Terms

Terms for Customers

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1. Scope of the Terms for Customers, Description of the Platform

1.1. These terms and conditions (“Terms for Customers”) set forth the rights and obligations between Customer and Humanitec when accessing and using the platform app.walhall.io “Platform”). These Terms for Customers only apply to Customer’s use of the Platform; use of the Platform by User is subject to the Terms for Users.

1.2. Humanitec provides the Platform to enable the Customer to design, develop and deploy new services and applications for the Customer (“Customer Solution”). For this purpose, the Customer can set up an internal developer organization on the Platform where Users can get access to upon registration (“Customer Organization”) in order to import and modify software code from a GitHub repository which the Customer controls (“Customer Repository”), if connected with the Platform.

1.3. A further description of the services and functionalities provided by Humanitec on the Platform (“Platform Services”) is available at https://humanitec.com/technical-definitions and https://docs.humanitec.com.

4. The scope of the Platform Services may be subject to change, provided that the overall scope does not materially limit the scope at the time of Customer’s registration and does not negatively impact the usability of the Platform. Any changes to the Platform are subject to Humanitec’s sole discretion; the Customer is not entitled to request any additional services or functionalities.

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2. Definitions, Interpretation

2.1. In this Customer Agreement, unless the context requires otherwise, the following expressions shall have the following meanings:

2.1.1. “Affiliate” means any entity/company within the meaning of Section 15 ff. of the German Stock Corporation Act (Aktiengesetz, “AktG”);

2.1.2. “API” means an application programming interface;

2.1.3. “Customer” means the organization, company or other legal entity which is subject to the Terms for Customers.

2.1.4. “Customer Agreement” means the agreement between Customer and Humanitec relating to the Terms for Customers including all its attachments;

2.1.5. “Customer Content” means any software, code, data, information, feedback, suggestions, text, content and other materials which Customer uploads, posts, delivers, provides or otherwise transmits or stores in connection with or relating to the use of the Platform.

2.1.6. “Customer Solution” means any service and/or application designed, developed and/or deployed by the Customer through the Platform.

2.1.7. “Customer Repository” means the respective GitHub software repository which is controlled by Customer.

2.1.8. “Humanitec” means Humanitec GmbH, Wöhlertstraße 12/13, 10115 Berlin, Germany.

2.1.9. “Intellectual Property Rights” means any patents, copyright, design right, trademark, service mark, logo, database right, trade secret, patent applications, rights in inventions, know-how and/or other present or future intellectual property right of any type;

2.1.10. “Party” means either Customer or Humanitec and “Parties” means Customer and Humanitec together;

2.1.11. “Platform” means the platform operated by Humanitec at app.walhall.io;

2.1.12. “Service Level Agreement” means the agreement between Customer and Humanitec relating to specific service levels for the Platform defined by Humanitec.

2.1.13. “Technical Requirements” means the technical requirements Customer must meet to use the Platform as described under https://humanitec.com/technical-definitions and as may be changed from time to time;

2.1.14. “Terms for Customers” means the terms and conditions set forth in this document, which are part of the Customer Agreement;

2.1.15. “Usage Requirements” means the requirements, as described under https://humanitec.com/usage-requirements and as may be changed from time to time by Humanitec, which define the criterions when Customer’s use of the Platform is free of charge or subject to a remuneration;

2.1.16. “User” means a natural person using the Platform as a developer subject to the Terms for Users.

2.2. Irrespective of the definitions as set forth in § 2.1, the Customer Agreement contains further definitions.

2.3. Reference to clauses and sub-clauses without specification are to those of these Terms for Customers.

2.4. 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.

2.5. 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.

2.6. A reference to “writing” or “written” includes email unless explicitly mentioned otherwise.

2.7. Where the words “include(s)”, “including”, “at least” or “in particular” are used in this Customer Agreement, they are deemed to have the words “without limitation” following them.

2.8. This Customer Agreement consists of these Terms for Customers and the Data Processing Agreement available at https://humanitec.com/data-processing-agreement.

