Terms of Service for the Use of “Pergola”

Welcome to Pergola! Before accessing our services, please read these Terms of Service.

1. Subject of the Agreement

1.1 These Terms of Service (this “Agreement“) for the use of the cloud runtime deployment system, (including its APIs) “Pergola” (“Pergola”) is entered into between Datasophie GmbH, Roßtränke 4, 94032 Passau, Germany, (“Datasophie“), and you, the end-user (the “Customer” or “you“, and, together with Datasophie, a “Party” or the “Parties”).

1.2 The Agreement becomes effective beginning on the date on which you register on or otherwise use Pergola.

1.3 By registering on or otherwise using Pergola you agree to all terms and conditions of this Agreement and in the accompanying documentation. You should read this Agreement carefully before registering on or otherwise using Pergola. If you do not agree with the terms and conditions of this Agreement, you are not authorized to use Pergola.

2. Account

You will need an account to use Pergola. You have to provide true and complete account, billing and payment information. You are responsible for protecting your account credentials and must not share them with anybody else. Pergola is not responsible for any misuse resulting from your negligence in securing account access. 

3. Grant of Limited License

3.1 Pergola provides cloud runtime deployment services. You may use Pergola to upload your project (“Project”) in source code form following Pergola’s manual and Pergola will deploy your Project automatically on cloud servers.

3.2 Subject to your agreement to, and full compliance with, the terms and provisions of this Agreement, Datasophie hereby grants Customer a limited, personal, non-transferable and non-exclusive right (the “License“) during the Term (as defined below) to use Pergola pursuant to the terms of this Agreement and the instructions provided in the manual of Pergola docs.pergola.cloud or on the Pergola product website www.pergola.cloud (“Manual”).

4. Use Restrictions

4.1 Any use by Customer of Pergola not expressly permitted in Section 2 above is expressly prohibited and any such unauthorized use shall constitute a material breach of this Agreement by Customer. This prohibition includes (but is not limited to):

– copying, reproducing, manufacturing or distributing (free of charge or otherwise) Pergola, in whole or in part, in any media;
– transferring, selling, sublicensing or leasing any rights in and to Pergola to third parties;
– using Pergola contrary to applicable law;
– modifying Pergola or create any derived work;
– decompiling, reverse engineering or disassembling Pergola or its infrastructure components;
– using Pergola not in compliance with the Manual.

4.2 Customer must not alter or remove any legal notices, such as trademark and copyright notices, affixed by Datasophie on or within Pergola.

4.3 You must not use Pergola to deploy any Project that is

– offensive,
– defamatory,
– libelous,
– obscene,
– pornographic,
– sexist,
– racist,
– false or misleading,
– fraudulent or otherwise criminal,
– engaged in phishing, spamming, DoS attacks,
– storing or distributing infringing intellectual property (trademarks, copyright, patents etc.),
– otherwise illegal, unlawful or immoral.

4.4 Any such use is a material breach of this agreement. In such cases, Datasophie reserves the right to suspend its services or to terminate the Agreement.

5. Compensation

5.1 In compensation of Pergola’s services, Customer shall pay to Datasophie the fees set forth on the website www.pergola.cloud via a third-party payment processor. The fees are non-refundable, and you are not entitled to any set-offs, counterclaims or deductions. The pricing on the Pergola product website may not include sales tax or VAT which will be added by the payment processor.

5.2 We reserve the right to suspend or terminate the Pergola services if fees are overdue or recharged.

5.3 Datasophie shall be entitled to change its pricing by giving thirty (30) days’ notice on its website. Existing subscriptions will not be affected. If you do not agree with the new pricing, you are not entitled to use Pergola anymore.

6. Support

6.1 Datasophie does not provide any support under this Agreement.

6.2 Datasophie may provide the infrastructure for community support forums. However, Datasophie is not liable for any advice given by other users in these forums, and you use the advice given by other users in support forums at your sole risk.

6.3 Datasophie may provide paid support under a separate support agreement at its sole discretion. If you are interested in paid support, please contact support@pergola.cloud.

7. Feedback

You may provide comments, ideas or other feedback to Datasophie for Pergola (“Feedback”). If you provide Feedback, you grant Datasophie an unlimited license to use, license and distribute the Feedback as Datasophie sees fit, without compensation or restriction of any kind.   

