Terms of Service.

General Terms and Conditions

for the WRING Platform

These General Terms and Conditions for the WRING Platform (“GTC”) govern the provision and use of the WRING Platform (as defined below) and apply between WRING GmbH, Karl Liebknecht Straße 37, 14482 Potsdam (“WRING”) and the customer named in the Order Form (“Customer”).

WRING is an authorized AWS Partner with Partner ID 2229663 in the role of Distribution Reseller. Capitalized terms used in this agreement have the meaning set out in this agreement or in the applicable AWS Agreements. WRING and the Customer are collectively referred to in these GTC as “Parties” and individually as “Party”.

The contractual components apply in the following order of precedence, whereby the provisions listed first shall always take priority over those listed last in the event of conflicts, and gaps shall be filled by the respectively subordinate provisions:

1. Data Processing Agreement for the WRING Platform (“DPA”)
2. Order Form
3. GTC

Deviating, conflicting, or supplementary general terms and conditions of the Customer shall only become part of the contract if and to the extent that WRING has expressly agreed to their applicability in text form. This consent requirement applies in every case, for example even if WRING begins providing services to the Customer without reservation while being aware of the Customer’s general terms and conditions.

1. Definitions

The following definitions apply to the contractual relationship between the Parties:

• “Provider Marks” means all protectable marks of WRING such as designs, trademarks, logos, fonts, sound sequences, or the company name of WRING.
• “Authorized User” means the employees, consultants, contractors, and/or representatives of the Customer who have been registered and authorized by the Customer on the WRING Platform in accordance with these GTC to access and use the WRING Platform.
• “AWS” means the Amazon group company that provides the AWS Service to the Customer pursuant to the AWS Agreement, i.e., either Amazon Web Services, Inc. or one of its affiliates that provide AWS Services.
• “AWS Services” means the services provided by AWS for which the Customer may register via the AWS Website (or by other means provided by AWS), including but not limited to the web services available on the AWS Website and/or described in the Service Terms at the following URL: https://aws.amazon.com/service-terms/ (and URLs subsequently determined by AWS), as updated by AWS from time to time.
• “AWS Distribution Program Guide for End Customers” means the guidelines applicable between the Customer and AWS, available in their current version at the following URL: https://distribution-program-legal-documents.s3-us-west-2.amazonaws.com/AWS+Distribution+Program+-+Program+Guide+for+End+Customers.pdf.
• “AWS Funding Programs” means all programs, initiatives, or measures offered by AWS that provide financial, technical, or other support to customers (in particular in the form of distributions such as AWS Credits, credits, support services, consulting, or discounts).
• “AWS Account” means a direct user account of the Customer with AWS pursuant to the Customer’s AWS Agreement with AWS.
• “AWS Organizations” has the meaning set out in the AWS Distribution Program Guide for End Customers.
• “AWS Agreements” means all agreements and policies governing the Customer’s relationships with AWS with respect to its End Customer Accounts.
• “AWS Website” means https://aws.amazon.com (and all successor or related sites designated by AWS), as updated by AWS from time to time.
• “Distributor” has the meaning set out in the AWS Distribution Program Guide for End Customers.
• “Distribution Seller” has the meaning set out in the AWS Distribution Program Guide for End Customers.
• “Documentation” means the documentation for the WRING Platform that is either provided on the WRING Website or otherwise made available by WRING.
• “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
• “End Customer Account” has the meaning set out in the AWS Distribution Program Guide for End Customers.
• “Force Majeure” has the meaning set out in the “Force Majeure” section.
• “Cardinal Obligations” has the meaning set out in the “Limited Liability for Breach of Cardinal Obligations” section.
• “Customer Data” means all data uploaded by the Customer or an Affiliate of the Customer onto the WRING Platform.
• “Customer Marks” means all protectable marks of the Customer such as designs, trademarks, logos, fonts, sound sequences, or the company name of the Customer.
• “Customer Account” means the Customer’s account on the WRING Platform.
• “Reserved Instances” means a form of AWS discount granted for the term-based ordering of an AWS Service.
• “Savings Plans” means a form of AWS discount granted for the term-based ordering of minimum compute capacity with AWS.
• “Open Source Software” means software that, in compliance with the respective licensing requirements (such as maintaining license information, disclosing modifications, or including source code), is licensed by the respective rights holders to everyone for comprehensive use, i.e., including for the purpose of modification and distribution (including in modified form), free of royalties, and whose source code is available.
• “Order Form” means an individual agreement concluded between the contracting parties that references these GTC regarding access to the WRING Platform and support services, for example an offer provided by the Provider as part of an electronic ordering process and accepted by the Customer.
• “Personal Data” means personal data (a) as defined by the GDPR.
• “Program Management Account” has the meaning set out in the AWS Distribution Program Guide for End Customers.
• “Affiliates” means companies affiliated with the Provider or Customer within the meaning of Sections 15 et seq. of the German Stock Corporation Act (Aktiengesetz).
• “Contract Start” means the date on which an Order Form becomes effective. Unless otherwise agreed in the respective Order Form, this is the date of confirmation by the Provider.
• “Contract Year” means each 12-month period during the term of an Order Form, calculated from the first day of the contract term.
• “Confidential Information” has the meaning set out in the “Confidential Information” section.
• “Material Cause” has the meaning set out in the “Termination” section.
• “WRING Analytics Data” means the Customer Data collected by WRING and all extensions, modifications, and enhancements of such Customer Data.
• “WRING Content” means WRING Analytics Data, application programming interfaces (APIs), Web Services Description Language (WSDLs), sample code, software, software libraries, software images, command line tools, data, text, audio, videos or images, proofs of concept, templates, advice, information, programs (including credit and discount programs), and other content provided by WRING, its Affiliates, and licensors in connection with the provision of the WRING Platform.
• “WRING Platform” means the platform (including the WRING Content) accessible at app.wring.co for increasing the cost efficiency of AWS Services.

