These terms come into effect on January 1, 2017.
Our previous contract terms are still available here for reference.

1. General

1.1 Field of application

ScaleUp Technologies GmbH & Co. KG (hereinafter referred to as “ScaleUp”) provides all services exclusively under the following General Terms and Conditions of Business. The customer acknowledges these General Terms and Conditions of Business through by issuing an order or accepting a service. The validity of deviating terms and conditions is barred, even in the event of ScaleUp’s provision of services and even if ScaleUp does not expressly object to them. These Terms and Conditions are deemed agreed for all future legal transactions, even without renewed inclusion.

1.2 Subject to change

ScaleUp is entitled to amend or supplement the General Terms and Conditions of Business, price lists and performance specifications at all times. The customer is to be notified of amendments by post or e-mail. If the customer does not provide a written objection to any amendment within six weeks of receipt of its notification, the amendment is deemed to be approved, and also has effect for contractual relationships that already exist. The current General Terms and Conditions of Business may be viewed at the website of ScaleUp (www.ScaleUp.com) or may be requested from ScaleUp by the customer.

2. Conclusion of contract

2.1 Issuing an order

All offers of ScaleUp, including the related documents, are non-binding and subject to change. A contract regarding the provision of a certain service comes into effect only if ScaleUp accepts the customer’s order by means of a written order confirmation, or it undertakes any fulfillment action.

2.2 Scope of service

The content and scope of the service are set forth in the accepted order, including the related documents. Any obligation to perform on the part of ScaleUp is subject to the reservation that all of the customer’s relevant obligations and duties concerning the service to be furnished are fulfilled in full, in good time and in adequate quality. For the provision of any service, ScaleUp is entitled to use third parties as vicarious agents. For the duration of the claim to the service, a use right corresponding to the purpose of the service is granted to the customer. All other rights remain reserved to ScaleUp. Upon any sale of an item, ScaleUp reserves ownership until the full payment of the purchase price. Any service of ScaleUp that is voluntary and not contractually agreed may be discontinued at any time and without a separate notification. Any claim to fulfillment or damages on the part of the customer in this connection is barred.

2.3 Creditworthiness and security

The provision of services presupposes the creditworthiness of the customer. ScaleUp reserves the right to verify the creditworthiness of the customer prior to or after accepting the order. As a condition for accepting an order, ScaleUp is entitled to require from the customer reasonable security in the form of prepayments, a security deposit or the submission of a suretyship of a financial institution headquartered in Germany. If security is not provided within a period of two weeks of request, ScaleUp may refuse the provision of any service.

3. Obligations of the customer

3.1 Use of service

The customer is obligated not to improperly use the service within the framework of its contractual agreements and the legal guidelines. In particular, it must not engage in any interference in ScaleUp’s network or in other networks; and it must not use devices or applications that may lead to the impairment of the physical or logical configuration of the networks or devices that are used. ScaleUp reserves the right to install and use appropriate devices in order to prevent any improper use, or demand that the customer install and use such devices. The customer acts with sole responsibility and is liable for all fees incurred in connection with the service, even if any such fee arose based on or due to fraudulent or unauthorized use of the service, unless such use is not to be attributed to the customer. The customer indemnifies ScaleUp from any liability in respect of third parties based on improper use.

Any user identification received from ScaleUp for the purpose of access to services shall be kept strictly confidential. Persons who use the user identification of the customer for the delivery of declarations that concern the contractual relationship are, in respect of ScaleUp, deemed to be authorized by the customer for the delivery of the respective declaration.

3.2 Data security

The customer undertakes to remain up to date on and comply with the recognized principles of data security and the dangers of the misuse and loss of data. The customer undertakes to conduct data security measures that are complete and updated daily; whereby, data and programs may not be stored for security on the server on which they are stored.

3.3 Duty of cooperation

The customer undertakes to cooperate to the extent that it is necessary or useful to complete the order, and it is reasonable for the client to do so, under consideration of the interests of both contracting parties.

