Terms of Service

for CloudCaptain (as of 2024-01-23)

1. Definitions, validity

1.1. InfrastructureX GmbH, Baubergerstr. 59, 80992 München, Germany (hereinafter referred to as “CloudCaptain”) provides a platform for software developers (hereinafter referred to as the “service”) at “cloudcaptain.sh”.

1.2. All users of the service are subject to the following terms of service (hereinafter referred to as “terms”). These terms are available at any time from https://cloudcaptain.sh/terms. The valid version of the terms at the time of registration applies.

2. Service specification

2.1. The service offers users the possibility to create bootable apps (machine images), virtual machines or other instances using a client software provided by CloudCaptain (hereinafter referred to as “CloudCaptain Client”) and to deploy these locally or on a production server (hereinafter referred to as “service”), although the production server is not operated by CloudCaptain. The service rather accesses existing hosting platforms of third-party providers that the customer is already authorized to use. The user agrees that CloudCaptain may use these hosting platforms throughout the duration of the service agreement.

2.2. All features of the service are explained, where necessary, in the respective places or on the CloudCaptain website. The user can continually use the features of the service that are included in the service package booked by the user. The available service packages are described and available for download on the CloudCaptain website.

3. Registration, conclusion of contract, costs

3.1. If the user wishes to use the service provided by CloudCaptain, he/she can create a customer account at https://console.cloudcaptain.sh. The user can register on the CloudCaptain website using an account from his/her existing authentication service (such as Amazon or GitHub). After entering the required data (username, password) and confirming that the user is not a consumer and that he/she accepts the terms and the data collection and processing by the CloudCaptain website, a click on the “Get Started” button constitutes a binding offer to CloudCaptain to finalize a service agreement. The offer does not constitute a conclusion of a contract. Following CloudCaptain’s receipt of the offer, the user is verified with the authentication service and the account is activated. The user is sent confirmation by email, which is sent to the email address of the authentication service account that was used for registration. In activating the user account, acceptance of the user’s offer to conclude a contract is confirmed. Setting up a customer account is free of charge to the user.

Booking a service package

3.2. CloudCaptain offers the service in the form of various service packages, each with a different scope of service and each with a different price. The user can book his/her selected service package using his/her customer account on the CloudCaptain website. The selected service package remains valid until it is cancelled or until the user selects a different service package and this becomes active.

Costs, billing period

3.3. The various service packages and their costs are described in detail on the CloudCaptain website. The costs of using the service shall be due each month in the currency specified on the CloudCaptain website. The billing month always begins on the day of booking and ends the following month on the day which by its number precedes the day of booking. If the day of the end of a billing month does exist in that month, the billing month ends on expiry of the last day of this month.

Changing a booked service package

3.4. The customer can switch from one service package to another at any time. If the customer switches to a larger (more expensive) service package, a new billing month starts on the day of the switch. Prepayments that have already been made for a smaller service package shall be proportionately offset according to the number of days that have not yet been used up against the costs of the first month of the new service package. The change becomes effective immediately after payment of the resulting difference has been made.

3.5. If the customer switches to a smaller service package (less expensive or free of charge), the switch becomes effective at the end of the current billing month. The new service package begins at the start of the next billing month.

4. Payment

4.1. If the user selects a service package that is subject to a fee or selects it through switching service package, the fee for the services included in the package are due in advance each month. The user can make payment using the payment methods available on the CloudCaptain website.

4.2. The user is responsible for all costs incurred if a fee cannot be debited, particularly any resulting bank charges from a rejected direct debit and the like, provided that the user is responsible for these costs having been incurred.

4.3. The selected service package will only be activated after successful prepayment.

4.4. If a monthly prepayment fails, CloudCaptain is entitled to exclude the user from using the service until the outstanding payments have been settled.

4.5. The user consents to receiving invoices and payment reminders from CloudCaptain by email, using the registered email address of the customer account.

5. Usage rights to CloudCaptain Client

5.1. The user may only use CloudCaptain Client in connection with the customer account and in compliance with the license conditions and terms of use that are included with the download.