2. Registration and Authorization

1.

To gain access to the WRING Platform, the Customer must register and designate specific users to qualify them as Authorized Users. When registering an account for the WRING Platform, the Customer and its Authorized Users must provide WRING with certain information, including but not limited to the Customer’s name, email address, a password, and billing information and bank details.

2.

The Customer shall ensure that the information provided to WRING during registration is accurate, complete, and not misleading, and undertakes to keep such information accurate and up to date at all times. Each account created by the Customer may not be transferred to or made accessible to third parties. The Customer is solely responsible for the confidentiality of its account and password as well as the accounts and passwords of its Authorized Users and assumes responsibility for all activities that occur under its account and the accounts of its Authorized Users. The Customer will notify WRING immediately upon becoming aware of or having a reasonable suspicion that its account or the accounts of its Authorized Users are no longer secure. The Customer shall activate multi-factor authentication to enhance security.

3.

The Customer warrants that it will comply with the requirements of the AWS Distribution Program Guide for End Customers in its current version throughout the entire contract term, in particular the requirement to use the WRING Platform only if a valid AWS Agreement is in effect.

4.

The Customer is obligated to review the information available at https://s3-us-west-2.amazonaws.com/solution-provider-program-legal-documents/Solution+Provider+Program+List+of+Services.pdf before concluding an Order Form.

5.

The Customer undertakes to grant WRING the necessary permissions to access and read the cost and usage data for the purpose of analyzing cost efficiency and to make the results of such analyses available to the Customer within the WRING Platform.

6. If the Customer has set up AWS Organizations, the following applies:

1. The Customer shall convert its AWS Account into an End Customer Account administered by WRING by assigning its AWS Account to the Program Management Account communicated by WRING in accordance with the AWS Distribution Program Guide for End Customers, authorizing WRING accordingly, and configuring the settings described therein on the AWS Account in accordance with the account information provided by WRING. The Customer authorizes WRING to create additional End Customer Accounts on its behalf.
2. The Customer grants WRING full access to its End Customer Account by activating the “All Features” setting. The Customer authorizes WRING throughout the entire contract term to (i) conclude and terminate orders for Reserved Instances and/or Savings Plans and (ii) take other actions to increase cost efficiency on behalf of the Customer.
3. WRING concludes the above-mentioned orders for Reserved Instances and Savings Plans in the name and on behalf of the Customer with AWS or with the AWS Distributor. The details of remuneration and payment terms are set out in these GTC and the respective Order Form. The usage requirements for the AWS Service are governed by the AWS Agreement between the Customer and AWS.