2.9. In case of conflict, the Terms for Customers shall prevail over and govern any attachments unless otherwise expressly agreed in such attachment by referring to the Section of the Terms for Customers to be amended. The same applies respectively in case of conflict between the terms of the Terms for Customers or an attachment and their respective annexes and exhibits.

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3. Registration, Agreement

3.1. Customer’s access to and use of the Platform is subject to Customer’s prior completion of the registration procedure. Upon completion of the registration the Customer enters into a legally binding and enforceable contractual agreement with Humanitec on the use of the Platform and the underlying services and functionalities according to the Terms of Customers (“Customer Agreement”). These Terms for Customers shall apply to and govern the contractual relationship between the Parties.

3.2. To complete the registration procedure Customer must connect its Customer Repository with the Platform. Further information how to connect the Customer Repository with the Platform are available at: https://docs.humanitec.com/.

3.3. The registration is completed once the Customer clicks on a confirmation button on the Platform and receives a confirmation email about Customer’s successful registration from Humanitec.

3.4. Registration on the Platform as Customer is only permitted to organizations, companies and other legal entities which qualify as enterprise in the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, “BGB”). Any natural person carrying out the registration on behalf of an entity on the Platform hereby represents and warrants that it is authorized to bind such entity to this Customer Agreement.

3.5. Each Customer shall create only one (1) account for the Platform. Repeated and/or multiple registrations are not permitted.

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4. Humanitec’s Obligations

4.1. Humanitec shall:

4.1.1. Operate and maintain the Platform in order to achieve the availability as defined in § 7.

4.1.2. Provide maintenance services to Customer as described in § 8.

4.2. For avoidance of doubt, Humanitec is not obliged to:

4.2.1. Provide maintenance and support for Customer’s own code. If Customer requires support and maintenance for any own code, Humanitec and Customer need to agree on such support and maintenance in a separate written agreement.

4.2.2. Provide updates or upgrades to the Platform other than required to meet the agreed availability and the correct function of each feature of the Platform.

4.2.3. Provide the technical capacities and prerequisites required for the use of the Platform which fall under the responsibility of the Customer. This includes, for example, maintaining a connection of Customer’s systems with the internet to communicate with the Platform. This is the sole responsibility of the Customer.

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5. Customer’s Obligations, Use of the Platform

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5.1. General Obligations

The Customer shall during the term of this Customer Agreement in particular:

5.1.1. Provide correct and complete data required for the registration and proper provision of the services and functionalities of the Platform and keep them up to date at all times during the term of this Customer Agreement. The required data includes in particular user’s contact data.

5.1.2. Keep the login data to the user account for the Platform safe and keep it secure from access by third parties.

5.1.3. Not violate this Customer Agreement and/or applicable law as well as the rights of third parties while using the Platform, including in particular when providing a Customer Solution.

5.1.4. Meet the Technical Requirements for use of the Platform.

5.1.5. Reasonably support Humanitec in providing the services under this Customer Agreement.

5.1.6. Do not use any virus, spyware, malware or other computer code, file or program that may interfere with the operation and/or availability of the Platform.

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5.2. Setup of User Accounts, Access to Customer Repository

5.2.1. Customer may set up user accounts on the Platform in order to grant its Users access to the Platform for the purposes specified hereunder. The maximum amount of permitted user accounts is specified in Humanitec’s Usage Requirements.

5.2.2. Customer is liable for the use of the Platform by its Users and any violation caused by them.

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5.3. Provision of Customer Solution, Use of Customer Content

5.3.1. Customer is solely responsible for any Customer Solution and all Customer Content when using the Platform; Humanitec does not take any liability or warranty.

5.3.2. Customer represents and warrants that it has all necessary rights for any Customer Solution and all Customer Content developed and deployed by Customer on the Platform for the scope of the Customer Agreement.

5.3.3. Customer hereby grants Humanitec a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, modify, reproduce, distribute, display, provide, publish and perform any Customer Solution and all Customer Content for the scope of the Customer Agreement.

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5.4. Suspension of Customer’s Account.