8. Intellectual Property Rights

8.1 Pergola and all copyrights, trademarks (including the trademarks Datasophie and Pergola), and all other intellectual property rights related thereto are owned by Datasophie (or its licensors, as applicable) and are protected by German, US and international copyright law, trademark, patent and other applicable law. Customer shall have no ownership or intellectual property rights in Pergola, including, without limitation, all copyrights related thereto.

8.2 The Project and all copyrights, trademarks, and all other intellectual property rights related thereto are owned by Customer (or its licensors, as applicable) and Datasophie shall not acquire any rights to Customer’s Projects.

9. Confidentiality, Data Privacy

Your privacy and the privacy of your Projects matters to us. Datasophie will not use your data for any other purpose except carrying out this Agreement. For details, see our Privacy Policy.  

10. Term and Termination

10.1 Term. The term of this Agreement (the “Term”) and the license granted herein begin on the date on which you first download, install or otherwise use Pergola and shall continue in perpetuity until terminated in accordance with this Agreement.

10.2 Regular Termination. Both Parties shall be entitled to terminate with the respective notice period set forth in the subscription terms on the Pergola product website www.pergola.cloud.

10.3 Termination for Breach.

10.3.1 Breach By Customer. Notwithstanding anything to the contrary herein, the Datasophie may terminate this Agreement and the License granted herein upon Customer’s failure to comply with or breach of any term or provision of this Agreement by providing thirty (30) days prior notice detailing the nature of the breach unless cured within that time. In case of illegal activities or reasonable suspicion of illegal activities and requests by law enforcement authorities, Datasophie may terminate the Agreement without prior notice.

10.3.2 Breach By Datasophie. In the event of a breach of this Agreement by Datasophie, Customer’s sole remedy shall be limited to the termination of this Agreement by delivering written notice of termination to Datasophie. Customer hereby waives any right to seek injunctive relief or to claim to desist from use of Pergola.

10.4 Upon the termination or expiration of this Agreement, any and all rights of Customer hereunder shall terminate without prejudice to any rights or claims Datasophie may have. Customer shall have no right to use Pergola in any manner after termination.

10.5 Termination of this Agreement shall not create any liability against Datasophie but shall not relieve either Party from any liability that has arisen before termination.

10.6 LICENSOR DOES NOT ASSUME ANY LIABILITY FOR DATA STORED USING PERGOLA SO LICENSEE MUST BACK UP ALL DATA STORED ON PERGOLA ON ITS OWN DATA STORAGE DEVICES TO AVOID LOSING THE DATA WHEN THE LICENSE FOR USING PERGOLA ENDS OR IS OTHERWISE SUSPENDED OR TERMINATED.

11. Disclaimer of Warranties by Datasophie

11.1 Datasophie warrants that Pergola will work materially in accordance with its Manual.

11.2 EXCEPT FOR SEC. 11.1 ABOVE, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, LICENSOR (AND ITS LICENSORS, AS APPLICABLE) PROVIDES PERGOLA TO THE LICENSEE “AS IS” AND WITHOUT WARRANTY OF ANY KIND (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE), INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LICENSOR (AND ITS LICENSORS, AS APPLICABLE) DOES NOT WARRANT THAT PERGOLA OR THE OPERATION THEREOF WILL BE FREE OF ERRORS OR THAT PERGOLA WILL MEET SPECIAL REQUIREMENTS OF LICENSEE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN TO THE LICENSEE BY LICENSOR (AND ITS LICENSORS, AS APPLICABLE) AND/OR ANY LICENSOR EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR WILL CREATE A WARRANTY FOR PERGOLA AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

11.3 Datasophie is not liable for the functionality of Customer’s Project(s). Datasophie may provide tools for tests of Customer’s Projects, especially security and vulnerability tools. However, Customer shall not rely on such tools and remains solely responsible for the functionality and security of its Project(s).

12. Limitations of Liability of Datasophie

12.1 To the maximum extent allowed by applicable law, Datasophie is liable for damages, regardless of which legal basis (be it contract, tort or otherwise), only if:

– such damages are caused by violation of essential obligations of the Agreement (Kardinalpflichten) for Datasophie’s negligence or intent (Verschulden) which endangers the purpose of the Agreement; or
– such damages are cause by Datasophie’s gross negligence or intent.

