General terms and conditions

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General terms and conditions

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Valid as of 01.01.2017.
Our previous contract terms are still available for reference here retrievable.

1. general

1.1 Scope

The ScaleUp Technologies GmbH & Co. KG (hereinafter referred to as ScaleUp) provides all services exclusively under the following General Terms and Conditions. The customer recognizes these general terms and conditions by placing an order or by accepting the service. The validity of deviating conditions is excluded, even in the case of service provision by ScaleUp, even if ScaleUp does not explicitly contradict them. These terms and conditions apply to all future legal transactions even without renewed inclusion as agreed.

1.2 Reservation of right of modification

ScaleUp is entitled to change or amend the general terms and conditions, price lists and service descriptions at any time. Changes will be communicated to the customer by mail or by e-mail. If the customer does not object in writing within six weeks after receipt of the change notification, the changes are considered approved and also become effective for already existing contractual relationships. The current General Terms and Conditions can be viewed on the websites of ScaleUp (www.scaleuptech.com) or requested by the customer from ScaleUp.

2. conclusion of contract

2.1 Placing of order

All offers of ScaleUp, including the associated documents, are non-binding and subject to change. A contract for the provision of a certain service is only concluded when ScaleUp accepts the order of the customer by way of a written order confirmation, or performs acts of fulfillment.

2.2 Scope of services

Content and scope of the service result from the accepted order, including the associated documents. All service obligations of ScaleUp are subject to the proviso that all relevant obligations and duties of the customer regarding the service to be provided are fulfilled in time, completely and in sufficient quality. ScaleUp is entitled to use third parties as vicarious agents in the performance of services. The customer is granted a right of use corresponding to the purpose of the service for the duration of the claim to the service. All other rights remain with ScaleUp. In the case of the sale of objects ScaleUp reserves the property until the complete payment of the purchase price. Voluntary services of ScaleUp, which are not contractually agreed upon, can be stopped at any time and without special announcement. Claims for performance or damages of the customer are excluded in this respect.

2.3 Creditworthiness and security

The provision of services requires the creditworthiness of the customer. ScaleUp reserves the right to conduct an examination of the creditworthiness of the customer before or after acceptance of the order. As a prerequisite for the acceptance of an order, ScaleUp is entitled to demand an appropriate security from the customer in the form of advance payments, a deposit or the presentation of a guarantee from a credit institution with its registered office in Germany. If the security is not provided within a period of two weeks after request, ScaleUp can refuse the service provision.

3. obligations of the customer

3.1 Use of the service

The customer is obligated not to misuse the service within the scope of his contractual agreements as well as the legal requirements. In particular, not to interfere with ScaleUp's network or other networks; not to use any facilities or applications that may lead to impairments of the physical or logical structure of the used networks or facilities. ScaleUp reserves the right to install and use reasonable devices to prevent misuse, or to require the installation and use of such devices by the customer. The Client acts on its own responsibility and is liable for all charges incurred in connection with the Service, even if such charges are incurred due to or as a result of fraudulent or unauthorized use of the Service, unless the Client is not responsible for such use. The client exempts ScaleUp from any liability towards third parties due to an improper use.

A user identification obtained for the purpose of accessing the service of ScaleUp is to be kept strictly secret. Persons who use the user identification of the customer when making declarations concerning the contractual relationship are considered authorized by the customer to make the respective declaration.

3.2 Data security

The customer is obliged to inform himself about recognized principles of data security as well as the dangers of misuse and loss of data and to follow them. It is the customer's responsibility to carry out daily updated complete data backups, whereby data and programs may not be stored securely on the server on which they are stored.

3.3 Duty to cooperate

The customer shall be obliged to cooperate insofar as it is necessary or useful for the processing of the order and is reasonable for the customer, taking into account the interests of both contracting parties.

In particular, the customer must always provide a valid email address for messages from ScaleUp and retrieve incoming messages there regularly. Messages sent by ScaleUp to the announced email address of the customer are considered received when the receiving mail server has accepted the message.

If services of the customer or third parties, or permits of third parties are required for the provision of services by ScaleUp (e.g. hardware, software, electricity, floor space, access to premises), these are considered as advance services of the customer. The customer has to provide and maintain these services at his own expense for the duration of the contract to the required extent.

If the customer does not provide necessary preliminary services for the provision of the service by ScaleUp, the customer is obligated to pay for the service from the point in time at which ScaleUp could have provided it if the customer had properly fulfilled its obligation.