In particular, the customer has to always provide a valid e-mail address for messages from ScaleUp and retrieve incoming messages regularly. Messages that are sent from ScaleUp to the customer’s provided e-mail address are considered delivered when the receiving mail server has accepted the message.

If services of the customer or a third party or approvals of a third party (e.g., hardware, software, electricity, utility spaces, access to the premises) are necessary for ScaleUp’s provision of any service, these are deemed to be preparatory efforts by the customer. The customer must make available and maintain such services at its expense for the duration of the contract in the necessary extent.

If the customer does not furnish the necessary preparatory efforts for the provision of services by ScaleUp, the customer undertakes to provide compensation for the service starting from the point in time at which ScaleUp could have furnished it with the orderly fulfillment of the customer obligation.

4. Domain name registration

In the providing and support of domain names, ScaleUp solely works as a mediator in the relationship between the customer and the respective organization for the assignment of domain names. ScaleUp has no influence on the assignment of domain names. ScaleUp assumes no warranty for the fact that the domain names requested for the customer will actually be allocated, or that domain names that have been allocated will be free of the rights of third parties or will exist long term.

The customer warrants that the domain names that it requests do not violate the rights of third parties. The customer indemnifies ScaleUp, its vicarious agents and the respective organizations for the assignment of domain names from compensation claims of third parties and all expenses that are based on the impermissible use of an Internet domain name by the customer or with the approval of the customer.

5. IP traffic

5.1 Scope of service

IP traffic services include the provision of one or more connections to the ScaleUp network that enable access to the ScaleUp network and the Internet. IP traffic services are generally provided via ethernet interfaces. The customer is entitled to the use of the IP traffic services outlined in the accepted contract, including the corresponding documents.

5.2 Definitions

5.2.1 IP traffic

The data traffic which the customer receives, regardless of their place of origin, from an ScaleUp network or which he transmits to an ScaleUp network.

5.2.2 Main connection (uplink port)

The connection determined in the respective contract, including the corresponding documents, that is configured for the receiving and sending of the customer’s IP traffic.

5.2.3 Backup connection (backup uplink port)

The connection determined in the respective contract, including the corresponding documents, that is configured for the receiving and sending of the customer’s IP traffic when the customer’s main connection is unavailable.

5.2.4 Received IP traffic

The IP traffic, which the customer, regardless of their place of origin, receives from the ScaleUp network.

5.2.5 Transmitted IP traffic

The IP traffic, which the customer, regardless of their place of origin, transmits to the ScaleUp network.

5.3 Fees

5.3.1 General

Fees for IP traffic consist of four components:

  • A once-only fee for provision;
  • A monthly connection fee;
  • A monthly usage fee that is determined based on a minimum purchase quantity;
  • A usage-based fee that is calculated should the minimum purchase quantity be exceeded in the respective month.

The billing of the usage fees takes place based on one of the following billing models:

5.3.2 Gigabyte billing

The billing takes place by measurement of the received and sent IP traffic of the customer, in gigabytes.

5.3.3 Bandwidth billing

95% billing
From control samples taken every five minutes, the IP traffic received and sent by the customer is calculated for the preceding five minutes. The highest 5% of the measured control samples are disregarded at the end of the billing period. The highest remaining value will be billed.

Average billing
From control samples taken every five minutes, the IP traffic received and sent by the customer is calculated for the preceding five minutes. From all the control samples taken during the billing period, a mean value is calculated and billed.

5.3.4 Flat-rate billing

With flat-rate billing, all fees for IP traffic are included in the monthly usage fee. The calculation of a usage-based fee does not apply.

5.4 Return of IP addresses

If ScaleUp assigns the customer one or more IP addresses within the framework of provision of IP traffic services, these will, as far as it is requested by interent4YOU and is legally permissible, be returned to ScaleUp after completion of the respective service for whatever reason. The customer must then discontinue the use of the IP addresses. After completion of a service, ScaleUp may allocate the IP addresses to a different user at any time.

