Private Cloud Beta Test Agreement

2. No Services.

IONOS shall be under no obligation to provide Customer with any services except as explicitly set forth in section 5 herein.

4. Proprietary Rights; Confidentiality; Restrictions.

(1) Customer acknowledges that the Service contains confidential information and trade secrets of IONOS and its licensors. Customer will not: copy (except as strictly necessary to use the Software in accordance with the terms of section 1 hereof), distribute, sell, sublicense or otherwise transfer or make available the Service or any portion thereof to any third party; remove from view any copyright legend, trademark or confidentiality notice appearing on the Service or Service output; modify, adapt, translate, reverse engineer, decompile or derive the source code for the Service, or authorize a third party to do any of the foregoing.

(2) Customer shall maintain confidentiality about all information to be treated confidentially which has come to its knowledge within the scope of this Agreement or shall only use it in relation to third parties - for whatever purpose - with the prior written agreement of IONOS . Information to be treated as confidential includes information clearly marked as confidential information, described as such or otherwise recognizable as such or is to be regarded as confidential because of its content.

(3) Information is not considered confidential if it was
(a) generally known at the time this Contract was countersigned, or
(b) rightfully in the public domain at a later date other than by a breach of this confidentiality clause, or
(c) demonstrably rightfully known to the Customer without any limitation on use or disclosure prior to the conclusion of this Contract, or
(d) received by the Customer from a third party entitled to disclose the information, or
(e) agreed in writing that this information shall not be treated as confidential.

(4) Customer undertakes to treat all confidential information as strictly confidential and to ensure that unauthorized third parties, in particular persons who are not involved in the Agreement, cannot gain knowledge of it.

(5) This obligation to maintain the confidentiality of the information obtained includes, in particular, the obligation not to use confidential information for purposes other than the performance of this Agreement.

(6) Customer further undertakes, in the event of a legally mandatory disclosure of confidential information, to notify IONOS immediately of this fact and of the scope of the confidential information to be disclosed. Customer will only disclose confidential information to the extent required by law.

(7) Customer undertakes to disclose confidential information exclusively to such employees and selected external persons such as tax advisors or auditors, lawyers or other consultants who must be given access for the purposes of the Agreement. Customer undertakes to ensure that comparable confidentiality obligations are agreed in writing with all persons to whom confidential information within the meaning of this provision is disclosed, unless such persons are already subject to a legal or comparable confidentiality obligation.

(8) The above obligations shall continue to exist beyond the end of the contract for an period of 5 years.

(9) Customer will not use the Service or any documentation provided therewith for any purpose other than Customer’s internal evaluation and the provision of feedback to IONOS

(10) Customer will immediately report any violation of this provision to IONOS and shall employ all reasonable means to mitigate any damages or losses that IONOS may incur as a result of any such violation. Customer’s rights in the Service will be limited to those expressly granted in Section 1. IONOS and its licensors reserve all rights and licenses in and to the Software not expressly granted to Customer hereunder.

6. Warranty.

THE SERVICE IS PROVIDED “AS-IS” AND FOR TESTING PURPOSES ONLY. IONOS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE.

8. Limitation of Liability

(1) IONOS shall be liable in accordance with the statutory provisions for damages resulting from (a) injury to life, body or health based on an intentional or negligent breach of duty by IONOS or a legal representative or vicarious agent of IONOS ; as well as for (b) other damages based on an intentional or grossly negligent breach of duty by IONOS or a legal representative or vicarious agent of IONOS . Furthermore the limitations of liability pursuant to paragraphs (2) to (4) shall also not apply to (c) damage arising from the non-compliance with a guarantee separately issued by IONOS or to the extent that IONOS has otherwise assumed strict liability.

(2) In the case of damages other than those mentioned in paragraph (1) arising from the culpable breach of essential contractual obligations, i.e. of obligations the fulfilment of which is essential for the proper execution of the Contract and on whose compliance the contractual partner regularly relies and may rely, IONOS shall be liable in accordance with the statutory provisions. In this case, liability is limited to an amount of damage that is typical for the Contract and reasonably foreseeable.

(3) For claims other than those mentioned in paragraphs (1) and (2), liability of IONOS , on whatever legal grounds, is excluded.

(4) The limitation of liability according to this Section 8 also applies in favor of the legal representatives, vicarious agents and employees of IONOS .

10. General.

Customer may not assign or otherwise transfer, by operation of law or otherwise, any of its rights under this Agreement without IONOS ' prior written consent, and any attempted assignment without such consent will be null and of no effect. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements, communications and understandings with respect to the evaluation of the Software and shall be construed in accordance with the laws of Germany. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal courts located in Karlsruhe and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default. All notices required or permitted under this Agreement will be in writing and delivered electronically and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth below or to such other address as may be specified by either party to the other in accordance with this Section.