1.1 In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
1.2 Headings shall be ignored in interpretation.
1.3 Reference to Clauses and Sub-Clauses are to those of this Agreement.
1.4 Words importing gender shall include all genders; words denoting the singular shall include the plural; words denoting persons include incorporated and unincorporated bodies, and in each case vice versa.
1.5 Reference to any regulation, directive, statute, statutory provision or statutory instrument includes a reference to that regulation, directive, statute, statutory provision or statutory instrument together with all rules and regulations made under them and as from time to time amended, consolidated or re-enacted.
1.6 This Agreement consists of this document and the following Attachments:
2.1 This Agreement covers the operation of the Platform and professional services to be provided to Customer by Humanitec and providing support and maintenance for both.
2.2 Customer’s use of own code as well as support and maintenance for such are not subject to this Agreement.
3.1 Humanitec shall
3.2 For the avoidance of doubt, Humanitec is not obliged to:
4.1 Customer shall remunerate Humanitec for providing the Platform and the resulting Kubernetes hosting costs.
4.2 Customer must meet the Technical Requirements for use of the Platform.
4.3 Customer shall use the Platform in accordance with applicable law and shall indemnify and hold harmless Humanitec from any claims by third parties due to Customer’s breach of this § 4.3.
4.4 Customer shall reasonably support Humanitec in providing the services under this Agreement.
5.1 Humanitec may utilize subcontractors. Humanitec provides information about subcontractors under https://humanitec.com/technical-definitions, which Humanitec updates from time to time. Humanitec shall notify Customer about any updates by email.
5.2 Use of subcontractors does not discharge Humanitec from its performance obligation, liability and other obligations with regard to Customer.
6.1 Humanitec grants Customer the non-exclusive right to use the Platform for the Term and in the Territory.
6.2 Customer may sublicense the right to use provided that Customer shall be liable for the sublicensee’s use of the Platform.
6.3 Nothing in this Agreement has the effect of assigning or transferring any title to intellectual property rights to Customer. Customer does not acquire any right to use the Platform in excess of the scope and/or duration of the Agreement.
6.4 The Parties acknowledge that the Platform might contain open source components, including but not limited to the backend of the Platform. To the extent the includes any open source software, Customer’s rights with respect to each item of the open-source software will be governed exclusively by the applicable open source software license associated with the respective open-source software, regardless of any other provisions of this Agreement. Without limiting the foregoing sentence, Customer recognizes that the only warranties and representations respecting the open-source software are those provided in the applicable open source software license as well as in § 13.3. Except as set forth herein, no provisions concerning infringement and indemnity shall apply to such open-source software, if such open source license was communicated to Customer.
7.1 Humanitec shall provide the Platform with an Uptime Percentage average uptime of 99.0% per calendar year.
7.2 The Platform shall be deemed to be operating and available if the Platform is up and running in the data centers that its components are hosted in and such data centers are connected to the internet (“Point of Transfer”). They are considered up and running if they respond to at least 90% of incoming requests.
7.3 It is not a breach of availability if Customer is unable to use the Platform due to
8.1 Humanitec shall operate a support channel through which Customer can reach the Humanitec support team for incident reports and/or general support. Such a support channel will be offered through a ticketing tool.
8.2 For each incident, Customer must include a description as well as documented evidence. Documented evidence includes, in particular, the following information depending on the incident: Location of the issue, date and time of the incident, user and permission and data being submitted or accessed at the time, and message if any displayed to the user during the incident.
8.3 Humanitec’s support team is available during Business Hours on Business Days. The support channel is accessible 24/7 but incident reports or support questions filed through the support channel are handled during Business Hours only.
9.1 Humanitec shall handle incident reports within the Response Times pursuant to § 10.
9.2 Response Times are subject to the severity of the incident as reasonably determined by Humanitec based on the nature of the incident.
9.3 Humanitec shall not be responsible for the rectification of any incident or damages arising from:
10.1 Response Times defines the time span in which Customer receives an initial response (as defined below) from Humanitec after an incident report has been created via the support channel. The Response Times depend on the severities of the issue:
A Response to be provided by Humanitec depends on the severity of the issue and may be:
10.3 Any response times are suspended from the time Humanitec requests additional information until the time Customer provides such information to Humanitec.
10.4 Incident Progress Reports
During the resolution process of an incident, Humanitec will contact Customer with progress updates by email. Such updates will continue to be provided at least every 24 hours until the incident has been resolved or an alternative update schedule is agreed upon.
11.1 Compensation credits
Humanitec’s failure to maintain the availability level pursuant to § 7 during a calendar year shall entitle Customer to receive the Service Credits as further described below, calculated on the basis of and deducted from the yearly service charge for the affected Platform:
In order to receive a credit Customer must make a request for Service Credits by filing a support ticket through the support channel. Each credit request in connection with this § 11 must further include the dates and times of the unavailability and must be filed within five (5) Business Days after the end of the affected calendar month. If Customer’s Credit Request is correct and true, respective Service Credits will be applied to the next invoice automatically or if the amount exceeds the amount of the invoice Humanitec shall issue a credit note for Customer.
