentation (as determined by Cloudeteer), to help Cloudeteer determine if any Tax is
due with respect to the provision of the Services.
2. Withholding Taxes. All payments to Cloudeteer shall be made without any withholding or
deduction for any Taxes, except for any withholding (or similar) taxes imposed on income
that may be attributed to Cloudeteer in connection with its provision of the Services that you
are legally required to withhold from such payment and remit to the applicable governmental
or taxing authority (such taxes, “Local Withholding Taxes”). You agree to timely provide
Cloudeteer with adequate and accurate factual information and documentation (as
determined by Cloudeteer), including tax receipts, of your payment of any such Local
Withholding Taxes. Cloudeteer shall remit such cost to you in the form of a credit on your
outstanding account balance following receipt of sufficient evidence of payment of any such
Local Withholding Taxes as set forth above.
TERMS AND FEES
Your applicable Product Terms and Conditions and Services Description set out your term
and renewal information as well as fee and pricing information.
SUSPENSION OF SERVICES
1. We may suspend Services without liability if:
1.1 we reasonably believe that the Services are being used in breach of the Agreement;
1.2 you don’t cooperate with our reasonable investigation of any suspected violation of
1.3 there is an attack on your Hosted System or your Hosted System is accessed or
manipulated by a third party without your consent;
1.4 we are required by law or a regulatory or government body to suspend your
1.5 there is another event for which we reasonably believe that the suspension of
Services is necessary to protect the Cloudeteer network or our other customers.
2. We will give you advance notice of a suspension under this clause of at least twelve
(12) Business Hours unless we determine in our reasonable commercial judgment that a
suspension on shorter or contemporaneous notice is necessary to protect Cloudeteer or its
other customers from imminent and significant operational, legal, or security risk. If your
Hosted System is compromised, then you must address the vulnerability prior to Cloudeteer
placing the Hosted System back in service or, at your request, we may be able to perform
this work for you at our standard hourly rates as a Supplementary Service.
1 Each of us agrees not to use the other’s Confidential Information except in connection
with the performance or use of the Services, as applicable, the exercise of our respective
legal rights under the Agreement, as may be required by law, or as set forth below.
Each of us agrees not to disclose the other’s Confidential Information to any third person
except as follows:
1.1 to each of our respective service providers, employees, Affiliates, suppliers, agents
and representatives, provided that such service providers, employees, Affiliates, suppliers,
agents or representatives agree to confidentiality measures that are at least as stringent as
those stated in this General Terms and Conditions; or
1.2 to a law enforcement or government agency if either of us reasonably believes that
the other’s conduct may violate applicable criminal law;
1.3 as required by law; or
1.4 in response to a court order or other compulsory legal process, provided that each of
us agrees to give the other written notice of at least ten (10) days prior to disclosing
Confidential Information under this clause (or prompt notice in advance of disclosure, if
ten (10) days advance notice is not reasonably feasible), unless the law forbids such
LIMITATION ON DAMAGES
1. Subject to clause 2, but without prejudice to Cloudeteer’s right to the fees for the
Services, including any early termination fee (if applicable) and your right to service credits
under the applicable Service Level Guarantee and/or termination for our failure to meet the
Cloud.GO or Cloud.PRO Support Promise:
1.1 each party’s liability to the other for direct loss or damages whether in tort (including,
without limitation, negligence), contract or otherwise, is limited to and shall not exceed:
1.1.1 for Hosting Services, an amount that is twelve (12) times the monthly recurring fee
under this Agreement as of the time of the occurrence of the event(s) giving rise to the claim;
1.2 neither party will be liable to the other in any way for any special, incidental,
economic, or indirect loss or damages, or for loss of data, loss of profits, revenues,
customers or contracts, wasted management time, increased costs or expenses, whatsoever
and howsoever arising including in connection with the performance, non-performance or
delayed performance of the Services or otherwise under this Agreement even if that party
has been advised by the other or should have reasonably been aware of the possibility of
2. Nothing in this Agreement limits or excludes either party’s liability for any loss or
damages resulting from:
2.1 death or personal injury caused by its negligence; and 2.2 any fraud or fraudulent
3. The service credits stated in the Service Level Guarantee are your exclusive remedy
for Cloudeteer’s failure to meet those guarantees for which service credits apply.
4. Cloudeteer agrees to have valid insurance cover in place for its own legal liability to
you under this Agreement up to the limits set out in this clause As the fees for the
Services properly reflect the delineation of risk between the parties, each party agrees to
ensure that it will be responsible for making its own arrangements for the insurance of any
loss in excess of its accepted legal liability as necessary.