7. If the Customer has not set up AWS Organizations, the Customer shall configure the settings on the AWS Account as described in the AWS Distribution Program Guide for End Customers.

3. Service Provision by WRING

1. Provision of the WRING Platform

1. WRING shall provide the Customer with the technical ability and authorization to access the WRING Platform in accordance with the respective Order Form via telecommunications facilities. The scope and functionality of the WRING Platform as well as the technical and organizational requirements for its use are further defined in the Order Form. WRING makes the WRING Platform available for use and retrieval by the Customer via a website.
2. The purpose of the WRING Platform is to reduce the Customer’s costs for using AWS Services through pricing models for Reserved Instances and Savings Plans as well as through additional volume discounts and enterprise discount programs via consolidated billing across the customer base. If the Customer has set up an End Customer Account through AWS Organizations, WRING provides the Customer with paid access to AWS Services for this purpose as part of a procurement service. The provision of AWS Services is governed exclusively by the respective AWS Agreements applicable between the Customer and AWS. The Customer acknowledges that beyond providing the WRING Platform, WRING does not owe any specific outcome, in particular not a specific percentage of savings with respect to the Customer’s AWS Services. The Customer receives an overview of the costs associated with the use of AWS Services as well as savings through the WRING Platform.

3.

If agreed between the Parties in an Order Form, WRING shall submit applications on behalf of the Customer for the receipt of funding such as AWS Credits under AWS Funding Programs applicable to the Customer. The Customer’s participation in the respective AWS Funding Program is governed by the respective AWS Agreements applicable between the Customer and AWS. Beyond the submission of the respective funding applications, WRING does not owe any specific outcome, in particular not the disbursement of a specific number of AWS Credits or other funding. WRING assumes no responsibility for any reimbursement claims by AWS after receipt of funding. Reimbursement claims by AWS shall not affect the remuneration payable for the conduct of the funding process.

4.

Subject to the Customer’s material compliance with its obligations under these GTC and/or the applicable Order Forms, in particular its payment obligations, the Customer may access the WRING Platform in accordance with the Order Form for its own internal business purposes. No further rights, in particular in the software, shall be granted to the Customer.

5.

Subject to the sections “Access to the WRING Platform by Affiliates,” the Customer may not allow third parties to use the WRING Platform or make it accessible to third parties. In particular, the Customer is not permitted to reproduce the WRING Platform or parts thereof or to temporarily make the WRING Platform available to third parties, rent it, or lend it. WRING is entitled to take reasonable technical measures to protect against non-contractual use.

6.

The relevant point of service delivery for the WRING Platform is the router output of the data center used by WRING. WRING is not responsible for outages or unavailability of hardware and software components, telecommunications networks, or other networks beyond this point of service delivery. The Customer’s connection to telecommunications networks, the maintenance of the network connection, and the procurement and provision of the hardware and software required on the Customer’s side are not part of these GTC and are the sole responsibility of the Customer.

7.

WRING is entitled to have parts of the WRING Platform provided in whole or in part by suitable subcontractors. To the extent that WRING uses subcontractors and the Customer is required to comply with additional terms for the use of the subcontractor’s contractual services (e.g., license or other third-party terms), this is set out in the Order Form. The Customer undertakes to comply with the additional terms set out in the Order Form.

8.

The software provided in connection with the WRING Platform or executed on the Customer’s side may contain Open Source Software, for which the license terms of the respective rights holders apply. The respective license terms of the rights holders shall take precedence over the usage rights granted in the contract; this also applies to warranty and liability exclusions of the Open Source Software license terms. Conflicting provisions of the GTC shall not apply in this regard.

9.

The rights and obligations of the Customer when using AWS Services through its AWS Account or, after the corresponding conversion, through its End Customer Account are governed by the applicable AWS Agreement between the Customer and AWS, with the exception of the provisions on remuneration, payment terms, and taxes, which are the subject of these GTC. For clarification: A separate reference to the applicability of the AWS Agreement in the Order Form is not required.

