Gitpod Terms of Service
The provider of the internet services and other products supplied or provided available at gitpod.io (the "Website"and together with the internet services and other products, the "Service") is Gitpod GmbH, Am Germaniahafen 1, 24143 Kiel, Germany, registered at the commercial registry of the district court of Kiel under HRB 22228, represented by the managing directors Sven Efftinge, Moritz Eysholdt, Dr. Jan Köhnlein ("Gitpod" or "we/our").
The use of the scope of Services provided by us and used by our registered customers in form of individuals and businesses (each a "Customer" or "you/your") is determined by the following general terms of service ("Terms of Service" or "Agreement").
These Terms of Service shall apply to all Customers including consumers according to Section 13 of the German Civil Code (BGB) and entrepreneurs according to Section 14 of the German Civil Code (BGB). A consumer is a natural person who places the order for a purpose which cannot be attributed to their commercial or self-employed professional activity (each a"Consumer"). An Entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or self-employed professional activity (each an "Entrepreneur").
Any provisions, which are contrary to these Terms of Service, are not part of the contract, unless we explicitly and in writing agree that these provisions shall be valid.
A. Creating an Account and Conclusion of the Agreement
It is a prerequisite to use the Service of Gitpod having an existing account of Customer at https://github.com operated by GitHub Inc., 88 Colin P Kelly Jr St, San Francisco, CA 94107, USA or any other third party service as set forth on the Website ("Existing Account").
Notwithstanding anything in the contrary in this Agreement, upon your offer to enter into this Agreement, we may, at our discretion, decide to accept or reject such offer. Unless an explicit declaration of the acceptance is given, our acceptance can be deemed given when Gitpod grants the Service offered under this Agreement.
There is no legal entitlement for using the services provided by Gitpod. Gitpod has the right to stop or deny any registration without giving any reasons.
By the time of sign-up the Customer must be at least 18 years old and fully contractually capable. In case of doubt Gitpod is entitled to ask the individual Customer to submit a documentary evidence of age or contractual capability.
In order to access or amend the data relating to the Gitpod account the Customer shall access or amend such data within the Existing Account.
During our Services, you remain in control of your Existing Account. Cancelation or termination of our Services has no effect on your Existing Account.
After successful registration the Customer shall be able to log in for using our Service. A login is only possible via the access data assigned to the Customer by Gitpod (user name and password).
B. Support and Consulting
Usually Gitpod does not offer any integration, support and consulting services as part of the Service. Within its sole discretion Gitpod may offer support via email or in-Service communications as set forth in detail on the Website.
The Customer’s rights in case of defects of the Service remain unaffected.
C. Rights of Use and Licenses; Open Source
We retain ownership of all intellectual property rights of any kind related to the Website and Service unless explicitly granted to you pursuant to this Agreement.
Upon successful registration for the Service and payment of Fees (as applicable) Gitpod hereby grants to Customer the worldwide, non-exclusive, non-sublicensable, non-transferable right to use the Service for the term and subject to the provisions of this Agreement. Customer accepts such grant of rights.
The Customer is aware that the Service contains open source components and such components are governed by the respective open source licenses.
D. Fees and Payment
Depending on the time of using the Service and subscription plan available on the Website chosen by Customer Gitpod demands from the Customer a fee for using its Service based on "Gitpod-Hours (GPh)" which is our internal unit to express amounts, credits and debits of Service use (the "Fee"). The description, options and total amount of such Fee shall be based on the current list shown on the Website or as provided to Customer in text form.
All prices for Customers that are Consumers (Section 13 BGB) do include the statutory VAT. All prices for Customers that are Entrepreneurs (Section 14 BGB) do not include statutory VAT and such Customer as Entrepreneur shall be solely responsible for any applicable taxes and related costs.
The Customer shall pay the Fee by using the payment methods set forth on the Website without any extra charge if Customer is a consumer (Section 13 BGB). The currently valid prices are displayed before the respective purchase is finalized within the Service. No further costs or fees shall arise for the Customer as Consumer when making a payment.
Our Services are generally available on the Website. Exceptions are: Back-up processes, system maintenance, system or database repair work, unavailability of the third party service for the Existing Account. We try to keep these disruptions on a low level. Customers’ rights in case of defects remain unaffected.