5.2. Any use of CloudCaptain Client exceeding this is not permitted.

6. Duration, cancellation

6.1. The contract is concluded for an indefinite period.

6.2. The customer can cancel the contract to the end of a billing month without compliance to a notice period. The contract can be cancelled by CloudCaptain to the end of a billing month with a notice period of 3 months. Notice of cancellation must be given in written or electronic form. The date of cancellation is deemed as being the date that the other party receives the cancellation notice. The user account will be deactivated when the contract ends.

6.3. CloudCaptain may cancel the contract with immediate effect if:

• The user violates the terms of use or the license conditions for CloudCaptain Client, despite receiving prior warnings.
• The user withdraws the privacy policy enabling CloudCaptain to use his/her personal data. If individual services of CloudCaptain cannot be completely or partially provided as a result, CloudCaptain will not be obligated to provide the service, even if the contract is not cancelled.

6.4. The requirement of sSection 626 of the German Civil Code (BGB) remains unaffected.

7. Modification right

7.1. CloudCaptain expressly reserves the right to modify the offer and content of the CloudCaptain website and the service at any time. The user consents to receiving changes to the terms by email, using the registered email address of the customer account. The changes will be deemed as accepted if the user does not object to them in text form within 14 days following notification.

7.2. CloudCaptain is entitled to make the user’s continued use of the service dependent on acceptance of or consent to the new terms. CloudCaptain may also exclude the user from using the service if the user objects to or fails to consent to the terms.

8. Obligations of the user

8.1. The user is obligated to refrain from all actions that could lead to an excessive burden on the service, the CloudCaptain website or CloudCaptain’s systems, or that could jeopardize the integrity, stability or availability of the IT systems of the service or the CloudCaptain website.

9. Disclaimer of liability for violations by the user

9.1. The user will indemnify CloudCaptain against all claims including indemnification claims asserted against CloudCaptain by other users or third parties due to a violation of their rights that arise as a result of the user’s use of CloudCaptain’s services.

9.2. The user will be responsible for all reasonable costs incurred to CloudCaptain as a result of a violation of third-party rights, including sufficient costs for legal defence. All further rights and compensation claims of CloudCaptain remain unaffected.

9.3. The above provisions do not apply if the user is not responsible (intent or negligence) for the violation of rights.

10. Limitation of liability

10.1. CloudCaptain endeavours to ensure that the service operates at high availability. Target availability is 99%, although an uninterrupted usability or accessibility of the offer is not guaranteed. CloudCaptain cannot be held liable for transmission delays or failures.

10.2. Provided that CloudCaptain has not assumed a guarantee or given an assurance, liability for all liability cases and compensation claims is limited as follows:

• CloudCaptain will be liable in accordance with the statutory provisions in the event of willful or grossly negligent behavior by CloudCaptain or its legal representatives as well as for death, bodily injury and damage to health, for liability cases according to the German Product Liability Act (Produkthaftungsgesetz) and for cases of malice.
• In terms of negligent breaches of obligations whose fulfillment is a prerequisite for a proper implementation of the contract and compliance with which the contract partner can expect to regularly count upon and trust (cardinal obligations), liability of CloudCaptain will be limited to the sum of contractually typical and foreseeable damages. In any case, liability for such violations is limited to the amount paid by the user under this contract.
• CloudCaptain is only liable for loss of data up to an amount that would be required for restoring the lost data from a proper back-up system. The user is responsible for backing up his/her data.
• Liability for loss of profit is excluded. Liability for a slightly negligent violation of secondary obligations is excluded.

10.3. The above liability regulation also applies to the provision of CloudCaptain Client to the user.

11. Miscellaneous

11.1. The laws of the Federal Republic of Germany exclusively apply to all legal relationships with CloudCaptain. Application of the UN Sales Convention is excluded. The place of jurisdiction is Munich.

11.2. If a provision of these terms is or becomes invalid or unenforceable, the validity of the remaining provisions shall not be affected. The parties are obligated to replace an invalid or unenforceable provision with one that most closely approximates the invalid or unenforceable provision, taking the contractual purpose into account. The same applies to omissions.

This document is available in German and other languages. The other languages have been translated from German. Much attention has been paid to transferring the meaning to the other language as precisely as possible. However, only the German version shall be binding. It shall take precedence in case of doubt or conflict. The German version is available at https://cloudcaptain.sh/terms_de.