5.4.1. Humanitec is entitled to suspend Customer’s account temporarily or permanently upon prior notice if the account is not used or Customer does not log in its account for a period of 12 weeks; this does not apply if use of the Platform by the Customer is subject to a remuneration pursuant to § 14.

5.4.2. Humanitec is entitled to suspend Customer’s access to the Platform temporarily or permanently and without prior notice if the Customer fails to comply with the requirements set forth in the Customer Agreement. Other rights, in particular Humanitec’s right to terminating this Customer Agreement for due cause, remain unaffected.

5.4.3. Suspension of Customer’s account includes suspension of any User account set up by Customer.

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5.5. Customer shall indemnify and hold harmless Humanitec from any claims by third parties based on the provision of a Customer Solution or use of Customer Content by the Customer or due to Customer’s breach of this § 5.

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6. Rights of Use

6.1. Humanitec hereby grants the Customer a non-exclusive, revocable, non-transferable, geographically unrestricted right to use the Platform. The right of use granted by Humanitec is limited to the term of this Customer Agreement.

6.2. Customer may sublicense the aforementioned right to use to its Affiliates provided that Customer shall be liable for the sublicensee’s use of the Platform.

6.3. Nothing in this Customer Agreement has the effect of assigning or transferring any title to intellectual property rights to Customer. Humanitec (and/or its Affiliates) retain all right, title and interest in and to the Platform and all Intellectual Property Rights associated therewith. Customer does not acquire any right to use the Platform in excess of the scope and/or duration of the Customer 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 Platform 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 Customer 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 § 11.3. Except as set forth herein, no provisions concerning infringement and indemnity shall apply to such open source software, if Customer was made aware of the use of open source software and the applicable license.

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7. Availability

7.1. The Platform and the Platform Services are made available to the Customer on an “as is” basis. Humanitec makes reasonable efforts to provide the Platform without interruption. The availability depends on Humanitec’s technical and operational possibilities.

7.2. The Platform shall be deemed to be operating and available if the Platform is up and running in the data centers where its components are hosted in and such data centers are connected to the internet (“Point of Transfer”).

7.3. Maintenance works as well as technical or other malfunctions and problems which are not within Humanitec’s sphere of influence (e.g. acts of force majeure, unavailability of third party systems) can lead to a temporary downtime of the Platform. Such failures are not considered to be an impairment of availability. Humanitec will endeavor to give notice of any unavailability of any services and functionalities within reasonable time prior to any such unavailability.

7.4. It is not a breach of availability if Customer is unable to use the Platform due to

7.4.1. Problems with it’s access to internet;

7.4.2. Problems arising from Customer’s software, hardware, or other technology or equipment;

7.4.3. Problems arising from third party systems over which Humanitec does not have any influence (e.g. GitHub).

7.5. The Parties may agree on further terms and conditions as well as specific service levels with respect to the availability of the Platform and the handling of incidents as set forth in a separate Service Level Agreement to be provided by Humanitec. This Service Level Agreement becomes part of the Customer Agreement.

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8. Rights in Case of Defects, Maintenance

8.1. Customer shall immediately report to Humanitec any defects of the Platform.

8.2. Customer’s rights in case of defect shall be handled and executed within the scope of the maintenance services provided by Humanitec as defined in this § 8. If the Customer demands rectification due to a defect, Humanitec is entitled to choose the type of rectification.

8.3. Any warranty claims shall expire within 1 year. The period begins with the transfer of the software or the respective program part within the scope of the maintenance services. Any claims for damages are subject to the limitations set forth under § 13.

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8.4. Maintenance

8.4.1. Humanitec shall provide maintenance services for the Platform to ensure availability of the Platform and the Platform Services as agreed hereunder.

8.4.2. The performance of the maintenance services is at the sole discretion of Humanitec and regularly through the provision of software in the form of updates, upgrades, patches, bug fixes ("Program Parts") which modify and/or supplement the Platform, including the provision of documentation of the modified and/or supplemented functions in a form to be chosen by Humanitec.