6. Colocation

6.1 Scope of service

6.1.1 General

ScaleUp provides data centers where the client has the opportunity to set up and operate his own or leased telecommunication systems (hereinafter referred to as Colocation). The client has the right to use the colocation services described in the accepted order and its related documents.

6.1.2 Colocation area

The colocation area corresponds to a computer room, which is equipped with comprehensive security precautions in order to provide a suitable operation environment for telecommunication equipment. The client is only authorized to use the colocation area for the operation and storage of telecommunication systems. These systems can either be connected with the ScaleUp network, or, subject to prior written permission by ScaleUp, with the networks of other telecommunication providers.
Unless explicitly agreed otherwise, the colocation area shall be handed over on an „as is“ basis and accepted by the client. ScaleUp does not provide any warranty regarding the suitability of the colocation area for the intended use by the client.

6.1.3 Access to the colocation area

ScaleUp grants the client 24/7 access to the colocation area, to the extent required. Client’s access to the colocation area that is attended by a ScaleUp representative is charged as Remote Hands service. If the client has received his own access card, key or equivalent for the access to the colocation area, he has unattended access 24/7 without prior notice.

ScaleUp will provide and maintain the card reader devices, scanners and/or other safety appliances, which are necessary for access to the colocation area. Under no circumstances is the client allowed to keep a door open or to circumvent the safety precautions met by ScaleUp for access to the colocation area.

The client accepts responsibility for escorts and is liable for their conduct. As far as unauthorized persons obtain access to the colocation area based on actions or failures to act by the client, or with the help of the access cards, keys or the equivalent provided to the client, the latter shall be liable for damages caused thereby. The client shall pay for the replacement of access cards, keys or other access and safety devices, which he has lost or which got stolen after receiving them from ScaleUp, unless he can proof that he is not responsible for the loss.

If the client has reason to believe that an unauthorized person has obtained access to the colocation area, ScaleUp shall grant the client (inasmuch requested) insight into the recordings of the video surveillance system in the presence of one of his employees. In addition, ScaleUp shall give the client, upon his written request, a copy of the access protocol for the colocation area.
ScaleUp reserves the right to access the colocation area at any time.

6.1.4 Change of location or equipment

ScaleUp reserves the right to change the location or the equipment of the Colocation at its own expense. However, ScaleUp shall not ask for such changes arbitrarily to the disadvantage of the client. The parties commit themselves to working jointly towards keeping interferences caused by changes as low as possible.

6.1.5 Service and maintenance

ScaleUp shall undertake the building services, the maintenance of the systems for the upkeep of the environmental conditions and the maintenance of the power supply equipment. It will also carry out all other measures, which are required to keep the Colocation in good condition, suitable for the accommodations of telecommunication systems.

6.1.6 Safekeeping of clients‘ equipment

ScaleUp can reach an agreement with the client for the free safekeeping of the telecommunications equipment, designed for installation on the colocation area. Such safekeeping is possible no earlier than 45 days before the anticipated provision date for the Colocation services. None of the documents issued in connection with the free safekeeping shall be regarded as a warehouse warrant. The liability of ScaleUp in connection with the free safekeeping is limited to intent and gross negligence. If the safekeeping exceeds a period of 45 days, ScaleUp shall be entitled to return the client’s equipment at the expense of the client.

6.1.7 Changes of Pricing

All prices are subject to fluctuations in the price of purchase by ScaleUp. If a pre-supplier changes its prices for ScaleUp, ScaleUp shall be entitled to pass the price change on to the client by sending a written message, either in form of a price rise or reduction. This applies particularly, but not exclusively, to the price of the colocation area and for the price of the power delivered.

6.1.8 Year-end billing for power supply

The prices agreed contain a calculated kilowatt-hour price at the time of contract conclusion.
The kilowatt-hour price relevant for billing is adjusted by the pre-supplier at the end of the calendar year retroactively for the completed calendar year. A price change resulting from this can also be passed on retroactively to the client by ScaleUp in the form of a surcharge or a discount.