2. Access to the WRING Platform by Affiliates

The Customer may grant its Affiliates access to the WRING Platform, provided that: (i) the right of access is restricted exclusively to Authorized Users, (ii) such access is made exclusively for the Affiliate’s own internal business purposes, (iii) such access may not be intended to wholly or partially circumvent the usage restrictions in these GTC or the relevant Order Form, and (iv) the Affiliate complies with all usage restrictions and obligations applicable to the Customer.

3. Customer’s Responsibility for Affiliates

The Customer is responsible for ensuring that its Affiliates comply with the provisions of these GTC when using the WRING Platform. The Customer shall be liable for the fault of its Affiliates to the same extent as for its own fault.

4. Restrictions

The Customer is prohibited from using the WRING Platform in a manner that is contrary to the contract, in particular using the WRING Platform for the following purposes: (i) conducting tests, reverse engineering, and decompiling the underlying source code, (ii) accessing or using the WRING Platform in a manner intended to circumvent the usage restrictions of the respective Order Form, (iii) any unauthorized public disclosure of the WRING Platform, the Documentation, or Provider Marks, (iv) monitoring data traffic during use of the WRING Platform without prior documented consent from WRING.

5. Access to Free Features

1. To the extent that WRING provides the Customer with free features of the WRING Platform for use, e.g., for a limited trial period, the following deviating provisions on defect claims and liability shall apply:
2. WRING shall be liable for material defects for direct defect damages incurred by the Customer because a material defect of the WRING Platform was fraudulently concealed from the Customer, and for consequential defect damages resulting from intentional or grossly negligent conduct by the Provider. Any further liability for material defects is excluded.
3. WRING shall only be liable for legal defects for damages incurred by the Customer because a legal defect of the WRING Platform was fraudulently concealed from the Customer. Any further liability for legal defects is excluded.
4. Otherwise, WRING shall only be liable for intent and gross negligence. Further claims for damages and reimbursement of expenses by the Customer, regardless of the legal basis, in particular for breach of obligations arising from the contractual relationship and from tort, are excluded. Liability under the German Product Liability Act, however, remains unaffected.

6. Right to Suspend Access

1. Access Suspension

WRING is entitled to suspend access to the WRING Platform by the Customer and/or Affiliates of the Customer — temporarily or permanently — with immediate effect if there are concrete indications of (i) a breach of the section “Prevention of Unauthorized Access,” (ii) a breach of applicable law, (iii) a breach of the section “Restrictions,” or (iv) a breach of material contractual obligations, in particular payment obligations, by the Customer and/or by Affiliates, or WRING has another legitimate interest in the suspension.

2. Decision on Suspension

In deciding on a suspension, WRING will give appropriate consideration to the legitimate interests of the Customer and will announce a suspension in advance in text form with reasonable notice. In individual cases, a suspension may also be carried out by WRING without prior announcement in order to protect the legitimate interests pursued by WRING through the suspension, to the extent that prior announcement is not required by law or for other legal reasons.

3. Termination of the Order Form

The suspension of access to the WRING Platform shall not simultaneously constitute termination of the relevant Order Form. WRING may only maintain a suspension without termination for a reasonable period, maximum three (3) months.

4. Remuneration

WRING’s claim to payment of the remuneration for the WRING Platform shall remain unaffected during the suspension. The Customer shall have a right to restoration of access after demonstrating that it has ceased the non-contractual use and has prevented future non-contractual use.

7. Backups

Unless otherwise agreed in an Order Form, the WRING Platform does not create regular backups of Customer Data. Therefore, the Customer is solely responsible for making regular and sufficient backups of all Customer Data in another environment.

4. Updates and Feature Discontinuation

1. Updates to the WRING Platform

2. Right to Discontinue Features

WRING may at any time at its own discretion discontinue features of the WRING Platform. WRING will notify the Customer at least three months before the discontinuation of a feature of the WRING Platform in text form, unless (i) an earlier discontinuation is required due to legal requirements or requirements arising from an agreement with a third party, or (ii) continued provision of the relevant feature poses a security risk to WRING or its customers or constitutes a material economic or technical burden on WRING.