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9. Additional Services

As agreed from time to time for specific scopes of work between the Parties in writing, Humanitec may provide to Customer certain services and functionalities relating to or associated with the use of the Platform, which do not fall under the scope of the Customer Agreement, such as development of additional Platform Services and/or Microservices (“Additional Services”). Provision of Additional Services is subject to a separate written agreement between Humanitec and Customer and requires that Customer’s use of the Platform is subject to a remuneration.

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10. Subcontractors

10.1. Humanitec may utilize subcontractors. Subcontractors are third parties that are not Affiliates and which Humanitec makes use of for the purpose of this Customer Agreement. Information about the Humanitec’s subcontractors are available under https://humanitec.com/technical-definitions. The information may be updated from time to time.

10.2. Use of subcontractors does not discharge Humanitec from its performance obligations, liability and other obligations under the Customer Agreement.

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11. Intellectual Property Rights

11.1. Except for the rights granted hereunder, the Parties agree that all Intellectual Property Rights in the Platform shall remain with Humanitec.

11.2. Customer shall use the Platform in accordance with the provisions of this Agreement and any applicable statues, 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

11.2.1. Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Platform, or access or use the Platform in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the Platform, except as set forth herein;

11.2.2. Use the Platform to distribute illegal content and/or content that infringes the rights of any third parties;

11.2.3. License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Platform available, to any third party other than Affiliates, except as set forth herein.

11.3. 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.

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12. Third Party Rights, Indemnification

12.1. 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 and the open source components included in the Platform are used according to the applicable (open source or public) licenses.

12.2. Humanitec will undertake appropriate efforts at its own cost in case of conflicting third-party Intellectual Property Rights, in order for the Customer still being able to use the Platform. For this purpose, Humanitec may:

12.2.1. provide Customer the rights that are required for the use, or

12.2.2. modify the Platform in such manner that its usage is not restricted and Humanitec’s obligations are not modified and third-party Intellectual Property Rights are no longer affected

If Humanitec is unable to provide such remedy, Humanitec may terminate this Customer Agreement in part or in total. Further rights of Customer remain unaffected

12.3. Customer warrants that any Customer Solution and all Customer Content made available or otherwise used on the Platform does not infringe any third-party Intellectual Property Rights.

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12.4 General Indemnification Rules

12.4.1. 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 § 12 or where one Party takes an obligation to indemnify the other Party under this Customer Agreement.

12.4.2. 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.

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13. Liability Terms

13.1. Humanitec shall be fully liable under applicable law:

13.1.1. in cases of any loss or damages caused by willful intent (Vorsatz) or gross negligence (grobe Fahrlässigkeit);

13.1.2. in cases of damages that result from injury to life, body or health;

13.1.3. in case of mandatory liability provided by law, as under the German Product Liability Act (Produkthaftungsgesetz); and

13.1.4. in cases of liability due to a guarantee.

13.2. 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 Customer Agreement and thereby jeopardizes the achievement of the Customer Agreement purpose, whereas such loss or damage is limited to the foreseeable damage at the time of the infringement. This is the case if such loss occurs as typical effect of such damaging event. The foreseeable, contract-typical damage is such damage which is typically to be expected in a normal course of damage.

13.3. 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.

13.4. Humanitec shall not be liable in the event of force majeure. Force majeure comprises all circumstances and events outside the scope of responsibility of Humanitec, such as strikes, lockout, natural events, catastrophes, official intervention, legal prohibitions or other events impeding Humanitec without its fault to perform its services.

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14. Remuneration, Payment Terms

14.1. Use of the Platform by the Customer is free of charge, provided that Customer complies with the requirements set forth in Humanitec’s Free Usage Guidelines.

14.2. If Customer’s use of the Platform does not comply with the requirements set forth in the Free Usage Guidelines (e.g. due to the amount of required bandwidth or hosting capacity or due to the expiration of a certain time period), any further use of the Platform is only permitted against payment of a separate remuneration by Customer and conclusion of a separate Service Level Agreement between the Parties.