4. domain registration

In the procurement and maintenance of domains ScaleUp acts only as an intermediary in the relationship between the customer and the respective organization for domain allocation. ScaleUp has no influence on the domain allocation. ScaleUp does not guarantee that the domains requested for the customer are assigned at all or that assigned domains are free of rights of third parties or have permanence.

The customer guarantees that the domains applied for by him do not violate any rights of third parties. The customer indemnifies ScaleUp, its vicarious agents and the respective organizations for domain allocation from claims for compensation of third parties as well as all expenses, which are based on the unauthorized use of an internet domain by the customer or with the approval of the customer.

5. IP traffic

5.1 Scope of services

IP traffic services include the provision of one or more connections to the ScaleUp network that provide access to the ScaleUp network and the Internet. IP traffic services are generally provided via Ethernet interfaces. The customer is entitled to use the IP traffic service described in the accepted order, including the associated documents.

5.2 Definitions

5.2.1 IP traffic

The traffic that the customer receives from or transmits to the ScaleUp network, regardless of its point of origin.

5.2.2 Main connection (uplink port)

The port designated in the respective order, including the associated documentation, which is configured to receive and send the Customer's IP traffic.

5.2.3 Backup port (backup uplink port)

The port designated in the applicable Order, including related documentation, configured to receive and send Customer's IP Traffic when Customer's primary port is unavailable.

5.2.4 Received IP traffic

The IP traffic that the customer receives from the ScaleUp network, regardless of its point of origin.

5.2.5 Sent IP traffic

The IP traffic that the customer, regardless of its point of origin, transmits to the ScaleUp network.

5.3 Charges

5.3.1 General

Charges for IP traffic are made up of four components:

A one-time commitment fee;
a monthly connection fee;
a monthly usage fee determined on the basis of a minimum purchase quantity;
a usage-based fee charged if the minimum purchase quantity is exceeded in the month in question.

Usage fees are billed based on one of the following billing models:

5.3.2 Gigabyte billing

Billing is done by measuring the customer's received and sent IP traffic, in gigabytes.

5.3.3 Bandwidth billing

95% billing

The IP traffic received and sent by the customer shall be determined by sampling at five-minute intervals for the preceding five minutes in each case. The highest 5% of the measured samples shall be disregarded at the end of the billing period. The highest remaining value is used for billing.

Average billing

The IP traffic received and sent by the customer is determined by random sampling at five-minute intervals for the preceding five minutes in each case. An arithmetic mean is formed for all samples determined during the billing period and used for billing.

5.3.4 Flat rate billing

With flat rate billing, all charges for IP traffic are included in the monthly usage charge. There is no need to charge a usage-based fee.

5.4 Returning IP addresses

If ScaleUp assigns one or more IP addresses to the customer within the scope of the provision of the IP traffic service, these will revert to ScaleUp after the termination of the respective service, regardless of the reason, as far as this is desired by ScaleUp and legally permissible. The customer has to stop the use of the IP addresses thereupon. After termination of the service ScaleUp can assign the IP addresses to another user at any time.

6. colocation

6.1 Scope of services

6.1.1 General

ScaleUp provides data centers in which the customer is given the opportunity to set up and operate its own or rented telecommunications equipment (hereinafter referred to as colocation). The customer is entitled to use the colocation services described in the accepted order, including the associated documents.

6.1.2 Colocation space

The Colocation Space is equivalent to a computer room equipped with comprehensive security measures to provide a suitable operating environment for Customer's telecommunications equipment. Customer is only authorized to use the Colocation Space to operate and house telecommunications facilities. These facilities may be interconnected either with ScaleUp's network or, subject to ScaleUp's prior written consent, with the networks of other telecommunications providers.

Unless expressly agreed otherwise, the colocation space is handed over "as is" and accepted by the customer. ScaleUp does not make any warranty regarding the suitability of the colocation space for the use intended by the customer.

6.1.3 Access to the colocation space

ScaleUp will provide Customer with access to the colocation space 24 hours a day, 7 days a week, to the extent required. Client access to the colocation space that is accompanied by a ScaleUp employee will be billed as a remote hands service. If the Customer has been provided with their own access card, key or similar for access to the colocation space, unescorted access is available to the Customer 24 hours a day, 7 days a week, without separate notice.