6.2 Duties of the customer

6.2.1 Use of the colocation area

The client undertakes to keep the colocation area in an orderly and safe condition at all times, and to return it to ScaleUp at the end of the agreed duration in the same condition it was made available to him, with the exception of normal wear and tear.
The client undertakes to use the colocation area for the purpose of placing and operating telecommunications equipment at the latest six months after it has been made available to him ready for operation. If there is no use during this period, ScaleUp shall be entitled to request the return of those portions of the colocation area that are not being used. The client shall make available the reclaimed colocation area. The payment due by the client shall be adjusted accordingly. The client shall not be entitled to a refund for the colocation area returned.

The client undertakes to adhere to all terms and conditions, access rules and safety measures with regard to the Colocation and the colocation area which he becomes aware of by a posting or by other means.

6.2.2 Installation of the client’s equipment

All equipment installed by the client must correspond to DIN, DIN EN and VDE guidelines. The client undertakes to test the equipment before connection to a power supply for smooth operation and to ensure that his equipment cannot have a negative effect on ScaleUp’s supply system. The client undertakes to procure the electric power needed for the operation of his equipment from the power supplies assigned to him only.

It is prohibited to connect foreign equipment to the critical power supply if it does not comply with the intended purpose on the colocation area. For the operation of tools or cleaning equipment and similar devices, only electric circuits from the uncritical power supply, which are labelled accordingly, should be used.

The client is only permitted to install the wiring for his equipment within his rental property.

6.2.3 Removal of the client’s equipment

The client has to remove all of his equipment from the Collocation space within 2 calendar days after the expiration of the agreed term or after cancellation. ScaleUp can exercise a retention right concerning the return of the client’s equipment still in possession of ScaleUp until the client has paid ScaleUp all expenses incurred in connection with the disconnection, the removal and the storage and has paid all pending claims. ScaleUp is not liable for losses or damage incurred by the client in this context, unless they are the result of intent or negligence.

6.2.4 Climate control/cooling

When installing equipment in the colocation area, special emphasis needs to be given to sufficient ventilation, particularly within a rack. The client is responsible for the removal of heat build-ups due to excessive or improper mounting.

6.2.5 Power supply

The client is not authorized to exceed the agreed maximum amounts of power consumption on the colocation area. If the client exceeds these maximum amounts of power consumption, ScaleUp shall no longer guarantee the power supply for the colocation area and be entitled to deactivate the corresponding power connections. After prior agreement with ScaleUp, a larger power consumption can be utilized subject to a surcharge as long as it is available. However, ScaleUp reserves the right to decline a larger power consumption in consideration of the total energy conditions in the data center.

6.2.6 Insurance

Before utilization and during the terms of use of the colocation area, the client shall maintain a comprehensive general liability insurance for personal injury and property damage in the amount of EUR 1,500,000.00 per claim and an electronics insurance with collective protection for all items that the client places and operates in the colocation space that are not the property of ScaleUp. ScaleUp shall be entitled, but not required, to demand the presentation of the corresponding insurance policy from the client.

6.3 Granting right of use to third parties

The client shall be entitled to grant third parties a right to use the colocation area, in case one of the following conditions applies:

  • ScaleUp has agreed in writing and in advance to grant the relevant third party the right of use
  • the client vouches that all of these third parties shall observe all the rules of these Terms and Conditions, including associated orders and other documents
  • the client undertakes to hold ScaleUp harmless and indemnify it from any claims brought against ScaleUp for actions or failures to act by the third party or its agent or subcontractor, as well as to defend the claims brought at his own expense;
  • every third party is considered to be an appointee or an agent, and the client shall be responsible for all actions and failures to act by the third party as well as for the use of the colocation area by the third party.
  • The granting of rights of use to third parties does not release the client from his contractual obligations to ScaleUp. If the client grants a third party a right of use of the Colocation without prior written consent from ScaleUp, and if he does not stop this within five calendar days after a written warning issued by ScaleUp, ScaleUp shall be authorized to terminate without warning the client’s right of use with regard to the ceded part of the colocation service to the third party.

