SUBSCRIPTION AGREEMENT

Preamble

This is the subscription agreement between CloudRail GmbH, Julius-Hatry-Straße 1, 68163 Mannheim, Germany, (“CloudRail”) and you (“Client”) in regards to the use of the CloudRailBox server software.

CloudRail developed the CloudRailBox-System. It is a system which allows the upload of sensor data for all kinds of common measurement tools and sensors directly to specific cloud services for further use of such data. This is made possible by connecting the sensors or measurement tools to the so called CloudRailBox, which exchanges data with the CloudRailBox server software (“Device Management Cloud”). The CloudRailBox System is designed for the use with such server software, which is provided as a Software-as-a-Service solution by CloudRail to its Clients. This agreement is the license agreement which allows Client the use of the CloudRailBox server software on a subscription basis.

§ 1. DEFINITIONS
The following terms and their variations are used in this Agreement:

“Agreement” refers to this subscription agreement including any amendments and appendices thereto.
“API” refers to an interface developed for the CloudRailBox for the purpose of contacting the Device Management Cloud.
“Cloud” refers to the third party cloud services supported by the CloudRailBox System
“CloudRailBox” refers to the hardware box, which can be purchased from third parties. The CloudRailBox can be connected to the measurement tools and controlled via the Device Management Cloud.
“CloudRailBox System” refers to the complete product developed by CloudRail, consisting of the Device Management Cloud and the CloudRailBox, with the purpose of uploading sensor and measurement data to the Cloud in real time.
“SaaS-Solution” describes the provision of a software as a service, i.e. the software will be only installed on a server controlled and operated by its provider and the user can remotely access and use the software over the Internet.
“CloudRailBox” refers to the hardware, which was in parts developed by CloudRail and produced and sold by third parties, which facilitates the connection of measurement tools and sensors to the Cloud and is administered by the Device Management Cloud.
“Device Management Cloud” describes the server software for the administrative management of the CloudRailBoxes and the API, which both are provided by CloudRail as a Software-as-a-Service solution.
“Subscription Fees” refers to the monthly fees for usage of the Device Management Cloud in connection with the CloudRailBoxes. The amount of the Subscription Fees depends on the number of connected sensors or actuators administered by the Device Management Cloud.
“Sensor Data” refers to all kinds of measurement data generated by various tools and sensors, which are connected to a CloudRailBox and which should be uploaded to the Cloud.
§ 2. SUBJECT MATTER OF THE AGREEMENT
By concluding this Agreement, the Client wishes to be provided with the possibility to administer its CloudRailBoxes and to upload Sensor Data to the Cloud, both by using the Device Management Cloud as a SaaS-Solution.
This Agreement establishes the terms and conditions for the provision of the Device Management Cloud by CloudRail to the Client and Client’s use of the CloudRailBox System.
The properties and specifications of the Device Management Cloud are described here. CloudRail is entitled but not obligated to make newer versions of the Device Management Cloud available, insofar as their functions at least correspond to the specifications listed in here.
§ 3. SUBSCRIPTIONS FEES AND PAYMENT TERMS
The criteria for the determination of the amount of the monthly Subscription Fees to be paid by Client for the use of the Device Management Cloud are specified in the current price list of CloudRail. The current price list as of the time of signing of this Agreement is listed here.
The Client shall pay the Subscription Fees to CloudRail on a monthly basis. The Subscription Fees shall be paid subsequently, in accordance with the invoice and within 30 days of the receipt of the invoice.
The Client has no right to retention or setoff, unless the counterclaims of the Client have been confirmed as final and binding, are undisputed and have been accepted by CloudRail.
CloudRail reserves the right to change the fees established here on sixty (60) days prior written notice at any time; however, it shall refrain from doing so within the first twelve (12) months from the date of this Agreement coming into effect. The Client shall be entitled to terminate this Agreement if the fees increase by at least five (5) percent above the previous rates within a period of twelve (12) months. If the Client does not terminate this Agreement within thirty (30) days since receiving of the written notice about the upcoming price change, the price change shall become effective to the start of the month following the end of the notice period. In the event of a price change, CloudRail shall make the current price list available on its website and/or sent it to the Client.