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14.3. General Payment Terms

In case use of the Platform is subject to a remuneration, the following terms and conditions shall apply, unless agreed otherwise between the Parties in writing:

14.3.1 All prices are net, meaning exclusive of the respectively valid sales tax/VAT.

14.3.2. All invoices are due within 14 days from the invoice date.

14.3.3. Invoicing will only be in electronic form and transmitted via e-mail.

14.3.4. Should Customer be in default with payment, Humanitec is entitled to suspend Customer’s access to the Platform, including any User accounts associated with Customer’s account. Customer’s obligation to pay remains unaffected.

14.3.5. Customer may only set off Humanitec’s claims if its own claims are either not contested by Humanitec or have been recognized by declaratory judgement.

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15. Amendments

15.1 Humanitec reserves the right to amend this Customer Agreement from time to time, for example to implement statutory changes; this does not include significant changes to the basic functions of the Platform.

15.2 Humanitec shall notify Customer about the respective change in writing or by e-mail four (4) weeks in advance. At the same time, Humanitec shall notify the Customer that the respective modification will become the subject of the Customer Agreement between the Customer and Humanitec, if the Customer does not object to this change within a period of four (4) weeks upon release of the notification by Humanitec. If the Customer objects to a change, each party has the right to terminate the Customer Agreement with a notice period of four (4) weeks in writing or by e-mail.

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16. Term, Termination

16.1. The following applies with respect to the term and termination of the Customer Agreement, unless the Parties agree on a specified term in written from:

16.1.1. This Customer Agreement becomes effective upon completion of Customer’s registration pursuant to § 3 and has an indefinite term.

16.1.2. The Customer may terminate the Customer Agreement at any time by sending an email to the support of Humanitec to delete its account.

16.1.3. Humanitec is entitled to terminate this Customer Agreement without any reason. Termination without any reason is subject to a at least 30 days’ notice per email or in writing to the Customer.

16.2. The right of the Parties to terminate this Customer Agreement for due cause remains unaffected.

16.3. Humanitec is entitled to terminate this Customer Agreement for due cause, in particular if the Customer materially or repeatedly breached its obligations under this Customer Agreement.

16.4. Termination of this Customer Agreement by either Party will result in the permanent deactivation or disablement of the Customer’s account and access to the Platform.

16.5. Humanitec will delete all of Customer’s data four (4) weeks after termination of this Agreement.

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17. Data Protection

17.1. Each Party shall comply with the applicable data protection laws.

17.2. In case Customer makes a User Solution available to third parties this may involve the processing of such third parties’ personal data by Humanitec on behalf of the Customer. For this purpose, the Parties enter into a processing agreement in accordance with Art. 28 GDPR and as set forth in the Data Processing Agreement by executing this Customer Agreement.

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18. Confidentiality

18.1. The 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 Customer Agreement, any confidential or proprietary information arising or disclosed pursuant to this Customer Agreement (including the terms of this Customer 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 Affiliate if required for the execution of this Customer Agreement. Any disclosure shall be limited to the extent necessary for the performance of the contract ("need-to-know").

18.2. The parties shall take appropriate technical and organizational measures to prevent information requiring confidentiality from becoming accessible to third parties. The right to reverse engineering is excluded.

18.3. This § 18 shall survive the termination of this Customer Agreement for three (3) years after such termination, unless a longer period is required under any applicable law. 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.

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19. Assignment of the Customer Agreement

19.1. Unless otherwise agreed in this section, each Party may not assign any of its claims or rights under the Customer Agreement or the entire Customer Agreement without the prior written consent of the respective other Party.

19.2. In the event that Customer sells the whole or a part of its company, Customer is allowed to assign the current Customer Agreement to the new owner of the divested entity in order for it to continue to use the Platform for the remaining time of the current Term.

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20. Final Provisions

20.1. Amendments, Waivers. This Customer 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 Customer 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 Customer Agreement will in no manner affect the right of such Party at a later time to enforce the same.

20.2. Severability. If any of the provisions of this Customer 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.

20.3. Controlling Law, Place of Jurisdiction. This Customer 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.