3. Service Limitations

WRING may make restrictive changes to the WRING Platform and adjust the service description, Documentation, and Order Form accordingly under the following conditions: (i) an unusually low proportion of end users use the relevant feature, (ii) continued operation of the relevant feature for the relevant proportion of end users is disproportionate for WRING, and (iii) the relevant features do not constitute a material component of the WRING Platform.

5. Cooperation Obligations and Further Obligations of the Customer

1. Cooperation Obligations

2. Prevention of Unauthorized Access

The Customer shall protect the user and access authorization as well as identification and authentication safeguards assigned to it or its Authorized Users from access by unauthorized third parties and shall not disclose them to unauthorized third parties. As soon as the Customer has indications that the usage and access authorizations have been unlawfully obtained by a third party or could be misused, the Customer is obligated to inform WRING immediately.

3. No Storage of Unlawful Content

The Customer undertakes not to store any content on the provided storage space whose provision, publication, or use violates applicable law, official regulations, or third-party rights. The Customer undertakes to check its data and information for viruses or other harmful components before storing them on the WRING Platform and to use state-of-the-art measures such as firewalls or anti-virus programs for this purpose.

6. Intellectual Property

1. Intellectual Property of WRING

WRING and its Affiliates or licensors are the owners of all intellectual property rights in and in connection with the WRING Platform as well as the WRING Content and Documentation, and all derivative works thereof, including any adaptations and modifications made on the basis of suggestions or other input from the Customer. All rights not expressly granted to the Customer are reserved to WRING and its licensors. Customer Data is excluded from this.

2. Customer Data

Unless otherwise stipulated in the GTC or the Order Form, the Customer holds all rights to all Customer Data and bears sole responsibility for the legality, accuracy, and maintenance of the Customer Data. Notwithstanding the foregoing, the Customer shall grant WRING the necessary usage rights to enable the processing of Customer Data for the provision of the WRING Platform by WRING and its agents in accordance with the GTC and the Order Form.

3. Analytics

WRING and its Affiliates are entitled to use information from the Customer’s use of the WRING Platform and the AWS Services to create analyses and to improve the WRING Platform on the basis of the analyses, to derive correlations from the information, and to use the subsequently improved WRING Platform at its own discretion. Within the scope of the analyses, information is collected exclusively in anonymized form. It therefore contains neither Customer Data nor Personal Data and is treated as WRING Content. The analyses may also be used for the purpose of training and developing machine learning systems and for discovering patterns and correlations for artificial intelligence.

4. Personal Data

1. The Customer is responsible for compliance with all relevant statutory data protection provisions, in particular for the lawfulness of the disclosure of personal data of its employees and other data subjects in connection with the use of the WRING Platform.
2. To the extent that WRING processes the Customer’s personal data in the course of providing the WRING Platform, WRING acts on behalf of the Customer. The Parties shall set out the details of the data processing in the DPA in such cases.

5. Feedback

The Customer grants WRING an irrevocable, unrestricted right of use in terms of territory and time to its recommendations, corrections, or other feedback for use in and incorporation into the WRING Platform, the Documentation, and for other unrestricted commercial exploitation for its own or third-party business purposes.

6. Customer Marks and References

WRING is entitled to refer to the contractual relationship with the Customer in an appropriate form in brochures and publications (e.g., reference lists) and to use Customer Marks in this context. Should the Customer not agree with this, the Customer will inform WRING accordingly in text form.

7. Remuneration

1. Remuneration for the WRING Platform

1. If agreed accordingly, the Customer is obligated to pay the usage fee agreed in the Order Form for the provision of the WRING Platform.
2. If a usage-independent flat-rate remuneration per time unit (e.g., month, quarter, year) is agreed for the provision of the WRING Platform, this is due for payment in advance for the minimum term and for each renewal period respectively. Usage-dependent remuneration is billed in arrears.
3. All stated remunerations are exclusive of the applicable statutory value-added tax. The Customer shall pay the remuneration to WRING without deduction of withholding taxes or similar charges.
4. The remuneration becomes due immediately upon delivery of the invoice for the respective billing period.
5. In the event of changed market conditions, significant changes in procurement costs, changes in value-added tax, or price increases by subcontractors, WRING is entitled to adjust the remuneration for the WRING Platform. However, such a price adjustment is permissible no earlier than twelve (12) months after the conclusion of the Order Form and only once per year. WRING will announce the change to the Customer in writing no later than six (6) weeks before it takes effect. In the event that the Customer does not accept the price increase, both WRING and the Customer are entitled to terminate the Order Form in its entirety with one (1) month’s notice to the end of the calendar month, to the extent that the price increase exceeds three percent (3%) of the previous remuneration. In the event of termination, the non-increased prices shall apply until the termination takes effect.
6. The Customer may only set off claims that have been finally adjudicated or are undisputed.
7. The Customer is only entitled to assert rights of retention against WRING if the counterclaim asserted is undisputed or has been finally adjudicated. The assignment of claims of the Customer against WRING is excluded.