We are liable without limitation for
- damages caused deliberately or due to gross negligence by Gitpod;
- damages arising out of death, injury to body or health;
- damages due to a neglect of duty by Gitpod concerning essential contractual rights and obligations, which are absolutely necessary for a proper execution of the contract, and which might endanger the fulfilment of the contractual purpose (material contractual obligations). In that case, however, liability shall be limited to typical and foreseeable damages;
- liability according to the Product Liability Act;
- liability in case of a guarantee (without hereby giving such guarantee).
Any exemption from liability as well as limitations of liability of Gitpod shall also apply to the legal representatives and assistants of Gitpod.
No further liability for Gitpod exists. In particular, Gitpod is not liable for a failure or delay in rendering Service to the extent caused by circumstances beyond its reasonable control.
If Customer is an Entrepreneur the statutory provision shall apply and such Customer shall also be held responsible for all its legal representatives, assistants and any assigned users of the Service according to Section 278 BGB.
G. Warranty for Material Defects and Guarantees
We are liable for material defects according to the valid legal regulations if the Customer is a Consumer. The limitation period begins with access to the Service. In such case the statutory warranty rules apply without restriction.
If the Customer is an Entrepreneur the following shall apply: The Customer shall check the contractual Service immediately upon receipt for obvious defects and inform us immediately if they are present, otherwise a warranty for these defects is excluded. The same applies if such a defect becomes apparent later. Section 377 of the German Commercial Code (HGB) applies as far as legally permissible. The period for warranty claims is restricted to 12 calendar months from the first appearance of the defect as far as permitted by law. The limitation period begins with access to the Service.
We are not accountable for defects of Service or defects concerning the rights of Service in case the Service was supplied or provided without payment and the defects have not been left intentionally undisclosed.
We do not offer any guarantees for our Service without an expressly given confirmation.
H. Customer's General Obligations
- True Data and Fair use: You must fill in all required fields in the sign-up sheet truthfully and completely. You must respect and abide these Terms of Service, especially the obligations for Fair and Acceptable Use set forth in Section I. You are responsible for the content you create, post, upload or otherwise store, make available, or communicate in use of the Service.
- Password and Security: You shall chose a safe password (we recommend at least 8 signs, including a letter, cypher and special character) for your account and change such password on a regular basis. You shall only pass such password information to authorized persons.
- Defects and Bug reporting: You agree to support Gitpod in removing possible software defects by means such as bugs reporting or providing any information that can help us finding source of errors, if you have any available.
I. Fair and Acceptable Use; Indemnification
Gitpod Services are to be used for lawful software development, demoing, showcasing or debugging the resulting software and/or teaching software development. Your use of the Services must comply with general fair practices and you must, in particular, not nor allow others through your Gitpod account to:
- breach any applicable laws, not limited to a specific jurisdiction;
- post, host, upload, communicate or transmit content that is unlawful, sexually obscene, discriminatory, abusive, libelous, defamatory, fraudulent, harassing, threatening or infringes proprietary rights of any third party or us;
- distribute any malware or other deceitful or destructive content, including, but not limited to viruses, worms, Trojan horses, exploits, or corrupted files, distribution of unsolicited mass communications, advertising or solicitation;
- conduct illegal activities or their promotion;
- interfere or tamper with, violate, disable, impede or circumvent any part of the Service of GitPod and the equipment and services used by GitPod to provide them;
- attack or break into computer systems;
- abuse, scan other computer systems or networks, or place immoderate burden on any computing resources or systems;
- conduct or participate in any manner in peer-to-peer file sharing activity;
- engage in number crunching, data mining, cryptocurrency mining or similar schemes;
- make any use or failure thereof which could lead to, create, increase risk of, death, physical injury or health or environmental damage;
- any other activity which can reasonably be deemed an unfair use of the Services.
Gitpod workspaces allow you to interact online with other people, computer networks and computer systems. You are solely responsible for this interaction and especially any problems, material or immaterial damage this interaction might cause.Third party claims addressed to us which result from your interactions online or violation to these Terms of Service shall be redirected to you and you shall hold us harmless and indemnify us for any damages, claims, liabilities and expenses, including attorneys’ fees that your interaction causes to others and us provided you are held responsible for such breach.