ScaleUp will provide and maintain the card readers, scanning devices and/or other security devices necessary for access to the Colocation Space. Under no circumstances is the Client authorized to hold a door open or otherwise circumvent the security measures taken by ScaleUp for access to the Colocation Space.

The customer assumes responsibility for accompanying persons and is liable for their conduct. Insofar as unauthorized persons gain access to the colocation space as a result of actions or omissions on the part of the customer or with the aid of access cards, keys or similar devices provided to the customer, the customer shall be responsible for any damage resulting therefrom. Customer shall be responsible for the replacement of any access cards, keys or other access and security devices provided to Customer that are lost or stolen after being provided to Customer, unless Customer proves that it is not responsible for the loss.

If the Client has reason to believe that an unauthorized person was able to gain access to the colocation space, ScaleUp will, upon the Client's request, allow the Client to view the recordings of the video surveillance system in the presence of a ScaleUp employee, to the extent possible. In addition, ScaleUp will provide the Client with a copy of the access log for the Colocation Space upon written request.

ScaleUp reserves the right to access the colocation space at any time.

6.1.4 Change of location or equipment

Unless expressly agreed otherwise, the colocation space is handed over "as is" and accepted by the customer. ScaleUp makes no representation regarding the suitability of the colocation space for the Customer's intended use.ScaleUp reserves the right to change the location or equipment of the colocation at its own expense. However, ScaleUp will not arbitrarily require such changes to the detriment of the Client. The parties undertake to work together to minimize disruptions caused by changes.

6.1.5 Maintenance and servicing

ScaleUp will provide building services, maintenance of environmental maintenance systems, maintenance of power equipment, and perform any other actions necessary to maintain the Colocation in good condition and suitable for housing telecommunications equipment.

6.1.6 Safekeeping of customer equipment

ScaleUp may enter into an agreement with the Customer for the free of charge safekeeping of the telecommunication equipment intended for installation on the colocation space. Such custody is possible at the earliest from 45 days prior to the scheduled provision date of the colocation services. None of the documents issued in connection with the gratuitous custody shall be considered a storage receipt. ScaleUp's liability in connection with gratuitous custody is limited to intent and gross negligence. If the safekeeping exceeds the period of 45 days, ScaleUp is entitled to return the customer equipment at the expense of the customer.

6.1.7 Price changes

All prices are subject to possible fluctuations in ScaleUp's purchase price. If a pre-supplier changes the price towards ScaleUp, ScaleUp is entitled to pass on the price change, in the form of an increase or decrease, to the customer after prior written notification. This applies in particular, but not exclusively, to the price of the colocation space and to the price of the electricity delivered to the colocation space.

6.1.8 Year-end billing for power supply

The agreed prices include a calculated electricity price at the time the contract is concluded.

The electricity price relevant for billing will be retroactively adjusted by the upstream supplier after the end of the calendar year for the completed calendar year. ScaleUp is entitled to pass on a resulting price change, in the form of an additional or reduced charge, also retroactively, to the customer.

6.2 Obligations of the customer

6.2.1 Use of the colocation space

The Client must maintain the Colocation Space in a proper and safe condition at all times and return it to ScaleUp at the end of the term agreed upon in the Order in the condition, except for normal wear and tear, in which it was provided to the Client.

The customer undertakes to use the colocation space for the accommodation and operation of telecommunication equipment no later than six months after it has been made available ready for operation. If no use is made within this period, ScaleUp is entitled to demand the return of the unused parts of the colocation space. The customer has to provide the reclaimed colocation space. The fee to be paid by the customer will be adjusted accordingly. Customer shall have no claims for reimbursement with respect to the returned colocation space.

Customer agrees to comply with all terms of use, access rules and security measures relating to the Colocation and the Colocation Space as posted or otherwise made known.

6.2.2 Installing the customer equipment

All facilities installed by the customer must comply with DIN, DIN EN and VDE guidelines. The customer is obliged to test facilities for proper function before connecting them to the power supply and to ensure that the facilities cannot have any adverse effects on ScaleUp's supply facilities. The customer is obligated to take the electrical energy necessary for the operation of his facilities exclusively from the power supply facilities assigned to him.

The connection of third-party equipment that does not correspond to the intended operation on the colocation area to the critical power supply is prohibited. For the operation of e.g. tools or cleaning equipment, only the circuits of the non-critical power supply marked as such are to be used.

The customer is only entitled to install cabling for its facilities within its leased property.