The storage and operation of telecommunications equipment as well as the hosting on behalf of third parties, which do not get access to the colocation area themselves, shall not constitute the granting of rights of use to third parties, and the client shall be permitted to do so, even without the explicit consent of ScaleUp.

6.4 Termination for good cause

In the following cases, ScaleUp shall be entitled to terminate the client’s right of use of the Colocation services without notice:

  • If the right of ScaleUp to use the Colocation expires, or if the termination is not based on a breach of contract;
  • if the client makes substantial changes to the colocation area without obtaining prior written consent from ScaleUp;
  • if the client offers employees or contractors access to the colocation area without obtaining prior authorization ScaleUp;
  • if the client violates usage, accessor safety rules for the Colocation and/or the colocation area of which he has been made aware.

Unless other clients are affected, ScaleUp shall issue a written warning to the client prior to any termination without notice and give him the opportunity to rectify the violation within 10 calendar days.

7. Additional services

7.1 Scope of services

7.1.1 General

ScaleUp supports the planning, realization and operation of the client’s IT structure and within this framework provides additional services. Additional services must be separately requested by the client in written form. In exceptional cases, the client shall make such a request verbally.

7.1.2 Remote Hands

Remote Hands are restricted maintenance and support services provided on site in the data center. The client may request Remote Hands for its telecommunication systems operated within the collocation area. Remote Hands services are provided according to the requirements and instructions of the client. ScaleUp is not responsible for the repair, configuration or adjustment of the cient’s equipment. Among the services provided within the Remote Hands framework are:

  • Supporting the relocation of IT systems
  • Switching systems on and off
  • Rebooting the hardware and software of IT systems, supervision of the subsequent boot process
  • Inserting and removing data storage media (CDs, DVDs, discs, tapes)
  • Checking the externally visible status of the client’s equipment
  • Entering commands via a keyboard whilst receiving instructions by telephone or following written instructions
  • Monitoring, describing or reporting key indicators
  • Installation and conversion of IT systems and network components
  • Wiring up IT components and network patchwork
  • Supporting activities under the leadership of senior systems administrators or specialists
  • Goods acceptance / inventory
  • Documentation, marking and labelling of equipment
  • Preparing diagrammatic technical drawings of the client’s setups

7.2 Billing

Remote Hands shall be billed according to the currently valid price list.

7.3 Liability

Any risks resulting from work carried out by employees of ScaleUp on the client’s equipment or upon the client’s request shall be borne to the full extent by the ordering party. All liability claims against ScaleUp are explicitly excluded, except in the case of wilful intent or gross negligence.

8. Fees and payment

8.1 Accruing fees

The customer undertakes to pay all fees that accrue from the point in time of the provision of the service in a condition that is ready for operation. The amount of the fee depends on the agreements in the particular order, including the related documents; otherwise, it can be taken from ScaleUp’s price list. Unless specified otherwise, all fees are stated in euros plus value-added tax and any other accruing taxes, fees, duties or surcharges that are charged to the customer based on or in connection with the provision of the service, sale or use.

One-time and recurring fixed fees are to be charged to the customer in advance; variable fees dependent on use are to be charged to the customer retroactively. If a fee is to be paid for a period of less than one month, there is to be a proportionate charging on the basis of 1/30 per day. ScaleUp is entitled to undertake the activation of a domain name only after the payment of the fee agreed to for the registration.

8.2 Terms of Payment

Each invoice is due upon receipt and payable without deduction. If, within 14 calendar days of the invoice date, the invoice amount is not credited to the account specified in the invoice, the customer defaults on a payment. If a different payment period is specified in an invoice, the default on payment occurs after the expiration of the payment period specified in the invoice.

Unless expressly agreed otherwise, the customer will provide ScaleUp with a direct debit authorization for the direct debit of fees that accrue. For any returned direct debit that is attributable to the customer, ScaleUp charges an handling fee in the amount of €5.00 plus. bank charges for each direct debit. For any non-use of the direct debit system (e.g., for any cash payment, bank transfer, check), ScaleUp is entitled to charge an expense fee in the amount of €5.00 for each invoice.