J. Customer Data; Indemnification
The Customer has the possibility within his account to upload content and code, including but not limited to programs, technical data, personal data ("Customer Data"). The Customer is solely responsible for this Customer Data and undertakes not to upload or otherwise use any prohibited content within his customer profile in accordance with these Terms of Service. Insofar as the Customer leaves these Customer Data to Gitpod and its Service, Customer grants Gitpod all rights necessary for the execution of the contractual agreement with Gitpod. This includes, in particular, the right to make the corresponding data accessible on the Website displaying them in the Customer’s account. Gitpod hereby accepts this granting of rights.
In the event that Customer Data is removed from an account or that an account is/was deleted by the Customer or by us for whatever reason, the rights to such Customer Data shall expire, except for legal retention periods and the Customer’s statutory rights for a backup of such Customer Data.
Customer is solely responsible for such Customer Data, especially any copyrights, data protection requirements, problems, material or immaterial damage these Customer Data might cause. Third party claims addressed to us which result from violations due to these Customer Data and to these Terms of Service shall be redirected to you and you shall hold us harmless and indemnify us for any damages, claims, liabilities and expenses, including attorneys’ fees that your interaction causes to others and us provided you are held responsible for such breach.
K. Blocking Rights
In addition to our termination rights, we have the right to the following blocking measures:
- In case a Customer is in breach of Section I. or a reasonable suspicion thereon considering the reasonable interests of the Customer temporarily suspend providing the entire or any part of the Service to the Customer; and/or
- In case the Customer Data (i) violate applicable laws or are subject to illegal activities each to the knowledge of Gitpod, or (ii) harm or affect the provision of the Service, related services and networks or the security and integrity of related networks, we may without previous notification block from access and/or execution or delete software or other Customer Data.
We will inform the Customer of such blocking measures set forth above without hesitation.
L. Right of Withdrawal and Dispute Resolution
The following provisions of this Section L. shall only apply to Consumers.
Right of Withdrawal
If you are a Consumer, you have the right of withdrawal in accordance with the statutory provisions. In all respects the regulations, which are given in detail in the following instruction on withdrawal, apply to the right of withdrawal.
Right of Withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire 14 days from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us to:
represented by: Sven Efftinge, Moritz Eysholdt, Dr. Jan Köhnlein
Am Germaniahafen 1
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of Withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.
Your right to withdraw from this Agreement expires prematurely if the Services were initiated by us to you only after you as Consumer have expressly agreed that we shall commence with the execution of the contract before expiry of the withdrawal period, and at the same time have confirmed your knowledge of the fact that you lose your right to withdraw from the contract with the beginning of the execution of the contract.
Alternative Settlements of Disputes
The European Commission provides a platform for an online settlement of disputes which can be accessed under http://ec.europa.eu/consumers/odr/. Gitpod is neither obliged to take part in alternative dispute resolutions before a consumer dispute settlement commission or will do so voluntarily.
M. Term and Termination
This Agreement is effective as of your creation of the Gitpod account and remains effective until terminated. You as Customer or Gitpod may each terminate this Agreement without reason by giving a 15-day notice using the termination option in the Gitpod account or as for Gitpod via email to Customer.
In addition, you as Customer or Gitpod can terminate this Agreement with immediate effect for good cause (wichtiger Grund). Good cause (wichtiger Grund) on part of Gitpod shall include, among others, when (i) you are in breach or your obligations under this Agreement; or (ii) fall behind in payment for more than six (6) weeks; or (iii) breach the terms of Fair and Acceptable Use in Section I; or (iv) a major change in cooperation between Gitpod and other companies that is central for Gitpod to supply its Service occur, including but not limited to the end or material change of the workings of a software or service, a cancellation of the co-operation, or materially changed pricing; or (v) a major change of resources availability that are central for Gitpod to supply its Service occur; or (vi) Gitpod Service is terminated due to reasons beyond Gitpod’s control or as a whole.
Upon termination, regulations concerning Liability (Section F.), Warranty of Material Defects and Guarantee (Section G.), Term (Section M.), Confidentiality (Section O.) and Miscellaneous (Section Q.) shall survive.