12.2 If Datasophie is liable for the violation of an essential obligation of the Agreement without acting with gross negligence or intent then the liability is limited to the payment received by Datasophie from Customer, but in no event more than € 100,00.

12.3 If Datasophie is liable for damages pursuant to Section 12.2 above for gross negligence or intent of Datasophie’s staff other than the managing directors then the liability is also limited to the amount set forth in Section 12.2.

12.4 Datasophie is not liable for indirect or consequential damages (Mangelfolgeschäden), loss of profits or frustrated costs if such damages are not a result of gross negligence or intent of Datasophie’s managing directors.

12.5 The exclusion or limitation of liability pursuant to this Section 12 also applies with respect to claims against Datasophie’s staff or contractors.

12.6 The liability of Datasophie with respect to death, bodily injury or health, a guarantee by Datasophie (if any) or pursuant to the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.

12.7 If Customer is also liable for certain damages, then Customer shall bear an amount of such damages in accordance with its contributory negligence (Mitverschulden). With respect to the other party’s responsibility to reduction of damages (Schadensminderungsobligenheit) the relevant party is responsible for regular back-ups of its data and in case of an assumed bug shall take all further reasonable measures. In case of loss of data Datasophie is thus liable only to the extent that such loss of data would have occurred in case of a due data back-up as well.

13. Customer’s Warranties and Indemnification

Customer warrants and represents that:

13.1 Customer has full legal rights and authority to enter into and become bound by the terms of this Agreement;

13.2 Customer has full legal rights and authority to exercise Customer’s rights granted herein and to comply with Customer’s obligations hereunder;

13.3 Customer will comply, at all times during the Term, with all applicable laws.

13.4 Customer hereby agrees to indemnify, defend, and hold harmless Datasophie and/or their successors, assigns, officers, directors, employees, agents, representatives, and licensees (but excluding Customer) from and against all damages, claims, losses, causes of action and lawsuits arising from and/or relating to Datasophie hosting Customer’s Project(s) or a breach of this Agreement by Customer.

14. Force Majeure

Neither Party nor its affiliates shall be liable to the other Party for delay or failure in performance under this Agreement arising out of any circumstances outside of its reasonable control, including, but not limited to, fires, floods, explosions, earthquakes, power surges or failures, strikes or labor disputes, acts of God, war, civil disturbances, acts of civil or military authorities, inability to obtain parts or supplies, fuel or energy shortages, acts or omissions of any common carrier or its agents; provided, that the Party seeking excuse from liability promptly notifies the other Party of such circumstances and uses commercially reasonable efforts to resume its performance as soon as possible.

15. General Provisions

15.1 Oral agreements have not been made. This Agreement supersedes all prior agreements made between the parties regarding Pergola. This Agreement reflects the entire agreement and understanding of the parties with respect to its subject matter.

15.2 Datasophie may revise this Agreement at any time with thirty (30) days’ notice on its website or otherwise. If you do not agree with the revised Agreement, you shall not be allowed to use Pergola anymore after such notice period and the License shall end.

15.3 Datasophie may at any time revise and alter the version of Pergola.

15.4 You may not assign or transfer any and all of your rights under this Agreement.

15.5 This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between Datasophie and Customer.

15.6 If any provision of this Agreement shall be found to be invalid or unenforceable for legal or factual reasons the invalidity or unenforceability of such provisions shall not affect the other provisions of this Agreement and all provisions of this Agreement not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic and legal objective of the Agreement. This applies also in case of an omission or invalidity of the whole Agreement.

15.7 Datasophie’s waiver of a breach of any provision to this Agreement will not constitute a waiver of any other breach.

15.8 This Agreement shall bind and inure to the benefit of Datasophie, its successors and assigns and Datasophie may assign its rights hereunder in Datasophie’s sole discretion. This Agreement is personal to Customer, and Customer shall not sublicense, assign, transfer, convey nor franchise its rights granted hereunder.

15.9 The provisions of this Agreement which by their terms or sense are intended to survive shall survive cancellation, expiration or termination of this Agreement.

15.10 Datasophie’s licensors shall be third-party beneficiaries under this Agreement and shall have the express right to enforce its provisions and to enjoy the benefits of its protections.

15.11 This Agreement is governed and construed by the laws of the Federal Republic of Germany. Place of performance and jurisdiction shall be Munich.