2. Remuneration for AWS Services

1. WRING and the Customer shall agree on the remuneration for AWS Services in the respective Order Form. WRING shall invoice the Customer for all AWS Services billed through the Customer’s End Customer Account and the Customer undertakes to pay the invoiced amounts.
2. WRING shall invoice the Customer for all AWS Services billed through the Customer’s End Customer Account once per month. The billing period corresponds to the billing period of AWS towards WRING. The monthly invoice is generally issued within the first five (5) business days after the end of the respective billing period. WRING is entitled to use the respective applicable service descriptions or usage information provided by AWS for billing the End Customer Account. The invoice is due within five business days of delivery.
3. Incorrect billings by AWS to WRING shall be passed on to the Customer to the extent that they relate to the provision of AWS Services to the Customer and the AWS invoice was corrected only after the delivery of WRING’s invoice to the Customer. To the extent that WRING has demonstrably made good-faith efforts to have the AWS invoice reviewed before passing it on to the Customer, the Customer may not assert any further claims against WRING arising from the incorrect billing.

3. Tax Responsibility

Each Party is responsible for the payment of all taxes (except taxes based on WRING’s net income), duties, charges, and similar levies imposed by a government in connection with its participation in the contract. WRING will charge the applicable value-added tax (e.g., VAT or goods and services tax) on all applicable service fees to the extent required by applicable law.

8. Confidential Information

1. Confidential Information

“Confidential Information” of a Party (“disclosing party”) means all proprietary or confidential information that the other party (“receiving party”) has received from it in connection with the performance of an Order Form or has otherwise obtained knowledge of, regardless of the form in which the information exists and whether and how it has been recorded.

2. Proprietary or Confidential Information

Proprietary or confidential information includes in particular information that:

1. has been marked as confidential or proprietary;
2. is to be treated as requiring confidentiality by virtue of a statutory or contractual provision;
3. constitutes business or trade secrets of the party or another person or entity, in particular if unauthorized disclosure to a third party or unauthorized publication would be likely to cause disadvantage to the disclosing party or third parties or to violate the confidentiality of the business or personal affairs of the party or another person or entity;
4. comprises personal or factual circumstances of the Principal’s customers and falls under banking secrecy or data protection or a similar confidentiality obligation, or is of a similar nature to data protected by banking secrecy or data protection;
5. where the disclosing party’s interest in confidentiality arises from the nature of the information, including concepts, business plans, samples, processes, formulas, source code, production techniques and ideas, product and program specifications, drawings, sales and marketing data or marketing plans, information on pricing and costs, information on suppliers and business relationships, and other operational and trade secrets.

3. Exceptions

Inclusion under proprietary or confidential information ends if, in whole or in part, the following demonstrably applies to the proprietary or confidential information:

1. It was already known to the receiving party before the transmission; or
2. it was already publicly known before the communication; or
3. it became publicly known after the communication without the involvement of the receiving party and independently of any failure by the receiving party; or
4. it was made known to the receiving party by a third party who is not subject to any direct or indirect confidentiality obligation towards the other party.

The burden of proof of the existence of one of these exceptions lies with the party relying on the exception.

4. Handling of Confidential Information

The proprietary or confidential information received from a party may only be disclosed by the other party to those employees, advisors, subcontractors, or other third parties who need to take note of it (“limited group of persons”) in order to fulfill the obligations set out in or arising from these GTC or an Order Form. All members of the limited group of persons who come into contact with the proprietary or confidential information in the course of the cooperation must be bound to confidentiality on terms at least equivalent to those of these GTC before the information is disclosed to this group of persons, including beyond the possible termination of the respective contractual or employment relationship with the respective member of the group.