6.2.3 Removal of customer equipment

The Client must remove all Client Equipment from the Colocation Space within two calendar days of the expiration of the agreed term or termination. ScaleUp may exercise a lien with respect to the return of Client Equipment still in ScaleUp's possession until the Client has reimbursed ScaleUp for all out-of-pocket expenses extraordinarily incurred in connection with the disconnection, removal, and storage and has settled all outstanding claims. ScaleUp is not liable for any loss or damage incurred by the Client in this connection, unless it is due to intent or gross negligence.

6.2.4 Air conditioning

When installing equipment on the colocation space, care must be taken to ensure sufficient supply and exhaust air ducting, especially within a rack. The customer is responsible for the elimination of heat accumulation due to excessive or inadmissible placement of equipment.

6.2.5 Power supply

The customer may not exceed the agreed maximum reference values of power consumption on the colocation space. If the customer exceeds these maximum reference values of power consumption, ScaleUp no longer guarantees the power supply for the colocation space and is entitled to disconnect the affected connections. A larger power consumption, if available, can be claimed after consultation with ScaleUp for an additional charge. However, ScaleUp reserves the right to refuse a higher power draw, taking into account the overall energy ratio in the data center.

6.2.6 Insurance

Prior to the use and for the duration of the use of the colocation space, the Client will maintain comprehensive general liability insurance for personal injury and property damage in the amount of at least €1,500,000.00 per claim, and electronics insurance with all-risk coverage for all items that it places and operates on or in the colocation space and that are not the property of ScaleUp. ScaleUp is entitled, but not obligated, to demand the submission of the corresponding insurance certificates from the Client.

6.3 Granting of third-party rights of use

The customer is entitled to grant third parties a right to use the colocation. The following conditions apply to this:

ScaleUp has agreed in writing in advance to the granting of rights of use to the third party concerned;
the Customer warrants that each such third party will comply with all provisions of these Terms and Conditions of Service, including any related orders and other documents;
the client agrees to indemnify and hold ScaleUp harmless from all claims asserted against ScaleUp due to an act or omission of the third party or its agents, and to defend the asserted claims at its own expense;
any third party shall be deemed to be Customer's agent or representative, as the case may be, and all acts and omissions of the third party and the use of the Colocation Services by the third party shall to that extent be attributable to Customer.

The granting of rights of use of third parties does not release the customer from his contractual obligations towards ScaleUp. If the customer grants a third party the right to use the colocation without ScaleUp's prior written consent and does not stop doing so within a period of five calendar days after a written warning by ScaleUp, ScaleUp may terminate the customer's right of use with respect to the part of the colocation service granted to the third party without notice.

The accommodation and operation of telecommunication facilities as well as hosting on behalf of third parties, who themselves do not have access to the colocation space, is not considered to be a granting of third party rights of use and is permitted to the Customer even without the express consent of ScaleUp.

6.4 Termination for cause

ScaleUp is entitled to terminate the Customer's right to use the colocation services without notice in the following cases:

If ScaleUp's right to use the colocation expires or is terminated for any reason other than breach of contract;
if the customer makes significant changes to the colocation space without having obtained ScaleUp's prior written consent;
if the Customer grants access to the colocation space to employees or contractors who have not been previously authorized for this purpose by ScaleUp;
if the customer violates any usage, access or security rules for the colocation and/or the colocation space communicated to it.
As long as other customers are not affected by this, ScaleUp will give the customer a written warning before terminating the contract without notice and give the customer the opportunity to cure the violation within 10 calendar days.

7. complementary services

7.1 Scope of services

7.1.1 General

ScaleUp supports the planning, realization and operation of the IT infrastructure of the customer and provides supplementary services within the scope thereof. Supplementary services require a separate written order by the customer. In exceptional cases, a verbal order will be made by the customer.

7.1.2 Remote Hands

Remote Hands are limited maintenance and support services provided on-site at the Colocation. Customer may request Remote Hands for its telecommunications equipment operated on the Colocation Premises. Remote Hands will be provided in accordance with Customer's requests and instructions. ScaleUp is not responsible for repairing, configuring, or adjusting Customer's facilities. Services provided under Remote Hands include:

Support for the relocation of IT systems
Switching systems on or off
Software and hardware reboot of IT systems, support of the subsequent boot process
Insertion and removal of data carriers (CDs, DVDs, floppy disks, tapes)
Checking the externally visible status of the customer's facilities
Entering commands on a keyboard console with telephone or written instructions.
Monitoring, describing or reporting key indicators
Installation and modification of IT systems and network components
Wiring of IT components and network patch work
Assist with activities under the direction of senior system administrators or specialists.
Receipt of goods / inventory
Documentation, labeling or marking of equipment
Creation of schematic technical drawings of customer environments

7.2 Accounting

Remote hands are charged according to the current price list.