N. Privacy and Data
Both Customer and Gitpod agree not to, and shall ensure that their employees, agents and advisors do not, disclose to third parties, nor use for any purpose other than as contemplated in these Terms of Service and additional agreements, any confidential or proprietary information arising or disclosed pursuant to the agreement (including but not limited to the Terms of Service, the parties' trade secrets and information not generally known to the public such as business plans, strategies, practices, products, personnel and finances), except: (i) with the prior written permission of the party to whom such information belongs; (ii) where the information is already known to, or obtained by independent means, or independently developed without reference to the other party’s confidential information, by the recipient; (iii) is already in the public domain through no fault of the recipient; (iv) the recipient receives from a third person free to make such disclosure without breach of any legal obligation; or (v) the disclosure by both parties to an affiliated company (in the meaning of sections 15 et seqq AktG) of either party. This Section O. shall survive the termination of this Agreement for three (3) years after such termination. Notwithstanding the foregoing, a recipient may disclose confidential information of the other party if required to do so by law, court order or request by any government or regulatory authority. In any of those events, the recipient will in advance and promptly inform the other party about the requirement or respectively the request for disclosure.
P. Terms of Service Changes
We may change these Terms of Service as well as related documentation at any time at our sole discretion. We will inform you at least in text form that the Terms of Service as well as related documentation have been modified and give information when such changes become effective. The respective change will take effect when you do not object the new terms and conditions within four (4) weeks after sending the email. In case you object to the modification within the four-week period, we shall be entitled to cancel the contract with immediate effect, without you having any claims against us. If the contractual relationship after the effective objection by you continues, the previous terms and conditions shall remain in force.
You are not allowed to assign, transfer or delegate these Terms of Service to any person or entity at any time given, except for certain rights as explicitly set forth in these Terms of Service.
This Agreement is governed by the laws of the Federal Republic of Germany, to the exclusion of the Convention of the United Nations on Contracts for the International Sale of Goods. Any statutory provisions on the limitation of the choice of law as well as the applicability of mandatory laws especially by the state, in which the Customer who is a Consumer has his usual place of residence, shall not be deemed affected. Provided the Customer is a merchant, a legal entity under public law or a special fund under public law and to the extent permitted by and compatible with the law the exclusive jurisdiction and venue shall be the seat of Gitpod.
These Terms of Service and the documents referred hereto jointly constitute the whole Agreement between the Gitpod and Customer and precede any other agreement, arrangement, proposal or communication. Gitpod does not waive any rights under this Agreement by not exercising or delaying to exercise these rights.
In case individual provisions in these terms and conditions including this provision are or become invalid, or in case of gaps arising in these terms and conditions, the validity of all other provisions will not be deemed affected thereby. Instead of the ineffective provision or for replenishment of gaps an adequate provision will apply. If the Customer is a Consumer and in case this may constitute an unreasonable hardship for one of the contracting parties the contract shall become ineffective as a whole.
Transfer of the Agreement to Another Party
You agree that we may transfer this Agreement to:
- Gitpod, Inc., a corporation incorporated and validly existing under the laws of the State of Delaware, United States, registered with the Division of Corporations of the State of Delaware under file number 3353320 and with business address at: 1390 Market Street, Suite 200, San Francisco. CA 94102, United States ("Gitpod, Inc."); or
- another third-party designated in our discretion ("Third-Party")
by way of a transfer of contract with discharging effect (Vertragsübernahme mit schuldbefreiender Wirkung) with the effect that Gitpod, Inc. or the Third-Party becomes your new contractual partner in our stead and assumes all our rights and obligations under this Agreement.
We will notify you of a contemplated transfer of this Agreement and provide you with the identity of your new contractual partner in text form with at least four three weeks' notice prior to the contemplated transfer of this Agreement becoming effective ("Transfer Notice").
In case of a contemplated transfer of this Agreement to a Third-Party you shall be entitled to terminate this Agreement without notice and without any additional cause being required. This termination right must be exercised within six weeks following receipt of the Transfer Notice and must be exercised in text form.
The above termination right shall not exist in case of a transfer of this Agreement to Gitpod, Inc. Other rights you may have to terminate the Agreement with or without cause shall remain unaffected.
Appendix: Model Withdrawal Form
Complete and return this form only if you wish to withdraw from the contract.
Gitpod GmbH represented by: Sven Efftinge, Moritz Eysholdt, Dr. Jan Köhnlein
Am Germaniahafen 1
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) for the provision of the following service (*),
Ordered on (*)/received on (*),
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
(*) Delete where inapplicable.