5. Duration

The confidentiality obligation in this section shall also apply for three (3) years beyond the termination of the contract, regardless of whether the Order Form is terminated by cancellation, withdrawal, or otherwise.

6. Return and Deletion

If a party so requests, documents handed over by it shall be returned to it after termination of the contractual relationship, to the extent that the other party cannot assert a legitimate interest in these documents. Copies of documents made as part of regular data backup measures are exempt from this obligation to return, provided that the party otherwise obligated to return ensures that the provisions of this section continue to apply and that the documents cannot be used for any other purposes beyond mere data backup.

9. Indemnification for Third-Party Rights Infringements

1. Indemnification by WRING

1. If a third party asserts legitimate claims against the Customer for the infringement of copyrights, patents, or other industrial property rights by WRING or by the WRING Platform provided by WRING and used by the Customer in accordance with the contract, and the use of the WRING Platform is prohibited in whole or in part by a final and binding court decision, WRING shall be liable to the Customer as follows, if and to the extent that WRING is at fault in this regard.
2. WRING will, at its own choice and at its own expense, (i) obtain for the Customer the ability to use the WRING Platform, or (ii) modify the WRING Platform so that the third party’s property right is not infringed, but the WRING Platform essentially corresponds to the agreed scope of services, or (iii) terminate the Customer’s Order Form extraordinarily and refund the remuneration paid for the WRING Platform for the period during which it can no longer be used in accordance with the contract.
3. In addition, WRING shall indemnify the Customer from finally adjudicated third-party claims for the infringement of property rights due to contractual use of the WRING Platform and from the costs of legal defense caused thereby, within the limits of the liability limitations agreed in these GTC.
4. The Customer shall provide reasonable support to WRING in all damage mitigation measures. WRING’s indemnification obligations shall only exist to the extent that the Customer immediately notifies WRING in text form of the assertion or threat of such claims, all out-of-court and judicial defense measures and settlement negotiations remain reserved for WRING or are conducted only with WRING’s documented consent, and the Customer immediately makes available any information requested by WRING for the assessment of the situation or the defense of the claims and provides reasonable support. Claims of the Customer are further excluded to the extent that the infringement of property rights was caused by the Customer’s specifications, by an unforeseeable use of the WRING Platform by WRING, or thereby.

2. Indemnification by the Customer

1. The Customer shall indemnify WRING upon first request against third-party claims or regulatory fines for breaches of the obligations in the section “Customer Data,” in the section “Data Migration Obligation and Right to Data Deletion,” for breaches of the AWS Agreements, and for breaches of any agreements between the Customer and Distributors, and shall, upon request, assume the legal defense against third-party claims and/or regulatory orders or bear the reasonable costs of legal defense for WRING, provided that the Customer is at fault in this regard.
2. WRING shall provide reasonable support to the Customer in all damage mitigation measures. The Customer’s indemnification obligations shall only exist to the extent that WRING immediately notifies the Customer in text form of the assertion or threat of such claims, all out-of-court and judicial defense measures and settlement negotiations remain reserved for the Customer or are conducted only with the Customer’s documented consent, and WRING immediately makes available any information requested by the Customer for the assessment of the situation or the defense of the claims and provides reasonable support.

10. Warranty by WRING

1. Service Defects

1. A defect of the WRING Platform exists if it does not substantially conform to the specifications in the Order Form.
2. The Customer shall report defects of the WRING Platform to the Provider immediately, providing the information known to it and useful for their identification; the requirements for the content of the report set out in the section “Technical Infrastructure and Fault Reporting” apply accordingly. The Customer shall take reasonable measures to facilitate the identification of defects and their causes.