7.3 Liability

Any risks arising from work carried out by ScaleUp employees on the client's equipment or by client order are fully borne by the client. Liability claims against ScaleUp are expressly excluded, except in the case of intentional or grossly negligent conduct.

8. charges and payment

8.1 Charges incurred

The customer is obligated to pay all accruing fees from the time of the ready-for-use provision. The amount of the fees depends on the agreements in the respective order, including the associated documents, or can be taken from the price list of ScaleUp. Unless otherwise stated, all fees are in Euro plus VAT and any other applicable taxes, fees, charges or surcharges that are levied by the customer due to or in connection with the provision of the service, the sale or the use.

8.2 Terms of payment

Each invoice is due upon receipt and is payable without deduction. If the invoice amount is not credited to the account specified in the invoice within 14 calendar days of the invoice date, the customer shall be in default of payment. If the invoice specifies a different payment period, the customer shall be in default of payment after the expiry of the payment period specified in the invoice.

Unless otherwise expressly agreed, the customer grants ScaleUp a direct debit authorization for the direct debit of accruing fees. In case of a return debit note for which the customer is responsible, ScaleUp will charge an expense fee of 5.00 € plus bank charges per debit note. In case of non-use of the direct debit procedure (e.g. cash payment, bank transfer, check), ScaleUp is entitled to charge an expense fee in the amount of 5.00 € per invoice.

The customer can only offset against claims of ScaleUp with undisputed or legally established claims. The assertion of a right of retention is only entitled to the customer because of undisputed or legally established counterclaims from the same legal relationship.

8.3 Consequences of default

In case of default of payment, the customer is obligated to pay default interest in the amount of 9 percentage points p.a. above the applicable base interest rate, unless ScaleUp proves a higher default damage. For each reminder a lump sum of 2,50 € will be charged.

If the customer is in arrears with the payment of the fees, ScaleUp is entitled to deny access to the service after a written threat of blocking, setting a deadline of 14 days, or to suspend the service until full payment. In this case, the customer remains obligated to continue paying the agreed fees.

8.4 Objections

One-time and recurring fixed charges shall be billed to the customer in advance; usage-dependent variable charges shall be billed to the customer in arrears. If a fee is to be paid for parts of a month, a pro rata calculation is made on the basis of 1/30 per day. ScaleUp is entitled to activate a domain only after payment of the fee agreed upon for the registration.Objections against invoices of ScaleUp are to be made in writing to ScaleUp. The invoices are considered as approved by the customer, if he does not object to them within six weeks after receipt. To meet the deadline, it is sufficient to send the objection in time. Legal claims of the customer in case of objections after the deadline remain unaffected by this regulation.

9. warranty

9.1 General

ScaleUp guarantees that the performance corresponds to the specifications listed in the respective order, including the associated documents. ScaleUp renders its service according to the recognized and customary state of the art. Quality guarantees or warranties are not agreed.

9.2 Malfunctions

Disturbances are eliminated immediately within the scope of the technical and operational possibilities. If a disturbance in the sphere of influence of ScaleUp lasts longer than 24 hours, the customer is entitled to a proportional reduction of the recurring fixed fee for the disturbed service.

Disruptions that have their cause outside of ScaleUp's sphere of influence are not ScaleUp's responsibility. This includes events of force majeure, service failures of third parties, especially line or power failures at third parties, industrial action, also in third party companies, as well as official measures or court orders, etc. In these cases ScaleUp is released from its obligation to perform and any liability. If the service provision is connected with an unreasonable effort due to a disturbance beyond ScaleUp's control, ScaleUp is entitled to refuse the service for the duration of this disturbance and a reasonable grace period.

ScaleUp does not take over guarantee for its achievement, as far as disturbances are based on a injury of the obligations of the customer, the technical equipment of the customer, or an unsuitable, inappropriate or faulty use of the achievement. If the customer is responsible for such a disturbance at ScaleUp, ScaleUp is entitled to charge the customer for the costs incurred by the disturbance and its removal. Further claims for damages remain unaffected.