Should the Client be in default with the payment of the Subscription Fees and not settle such outstanding amounts within a reasonable extended grace period as determined by CloudRail, CloudRail shall be entitled to deny the Client access to the Device Management Cloud.
§ 4. GRANTING OF LICENSE
CloudRail hereby grants the Client the non-exclusive, non-transferrable and non-sublicensable right to use the Device Management Cloud as provided by CloudRail as a SaaS-Solution for the duration of this Agreement. The Client shall not be entitled to modify the Device Management Cloud, to use it as a whole or in part within other programs, to divide it, or to permit or enable any third party to carry out such activities.
Any modifications or new versions of the Device Management Cloud provided to the Client shall be regarded as Device Management Cloud pursuant to this Agreement. CloudRail shall be entitled to update any versions of the Device Management Cloud already provided earlier or to require an update of the firmware or software used on the CloudRailBoxes, if an enhancement of the Device Management Cloud (particularly with regard to the elimination of security risks or errors) requires such an update.
The Device Management Cloud is provided by CloudRail as a SaaS-Solution. The Device Management Cloud may be used by online access or contacted via the respective API by supporting hardware, e.g. the CloudRailBox.
The Client shall be supplied with a personal administrator account with an individual password for accessing the Device Management Cloud. The individual user name and the password of an administrator may not be disclosed to any other individuals.
The Client understands and agrees that, despite redundancies in the system, the operation and availability of the systems for the use of the Device Management Cloud, including the public telephone network, computer networks and the Internet, may be influenced by numerous factors beyond the control of CloudRail and are, thus, not completely reliable. Use of the Device Management Cloud may, therefore, be temporarily affected or even impossible. CloudRail shall in no event be responsible for any circumstances beyond the control of CloudRail, in particular not for the availability of third party cloud services,their individual functions, any changes made to them or any other content that is directly related to such third party cloud services.
On an annual average, CloudRail shall ensure an availability of 99% for the Device Management Cloud. Exempt therefrom are periods, during which the server which is running the Device Management Cloud cannot be reached because of technical or other problems beyond the control of CloudRail (e.g. force majeure, culpability of third parties, etc.). The periods during which regular maintenance takes place are also exempt therefrom.
§ 5. THIRD-PARTY RIGHTS
To the best of its knowledge, CloudRail warrants that the Device Management Cloud is free of any third-party rights which would restrict or exclude the use of the CloudRailBox System for the purpose provided for under this Subscription Agreement.
However, if the contractually agreed use of the CloudRailBox System were indeed restricted by third-party rights, CloudRail shall be entitled to, within a reasonable period of time, either modify the Device Management Cloud so that such third-party rights are no longer violated, or obtain a permission of the third party so that the Client may use the CloudRailBox System without restrictions and without any additional costs.
§ 6. WARRANTIES
Only grossly adverse deviations from the software description shall be regarded as defects.
Malfunctions of the Device Management Cloud caused by the use of inappropriate equipment or the improper use of the CloudRailBox System by Client are not covered by any warranties (“Gewährleistungsrechte“). The same applies to any malfunctions of the Device Management Cloud caused by extreme workload, the use of computers or operating systems not provided for within the specifications or any improper alterations of the used CloudRailBox. Non-reproducible errors of the Device Management Cloud are also not considered to be defects.
The provided Device Management Cloud complies with generally recognized technical principles and is free of any defects which might impair its suitability for the contractually agreed use.
CloudRail shall only be required to remedy defects if the Client provides CloudRail with a description of the defect in writing.
§ 7. LIABILITY
CloudRail shall be liable for any damages resulting from a willful or grossly negligent breach of an obligation by CloudRail or any agent of CloudRail.
Further, CloudRail shall be liable for any damage it is responsible for which results from any injury to life, body, or health, from warranties or claims pursuant to the Product Liability Act, as well as from a breach of material contractual obligations. Material contractual obligations are also called cardinal obligations (“Kardinalspflichten”) and describe obligations, which are required for a proper execution of the agreement and on the fulfilment of which the contractual partner may rely on.
Notwithstanding the unlimited liability pursuant to Section 7para (1), the liability resulting from slightly negligent breaches of cardinal duties shall be limited to the foreseeable and contractually typical damage.