2. Defect Warranty

3. Force Majeure

If the provision of the WRING Platform is delayed or temporarily impossible due to circumstances that were unforeseeable for WRING even with the exercise of the utmost care that can reasonably be expected (e.g., epidemic, pandemic, fires, explosions, power outages, cyberattacks, earthquakes, floods, severe storms, strikes, embargoes, acts of civil or military authorities, war, terrorism (including cyber-terrorism), a network outage not attributable to the Provider) (hereinafter “Force Majeure”), performance deadlines shall be extended by a period corresponding to the duration of the Force Majeure event. WRING shall inform the Customer of the Force Majeure event immediately in text form. If the Force Majeure persists for a continuous period of more than 90 calendar days, the Customer shall have the right to terminate the Order Form with immediate effect without observing a notice period in text form. In this case, the Customer will pay WRING the agreed remuneration for the use of the WRING Platform prior to the termination; further statutory claims of the Provider against the Customer remain reserved.

11. Liability

1. Unlimited Liability

The contracting parties are liable in accordance with statutory provisions and without limitation for:

1. Injuries to life, body, or health attributable to the fault of one of the Parties or their legal representatives or vicarious agents;
2. Intent or gross negligence;
3. Claims under the German Product Liability Act;
4. Breach of a quality guarantee given by the respective contracting party;
5. Fraud or fraudulent misrepresentation;
6. Violations of the German Minimum Wage Act; or
7. Payment obligations under the contract.

2. Limited Liability for Breach of Cardinal Obligations

In cases of ordinary negligence, the contracting parties are only liable if a duty has been breached that is essential for the achievement of the purpose of the contract (“Cardinal Obligation”). Cardinal Obligations are duties whose fulfillment makes the proper performance of the contract possible in the first place and on whose compliance the contracting parties may regularly rely. Cardinal Obligations include the obligation to provide the WRING Platform in a timely manner, the freedom from legal defects of the WRING Platform, and such material defects as more than insignificantly impair the functionality or usability, as well as advisory, protective, and custodial obligations intended to enable the Customer to use the WRING Platform in accordance with the contract or to protect the life or limb of the Customer’s personnel or to protect the Customer’s property from significant damage. In the event of a breach of a Cardinal Obligation, liability is limited to the damage typically foreseeable at the time of conclusion of the contract per claim.

3. Damages Typically Foreseeable at Contract Conclusion

The Parties define the following amount as the damage typically foreseeable at the time of conclusion of the contract within the meaning of the section “Liability for Breach of Cardinal Obligations”:

the total amount of savings with respect to the Customer’s AWS Services that the Customer has achieved through the use of the WRING Platform in the preceding twelve (12) calendar months.

4. Further Liability Limitations

Subject to the section “Unlimited Liability,” neither party shall be liable for the following damages:

1. Loss of expected savings;
2. Loss of expected profits;
3. Damage to reputation or reduction of goodwill;
4. Consequential damages or spreading damages;
5. No-fault liability of the Provider under Section 536a(1), first alternative, BGB for defects of the WRING Platform that already existed at the time of conclusion of the contract, to the extent that the defect does not relate to a property or guarantee assured by the Provider;
6. In the event of data loss or data destruction, WRING’s liability within the scope of the above provisions shall be limited in amount to the damage that would have occurred even if the Customer had properly backed up its data.

5. Further Liability Provisions

12. Contract Term and Termination

1. Contract Term and Ordinary Termination of Order Forms

Unless otherwise agreed in the Order Form, the respective Order Form shall have an indefinite contract term. In the case of an indefinite contract term, the Customer may, by way of derogation from the statutory provisions, terminate the Order Form with 30 calendar days’ notice. WRING may terminate the respective Order Form in the case of indefinite contract terms in accordance with the statutory provisions. In the case of a fixed contract term, WRING may terminate the respective Order Form with 3 calendar days’ notice.

2. Termination

13. Final Provisions

1. Right to Amend

2. Severability Clause

Should individual provisions of the GTC not be legally valid or lose their legal validity due to a subsequent circumstance, or should a gap be found in this contract, the legal validity of the remaining provisions shall not be affected. The contracting parties undertake to agree on a valid provision in place of the invalid provision that comes closest to the economic purpose of the invalid provision.

3. Applicable Law and Jurisdiction

This contract is governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods and the rules of private international law shall not apply.

The exclusive place of jurisdiction for all disputes between the Parties arising from or in connection with the contract is Potsdam, Germany.