Terms of Use

1. General / Scope of application
1.1 These test license terms ("Terms") apply to the provision of a test account for access to the product PAK cloud operated in a virtual instance of Müller-BBM VibroAkustik Systeme GmbH's (hereinafter "we", "us" or "our") own cloud environment ("Software"). General terms and conditions of the customer do not apply.
1.2 The customer's registration on the PAK cloud Landing Page www.pak-cloud.com ("Landing Page") and confirmation of the Terms as part of the registration process shall be deemed a legally binding offer to conclude the Terms and the granting of access by us shall be deemed acceptance of the offer.
2. Services
2.1 We provide the customer with the Software for test purposes via online access through the Landing Page. Access is limited to the agreed test period. The customer is responsible to ensure a sufficient Internet connection.
2.2 The quality and functionality of the Software are conclusively described in the documentation of the Software.
2.3 At the end of the test period we will delete all data submitted or otherwise entered into the Software by the customer.
3. Rights of Use / Test License
3.1 All rights in and to the Software belong exclusively to us or our licensors and are hereby reserved. The customer shall only be entitled to the rights to the Software as provided in these Terms.
3.2 We grant the customer a non-exclusive right to use the Software solely for evaluation and testing purposes for himself and his affiliated companies. Use in productive operation or for business purposes beyond testing and evaluation of the Software is not permitted. The right to use the Software is limited to the agreed test period. In the absence of an agreement on the test period, a period of 30 days shall apply. The right of use ends automatically at the end of the test period.
3.3 The provision of the Software under the test license pursuant to Section 3.2 shall be free of charge. Customer shall bear its own costs in connection with the use of the software, e.g. for network connection.
3.4 We are entitled to block the customer's access to the Software temporarily or permanently if the customer breaches essential obligations under these Terms or in the event of security incidents. We will - as far as reasonable - inform the customer of this by e-mail. With the blocking of access, the customer's right to use the Software ends or is suspended for the duration of the blocking.
3.5 We will take the legitimate interests of the customer into account when deciding on blocking its access, in particular whether there are indications that the customer is not at fault for a breach of its obligations. We will release customer's account as soon as the reason for the blockage no longer applies.
4. Liability
4.1 We shall only be liable for Software made available under the test licence in the event of intent and gross negligence, fraudulent concealment of a defect and for injury to life, limb and health. Mandatory liability according to the German Product Liability Act remains unaffected. In all other respects liability is excluded.
4.2 We do not warrant that the Software provided under a test license will be uninterrupted or error-free, or that it will be suitable for a particular purpose. Furthermore, we do not warrant that the Software is free of rights of third parties. The exclusion of warranty shall not apply if we have fraudulently concealed a material defect or defect of title. In this case, we shall be obliged to compensate the customer for its damages in accordance with applicable law.
5. Obligations of the customer
5.1 Prior to using the Software customer shall complete the registration process on the Landing Page. Registered customers can log into their test account with its username and password ("Access Data"). For registration customer shall only use non-personal data, e.g. company name or company code.
5.2 The customer must ensure that all Access Data is carefully secured and not passed on to third parties without authorization. In addition, customer is obliged to inform us immediately if there are indications that customer's access could be misused by third parties. The customer is not entitled to publish information or ratings about the functionality or performance of the Software. The customer is liable for all activities that are carried out using its Access Data, unless customer proves that he is not responsible for the use of the access data.
5.3 The customer warrants not to use, transmit or execute any programs or data in connection with the use of the Software if he is not authorized to do so or if such programs or data are capable of impairing or destroying the Software, data or other technical equipment of us or of third parties. In addition, the customer is prohibited from using the Software in connection with offensive content or otherwise offend common decency, to violate industrial property rights, copyrights or other rights of us or third parties or to violate applicable law in any other form.
5.4 Activities aimed at rendering the Software, our systems or the systems of third parties inoperable or impair their use are prohibited. The customer may not take any measures which could result in an unreasonable or excessive load on our infrastructure or the infrastructure of our partners.
5.5 The customer is solely responsible for the use of the Software in accordance with applicable law, in particular data protection law and foreign trade law.
5.6 The customer is responsible for fulfilling data protection information obligations, in particular pursuant to Art. 13, 14 DSGVO, towards its own employees and third parties engaged by it. The customer must ensure that he is entitled to process all personal data processed in the Software by himself or by a third party on his behalf and that he has obtained the corresponding consent of the data subjects in advance, if required.
5.7 Except in the cases permitted by law, the customer shall not be entitled to modify, reverse engineer, decompile or remove any part of the Software.
5.8 Furthermore, the customer shall not be entitled to sublicense, transfer, rent or otherwise distribute the Software to third parties, to combine it with its own products or those of third parties, or to process, publish or exploit it in any other way.
5.9 The customer is obliged not to use any sensitive data for the use of the Software within the scope of the test license, in particular no data that is subject to confidentiality obligations or which constitute business secrets. The Software is operated in our own cloud environment as a single instance shared by all testing customers and the customer-specific data is only separated by the access right management of the Software. Due to this, we cannot ensure the data security required for sensitive data in the testing environment.