As part of its efforts to eliminate or prevent disruptions or to adjust its performance in light of technical and economic developments, ScaleUp may temporarily interrupt or otherwise restrict its performance in whole or in part. Unless urgent troubleshooting measures are required, ScaleUp will give the customer two working days' notice of any scheduled interruption. Scheduled interruptions will be scheduled between 00:00 - 06:00 local time at the work location whenever possible. Apart from that, ScaleUp will only make interruptions or restrictions of its service, as far as they are absolutely necessary for technical reasons immediately without special announcement to ensure the proper operation.

10. liability

10.1 Compensation

ScaleUp is only liable for damages, regardless of the legal reason, if the damage was caused by a grossly negligent or intentional breach of duty, or is based on the violation of an essential contractual primary obligation. The liability due to mandatory legal regulations remains unaffected. In case of a simple negligent violation of essential contractual main obligations, the liability of ScaleUp is limited to the amount of the typically foreseeable damage. The liability for the simply negligent violation of other obligations is excluded. The liability is also excluded, as far as damages have arisen from disturbances or failures, which lie outside of the sphere of influence of ScaleUp. This applies in particular to damages, which are due to errors and defects of products of third parties, which are provided by ScaleUp within the scope of its service, unless the error or defect should have been recognized by ScaleUp before service provision.

The liability of ScaleUp for financial losses from the provision of telecommunication services to the public is limited to an amount of 12,500.00 € per customer according to §44a, sentence 1, Telecommunication Act. This also applies to all other financial losses caused by slight negligence. ScaleUp's liability towards the entirety of the damaged customers is limited to 250,000.00 € per damage-causing event, and per year to a maximum of twice this amount. If the compensation to be paid to several due to the same event exceeds the maximum limit, the compensation will be reduced in the proportion in which the sum of all compensation claims stands to the maximum limit. A liability of ScaleUp for consequential damages and indirect damages, e.g. lost profit, missed savings and other indirect damages is excluded.

In all other respects, ScaleUp's liability is limited to the benefits provided by its insurance.

10.2 Customer's duty to mitigate damages

ScaleUp is not liable for damages, as far as the customer has caused their occurrence, or could have prevented by consideration of its contractual obligations to cooperate or obligations, in particular by data backups as well as sufficient instruction of the respective user and own safety precautions. In case of doubt, the customer shall provide corresponding evidence of the fulfillment of these obligations. Liability is excluded insofar as the damage incurred is insurable and is usually insured by the customer in the customer's trade.

10.3 Responsibility for communication content

As far as ScaleUp provides access to external content, ScaleUp does not assume any liability for the transmitted information and data. ScaleUp neither provides the information nor the services, opinions or other contents of the Internet, nor does ScaleUp exercise any control over them.

As far as the customer offers content using the service of ScaleUp, he is solely responsible for the offered content. All contents of the customer are considered as foreign contents for ScaleUp. The customer indemnifies ScaleUp from any claims of third parties resulting from the illegality of the offered content.

ScaleUp may block access to illegal content at any time without notice.

11. contract duration and termination

11.1 Term and ordinary termination

The minimum term and notice period for a service ordered by the customer is specified in the respective order, including the associated documents. In the absence of a separate agreement, contracts shall have a minimum term of 12 months from the date of operational provision and may be terminated by either party with three months' notice in each case at the end of the specified contract term. Contracts shall be tacitly extended by the duration of the minimum term if they have not been terminated in writing in due time.

Upon termination of the contract, the Client must return all items received under the contract that are not the Client's property to ScaleUp within 7 days at the Client's expense.

11.2 Termination for cause

Both parties may terminate the contract or individual services for good cause without observing a notice period. The following reasons in particular shall be deemed to be good cause:

In case of a substantial violation of a main contractual obligation for which ScaleUp is responsible, the customer can terminate the affected service after unsuccessful written warning and expiration of a period determined for the remedy, which must amount to at least 30 calendar days, without obligation to pay by written declaration. However, the customer remains obligated to pay the fees for services already rendered. In the event of such termination, all claims, in particular credits, based on Service Level Agreements shall lapse.