The customer may offset ScaleUp’s claims only if its claims are undisputed or legally determined. The customer is entitled to assert a right of retention only if it is based on undisputed or legally determined counterclaims arising from the same legal relationship.

8.3 Consequences of default

In the event of a default on payment, the customer undertakes to pay default interest in the amount of 9 percentage points per annum above the applicable base interest rate, unless ScaleUp is able to prove greater losses caused by delay. For every reminder, ScaleUp charges an expense fee of €2.50.

If the customer defaults on the payment of the fee, after a written reminder of suspension and the setting of a 14-day period of grace, ScaleUp is entitled to deny access to the service or to discontinue the service until complete payment. In such an event, the customer remains obligated to continue to pay the agreed fees.

8.4 Objections

ScaleUp is to be notified in writing of any objection to any of its invoices. An invoice is deemed to be approved by the customer it if does not object to it within six weeks of receipt. The timely mailing of the objection is sufficient for staying within the period. This provision does not affect the statutory claims of the customer for objections after the expiration of the period.

9. Warranty

9.1 General

ScaleUp warrants that the service in the particular order, including the related documents, corresponds to the stated specifications. ScaleUp provides its service according to the state of the art that is recognized and customary in the industry. No guarantees for any condition or warranties are agreed.

9.2 Disruptions

Disruptions are to be immediately rectified within the framework of technical and operational options. If a disruption within ScaleUp’s sphere of influence lasts for longer than 24 hours, the customer is entitled to the proportionate reduction of the recurring fixed fee for the disrupted service.

Any disruption that is caused by a reason outside of ScaleUp’s sphere of influence is not to be attributed to ScaleUp. This includes events of force majeure, the loss of the services of third parties (in particular connection or power failures for third parties), labor dispute actions, also in third-party operations, along with government actions or court orders, etc. In any such event, ScaleUp is released from its obligation to perform and any liability. If, due to a disruption outside of ScaleUp’s sphere of influence, the provision of services requires an unreasonable expenditure of time, ScaleUp is entitled to refuse the service for the duration of this disruption and a reasonable grace period.

ScaleUp assumes no warranty for its service, to the extent that any disruption is based on a violation of the obligations of the customer, the technical equipment of the customer or any unsuitable, inappropriate or incorrect use of the service. If such a disruption at ScaleUp is attributable to the customer, ScaleUp is entitled to charge the customer for the costs resulting from the disruption and its remedy. Claims for damages that go beyond this remain unaffected.

Within the framework of the efforts to remedy or prevent disruptions or to adjust the service in respect of technical and economic developments, ScaleUp may temporarily interrupt its service in full or in part or limit its service in another way. If urgent repair measures are not necessary, ScaleUp will notify the customer two business days in advance of any planned interruption. If possible, planned interruptions are scheduled between 00:00 – 06:00am local time at place of work. In all other respects, ScaleUp engages in interruptions or restrictions of its service only to the extent that, for technical reasons, such are absolutely necessary, immediately and without notification, to secure orderly operations.

10. Liability

10.1 Damages

ScaleUp is liable for the payment of damages, regardless of the legal grounds, only if the damages were caused by a grossly negligent or intentional violation of an obligation, or they are based on the violation of a material contractual primary obligation. Liability based on mandatory statutory regulations remains unaffected. In the event of simple negligent violation of a material contractual primary obligation, ScaleUp’s liability is limited to the amount of damage that is typically foreseeable. Any liability for simple negligent violation of other obligations is excluded. Furthermore, to the extent that damages arose from disruptions or failures that are outside of ScaleUp’s sphere of influence, any liability is excluded. This applies, in particular, to damage attributable to errors or defects in the products of third parties that ScaleUp has provided within the framework of its services, unless the errors or defects would have had to have been recognized by ScaleUp prior to the provision of services.