The liability of CloudRail for lost profits, production losses and interruptions, consequential damage, indirect damage and/or other damage to the property of the Client shall be excluded, unless it is due to intent or gross negligence, or if the liability concerns an injury to life, body, or health, or is based on the assumption of a guarantee.
A change in the burden of proof to the disadvantage of the Client shall not result from the provisions above.
In the case of a loss of data, CloudRail shall only be liable for the expenses which would have been required for the data recovery if the Client had properly and regularly backed up the data.
The above-referenced limitations to liability apply also to the personal liability of employees, workers, staff members, representatives and agents of CloudRail, and to the benefit of shareholders and company bodies and their members with regard to their personal liability.
§ 8. OBLIGATIONS OF THE CLIENT
The Client shall provide any necessary support in order to facilitate the timely and smooth provision and execution of the services by CloudRail. In particular, this support includes the following:
timely provision and granting of access to any information or data required for the provision of the services under this Agreement;
ensuring that the installation of the CouldRailBox Systems is carried out by a qualified technician;
ensuring the appropriate and diligent handling of the CloudRailBoxes. Any necessary maintenance measures or updates of the software and CloudRailBox required for the operation of the CloudRailBox System at the Client shall only be carried out by qualified and trained technicians;
observing the procedures recommended by CloudRail and complying with the requirements for the operation of the CloudRailBox System determined in the documentation; and
proper training of any new personnel;
If a failure to perform or a delay in performing these obligations prevents CloudRail from providing the services pursuant to this Agreement or if such provision is interrupted, CloudRail may restrict access to the systems.
If the Client becomes aware of a violation of the rights in the CloudRailBox System or other intellectual property of CloudRail by third parties, the Client shall notify CloudRail immediately and provide any information available.
The Client shall immediately inform CloudRail about any security risks related to the systems which it becomes aware of, as well as provide the corresponding information.
§ 9. TERM OF THE SUBSCRIPTION AGREEMENT
This Subscription Agreement shall become effective upon acceptance by the Client during the registration process for the use of the Device Management Cloud.
The initial term of the Agreement shall be twelve (12) months. The Agreement shall be extended automatically by another 12 months, unless one of the parties terminates this Agreement at least three months prior to the end of the term.
The right to termination for good cause remains unaffected.
The aforementioned notifications shall be given in writing. Insofar as CloudRail expressly, e.g. by way of a corresponding button, provides for the technical option to amend or terminate the agreement via the Device Management Cloud, any terminations or amendments to the Subscription Agreement declared in such way shall be effective as well.
§ 10. CONFIDENTIALITY
The parties undertake to not disclose any confidential information to third parties and to require their employees to keep such information confidential accordingly.
Both parties are entitled to inform third parties about the existence of this Subscription Agreement; however, neither party is entitled to inform a third party about the contents of the individual provisions.
§ 11. MISCELLANEOUS
General terms and conditions of the parties shall not apply, even if CloudRail or Client do not object to them explicitly, unless the other party expressly agrees to them in writing.
Any modifications or amendments to this Subscription Agreement or to its appendices shall be made in writing, including the waiver of the written form requirement. A transmission via fax or as signed and scanned PDF document via email shall suffice to comply with the written form requirement, any other forms of electronic communication (e.g. simple e-mail) shall not be sufficient.
This Subscription Agreement is subject to the law of the Federal Republic of Germany, except for the UN Convention on Contracts for the International Sale of Goods and private international law.
The place of jurisdiction for any existing or future disputes from or in connection with this Subscription Agreement shall be, to the extent permitted by law, Mannheim, Germany.
If this Subscription Agreement is or becomes incomplete, or one or several provisions are or become wholly or partially void or ineffective, any remaining provisions of this Subscription Agreement shall remain unaffected.
The parties agree that the incomplete, void or ineffective provision shall be replaced by such a provision which comes closest to the intended economic purpose of the incomplete or ineffective provision.