1. If we, our affiliates, or any of our or their respective employees, agents, or suppliers
(the “Indemnitees”) is faced with a legal claim by a third party arising out of your actual or
alleged negligence, breach of law, failure to meet the security obligations required by the
Agreement, breach of the AUP, breach of your agreement with your customers or end users,
or breach of Section 8 (Export Matters) or Section (Software) of this General Terms and
Conditions, then you will pay the cost of defending the claim (including reasonable legal
fees) and any damages award, fine or other amount that is imposed on the Indemnitees as a
result of the claim. Your obligations under this clause include claims arising out of the acts or
omissions of your employees or agents, any other person to whom you have given access to
the Services, and any person who gains access to the Services as a result of your failure to
use reasonable security precautions, even if the acts or omissions of such persons were not
authorised by you. You must also pay reasonable legal fees and other expenses we incur in
connection with any dispute between persons having a conflicting claim to control your
account with Cloudeteer, or any claim by your customer or end user arising from an actual or
alleged breach of your obligations to them.
2. We will choose legal counsel to defend the claim, provided that these decisions must
be reasonable and must be promptly communicated to you. You must comply with our
reasonable requests for assistance and cooperation in the defence of the claim. We may not
settle the claim without your consent, although such consent may not be unreasonably
withheld, delayed or conditioned. You must pay reasonable legal fees and expenses due
under this clause as we incur them.
You agree that we may publicly disclose that we are providing Services to you and may use
your name and logo to identify you as our customer in promotional materials, including press
releases. We will not use your name or logo in a manner that suggests an endorsement or
1. General. You may not copy any software we provide for your use, unless expressly
permitted by this Agreement or use such software after the expiration or termination of the
Agreement. You may not remove, modify or obscure any copyright, trade mark, or other
proprietary rights notices that appear on any software we provide for your use. Unless
permitted by the terms of an open source software licence, you may not reverse engineer,
decompile or disassemble any software we provide for your use except and to the extent
that you are expressly permitted by applicable law to do this, and then following at least ten
(10) days advance written notice to Cloudeteer. In addition to the terms of this Agreement,
your use of any Microsoft® software is governed by Microsoft’s licence terms that appear
including use restrictions on Microsoft software that is provided for your use under a
subscriber access licence or “SAL” or an “anonymous” licence as indicated in your Services Description.
2 Customer Provided Licences. If you use any non-Cloudeteer provided software on
your Hosted System you represent and warrant to Cloudeteer that you have the legal right to
use the software in that manner. If we have agreed to install, patch or otherwise manage
software for you in reliance on your licence with a software vendor (rather than Cloudeteer’s
licence with the software vendor), then you represent and warrant that you have a written
licence agreement with the software vendor that permits Cloudeteer to perform these
activities. On Cloudeteer’s request you will certify in writing that you are in compliance with
the requirements of this paragraph and any other software license
restrictions that are part of the Agreement, and will provide evidence of your compliance as
we may reasonably request. If you fail to provide the required evidence of licensing,
Cloudeteer may, at its option, either:
2.1 charge you its standard fee for the use of the software in reliance on Cloudeteer’s
licensing agreement with the vendor until such time as the required evidence is provided; or
2.2 suspend or terminate the Agreement.
Your licensed software may not be compatible with our standard process for deploying and
repairing Hosted Systems. In addition, in order to install the software, Cloudeteer may
require you to send the physical or electronic media provided to you by the software vendor,
both for deployment, and again in the event of a failure of your Hosted System. You agree
that Cloudeteer will not be in breach of any Service Level Guarantee or other obligation
under this Agreement that would not have occurred but for the delay resulting from our
agreement to use your licensed software.
Cloudeteer personnel may from time to time recommend third party software or other
products and services for your consideration. Cloudeteer MAKES NO REPRESENTATION OR WARRANTY
WHATSOEVER REGARDING SUCH PRODUCTS AND SERVICES. Your use of any products and services not provided by Cloudeteer is
governed by the terms of your agreement with the provider of those products and services,
and is at your sole risk. Cloudeteer is not responsible in any way for the third party product’s
performance, features nor failures.
WHO MAY USE THE SERVICES
You may permit your subsidiaries and affiliated companies to use the Services if you wish,
however you are responsible for the acts or omissions of your permitted users. Cloudeteer
will provide support only to you, not to your customers, subsidiaries or affiliates. There are
no third party beneficiaries to the Agreement, meaning that your customers, subsidiaries,
affiliates, and other third parties do not have any rights against either of us under the
Each of us agrees to comply with our respective obligations under the Data Protection Act
1998 (the “Act”) as applicable to personal data that it controls or processes as part of, or in
connection with, its use or provision of the Services. Specifically, but without limitation, you
must comply with the Act as it relates to personal data that you store or transfer using your
Hosted System. You agree that, subject to the requirements of this paragraph and
Cloudeteer’s obligations stated in Section (Assignment,Subcontractors), Cloudeteer may
give its affiliates and subcontractors outside of the European Economic Area (EEA) access
to personal data you store on your Hosted System.