In accordance with Section 44a sentence 1 of the Telecommunications Act, ScaleUp’s liability for financial losses arising from the provision of telecommunication services for the public is limited to the amount of €12,500.00 for each customer. This also applies to all other financial damage caused by ordinary negligence. In relation to all of the customers that have been damaged, ScaleUp’s liability is limited to €250,000.00 per event that results in losses, and per year to a maximum of double this amount. If compensation payments that are to be provided based on the same event exceed the maximum limit, the payment of damages is to be reduced in the proportion of the sum of all claims for damages to the maximum limit. Any liability of ScaleUp for consequential damages or indirect damages (e.g., lost profits, unrealized savings or other indirect damages) is excluded.

In all other respects, ScaleUp’s liability is limited to the benefits of its insurance policies.

10.2 Obligation of the customer to reduce damages

ScaleUp is not liable for damages to the extent that the customer also caused their occurrence, or to the extent that they could have been prevented under consideration of its contractual duties of cooperation or obligations, particularly through data security actions and the sufficient instruction of the respective users and its own security precautions. In the event of any doubt, the customer must furnish a corresponding verification regarding the fulfillment of these obligations. To the extent that the damages that arise are insurable and customarily insured by customers in the same industry, any liability is excluded.

10.3 Responsibility for content

To the extent that ScaleUp imparts access to outside content, ScaleUp assumes no liability for the information or data transmitted. ScaleUp does not make available either information or the services, opinions or other content of the Internet; likewise, ScaleUp does not exercise control over this.

Inasmuch as that the customer offers content while using the service of ScaleUp, it is solely responsible for the content offered. All content of the customer is deemed to be external content for ScaleUp. The customer indemnifies ScaleUp from any third-party claims resulting from the illegality of the content offered.

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

11. Duration and termination of contract

11.1 Term and Termination with notice

The minimum term and termination period for a service provided on behalf of the customer are specified in the respective order, including the related documents. Without a separate agreement, a contract has a minimum term of 12 months starting from the provision of the service in a condition that is ready for operation, and is able to be terminated by both parties at the end of the specified contractual term with a period of three months. If a contract has not been terminated in writing within the prescribed period, it is tacitly extended for the duration of the minimum term.

After termination of the contract the customer must at its expense return to ScaleUp within 7 days all items that are not its property that it received within the framework of the contract.

11.2 Termination for good cause

Both parties may terminate the contract or individual services for good cause without observing a termination period. The following grounds, in particular, are deemed to constitute good cause:

In the event of a material violation of a contractual primarily obligation attributable to ScaleUp, after an unsuccessful written warning and the expiration of a period set for remedy (which must amount to at least 30 calendar days), the customer may terminate the relevant service by written declaration, without the obligation to make any payment. However, the customer remains obligated to pay the fees for services that have already been provided. In the event of any such termination, all claims (particularly credit notes) based on service level agreements become void.

In the following cases, ScaleUp is entitled to terminate the contract in writing and discontinue the service:

  • upon the customer’s default on payment for two sequential months of the fees or of part of the fees that is not insignificant, or upon default on payment of the customer during a period that extends for more than two months
  • if the fees that arise for the use of the services increase to a level that is very high, and there are facts that justify the assumption that, upon the continuation of the contract, the customer will not fully pay the fees for services that continue to be provided, or will not do so on a long-term or timely basis, and the security that has been provided has been fully utilized, unless the customer provides an appropriate security for fees within three business days of receiving a corresponding written request from ScaleUp;
  • if the customer violates statutory or other regulations and such violation is not immediately discontinued, despite a warning;
  • upon the incorrectness of material data in the information provided by the customer in the order, including the related documents, or other information made available to ScaleUp;
  • if any action or omission of the customer leads to any impairment or damage to the physical or logical configuration of the networks or devices that are used, or there is a significant probability of the occurrence of any such impairment or damage, or if the customer uses the service in a fraudulent manner and the customer does not immediately discontinue such conduct despite a warning;
  • upon any other material violation of any obligation arising from the order, including the related documents, which the customer does not discontinue within 30 calendar days of receiving a written warning from ScaleUp;
  • if the customer is insolvent, insolvency proceedings are opened over the assets of the customer or an insolvency application is rejected due to the lack of assets.