ScaleUp is entitled to terminate the contract in writing for cause and to discontinue the service in the following cases:

In the event that the customer is in default of payment of the charges or of a not insignificant part of the charges for two consecutive months, as well as in the event that the customer is in default of payment for a period exceeding two months;
if the volume of charges for the use of the services increases to a very high degree and facts justify the assumption that the customer will not, not completely or not in time pay the charges for services still provided even in the long term if the contract is continued and securities provided are used up, unless the customer provides adequate security for charges within three working days after receipt of a corresponding written request from ScaleUp;
if the customer violates legal or other regulations and does not immediately cease this violation despite a warning;
in case of incorrectness of essential information in the information provided by the customer in the order, including the associated documents or other information provided to ScaleUp;
if actions or omissions of the Customer result in impairments or damage to the physical or logical structure of the networks or facilities used, or there is a high probability that such impairments or damage will occur, or if the Customer uses the service in a fraudulent manner and the Customer does not immediately cease such behavior despite a warning;
in case of any other material breach of the obligations arising from the order, including the related documents, which the customer does not cease within 30 calendar days after receipt of a written warning from ScaleUp;
if the customer is insolvent, insolvency proceedings are opened against the customer's assets or an application for insolvency is rejected for lack of assets.

In addition, ScaleUp may discontinue the service if ScaleUp is obliged to comply with an order of a competent court or authority that makes the provision of the service inadmissible or impossible, or ScaleUp is entitled to a block pursuant to Section 19 (2) of the Telecommunications Customer Protection Ordinance or to a temporary suspension due to a right of retention.

12. secrecy

In all other respects, the liability of ScaleUp is limited to the benefits of its insurance.All information, documents and business secrets of one party, which become accessible to the other party within the framework of the contractual relationship and are designated as confidential or are recognizable as business or trade secrets due to other circumstances, are to be kept strictly confidential and may not be disclosed to third parties without the express prior written consent of the party concerned. This confidentiality obligation applies during the entire duration of the business relationship between ScaleUp and the customer and five years beyond its termination.

The duty of confidentiality shall not apply to such information of which the party disclosing the information can prove that it was already aware of such information before it received it from the other party, such information became public knowledge without restriction through no fault of its own, such information was lawfully made available to it by third parties without breach of confidentiality obligations, it developed such information without recourse to confidential information of the other party, or such information must be disclosed due to statutory provisions.

13. data protection

The contracting parties will ensure in their respective areas of responsibility that all relevant regulations regarding data protection are observed. As far as it is necessary for the services of ScaleUp, the user will ensure that all prerequisites, such as declarations of consent, are available. ScaleUp will maintain the data secrecy according to § 5 BDSG and the telecommunications secrecy according to § 88 Telecommunications Act (TKG) during data processing and will oblige its employees accordingly. ScaleUp will ensure compliance with appropriate technical and organizational measures according to § 9 BDSG and the appendix to § 9 BDSG.

ScaleUp will process inventory data and connection data about the use of the services, as far as this is necessary for the execution of the contract, for billing purposes or to prevent an illegal use of the service. ScaleUp will use anonymized, non-personal data to conduct trend analyses and for other internal marketing purposes. ScaleUp commits itself to keep this data secret.

In the course of the registration or transfer of domains and the modification of domains, personal data of the domain holder, the administrative contact, the technical contact and the zone administrator are publicly stored in the databases of the domain registries or the intermediary registrars. In this regard, reference is also made to the registration guidelines or registration conditions of the respective domain issuing bodies or the intermediary registrars.

The customer is expressly advised that data protection for data transmissions in open networks, such as the Internet, especially if the data transmission is unencrypted, cannot be comprehensively guaranteed according to the current state of the art. Other participants on the Internet may be able to interfere with network security without authorization and control message traffic. The customer is responsible for the security of the information and data transmitted via the Internet and stored on servers.

14. final provisions

The place of jurisdiction is Hamburg. The contract and the General Terms and Conditions shall be governed exclusively by the laws of the Federal Republic of Germany.

The Client may not transfer or assign its rights and obligations under the Agreement without ScaleUp's express prior written consent. ScaleUp will not withhold or refuse its consent without good cause. However, the customer is entitled to transfer the service to third parties for use. Such transfer to third parties does not release the client from its contractual obligations.

The confirmed order, including the associated documents, and these General Terms and Conditions constitute the entire contract between ScaleUp and the Client and supersede all previous and contemporaneous agreements regarding the subject matter of the contract. Changes to this contract must be made in writing. This also applies to changes of the written form requirement. If these General Terms and Conditions should contradict the provisions of the order, the order, including the associated documents, shall have priority over these General Terms and Conditions.

If any provision of the contract and/or these General Terms and Conditions is invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with the valid provision that comes closest to the economic purpose of the invalid provision.