11.2 Service Credits can only accumulate once per incident, i.e. the Customer shall not be entitled to several credit requests for the same incident. Service Credits are the exclusive remedy for any breach of availability except in the event of an intentional breach (Vorsatz) and gross negligence.
11.3 The total amount credited to Customer in a particular month shall not exceed the total amount payable by Customer for the month in which the availability did not meet the agreed specifications. Service Credits are exclusive of any applicable taxes charged to Customer or collected by Humanitec.
12.1 The Platform provided by Humanitec shall be substantially in accordance with the description in this Agreement and/or https://humanitec.com/technical-definitions and as updated from time to time. Rights in case of defect shall be excluded in the case of minor or immaterial deviations from the agreed or assumed characteristics and in the case of just slight impairment of use.
12.2 Customer shall immediately report to Humanitec any defects of the Platform.
12.3 Any claims for damages are subject to the limitations set forth under § 16.
13.1 Except for the rights granted hereunder, the Parties agree that all Intellectual Property Rights in the Platform shall remain with Humanitec.
13.2 Customer shall use the Platform in accordance with the provisions of this Agreement and any applicable statutes, laws, and/or regulations. Customer may not, except if necessary pursuant to sections 69d, 69e (1) nos. 1 to 3 German Copyright Law (Deutsches Urheberrechtsgesetz, UrhG) and within the limits of sec. 69 e (2) nos. 1 to 3 UrhG
13.3 Except as set forth herein, no provisions concerning infringement and indemnity shall apply to such open-source software, and Humanitec shall bear no responsibility or liability whatsoever related to its supply of or Customer’s use of such open-source software if such open source license was communicated to Customer.
14.1 Humanitec warrants that Humanitec is the sole owner of the rights relating to the Platform, the Platform does not infringe any third party Intellectual Property Rights.
14.2 Humanitec warrants that the open-source components included in the Software are used according to the applicable (open source or public) licenses.
14.3 Humanitec will undertake appropriate efforts at its own cost in case of conflicting third party Intellectual Property Rights, in order for Customer still being able to use the Platform. For this purpose, Humanitec may
If Humanitec is unable to provide such remedy, Humanitec may terminate this Agreement in part or in total. Further rights of Customer remain unaffected
14.4. Subject to the terms and conditions herein, each Party (the “Indemnifying Party”) shall defend, indemnify and hold the other Party (the “Indemnified Party”) harmless in respect of all liabilities, losses, damages, costs, and expenses suffered or incurred as a result of any claim, action or proceeding brought against the Indemnified Party, alleging an infringement or misappropriation of any third party right (a “Claim”) as a result of the warranties set forth above in this § 14 or where one Party takes an obligation to indemnify the other Party under this Agreement.
14.5 The Indemnifying Party shall only indemnify and hold harmless the Indemnified Party against a Claim (including reasonable legal costs incurred directly in relation thereto) if (i) the Indemnified Party gives the Indemnifying Party prompt written notice that a Claim has been made, (ii) the Indemnified Party grants the Indemnifying Party the right to defend against the Claim (the Indemnified Party will have the right to co-ordinate with the Indemnifying Party regarding any attempts to settle the Claim, through counsel chosen by the Indemnified Party), (iii) the Indemnified Party makes no admissions against its own interest or the Indemnifying Party’s interests, furnishes all information and assistance requested by the Indemnifying Party, and reasonably cooperates with the Indemnifying Party to facilitate the defense and settlement of the Claim and (iv) does not acknowledge or settles any claims without the prior written agreement of the Indemnifying Party.
15.1 Remuneration for operating the Platform
The remuneration payable by Customer consists of (i) a recurring monthly base payment and (ii) hosting costs from Managed Kubernetes Provider (if applicable). The monthly base payment includes 1 full day of support from a member of Humanitec’s engineering team to debug and resolve problems in a production environment per month. Any additionally required day of support is charged on top with a daily rate of 600 EUR. The included support days can only be used in the respective month.
15.2 All prices are net, meaning exclusive of the respectively valid sales tax/VAT.
15.3 All invoices are due within 14 days from the invoice date.
15.4 Invoicing will only be in electronic form and transmitted via e-mail.
15.5 Should Customer be in default with payment, Humanitec is entitled to suspend Customer’s access to the Platform. Customer’s obligation to pay remains unaffected.
15.6 Customer may only set off Humanitec’s claims if its own claims are either not contested by Humanitec or have been recognized by declaratory judgment.