Moreover, ScaleUp may discontinue the service if it is obligated to obey an order of a competent court and/or authority that makes the provision of a service impermissible or impossible, or if it is entitled to a suspension in accordance with Section 19(2) of the Telecommunications Consumer Protection Regulation or to a temporary discontinuance based on a right of retention.

12. Non-disclosure

All information, documents and business secrets of one party that 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 based on other circumstances, are to be kept strictly confidential, and may not be disclosed to any third party without the express previous written consent of the relevant party. This non-disclosure obligation is applicable for the overall term of the commercial relationship between ScaleUp and the customer, and five years beyond its termination.

The non-disclosure obligation does not apply to such information that the party transmitting the information can prove was already known to such party prior to being received from the other party, was publicly known without any limitation and without any culpability on the part of such party, was lawfully made available to such party by a third party without violating any confidentiality obligation, was developed by such party without recourse to the other party’s confidential information or must be disclosed based on legal regulations.

13. Data protection

The contract parties agree to implement all necessary measures in their respective areas of responsibility to guarantee that all applicable data protection regulations are observed. The user shall ensure that all prerequisites relevant to our services are fulfilled, including any requirements about declarations of consent. ScaleUp undertakes to maintain data confidentiality in the scope of data processing pursuant to § 5 of the German Data Protection Act (BDSG) and the secrecy of communications pursuant to § 88 of the Telecommunications Act (TKG) as well as to commit all their employees to upholding these regulations. ScaleUp shall ensure compliance with the above-mentioned regulations by implementing the appropriate technical and organizational measures in accordance with § 9 BDSG and the Annex to § 9 BDSG.

ScaleUp is entitled to collect and process user-related and connection data to the extent that this is necessary for proper contract fulfillment, for billing purposes or for preventing the unlawful use of services. ScaleUp has the right to use anonymous, non-personally identifiable data for the preparation of trend analyses and for other internal marketing purposes. ScaleUp is obligated to keep this data secret.

In the course of the registration and/or assumption of domain names and any change to domain names in the databases of the domain name registries and/or the registrars that are interposed, the personal data of the owner of the domain name, the administrative contact, the technical contact and the zone administrator are publicly stored. In this respect, reference is also made to the the registration guidelines and/or. terms and conditions of registration of the particular domain name registries and/or the registrars that are interposed.

It is expressly pointed out to the customer that, for data communication in open networks (such as the Internet), particularly if the data communication takes place in unencrypted form, data protection cannot be fully guaranteed under the current state of the art. Under certain circumstances, other Internet users are in the position to interfere with network security without authorization and to control communication traffic. The customer must itself exercise care for the security of the information and data transmitted over the Internet and stored on the servers.

14. Final provisions

The area of jurisdiction is Hamburg. The contract and the General Terms and Conditions of Business are exclusively subject to the law of the Federal Republic of Germany.

The customer may not transfer or assign its rights or obligations arising from the contract without the express previous written consent of ScaleUp. ScaleUp may not withhold or refuse its consent without good cause. However, the customer is entitled to transfer the service for use by a third party. Through any such transfer to a third party, the customer is not released from its contractual obligations.

The confirmed order, including the related documents, and these General Terms and Conditions of Business form the entire contract between ScaleUp and the customer, and replace all previous and simultaneous agreements regarding the subject of the contract. Any change to this contract requires written form. This also applies to any change to this written form requirement. If these General Terms and Conditions of Business contradict the provisions of the order, the order, including the related documents, supersedes these General Terms and Conditions of Business.

If a provision of the contract and/or these General Terms and Conditions of Business is ineffective in whole or in part, the effectiveness of the remaining provisions remains unaffected by this. In such an event, the parties undertake to replace the ineffective provision with the effective provision that comes as close as possible to the economic purpose of the ineffective provision.