5.10 The customer himself is responsible for data backups. We are not liable for any loss of data.
5.11 The customer shall indemnify us against any claims (including by third parties) arising from a breach of the above obligations.
6. Interfaces / Connection of third-party Software
6.1 The customer may only use interface information, libraries or other components of the Software contained in the Software or otherwise made available by us, which are necessary for the connection of its own applications or applications of third parties, in accordance with these Terms.
6.2 The connection of its own applications or third-party applications to the Software is only permitted if we have given the customer prior written consent and have provided the necessary components of the Software (including libraries) in source code or if the customer is entitled to do so in accordance with mandatory statutory regulations.
6.3 The use of the Software in connection with connected applications is only permitted in accordance with the rights of use to the Software granted in these conditions.
6.4 If the connection of its own applications or applications of third parties to the Software is to take place as part of a Digital Ecosystem, we are entitled to subject the connection to a quality and compatibility test in order to avoid risks for the Digital Ecosystem arising from such connection. For this purpose, we are also entitled to refuse consent to the connection or to revoke an already granted consent in the event of significant risks for the Digital Ecosystem. A Digital Ecosystem is a network of different software and hardware components of the customer, third parties and/or us connected and managed with the Software.
6.5 The customer alone is responsible for any disruptions to the operation, security, performance or functionality of the Software or of systems or programs of the customer or third parties resulting from the use of connected applications. We are not obliged to remedy such malfunctions. A compatibility of the Software with connected applications cannot be guaranteed by us.
7. Third Party Software / Open Source Software
7.1 The Software contains open-source software or software for which we only have a derived rights of use (hereinafter referred to as "Third Party Software"). The license terms to which this open-source software or Third Party Software is subject shall apply and prevail over the Terms.
  An overview of the open-source software and/or Third Party Software used is provided, together with the respective license terms, in the documentation of the Software accessible through the Landing Page in the user account.
7.2 The customer undertakes to comply with the respective license terms. In the event of violation of the license terms by the customer, the licensors shall be entitled to directly assert their rights and claims in their own name.
7.3 If third parties assert claims against us due to the breach of the license terms for open source software or Third Party Software by the customer, the customer shall indemnify us against all damages, expenses and costs including reasonable legal fees.
8. Confidentiality and data protection
8.1 "Confidential Information" means any confidential or proprietary information of either party ("Disclosing Party") that is disclosed to the other party ("Receiving Party") hereunder, including, without limitation, the Software, business and financial information, product and service specifications, sales and marketing information, present and future business strategies, and other technology.
8.2 Each party will during the test period and for a minimum of five years thereafter keep confidential all Confidential Information of the other party and will not disclose any such Confidential Information to third parties nor use any such Confidential Information for any purpose other than as required to execute this Agreement. Each party agrees to take all appropriate action to ensure the confidentiality and security of Confidential Information of the other party, including limiting the disclosure of such Confidential Information to employees and agents with a need to know. Each party also agrees to treat the Confidential Information of the other party with the same degree of care that it uses to protect its own confidential information of like kind and value, but in no case less than a reasonable degree of care.
8.3 Notwithstanding the foregoing, no information shall be deemed Confidential Information if such information: (i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by the Receiving Party; (ii) was developed independently by or on behalf of the Receiving Party without any use of Confidential Information of the Disclosing Party; (iii) was disclosed to the Receiving Party by a third party not subject to any confidentiality obligations; or (iv) was required to be disclosed pursuant to a court order or governmental proceeding, provided that the Receiving Party undertook reasonable efforts to provide the Disclosing Party with prompt notice of such order, so that the Disclosing Party could seek an appropriate protective order.
8.4 Upon written request of the Disclosing Party, the Receiving Party shall, at the Disclosing Parties discretion, return or destroy, all Confidential Information of the Disclosing Party in its possession and control. The foregoing will not be construed as requiring the return of Confidential Information to which the Receiving Party has a perpetual license or a statutory obligation to preserve records. Section 2.3 shall remain unaffected.
8.5 The parties shall impose on their employees and third parties who become aware of Confidential Information the same obligations as described in this Section 8, and in the case of employees, to the extent permitted by law, for the period after the termination of their employment agreement.
8.6 The parties undertake to comply with the applicable data protection law. As far as we could get access to personal data of the customer in the context of the maintenance of our systems, the processing takes place in accordance with the regulations of the AWS GDPR Data Processing Addendum, which applies accordingly.
9. Final Provisions
9.1 These Terms are subject to the law of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
9.2 Exclusive place of jurisdiction for all disputes arising from or in connection with these Terms shall be Munich.
9.3 The customer is not entitled to assign rights or claims from the contracts to third parties without our prior written consent.
9.4 Amendments and supplements to these Terms must be made in writing in order to be effective. This also applies to amendments to the written form clause.
9.5 The invalidity or unenforceability of one or more provisions of these Terms shall not affect the validity of the remaining provisions of these Terms. The same shall apply in the event that these Terms do not contain a necessary provision. The parties shall replace the invalid or unenforceable provision or fill the contractual lacuna with the legally permissible and enforceable provision that comes closest in economic terms to the meaning and purpose of the invalid or unenforceable or missing provision.