We agree that we will not provide access to personal data that you store on your Hosted
System to any subcontractor or affiliate outside of the EEA unless that person meets the
requirements stated below during the entire time that it has access to the personal data:
1. for personal data for which we are a “controller” under the Act, the affiliate or
subcontractor to whom we transfer the personal data (i) is located in a country for which the
European Commission has made a positive finding of adequacy, (ii) is located in the United
States and has certified to the United States Department of Commerce that it adheres to the
Safe Harbour framework developed by the United States Department of Commerce in
coordination with the European Union, or (iii) has signed the standard contractual model
clauses for the transfer of personal data from either: (a) Cloudeteer to a processor, or (b)
Cloudeteer to a controller who is based in a country outside the EEA that is not recognised
as offering an adequate level of data protection; and
2. for personal data for which we are a “processor” under the Act, the affiliate or
subcontractor that has access to the Hosted System has signed a data processing
agreement with us. We have such an agreement in place with Cloudeteer.
SERVICES MANAGEMENT AGENT
You agree that you will not interfere with any services management software agent(s) that
Cloudeteer installs on your Hosted System. Cloudeteer agrees that its agents (e.g. Elastic Beats)
will use only a minimal amount of computing resources, and will not interfere with your use of your Hosted
System. Cloudeteer will use the agents to track the hardware and software that Cloudeteer
provides, so that it can more efficiently manage various service issues, such as patching
exceptions and product life cycles. Cloudeteer may also use the software to identify security
vulnerabilities. Cloudeteer will not use the agents to view or capture your content or data.
Your Services will become “unsupported” as described in the Product Terms if you disable or
interfere with our service management software agents. You agree that Cloudeteer may
access your Hosted System to reinstall services management software agents if you disable
or interfere with their performance.
Your routine communications to Cloudeteer regarding the Services, including any notice of
non-renewal, should be sent to your Cloudeteer account team using the Cloudeteer ITSM-portal.
If you want to give a notice regarding termination of the Agreement for breach,
indemnification, or other non-routine legal matter, you should send it by electronic mail and
first class post to:
22301 Hamburg, Germany
OWNERSHIP OF INTELLECTUAL PROPERTY
Each of us retains all right, title and interest in and to our respective trade secrets,
inventions, copyrights and other intellectual property. Any intellectual property developed by
Cloudeteer during the performance of the Service(s) shall belong to Cloudeteer unless we
have agreed with you in advance in writing that you shall have an interest in the intellectual
OWNERSHIP OF OTHER PROPERTY
You do not acquire any ownership interest in or right to possess the Hosted System, and you
have no right of physical access to the Hosted System. We do not acquire any ownership
interest in or right to the information you transmit to or from or store on your Cloudeteer
servers or other devices or media.
INTELLECTUAL PROPERTY INFRINGEMENT
If Cloudeteer or any of its customers is faced with a credible claim that the Services infringe
the intellectual property rights of a third party, and Cloudeteer is not reasonably able to
obtain the right to use the infringing element or modify the Services such that they do not
infringe, then Cloudeteer may terminate the Services on reasonable notice of at least ninety
(90) days, and will not have any liability on account of such termination except to refund
amounts paid for Services not used as of the time of termination.
Neither party may assign the Agreement without the prior written consent of the other party
except that Cloudeteer may assign the Agreement to an Affiliate with sufficient financial
standing in order to meet its obligations under this Agreement or as part of a bona fide
corporate reorganisation or a sale of its business. We may transfer your Confidential
Information as part of any such transaction. Cloudeteer may use third party service providers
to perform all or any part of the Services, but Cloudeteer remains responsible to you under
this Agreement for Services performed by its third party service providers to the same extent
as if Cloudeteer performed the Services itself.
Neither of us will be in breach of the Agreement if the failure to perform the obligation is due
to an event beyond our control, such as significant failure of significant failure of the Internet,
natural disaster, war, riot, insurrection, epidemic, strikes or other organised labour action,
terrorism, or other events of a magnitude or type for which
precautions are not generally taken in the industry.
GOVERNING LAW, LAWSUITS
The Agreement is governed by the German law and each of us expressly and unconditionally
submits to the exclusive jurisdiction of the courts of Germany except that
Cloudeteer may seek to enforce any judgment anywhere in the world where you may have
assets. Each of us agrees that it will not bring a claim under the Agreement more than two
(2) years after the event giving rise to the claim occurred.