16.1 Humanitec shall be fully liable under applicable law
16.2 Otherwise, Humanitec shall only be liable if any loss or damage is caused by the infringement of a fundamental contractual duty by Humanitec, which is indispensable for the duly execution of the contract and thereby jeopardizes the achievement of the contract purpose, whereas such loss or damage is limited to the foreseeable damage at the time of the infringement which is the case if such loss occurs as a typical effect of such damaging event. The Parties agree that such foreseeable damage typically does not exceed the remuneration paid by Customer to Humanitec in the twelve (12) months preceding the damaging event.
16.3 The limitations and/or restrictions of Humanitec’s liability shall also apply to the personal liability of its legal representatives, officers, employees, assistants in performance, and agents.
Otherwise, the applicable legal provisions shall apply.
16.4 Neither Party shall be liable in a Force Majeure events, i.e. acts of God, acts of the public enemy, strikes, labor disputes, freight embargoes, quarantine restrictions, insurrection, riot, governmental action, restrictions by governmental or other competent authority, statutory or regulatory obligations and other such causes beyond the reasonable control of Humanitec.
17.1 Each Party shall comply with the applicable data protection laws.
17.2 By executing this Agreement the Parties enter into the processing agreement according to Art. 28 GDPR as set forth in Attachment 1.
17.3 Humanitec will delete all of Customer’s data four (4) weeks after termination.
18.1 Both Parties agree not to, and shall ensure that their employees, agents and advisors do not, disclose to third parties, nor use for any purpose other than as contemplated in this Agreement, any confidential or proprietary information arising or disclosed pursuant to this Agreement (including but not limited to the terms of this Agreement, the Parties’ trade secrets and information not generally known to the public such as business plans, strategies, practices, products, personnel and finances), except: (i) with the prior written permission of the Party to whom such information belongs; (ii) where the information is already known to, or obtained by independent means, or independently developed without reference to the other Party’s confidential information, by the recipient; (iii) is already in the public domain through no fault of the recipient; (iv) the recipient receives from a third person free to make such disclosure without breach of any legal obligation; or (v) the disclosure by both Parties to an affiliated company (in the meaning of sections 15 et seqq AktG) of either Party.
18.2 This § 18 shall survive the termination of this Agreement for three (3) years after such termination. Notwithstanding the foregoing, a recipient may disclose confidential information of the other Party if required to do so by law, court order or request by any government or regulatory authority. In any of those events, the recipient will in advance and promptly inform the other Party about the requirement or respectively the request for disclosure.
19.1 Term is two (2) years from the Effective Date. The Term is automatically renewed by recurring one (1) year period if no notice of termination is given.
19.2 Each Party may be entitled to terminate the Agreement without cause with a period of six (6) months with effect to the end of the current Term upon written notice to the respective other Party.
19.3 In addition to any other remedy available at law or in equity, either Party may terminate this Agreement immediately upon written notice:
19.4 Promptly upon termination of this Agreement and in any event within 30 days of termination, each Party shall, if requested by the other Party, return or destroy all confidential and proprietary information referred to in § 18 (Confidentiality) or Customer’s data in accordance with § 17.3.
19.5 The termination of this Agreement for any reason whatsoever shall not affect any rights or liabilities that have accrued prior to or upon termination, nor shall it affect any Clauses or Sub-Clauses which are intended expressly or impliedly to continue after termination.
19.6 In case of the termination of the Agreement, any rights of use granted to Customer for the Platform shall expire immediately and Customer shall cease to use the same except as allowed for under the Humanitec Affero GPL.
20.1 Unless otherwise agreed in this section, each Party may not assign any of its claims or rights under the Agreement or the entire Agreement without the prior written consent of the respective other Party.
20.2 In the event that Customer sells the whole or a part of its company, Customer is allowed to assign the current License to the new owner of the divested entity in order for it to continue to use the Software for the remaining time of the current Term.
21.1 Amendments, Waivers. This Agreement may not be amended, modified or superseded, unless expressly agreed to by written instrument executed by both Parties, unless a stricter form is required by law. No provision of this Agreement may be waived except by an instrument in writing signed by the Party against whom the waiver is to be effective. If an instrument is delivered by any means of telecommunication, it shall only be deemed to be written, if the delivered copy bears the signature of the issuer. The failure of either Party at any time or times to require full performance of any provision of this Agreement will in no manner affect the right of such Party at a later time to enforce the same.
21.2 Written notice. A (i) written instrument signed by the respective Party and delivered by letter, scan (email) or fax to the other Party or (ii) a notice made to the other Party’s dedicated contact shall each be deemed a written notice within the meaning of this Agreement;
21.2 Severability. If any of the provisions of this Agreement should be or become invalid or unenforceable in whole or in part for whatever reason, including a violation of any laws applicable to it, the validity of the other provisions hereof is not affected.
21.3 Controlling Law, Place of Jurisdiction. This Agreement will be governed by the laws of the Federal Republic of Germany, excluding any conflict of law rules as well as the United Nations Convention on Contracts for the International Sale of Goods. Both Parties submit to the exclusive jurisdiction of the courts of Berlin.